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G.R. No.

100150 January 5, 1994 A motion to dismiss,7 dated 10 September 1990, questioned


CHR's jurisdiction. The motion also averred, among other
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO things, that:
ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs. 1. this case came about due to the alleged violation by the
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, (petitioners) of the Inter-Agency Memorandum of Agreement
AND OTHERS AS JOHN DOES, respondents. whereby Metro-Manila Mayors agreed on a moratorium in the
demolition of the dwellings of poor dwellers in Metro-Manila;
The City Attorney for petitioners.
xxx xxx xxx
The Solicitor General for public respondent.
3. . . . , a perusal of the said Agreement (revealed) that the
VITUG, J.: moratorium referred to therein refers to moratorium in the
The extent of the authority and power of the Commission on demolition of the structures of poor dwellers;
Human Rights ("CHR") is again placed into focus in this 4. that the complainants in this case (were) not poor dwellers
petition for prohibition, with prayer for a restraining order and but independent business entrepreneurs even this Honorable
preliminary injunction. The petitioners ask us to prohibit Office admitted in its resolution of 1 August 1990 that the
public respondent CHR from further hearing and investigating complainants are indeed, vendors;
CHR Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et
al." 5. that the complainants (were) occupying government land,
particularly the sidewalk of EDSA corner North Avenue,
The case all started when a "Demolition Notice," dated 9 July Quezon City; . . . and
1990, signed by Carlos Quimpo (one of the petitioners) in his
capacity as an Executive Officer of the Quezon City Integrated 6. that the City Mayor of Quezon City (had) the sole and
Hawkers Management Council under the Office of the City exclusive discretion and authority whether or not a certain
Mayor, was sent to, and received by, the private respondents business establishment (should) be allowed to operate within
(being the officers and members of the North EDSA Vendors the jurisdiction of Quezon City, to revoke or cancel a permit,
Association, Incorporated). In said notice, the respondents if already issued, upon grounds clearly specified by law and
were given a grace-period of three (3) days (up to 12 July ordinance.8
1990) within which to vacate the questioned premises of North
EDSA.1Prior to their receipt of the demolition notice, the During the 12 September 1990 hearing, the petitioners moved
private respondents were informed by petitioner Quimpo that for postponement, arguing that the motion to dismiss set for 21
their stalls should be removed to give way to the "People's September 1990 had yet to be resolved. The petitioners
Park".2 On 12 July 1990, the group, led by their President likewise manifested that they would bring the case to the
Roque Fermo, filed a letter-complaint (Pinag-samang courts.
Sinumpaang Salaysay) with the CHR against the petitioners, On 18 September 1990 a supplemental motion to dismiss was
asking the late CHR Chairman Mary Concepcion Bautista for filed by the petitioners, stating that the Commission's authority
a letter to be addressed to then Mayor Brigido Simon, Jr., of should be understood as being confined only to the
Quezon City to stop the demolition of the private respondents' investigation of violations of civil and political rights, and that
stalls, sari-sari stores, and carinderia along North EDSA. The "the rights allegedly violated in this case (were) not civil and
complaint was docketed as CHR Case No. 90-1580.3 On 23 political rights, (but) their privilege to engage in business."9
July 1990, the CHR issued an Order, directing the petitioners
"to desist from demolishing the stalls and shanties at North On 21 September 1990, the motion to dismiss was heard and
EDSA pending resolution of the vendors/squatters' complaint submitted for resolution, along with the contempt charge that
before the Commission" and ordering said petitioners to had meantime been filed by the private respondents, albeit
appear before the CHR.4 vigorously objected to by petitioners (on the ground that the
motion to dismiss was still then unresolved).10
On the basis of the sworn statements submitted by the private
respondents on 31 July 1990, as well as CHR's own ocular In an Order,11 dated 25 September 1990, the CHR cited the
inspection, and convinced that on 28 July 1990 the petitioners petitioners in contempt for carrying out the demolition of the
carried out the demolition of private respondents' stalls, sari- stalls, sari-sari stores and carinderia despite the "order to
sari stores and carinderia,5 the CHR, in its resolution of 1 desist", and it imposed a fine of P500.00 on each of them.
August 1990, ordered the disbursement of financial assistance
On 1 March 1991,12 the CHR issued an Order, denying
of not more than P200,000.00 in favor of the private
petitioners' motion to dismiss and supplemental motion to
respondents to purchase light housing materials and food
dismiss, in this wise:
under the Commission's supervision and again directed the
petitioners to "desist from further demolition, with the Clearly, the Commission on Human Rights under its
warning that violation of said order would lead to a citation for constitutional mandate had jurisdiction over the complaint
contempt and arrest."6 filed by the squatters-vendors who complained of the gross
violations of their human and constitutional rights. The motion It succeeded, but so superseded as well, the Presidential
to dismiss should be and is hereby DENIED for lack of Committee on Human Rights.21
merit.13
The powers and functions22 of the Commission are defined by
The CHR opined that "it was not the intention of the the 1987 Constitution, thus: to —
(Constitutional) Commission to create only a paper tiger
limited only to investigating civil and political rights, but it (1) Investigate, on its own or on complaint by any party, all
(should) be (considered) a quasi-judicial body with the power forms of human rights violations involving civil and political
to provide appropriate legal measures for the protection of rights;
human rights of all persons within the Philippines . . . ." It (2) Adopt its operational guidelines and rules of procedure,
added: and cite for contempt for violations thereof in accordance with
The right to earn a living is a right essential to one's right to the Rules of Court;
development, to life and to dignity. All these brazenly and (3) Provide appropriate legal measures for the protection of
violently ignored and trampled upon by respondents with little human rights of all persons within the Philippines, as well as
regard at the same time for the basic rights of women and Filipinos residing abroad, and provide for preventive measures
children, and their health, safety and welfare. Their actions and legal aid services to the underprivileged whose human
have psychologically scarred and traumatized the children, rights have been violated or need protection;
who were witness and exposed to such a violent demonstration
of Man's inhumanity to man. (4) Exercise visitorial powers over jails, prisons, or detention
facilities;
In an Order,14 dated 25 April 1991, petitioners' motion for
reconsideration was denied. (5) Establish a continuing program of research, education, and
information to enhance respect for the primacy of human
Hence, this recourse. rights;
The petition was initially dismissed in our resolution15 of 25 (6) Recommend to the Congress effective measures to
June 1991; it was subsequently reinstated, however, in our promote human rights and to provide for compensation to
resolution16 of 18 June 1991, in which we also issued a victims of violations of human rights, or their families;
temporary restraining order, directing the CHR to "CEASE
and DESIST from further hearing CHR No. 90-1580."17 (7) Monitor the Philippine Government's compliance with
international treaty obligations on human rights;
The petitioners pose the following:
(8) Grant immunity from prosecution to any person whose
Whether or not the public respondent has jurisdiction: testimony or whose possession of documents or other
a) to investigate the alleged violations of the "business rights" evidence is necessary or convenient to determine the truth in
of the private respondents whose stalls were demolished by any investigation conducted by it or under its authority;
the petitioners at the instance and authority given by the (9) Request the assistance of any department, bureau, office,
Mayor of Quezon City; or agency in the performance of its functions;
b) to impose the fine of P500.00 each on the petitioners; and (10) Appoint its officers and employees in accordance with
c) to disburse the amount of P200,000.00 as financial aid to law; and
the vendors affected by the demolition. (11) Perform such other duties and functions as may be
In the Court's resolution of 10 October 1991, the Solicitor- provided by law.
General was excused from filing his comment for public In its Order of 1 March 1991, denying petitioners' motion to
respondent CHR. The latter thus filed its own dismiss, the CHR theorizes that the intention of the members
comment,18 through Hon. Samuel Soriano, one of its of the Constitutional Commission is to make CHR a quasi-
Commissioners. The Court also resolved to dispense with the judicial body.23 This view, however, has not heretofore been
comment of private respondent Roque Fermo, who had since shared by this Court. In Cariño v. Commission on Human
failed to comply with the resolution, dated 18 July 1991, Rights,24 the Court, through then Associate Justice, now
requiring such comment. Chief Justice Andres Narvasa, has observed that it is "only the
The petition has merit. first of the enumerated powers and functions that bears any
resemblance to adjudication or adjudgment," but that
The Commission on Human Rights was created by the 1987 resemblance can in no way be synonymous to the adjudicatory
Constitution.19 It was formally constituted by then President power itself. The Court explained:
Corazon Aquino via Executive Order No. 163,20 issued on 5
May 1987, in the exercise of her legislative power at the time. . . . (T)he Commission on Human Rights . . . was not meant by
the fundamental law to be another court or quasi-judicial
agency in this country, or duplicate much less take over the Human rights are rights that pertain to man simply because he
functions of the latter. is human. They are part of his natural birth, right, innate and
inalienable.28
The most that may be conceded to the Commission in the way
of adjudicative power is that it may investigate, i.e., receive The Universal Declaration of Human Rights, as well as, or
evidence and make findings of fact as regards claimed human more specifically, the International Covenant on Economic,
rights violations involving civil and political rights. But fact Social and Cultural Rights and International Covenant on
finding is not adjudication, and cannot be likened to the Civil and Political Rights, suggests that the scope of human
judicial function of a court of justice, or even a quasi-judicial rights can be understood to include those that relate to an
agency or official. The function of receiving evidence and individual's social, economic, cultural, political and civil
ascertaining therefrom the facts of a controversy is not a relations. It thus seems to closely identify the term to the
judicial function, properly speaking. To be considered such, universally accepted traits and attributes of an individual,
the faculty of receiving evidence and making factual along with what is generally considered to be his inherent and
conclusions in a controversy must be accompanied by the inalienable rights, encompassing almost all aspects of life.
authority of applying the law to those factual conclusions to
the end that the controversy may be decided or determined Have these broad concepts been equally contemplated by the
authoritatively, finally and definitively, subject to such appeals framers of our 1986 Constitutional Commission in adopting
or modes of review as may be provided by law. This function, the specific provisions on human rights and in creating an
to repeat, the Commission does not have. independent commission to safeguard these rights? It may of
value to look back at the country's experience under the
After thus laying down at the outset the above rule, we now martial law regime which may have, in fact, impelled the
proceed to the other kernel of this controversy and, its is, to inclusions of those provisions in our fundamental law. Many
determine the extent of CHR's investigative power. voices have been heard. Among those voices, aptly
represented perhaps of the sentiments expressed by others,
It can hardly be disputed that the phrase "human rights" is so comes from Mr. Justice J.B.L. Reyes, a respected jurist and an
generic a term that any attempt to define it, albeit not a few advocate of civil liberties, who, in his paper, entitled "Present
have tried, could at best be described as inconclusive. Let us State of Human Rights in the Philippines,"29 observes:
observe. In a symposium on human rights in the Philippines,
sponsored by the University of the Philippines in 1977, one of But while the Constitution of 1935 and that of 1973 enshrined
the questions that has been propounded is "(w)hat do you in their Bill of Rights most of the human rights expressed in
understand by "human rights?" The participants, representing the International Covenant, these rights became unavailable
different sectors of the society, have given the following upon the proclamation of Martial Law on 21 September 1972.
varied answers: Arbitrary action then became the rule. Individuals by the
thousands became subject to arrest upon suspicion, and were
Human rights are the basic rights which inhere in man by detained and held for indefinite periods, sometimes for years,
virtue of his humanity. They are the same in all parts of the without charges, until ordered released by the Commander-in-
world, whether the Philippines or England, Kenya or the Chief or this representative. The right to petition for the
Soviet Union, the United States or Japan, Kenya or Indonesia . redress of grievances became useless, since group actions
... were forbidden. So were strikes. Press and other mass media
Human rights include civil rights, such as the right to life, were subjected to censorship and short term licensing. Martial
liberty, and property; freedom of speech, of the press, of law brought with it the suspension of the writ of habeas
religion, academic freedom, and the rights of the accused to corpus, and judges lost independence and security of tenure,
due process of law; political rights, such as the right to elect except members of the Supreme Court. They were required to
public officials, to be elected to public office, and to form submit letters of resignation and were dismissed upon the
political associations and engage in politics; and social rights, acceptance thereof. Torture to extort confessions were
such as the right to an education, employment, and social practiced as declared by international bodies like Amnesty
services.25 International and the International Commission of Jurists.

Human rights are the entitlement that inhere in the individual Converging our attention to the records of the Constitutional
person from the sheer fact of his humanity. . . . Because they Commission, we can see the following discussions during its
are inherent, human rights are not granted by the State but can 26 August 1986 deliberations:
only be recognized and protected by it.26 MR. GARCIA . . . , the primacy of its (CHR) task must be
(Human rights include all) the civil, political, economic, made clear in view of the importance of human rights and also
social, and cultural rights defined in the Universal Declaration because civil and political rights have been determined by
of Human Rights.27 many international covenants and human rights legislations in
the Philippines, as well as the Constitution, specifically the
Bill of Rights and subsequent legislation. Otherwise, if
we cover such a wide territory in area, we might diffuse its
impact and the precise nature of its task, hence, its effectivity MR. GARCIA. Yes. In fact, they are also enshrined in the Bill
would also be curtailed. of Rights of our Constitution. They are integral parts of that.

So, it is important to delienate the parameters of its tasks so MR. BENGZON. Therefore, is the Gentleman saying that all
that the commission can be most effective. the rights under the Bill of Rights covered by human rights?

MR. BENGZON. That is precisely my difficulty because civil MR. GARCIA. No, only those that pertain to civil and
and political rights are very broad. The Article on the Bill of political rights.
Rights covers civil and political rights. Every single right of an
individual involves his civil right or his political right. So, xxx xxx xxx
where do we draw the line? MR. RAMA. In connection with the discussion on the scope
MR. GARCIA. Actually, these civil and political rights have of human rights, I would like to state that in the past regime,
been made clear in the language of human rights advocates, as everytime we invoke the violation of human rights, the
well as in the Universal Declaration of Human Rights which Marcos regime came out with the defense that, as a matter of
addresses a number of articles on the right to life, the right fact, they had defended the rights of people to decent living,
against torture, the right to fair and public hearing, and so on. food, decent housing and a life consistent with human dignity.
These are very specific rights that are considered enshrined in So, I think we should really limit the definition of human
many international documents and legal instruments as rights to political rights. Is that the sense of the committee, so
constituting civil and political rights, and these are precisely as not to confuse the issue?
what we want to defend here.
MR. SARMIENTO. Yes, Madam President.
MR. BENGZON. So, would the commissioner say civil and
political rights as defined in the Universal Declaration of MR. GARCIA. I would like to continue and respond also to
Human Rights? repeated points raised by the previous speaker.

MR. GARCIA. Yes, and as I have mentioned, the There are actually six areas where this Commission on Human
International Covenant of Civil and Political Rights Rights could act effectively: 1) protection of rights of political
distinguished this right against torture. detainees; 2) treatment of prisoners and the prevention of
tortures; 3) fair and public trials; 4) cases of disappearances;
MR. BENGZON. So as to distinguish this from the other 5) salvagings and hamletting; and 6) other crimes committed
rights that we have? against the religious.
MR. GARCIA. Yes, because the other rights will encompass xxx xxx xxx
social and economic rights, and there are other violations of
rights of citizens which can be addressed to the proper courts The PRESIDENT. Commissioner Guingona is recognized.
and authorities.
MR. GUINGONA. Thank You Madam President.
xxx xxx xxx
I would like to start by saying that I agree with Commissioner
MR. BENGZON. So, we will authorize the commission to Garcia that we should, in order to make the proposed
define its functions, and, therefore, in doing that the Commission more effective, delimit as much as possible,
commission will be authorized to take under its wings cases without prejudice to future expansion. The coverage of the
which perhaps heretofore or at this moment are under the concept and jurisdictional area of the term "human rights". I
jurisdiction of the ordinary investigative and prosecutorial was actually disturbed this morning when the reference was
agencies of the government. Am I correct? made without qualification to the rights embodied in the
universal Declaration of Human Rights, although later on, this
MR. GARCIA. No. We have already mentioned earlier that was qualified to refer to civil and political rights contained
we would like to define the specific parameters which cover therein.
civil and political rights as covered by the international
standards governing the behavior of governments regarding If I remember correctly, Madam President, Commissioner
the particular political and civil rights of citizens, especially of Garcia, after mentioning the Universal Declaration of Human
political detainees or prisoners. This particular aspect we have Rights of 1948, mentioned or linked the concept of human
experienced during martial law which we would now like to right with other human rights specified in other convention
safeguard. which I do not remember. Am I correct?

MR. BENGZON. Then, I go back to that question that I had. MR. GARCIA. Is Commissioner Guingona referring to the
Therefore, what we are really trying to say is, perhaps, at the Declaration of Torture of 1985?
proper time we could specify all those rights stated in the
MR. GUINGONA. I do not know, but the commissioner
Universal Declaration of Human Rights and defined as human
mentioned another.
rights. Those are the rights that we envision here?
MR. GARCIA. Madam President, the other one is the MR. GUINGONA. So we are just limiting at the moment the
International Convention on Civil and Political Rights of sense of the committee to those that the Gentlemen has
which we are signatory. specified.

MR. GUINGONA. I see. The only problem is that, although I MR. GARCIA. Yes, to civil and political rights.
have a copy of the Universal Declaration of Human Rights
here, I do not have a copy of the other covenant mentioned. It MR. GUINGONA. Thank you.
is quite possible that there are rights specified in that other xxx xxx xxx
convention which may not be specified here. I was wondering
whether it would be wise to link our concept of human rights SR. TAN. Madam President, from the standpoint of the
to general terms like "convention," rather than specify the victims of human rights, I cannot stress more on how much we
rights contained in the convention. need a Commission on Human Rights. . . .

As far as the Universal Declaration of Human Rights is . . . human rights victims are usually penniless. They cannot
concerned, the Committee, before the period of amendments, pay and very few lawyers will accept clients who do not pay.
could specify to us which of these articles in the Declaration And so, they are the ones more abused and oppressed. Another
will fall within the concept of civil and political rights, not for reason is, the cases involved are very delicate — torture,
the purpose of including these in the proposed constitutional salvaging, picking up without any warrant of arrest,
article, but to give the sense of the Commission as to what massacre — and the persons who are allegedly guilty are
human rights would be included, without prejudice to people in power like politicians, men in the military and big
expansion later on, if the need arises. For example, there was shots. Therefore, this Human Rights Commission must be
no definite reply to the question of Commissioner Regalado as independent.
to whether the right to marry would be considered a civil or a
I would like very much to emphasize how much we need this
social right. It is not a civil right?
commission, especially for the little Filipino, the little
MR. GARCIA. Madam President, I have to repeat the various individual who needs this kind of help and cannot get it. And I
specific civil and political rights that we felt must be think we should concentrate only on civil and political
envisioned initially by this provision — freedom from violations because if we open this to land, housing and health,
political detention and arrest prevention of torture, right to fair we will have no place to go again and we will not receive any
and public trials, as well as crimes involving disappearance, response. . . .30 (emphasis supplied)
salvagings, hamlettings and collective violations. So, it is
The final outcome, now written as Section 18, Article XIII, of
limited to politically related crimes precisely to protect the
the 1987 Constitution, is a provision empowering the
civil and political rights of a specific group of individuals, and
Commission on Human Rights to "investigate, on its own or
therefore, we are not opening it up to all of the definite areas.
on complaint by any party, all forms of human rights
MR. GUINGONA. Correct. Therefore, just for the record, the violations involving civil and political rights" (Sec. 1).
Gentlemen is no longer linking his concept or the concept of
The term "civil rights,"31 has been defined as referring —
the Committee on Human Rights with the so-called civil or
political rights as contained in the Universal Declaration of (t)o those (rights) that belong to every citizen of the state or
Human Rights. country, or, in wider sense, to all its inhabitants, and are not
connected with the organization or administration of the
MR. GARCIA. When I mentioned earlier the Universal
government. They include the rights of property, marriage,
Declaration of Human Rights, I was referring to an
equal protection of the laws, freedom of contract, etc. Or, as
international instrument.
otherwise defined civil rights are rights appertaining to a
MR. GUINGONA. I know. person by virtue of his citizenship in a state or community.
Such term may also refer, in its general sense, to rights
MR. GARCIA. But it does not mean that we will refer to each capable of being enforced or redressed in a civil action.
and every specific article therein, but only to those that pertain
to the civil and politically related, as we understand it in this Also quite often mentioned are the guarantees against
Commission on Human Rights. involuntary servitude, religious persecution, unreasonable
searches and seizures, and imprisonment for debt.32
MR. GUINGONA. Madam President, I am not even clear as
to the distinction between civil and social rights. Political rights,33 on the other hand, are said to refer to the
right to participate, directly or indirectly, in the establishment
MR. GARCIA. There are two international covenants: the or administration of government, the right of suffrage, the
International Covenant and Civil and Political Rights and the right to hold public office, the right of petition and, in general,
International Covenant on Economic, Social and Cultural the rights appurtenant to citizenship vis-a-vis the management
Rights. The second covenant contains all the different rights- of government.34
the rights of labor to organize, the right to education, housing,
shelter, et cetera.
Recalling the deliberations of the Constitutional Commission, In Export Processing Zone Authority vs. Commission on
aforequoted, it is readily apparent that the delegates Human Rights,36 the Court, speaking through Madame Justice
envisioned a Commission on Human Rights that would focus Carolina Griño-Aquino, explained:
its attention to the more severe cases of human rights
violations. Delegate Garcia, for instance, mentioned such The constitutional provision directing the CHR to "provide for
areas as the "(1) protection of rights of political detainees, (2) preventive measures and legal aid services to the
treatment of prisoners and the prevention of tortures, (3) fair underprivileged whose human rights have been violated or
and public trials, (4) cases of disappearances, (5) salvagings need protection" may not be construed to confer jurisdiction
and hamletting, and (6) other crimes committed against the on the Commission to issue a restraining order or writ of
religious." While the enumeration has not likely been meant to injunction for, it that were the intention, the Constitution
have any preclusive effect, more than just expressing a would have expressly said so. "Jurisdiction is conferred only
statement of priority, it is, nonetheless, significant for the tone by the Constitution or by law". It is never derived by
it has set. In any event, the delegates did not apparently take implication.
comfort in peremptorily making a conclusive delineation of Evidently, the "preventive measures and legal aid services"
the CHR's scope of investigatorial jurisdiction. They have thus mentioned in the Constitution refer to extrajudicial and
seen it fit to resolve, instead, that "Congress may provide for judicial remedies (including a writ of preliminary injunction)
other cases of violations of human rights that should fall which the CHR may seek from proper courts on behalf of the
within the authority of the Commission, taking into account its victims of human rights violations. Not being a court of
recommendation."35 justice, the CHR itself has no jurisdiction to issue the writ, for
In the particular case at hand, there is no cavil that what are a writ of preliminary injunction may only be issued "by the
sought to be demolished are the stalls, sari-sari stores judge of any court in which the action is pending [within his
and carinderia, as well as temporary shanties, erected by district], or by a Justice of the Court of Appeals, or of the
private respondents on a land which is planned to be Supreme Court. . . . A writ of preliminary injunction is an
developed into a "People's Park". More than that, the land ancillary remedy. It is available only in a pending principal
adjoins the North EDSA of Quezon City which, this Court can action, for the preservation or protection of the rights and
take judicial notice of, is a busy national highway. The interests of a party thereto, and for no other purpose."
consequent danger to life and limb is not thus to be likewise (footnotes omitted).
simply ignored. It is indeed paradoxical that a right which is The Commission does have legal standing to indorse, for
claimed to have been violated is one that cannot, in the first appropriate action, its findings and recommendations to any
place, even be invoked, if it is, in fact, extant. Be that as it appropriate agency of government.37
may, looking at the standards hereinabove discoursed vis-a-
vis the circumstances obtaining in this instance, we are not The challenge on the CHR's disbursement of the amount of
prepared to conclude that the order for the demolition of the P200,000.00 by way of financial aid to the vendors affected by
stalls, sari-sari stores and carinderia of the private respondents the demolition is not an appropriate issue in the instant
can fall within the compartment of "human rights violations petition. Not only is there lack of locus standi on the part of
involving civil and political rights" intended by the the petitioners to question the disbursement but, more
Constitution. importantly, the matter lies with the appropriate administrative
agencies concerned to initially consider.
On its contempt powers, the CHR is constitutionally
authorized to "adopt its operational guidelines and rules of The public respondent explains that this petition for
procedure, and cite for contempt for violations thereof in prohibition filed by the petitioners has become moot and
accordance with the Rules of Court." Accordingly, the CHR academic since the case before it (CHR Case No. 90-1580) has
acted within its authority in providing in its revised rules, its already been fully heard, and that the matter is merely
power "to cite or hold any person in direct or indirect awaiting final resolution. It is true that prohibition is a
contempt, and to impose the appropriate penalties in preventive remedy to restrain the doing of an act about to be
accordance with the procedure and sanctions provided for in done, and not intended to provide a remedy for an act already
the Rules of Court." That power to cite for contempt, however, accomplished. 38 Here, however, said Commission admittedly
should be understood to apply only to violations of its adopted has yet to promulgate its resolution in CHR Case No. 90-1580.
operational guidelines and rules of procedure essential to carry The instant petition has been intended, among other things, to
out its investigatorial powers. To exemplify, the power to cite also prevent CHR from precisely doing that.39
for contempt could be exercised against persons who refuse to
WHEREFORE, the writ prayed for in this petition is
cooperate with the said body, or who unduly withhold relevant
GRANTED. The Commission on Human Rights is hereby
information, or who decline to honor summons, and the like,
prohibited from further proceeding with CHR Case No. 90-
in pursuing its investigative work. The "order to desist" (a
1580 and from implementing the P500.00 fine for contempt.
semantic interplay for a restraining order) in the instance
The temporary restraining order heretofore issued by this
before us, however, is not investigatorial in character but
Court is made permanent. No costs.
prescinds from an adjudicative power that it does not possess.
G.R. No. L-14639 March 25, 1919 previous notification that the women were prostitutes who had
been expelled from the city of Manila. The further happenings
ZACARIAS VILLAVICENCIO, ET AL., petitioners, to these women and the serious charges growing out of alleged
vs. ill-treatment are of public interest, but are not essential to the
JUSTO LUKBAN, ET AL., respondents. disposition of this case. Suffice it to say, generally, that some
Alfonso Mendoza for petitioners. of the women married, others assumed more or less
City Fiscal Diaz for respondents. clandestine relations with men, others went to work in
different capacities, others assumed a life unknown and
MALCOLM, J.: disappeared, and a goodly portion found means to return to
Manila.
The annals of juridical history fail to reveal a case quite as
remarkable as the one which this application for habeas To turn back in our narrative, just about the time
corpus submits for decision. While hardly to be expected to be the Corregidor and the Negros were putting in to Davao, the
met with in this modern epoch of triumphant democracy, yet, attorney for the relatives and friends of a considerable number
after all, the cause presents no great difficulty if there is kept of the deportees presented an application for habeas corpus to
in the forefront of our minds the basic principles of popular a member of the Supreme Court. Subsequently, the
government, and if we give expression to the paramount application, through stipulation of the parties, was made to
purpose for which the courts, as an independent power of such include all of the women who were sent away from Manila to
a government, were constituted. The primary question Davao and, as the same questions concerned them all, the
is — Shall the judiciary permit a government of the men application will be considered as including them. The
instead of a government of laws to be set up in the Philippine application set forth the salient facts, which need not be
Islands? repeated, and alleged that the women were illegally restrained
of their liberty by Justo Lukban, Mayor of the city of Manila,
Omitting much extraneous matter, of no moment to these
Anton Hohmann, chief of police of the city of Manila, and by
proceedings, but which might prove profitable reading for
certain unknown parties. The writ was made returnable before
other departments of the government, the facts are these: The
the full court. The city fiscal appeared for the respondents,
Mayor of the city of Manila, Justo Lukban, for the best of all
Lukban and Hohmann, admitted certain facts relative to
reasons, to exterminate vice, ordered the segregated district for
sequestration and deportation, and prayed that the writ should
women of ill repute, which had been permitted for a number
not be granted because the petitioners were not proper parties,
of years in the city of Manila, closed. Between October 16 and
because the action should have been begun in the Court of
October 25, 1918, the women were kept confined to their
First Instance for Davao, Department of Mindanao and Sulu,
houses in the district by the police. Presumably, during this
because the respondents did not have any of the women under
period, the city authorities quietly perfected arrangements with
their custody or control, and because their jurisdiction did not
the Bureau of Labor for sending the women to Davao,
extend beyond the boundaries of the city of Manila. According
Mindanao, as laborers; with some government office for the
to an exhibit attached to the answer of the fiscal, the 170
use of the coastguard cutters Corregidor and Negros, and with
women were destined to be laborers, at good salaries, on
the Constabulary for a guard of soldiers. At any rate, about
the haciendas of Yñigo and Governor Sales. In open court, the
midnight of October 25, the police, acting pursuant to orders
fiscal admitted, in answer to question of a member of the
from the chief of police, Anton Hohmann and the Mayor of
court, that these women had been sent out of Manila without
the city of Manila, Justo Lukban, descended upon the houses,
their consent. The court awarded the writ, in an order of
hustled some 170 inmates into patrol wagons, and placed them
November 4, that directed Justo Lukban, Mayor of the city of
aboard the steamers that awaited their arrival. The women
Manila, Anton Hohmann, chief of police of the city of Manila,
were given no opportunity to collect their belongings, and
Francisco Sales, governor of the province of Davao, and
apparently were under the impression that they were being
Feliciano Yñigo, an hacenderoof Davao, to bring before the
taken to a police station for an investigation. They had no
court the persons therein named, alleged to be deprived of
knowledge that they were destined for a life in Mindanao.
their liberty, on December 2, 1918.
They had not been asked if they wished to depart from that
region and had neither directly nor indirectly given their Before the date mentioned, seven of the women had returned
consent to the deportation. The involuntary guests were to Manila at their own expense. On motion of counsel for
received on board the steamers by a representative of the petitioners, their testimony was taken before the clerk of the
Bureau of Labor and a detachment of Constabulary soldiers. Supreme Court sitting as commissioners. On the day named in
The two steamers with their unwilling passengers sailed for the order, December 2nd, 1918, none of the persons in whose
Davao during the night of October 25. behalf the writ was issued were produced in court by the
respondents. It has been shown that three of those who had
The vessels reached their destination at Davao on October 29.
been able to come back to Manila through their own efforts,
The women were landed and receipted for as laborers by
were notified by the police and the secret service to appear
Francisco Sales, provincial governor of Davao, and by
before the court. The fiscal appeared, repeated the facts more
Feliciano Yñigo and Rafael Castillo. The governor and
comprehensively, reiterated the stand taken by him when
the hacendero Yñigo, who appear as parties in the case, had no
pleading to the original petition copied a telegram from the respondents' memorandum) dated January 25, 1919, be struck
Mayor of the city of Manila to the provincial governor of from the record.
Davao and the answer thereto, and telegrams that had passed
between the Director of Labor and the attorney for that Bureau In the second order, the court promised to give the reasons for
then in Davao, and offered certain affidavits showing that the granting the writ of habeas corpus in the final decision. We
women were contained with their life in Mindanao and did not will now proceed to do so.
wish to return to Manila. Respondents Sales answered alleging One fact, and one fact only, need be recalled — these one
that it was not possible to fulfill the order of the Supreme hundred and seventy women were isolated from society, and
Court because the women had never been under his control, then at night, without their consent and without any
because they were at liberty in the Province of Davao, and opportunity to consult with friends or to defend their rights,
because they had married or signed contracts as laborers. were forcibly hustled on board steamers for transportation to
Respondent Yñigo answered alleging that he did not have any regions unknown. Despite the feeble attempt to prove that the
of the women under his control and that therefore it was women left voluntarily and gladly, that such was not the case
impossible for him to obey the mandate. The court, after due is shown by the mere fact that the presence of the police and
deliberation, on December 10, 1918, promulgated a second the constabulary was deemed necessary and that these officers
order, which related that the respondents had not complied of the law chose the shades of night to cloak their secret and
with the original order to the satisfaction of the court nor stealthy acts. Indeed, this is a fact impossible to refute and
explained their failure to do so, and therefore directed that practically admitted by the respondents.
those of the women not in Manila be brought before the court
by respondents Lukban, Hohmann, Sales, and Yñigo on With this situation, a court would next expect to resolve the
January 13, 1919, unless the women should, in written question — By authority of what law did the Mayor and the
statements voluntarily made before the judge of first instance Chief of Police presume to act in deporting by duress these
of Davao or the clerk of that court, renounce the right, or persons from Manila to another distant locality within the
unless the respondents should demonstrate some other legal Philippine Islands? We turn to the statutes and we find —
motives that made compliance impossible. It was further
Alien prostitutes can be expelled from the Philippine Islands
stated that the question of whether the respondents were in
in conformity with an Act of congress. The Governor-General
contempt of court would later be decided and the reasons for
can order the eviction of undesirable aliens after a hearing
the order announced in the final decision.
from the Islands. Act No. 519 of the Philippine Commission
Before January 13, 1919, further testimony including that of a and section 733 of the Revised Ordinances of the city of
number of the women, of certain detectives and policemen, Manila provide for the conviction and punishment by a court
and of the provincial governor of Davao, was taken before the of justice of any person who is a common prostitute. Act No.
clerk of the Supreme Court sitting as commissioner and the 899 authorizes the return of any citizen of the United States,
clerk of the Court of First Instance of Davao acting in the who may have been convicted of vagrancy, to the homeland.
same capacity. On January 13, 1919, the respondents New York and other States have statutes providing for the
technically presented before the Court the women who had commitment to the House of Refuge of women convicted of
returned to the city through their own efforts and eight others being common prostitutes. Always a law! Even when the
who had been brought to Manila by the respondents. health authorities compel vaccination, or establish a
Attorneys for the respondents, by their returns, once again quarantine, or place a leprous person in the Culion leper
recounted the facts and further endeavored to account for all colony, it is done pursuant to some law or order. But one can
of the persons involved in the habeas corpus. In substance, it search in vain for any law, order, or regulation, which even
was stated that the respondents, through their representatives hints at the right of the Mayor of the city of Manila or the
and agents, had succeeded in bringing from Davao with their chief of police of that city to force citizens of the Philippine
consent eight women; that eighty-one women were found in Islands — and these women despite their being in a sense
Davao who, on notice that if they desired they could return to lepers of society are nevertheless not chattels but Philippine
Manila, transportation fee, renounced the right through sworn citizens protected by the same constitutional guaranties as are
statements; that fifty-nine had already returned to Manila by other citizens — to change their domicile from Manila to
other means, and that despite all efforts to find them twenty- another locality. On the contrary, Philippine penal law
six could not be located. Both counsel for petitioners and the specifically punishes any public officer who, not being
city fiscal were permitted to submit memoranda. The first expressly authorized by law or regulation, compels any person
formally asked the court to find Justo Lukban, Mayor of the to change his residence.
city of Manila, Anton Hohmann, chief of police of the city of
In other countries, as in Spain and Japan, the privilege of
Manila, Jose Rodriguez and Fernando Ordax, members of the
domicile is deemed so important as to be found in the Bill of
police force of the city of Manila, Feliciano Yñigo,
Rights of the Constitution. Under the American constitutional
an hacendero of Davao, Modesto Joaquin, the attorney for the
system, liberty of abode is a principle so deeply imbedded in
Bureau of Labor, and Anacleto Diaz, fiscal of the city of
jurisprudence and considered so elementary in nature as not
Manila, in contempt of court. The city fiscal requested that
even to require a constitutional sanction. Even the Governor-
the replica al memorandum de los recurridos, (reply to
General of the Philippine Islands, even the President of the As to criminal responsibility, it is true that the Penal Code in
United States, who has often been said to exercise more power force in these Islands provides:
than any king or potentate, has no such arbitrary prerogative,
either inherent or express. Much less, therefore, has the Any public officer not thereunto authorized by law or by
executive of a municipality, who acts within a sphere of regulations of a general character in force in the Philippines
delegated powers. If the mayor and the chief of police could, who shall banish any person to a place more than two hundred
at their mere behest or even for the most praiseworthy of kilometers distant from his domicile, except it be by virtue of
motives, render the liberty of the citizen so insecure, then the the judgment of a court, shall be punished by a fine of not less
presidents and chiefs of police of one thousand other than three hundred and twenty-five and not more than three
municipalities of the Philippines have the same privilege. If thousand two hundred and fifty pesetas.
these officials can take to themselves such power, then any Any public officer not thereunto expressly authorized by law
other official can do the same. And if any official can exercise or by regulation of a general character in force in the
the power, then all persons would have just as much right to Philippines who shall compel any person to change his
do so. And if a prostitute could be sent against her wishes and domicile or residence shall suffer the penalty of destierro and
under no law from one locality to another within the country, a fine of not less than six hundred and twenty-five and not
then officialdom can hold the same club over the head of any more than six thousand two hundred and fifty pesetas. (Art.
citizen. 211.)
Law defines power. Centuries ago Magna Charta decreed We entertain no doubt but that, if, after due investigation, the
that — "No freeman shall be taken, or imprisoned, or be proper prosecuting officers find that any public officer has
disseized of his freehold, or liberties, or free customs, or be violated this provision of law, these prosecutors will institute
outlawed, or exiled, or any other wise destroyed; nor will we and press a criminal prosecution just as vigorously as they
pass upon him nor condemn him, but by lawful judgment of have defended the same official in this action. Nevertheless,
his peers or by the law of the land. We will sell to no man, we that the act may be a crime and that the persons guilty thereof
will not deny or defer to any man either justice or right." can be proceeded against, is no bar to the instant proceedings.
(Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at To quote the words of Judge Cooley in a case which will later
Large, 7.) No official, no matter how high, is above the law. be referred to — "It would be a monstrous anomaly in the law
The courts are the forum which functionate to safeguard if to an application by one unlawfully confined, ta be restored
individual liberty and to punish official transgressors. "The to his liberty, it could be a sufficient answer that the
law," said Justice Miller, delivering the opinion of the confinement was a crime, and therefore might be continued
Supreme Court of the United States, "is the only supreme indefinitely until the guilty party was tried and punished
power in our system of government, and every man who by therefor by the slow process of criminal procedure." (In the
accepting office participates in its functions is only the more matter of Jackson [1867], 15 Mich., 416, 434.) The writ
strongly bound to submit to that supremacy, and to observe the of habeas corpus was devised and exists as a speedy and
limitations which it imposes upon the exercise of the authority effectual remedy to relieve persons from unlawful restraint,
which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) and as the best and only sufficient defense of personal
"The very idea," said Justice Matthews of the same high freedom. Any further rights of the parties are left untouched
tribunal in another case, "that one man may be compelled to by decision on the writ, whose principal purpose is to set the
hold his life, or the means of living, or any material right individual at liberty.
essential to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom prevails, Granted that habeas corpus is the proper remedy, respondents
as being the essence of slavery itself." (Yick Wo vs. Hopkins have raised three specific objections to its issuance in this
[1886], 118 U.S., 356, 370.) All this explains the motive in instance. The fiscal has argued (l) that there is a defect in
issuing the writ of habeas corpus, and makes clear why we parties petitioners, (2) that the Supreme Court should not a
said in the very beginning that the primary question was assume jurisdiction, and (3) that the person in question are not
whether the courts should permit a government of men or a restrained of their liberty by respondents. It was finally
government of laws to be established in the Philippine Islands. suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and
What are the remedies of the unhappy victims of official that perforce they could not bring the women from Davao.
oppression? The remedies of the citizen are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus. The first defense was not presented with any vigor by counsel.
The petitioners were relatives and friends of the deportees.
The first is an optional but rather slow process by which the The way the expulsion was conducted by the city officials
aggrieved party may recoup money damages. It may still rest made it impossible for the women to sign a petition for habeas
with the parties in interest to pursue such an action, but it was corpus. It was consequently proper for the writ to be submitted
never intended effectively and promptly to meet any such by persons in their behalf. (Code of Criminal Procedure, sec.
situation as that now before us. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous
regard for personal liberty, even makes it the duty of a court or
judge to grant a writ of habeas corpus if there is evidence that were returned to Manila and released or until they freely and
within the court's jurisdiction a person is unjustly imprisoned truly waived his right.
or restrained of his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec. 93.) Petitioners Consider for a moment what an agreement with such a defense
had standing in court. would mean. The chief executive of any municipality in the
Philippines could forcibly and illegally take a private citizen
The fiscal next contended that the writ should have been asked and place him beyond the boundaries of the municipality, and
for in the Court of First Instance of Davao or should have been then, when called upon to defend his official action, could
made returnable before that court. It is a general rule of good calmly fold his hands and claim that the person was under no
practice that, to avoid unnecessary expense and restraint and that he, the official, had no jurisdiction over this
inconvenience, petitions for habeas corpus should be other municipality. We believe the true principle should be
presented to the nearest judge of the court of first instance. But that, if the respondent is within the jurisdiction of the court
this is not a hard and fast rule. The writ of habeas corpus may and has it in his power to obey the order of the court and thus
be granted by the Supreme Court or any judge thereof to undo the wrong that he has inflicted, he should be
enforcible anywhere in the Philippine Islands. (Code of compelled to do so. Even if the party to whom the writ is
Criminal Procedure, sec. 79; Code of Civil Procedure, sec. addressed has illegally parted with the custody of a person
526.) Whether the writ shall be made returnable before the before the application for the writ is no reason why the writ
Supreme Court or before an inferior court rests in the should not issue. If the mayor and the chief of police, acting
discretion of the Supreme Court and is dependent on the under no authority of law, could deport these women from the
particular circumstances. In this instance it was not shown that city of Manila to Davao, the same officials must necessarily
the Court of First Instance of Davao was in session, or that the have the same means to return them from Davao to Manila.
women had any means by which to advance their plea before The respondents, within the reach of process, may not be
that court. On the other hand, it was shown that the petitioners permitted to restrain a fellow citizen of her liberty by forcing
with their attorneys, and the two original respondents with her to change her domicile and to avow the act with impunity
their attorney, were in Manila; it was shown that the case in the courts, while the person who has lost her birthright of
involved parties situated in different parts of the Islands; it liberty has no effective recourse. The great writ of liberty may
was shown that the women might still be imprisoned or not thus be easily evaded.
restrained of their liberty; and it was shown that if the writ was
to accomplish its purpose, it must be taken cognizance of and It must be that some such question has heretofore been
decided immediately by the appellate court. The failure of the presented to the courts for decision. Nevertheless, strange as it
superior court to consider the application and then to grant the may seem, a close examination of the authorities fails to reveal
writ would have amounted to a denial of the benefits of the any analogous case. Certain decisions of respectable courts are
writ. however very persuasive in nature.

The last argument of the fiscal is more plausible and more A question came before the Supreme Court of the State of
difficult to meet. When the writ was prayed for, says counsel, Michigan at an early date as to whether or not a writ of habeas
the parties in whose behalf it was asked were under no corpus would issue from the Supreme Court to a person within
restraint; the women, it is claimed, were free in Davao, and the the jurisdiction of the State to bring into the State a minor
jurisdiction of the mayor and the chief of police did not extend child under guardianship in the State, who has been and
beyond the city limits. At first blush, this is a tenable position. continues to be detained in another State. The membership of
On closer examination, acceptance of such dictum is found to the Michigan Supreme Court at this time was notable. It was
be perversive of the first principles of the writ of habeas composed of Martin, chief justice, and Cooley, Campbell, and
corpus. Christiancy, justices. On the question presented the court was
equally divided. Campbell, J., with whom concurred Martin,
A prime specification of an application for a writ of habeas C. J., held that the writ should be quashed. Cooley, J., one of
corpus is restraint of liberty. The essential object and purpose the most distinguished American judges and law-writers, with
of the writ of habeas corpus is to inquire into all manner of whom concurred Christiancy, J., held that the writ should
involuntary restraint as distinguished from voluntary, and to issue. Since the opinion of Justice Campbell was predicated to
relieve a person therefrom if such restraint is illegal. Any a large extent on his conception of the English decisions, and
restraint which will preclude freedom of action is sufficient. since, as will hereafter appear, the English courts have taken a
The forcible taking of these women from Manila by officials contrary view, only the following eloquent passages from the
of that city, who handed them over to other parties, who opinion of Justice Cooley are quoted:
deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been I have not yet seen sufficient reason to doubt the power of this
imprisoned. Placed in Davao without either money or personal court to issue the present writ on the petition which was laid
belongings, they were prevented from exercising the liberty of before us. . . .
going when and where they pleased. The restraint of liberty It would be strange indeed if, at this late day, after the
which began in Manila continued until the aggrieved parties eulogiums of six centuries and a half have been expended
upon the Magna Charta, and rivers of blood shed for its was found in contempt of court. On appeal, the court, through
establishment; after its many confirmations, until Coke could Lord Esher, M. R., said:
declare in his speech on the petition of right that "Magna
Charta was such a fellow that he will have no sovereign," and A writ of habeas corpus was ordered to issue, and was issued
after the extension of its benefits and securities by the petition on January 22. That writ commanded the defendant to have
of right, bill of rights and habeas corpus acts, it should now be the body of the child before a judge in chambers at the Royal
discovered that evasion of that great clause for the protection Courts of Justice immediately after the receipt of the writ,
of personal liberty, which is the life and soul of the whole together with the cause of her being taken and detained. That
instrument, is so easy as is claimed here. If it is so, it is is a command to bring the child before the judge and must be
important that it be determined without delay, that the obeyed, unless some lawful reason can be shown to excuse the
legislature may apply the proper remedy, as I can not doubt nonproduction of the child. If it could be shown that by reason
they would, on the subject being brought to their notice. . . . of his having lawfully parted with the possession of the child
before the issuing of the writ, the defendant had no longer
The second proposition — that the statutory provisions are power to produce the child, that might be an answer; but in the
confined to the case of imprisonment within the state — seems absence of any lawful reason he is bound to produce the child,
to me to be based upon a misconception as to the source of our and, if he does not, he is in contempt of the Court for not
jurisdiction. It was never the case in England that the court of obeying the writ without lawful excuse. Many efforts have
king's bench derived its jurisdiction to issue and enforce this been made in argument to shift the question of contempt to
writ from the statute. Statutes were not passed to give the some anterior period for the purpose of showing that what was
right, but to compel the observance of rights which existed. . . done at some time prior to the writ cannot be a contempt. But
. the question is not as to what was done before the issue of the
writ. The question is whether there has been a contempt in
The important fact to be observed in regard to the mode of disobeying the writ it was issued by not producing the child in
procedure upon this writ is, that it is directed to and served obedience to its commands. (The Queen vs. Bernardo [1889],
upon, not the person confined, but his jailor. It does not reach 23 Q. B. D., 305. See also to the same effect the Irish case
the former except through the latter. The officer or person who of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
serves it does not unbar the prison doors, and set the prisoner Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D.,
free, but the court relieves him by compelling the oppressor to 283.)
release his constraint. The whole force of the writ is spent
upon the respondent, and if he fails to obey it, the means to be A decision coming from the Federal Courts is also of interest.
resorted to for the purposes of compulsion are fine and A habeas corpus was directed to the defendant to have before
imprisonment. This is the ordinary mode of affording relief, the circuit court of the District of Columbia three colored
and if any other means are resorted to, they are only auxiliary persons, with the cause of their detention. Davis, in his return
to those which are usual. The place of confinement is, to the writ, stated on oath that he had purchased the negroes as
therefore, not important to the relief, if the guilty party is slaves in the city of Washington; that, as he believed, they
within reach of process, so that by the power of the court he were removed beyond the District of Columbia before the
can be compelled to release his grasp. The difficulty of service of the writ of habeas corpus, and that they were then
affording redress is not increased by the confinement being beyond his control and out of his custody. The evidence
beyond the limits of the state, except as greater distance may tended to show that Davis had removed the negroes because
affect it. The important question is, where the power of control he suspected they would apply for a writ of habeas corpus.
exercised? And I am aware of no other remedy. (In the matter The court held the return to be evasive and insufficient, and
of Jackson [1867], 15 Mich., 416.) that Davis was bound to produce the negroes, and Davis being
present in court, and refusing to produce them, ordered that he
The opinion of Judge Cooley has since been accepted as be committed to the custody of the marshall until he should
authoritative by other courts. (Rivers vs. Mitchell [1881], 57 produce the negroes, or be otherwise discharged in due course
Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., of law. The court afterwards ordered that Davis be released
1000; Ex parte Young [1892], 50 Fed., 526.) upon the production of two of the negroes, for one of the
The English courts have given careful consideration to the negroes had run away and been lodged in jail in Maryland.
subject. Thus, a child had been taken out of English by the Davis produced the two negroes on the last day of the term.
respondent. A writ of habeas corpus was issued by the Queen's (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas.
Bench Division upon the application of the mother and her No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624;
husband directing the defendant to produce the child. The Church on Habeas, 2nd ed., p. 170.)
judge at chambers gave defendant until a certain date to We find, therefore, both on reason and authority, that no one
produce the child, but he did not do so. His return stated that of the defense offered by the respondents constituted a
the child before the issuance of the writ had been handed over legitimate bar to the granting of the writ of habeas corpus.
by him to another; that it was no longer in his custody or
control, and that it was impossible for him to obey the writ. He There remains to be considered whether the respondent
complied with the two orders of the Supreme Court awarding
the writ of habeas corpus, and if it be found that they did not, possible effort to produce the women was made by the
whether the contempt should be punished or be taken as respondents. That the court forebore at this time to take drastic
purged. action was because it did not wish to see presented to the
public gaze the spectacle of a clash between executive
The first order, it will be recalled, directed Justo Lukban, officials and the judiciary, and because it desired to give the
Anton Hohmann, Francisco Sales, and Feliciano Yñigo to respondents another chance to demonstrate their good faith
present the persons named in the writ before the court on and to mitigate their wrong.
December 2, 1918. The order was dated November 4, 1918.
The respondents were thus given ample time, practically one In response to the second order of the court, the respondents
month, to comply with the writ. As far as the record discloses, appear to have become more zealous and to have shown a
the Mayor of the city of Manila waited until the 21st of better spirit. Agents were dispatched to Mindanao, placards
November before sending a telegram to the provincial were posted, the constabulary and the municipal police joined
governor of Davao. According to the response of the attorney in rounding up the women, and a steamer with free
for the Bureau of Labor to the telegram of his chief, there were transportation to Manila was provided. While charges and
then in Davao women who desired to return to Manila, but counter-charges in such a bitterly contested case are to be
who should not be permitted to do so because of having expected, and while a critical reading of the record might
contracted debts. The half-hearted effort naturally resulted in reveal a failure of literal fulfillment with our mandate, we
none of the parties in question being brought before the court come to conclude that there is a substantial compliance with it.
on the day named. Our finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If
For the respondents to have fulfilled the court's order, three any wrong is now being perpetrated in Davao, it should
optional courses were open: (1) They could have produced the receive an executive investigation. If any particular individual
bodies of the persons according to the command of the writ; or is still restrained of her liberty, it can be made the object of
(2) they could have shown by affidavit that on account of separate habeas corpus proceedings.
sickness or infirmity those persons could not safely be brought
before the court; or (3) they could have presented affidavits to Since the writ has already been granted, and since we find a
show that the parties in question or their attorney waived the substantial compliance with it, nothing further in this
right to be present. (Code of Criminal Procedure, sec. 87.) connection remains to be done.
They did not produce the bodies of the persons in whose
behalf the writ was granted; they did not show impossibility of The attorney for the petitioners asks that we find in contempt
performance; and they did not present writings that waived the of court Justo Lukban, Mayor of the city of Manila, Anton
right to be present by those interested. Instead a few Hohmann, chief of police of the city of Manila, Jose
stereotyped affidavits purporting to show that the women were Rodriguez, and Fernando Ordax, members of the police force
contended with their life in Davao, some of which have since of the city of Manila, Modesto Joaquin, the attorney for the
been repudiated by the signers, were appended to the return. Bureau of Labor, Feliciano Yñigo, an hacendero of Davao,
That through ordinary diligence a considerable number of the and Anacleto Diaz, Fiscal of the city of Manila.
women, at least sixty, could have been brought back to Manila The power to punish for contempt of court should be exercised
is demonstrated to be found in the municipality of Davao, and on the preservative and not on the vindictive principle. Only
that about this number either returned at their own expense or occasionally should the court invoke its inherent power in
were produced at the second hearing by the respondents. order to retain that respect without which the administration of
The court, at the time the return to its first order was made, justice must falter or fail. Nevertheless when one is
would have been warranted summarily in finding the commanded to produce a certain person and does not do so,
respondents guilty of contempt of court, and in sending them and does not offer a valid excuse, a court must, to vindicate its
to jail until they obeyed the order. Their excuses for the non- authority, adjudge the respondent to be guilty of contempt, and
production of the persons were far from sufficient. The, must order him either imprisoned or fined. An officer's failure
authorities cited herein pertaining to somewhat similar facts to produce the body of a person in obedience to a writ
all tend to indicate with what exactitude a habeas corpus writ of habeas corpus when he has power to do so, is a contempt
must be fulfilled. For example, in Gossage's case, supra, the committed in the face of the court. (Ex parte Sterns [1888], 77
Magistrate in referring to an earlier decision of the Court, said: Cal., 156; In re Patterson [1888], 99 N. C., 407.)
"We thought that, having brought about that state of things by With all the facts and circumstances in mind, and with judicial
his own illegal act, he must take the consequences; and we regard for human imperfections, we cannot say that any of the
said that he was bound to use every effort to get the child respondents, with the possible exception of the first named,
back; that he must do much more than write letters for the has flatly disobeyed the court by acting in opposition to its
purpose; that he must advertise in America, and even if authority. Respondents Hohmann, Rodriguez, Ordax, and
necessary himself go after the child, and do everything that Joaquin only followed the orders of their chiefs, and while,
mortal man could do in the matter; and that the court would under the law of public officers, this does not exonerate them
only accept clear proof of an absolute impossibility by way of entirely, it is nevertheless a powerful mitigating circumstance.
excuse." In other words, the return did not show that every
The hacendero Yñigo appears to have been drawn into the
case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem
to have done no more than to fulfill his duty as the legal
representative of the city government. Finding him innocent of
any disrespect to the court, his counter-motion to strike from
the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record
discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish
the same, who made arrangements for the steamers and the
constabulary, who conducted the negotiations with the Bureau
of Labor, and who later, as the head of the city government,
had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor
of the city of Manila. His intention to suppress the social evil
was commendable. His methods were unlawful. His regard for
the writ of habeas corpus issued by the court was only tardily
and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of


the Code of Civil Procedure, which relates to the penalty for
disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much
as P400 each, which would reach to many thousands of pesos,
and in addition to deal with him as for a contempt. Some
members of the court are inclined to this stern view. It would
also be possible to find that since respondent Lukban did
comply substantially with the second order of the court, he has
purged his contempt of the first order. Some members of the
court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of
respondent Lukban to obey the first mandate of the court
tended to belittle and embarrass the administration of justice to
such an extent that his later activity may be considered only as
extenuating his conduct. A nominal fine will at once command
such respect without being unduly oppressive — such an
amount is P100.

In resume — as before stated, no further action on the writ


of habeas corpus is necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to
be in contempt of court. Respondent Lukban is found in
contempt of court and shall pay into the office of the clerk of
the Supreme Court within five days the sum of one hundred
pesos (P100). The motion of the fiscal of the city of Manila to
strike from the record the Replica al Memorandum de los
Recurridos of January 25, 1919, is granted. Costs shall be
taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not


be permitted to express the hope that this decision may serve
to bulwark the fortifications of an orderly government of laws
and to protect individual liberty from illegal encroachment.
G.R. No. 176579 October 9, 2012 in a prior similar case. However, the main issue in Luzon
Stevedoring was of transcendental importance, involving the
HEIRS OF WILSON P. GAMBOA,* Petitioners, exercise or enjoyment of rights, franchises, privileges,
vs. properties and businesses which only Filipinos and qualified
FINANCE SECRETARY MARGARITO B. TEVES, et corporations could exercise or enjoy under the Constitution
al, Respondents. and the statutes. Moreover, the same issue could be raised by
PABLITO V. SANIDAD and ARNO V. appellant in an appropriate action. Thus, in Luzon
SANIDAD, Petitioner-in-Intervention. Stevedoring the Court deemed it necessary to finally dispose
of the case for the guidance of all concerned, despite the
RESOLUTION apparent procedural flaw in the petition.
CARPIO, J.: The circumstances surrounding the present case, such as the
supposed procedural defect of the petition and the pivotal legal
This resolves the motions for reconsideration of the 28 June
issue involved, resemble those in Luzon
2011 Decision filed by (1) the Philippine Stock Exchange's
Stevedoring. Consequently, in the interest of substantial
(PSE) President, 1 (2) Manuel V. Pangilinan (Pangilinan),2 (3)
justice and faithful adherence to the Constitution, we opted to
Napoleon L. Nazareno (Nazareno ),3 and ( 4) the Securities
resolve this case for the guidance of the public and all
and Exchange Commission (SEC)4 (collectively, movants ).
concerned parties.
The Office of the Solicitor General (OSG) initially filed a
II.
motion for reconsideration on behalfofthe SEC,5 assailing the
No change of any long-standing rule;
28 June 2011 Decision. However, it subsequently filed a
thus, no redefinition of the term "capital."
Consolidated Comment on behalf of the State,6declaring
expressly that it agrees with the Court's definition of the term Movants contend that the term "capital" in Section 11, Article
"capital" in Section 11, Article XII of the Constitution. During XII of the Constitution has long been settled and defined to
the Oral Arguments on 26 June 2012, the OSG reiterated its refer to the total outstanding shares of stock, whether voting or
position consistent with the Court's 28 June 2011 Decision. non-voting. In fact, movants claim that the SEC, which is the
administrative agency tasked to enforce the 60-40 ownership
We deny the motions for reconsideration.
requirement in favor of Filipino citizens in the Constitution
I. and various statutes, has consistently adopted this particular
Far-reaching implications of the legal issue justify definition in its numerous opinions. Movants point out that
treatment of petition for declaratory relief as one for with the 28 June 2011 Decision, the Court in effect introduced
mandamus. a "new" definition or "midstream redefinition"9 of the term
"capital" in Section 11, Article XII of the Constitution.
As we emphatically stated in the 28 June 2011 Decision, the
interpretation of the term "capital" in Section 11, Article XII This is egregious error.
of the Constitution has far-reaching implications to the
For more than 75 years since the 1935 Constitution, the Court
national economy. In fact, a resolution of this issue will
has not interpreted or defined the term "capital" found in
determine whether Filipinos are masters, or second-class
various economic provisions of the 1935, 1973 and 1987
citizens, in their own country. What is at stake here is whether
Constitutions. There has never been a judicial precedent
Filipinos or foreigners will have effective control of the
interpreting the term "capital" in the 1935, 1973 and 1987
Philippine national economy. Indeed, if ever there is a legal
Constitutions, until now. Hence, it is patently wrong and
issue that has far-reaching implications to the entire nation,
utterly baseless to claim that the Court in defining the term
and to future generations of Filipinos, it is the threshold legal
"capital" in its 28 June 2011 Decision modified, reversed, or
issue presented in this case.
set aside the purported long-standing definition of the term
Contrary to Pangilinan’s narrow view, the serious economic "capital," which supposedly refers to the total outstanding
consequences resulting in the interpretation of the term shares of stock, whether voting or non-voting. To repeat, until
"capital" in Section 11, Article XII of the Constitution the present case there has never been a Court ruling
undoubtedly demand an immediate adjudication of this categorically defining the term "capital" found in the various
issue. Simply put, the far-reaching implications of this issue economic provisions of the 1935, 1973 and 1987 Philippine
justify the treatment of the petition as one for mandamus.7 Constitutions.

In Luzon Stevedoring Corp. v. Anti-Dummy Board,8 the The opinions of the SEC, as well as of the Department of
Court deemed it wise and expedient to resolve the case Justice (DOJ), on the definition of the term "capital" as
although the petition for declaratory relief could be outrightly referring to both voting and non-voting shares (combined total
dismissed for being procedurally defective. There, appellant of common and preferred shares) are, in the first place,
admittedly had already committed a breach of the Public conflicting and inconsistent. There is no basis whatsoever to
Service Act in relation to the Anti-Dummy Law since it had the claim that the SEC and the DOJ have consistently and
been employing non- American aliens long before the decision uniformly adopted a definition of the term "capital" contrary
to the definition that this Court adopted in its 28 June 2011 On the other hand, in Opinion No. 23-10 dated 18 August
Decision. 2010, addressed to Castillo Laman Tan Pantaleon & San Jose,
then SEC General Counsel Vernette G. Umali-Paco applied
In DOJ Opinion No. 130, s. 1985,10 dated 7 October 1985, the the Voting Control Test, that is, using only the voting stock to
scope of the term "capital" in Section 9, Article XIV of the determine whether a corporation is a Philippine national. The
1973 Constitution was raised, that is, whether the term Opinion states:
"capital" includes "both preferred and common stocks." The
issue was raised in relation to a stock-swap transaction Applying the foregoing, particularly the Control Test, MLRC
between a Filipino and a Japanese corporation, both is deemed as a Philippine national because: (1) sixty percent
stockholders of a domestic corporation that owned lands in the (60%) of its outstanding capital stock entitled to vote is owned
Philippines. Then Minister of Justice Estelito P. Mendoza by a Philippine national, the Trustee; and (2) at least sixty
ruled that the resulting ownership structure of the corporation percent (60%) of the ERF will accrue to the benefit of
would be unconstitutional because 60% of the voting stock Philippine nationals. Still pursuant to the Control Test,
would be owned by Japanese while Filipinos would own only MLRC’s investment in 60% of BFDC’s outstanding capital
40% of the voting stock, although when the non-voting stock stock entitled to vote shall be deemed as of Philippine
is added, Filipinos would own 60% of the combined voting nationality, thereby qualifying BFDC to own private land.
and non-voting stock. This ownership structure is remarkably
similar to the current ownership structure of PLDT. Minister Further, under, and for purposes of, the FIA, MLRC and
Mendoza ruled: BFDC are both Philippine nationals, considering that: (1) sixty
percent (60%) of their respective outstanding capital
xxxx stock entitled to vote is owned by a Philippine national (i.e.,
by the Trustee, in the case of MLRC; and by MLRC, in the
Thus, the Filipino group still owns sixty (60%) of the entire case of BFDC); and (2) at least 60% of their respective board
subscribed capital stock (common and preferred) while the of directors are Filipino citizens. (Boldfacing and italicization
Japanese investors control sixty percent (60%) of the common supplied)
(voting) shares.
Clearly, these DOJ and SEC opinions are compatible with the
It is your position that x x x since Section 9, Article XIV of Court’s interpretation of the 60-40 ownership requirement in
the Constitution uses the word "capital," which is construed favor of Filipino citizens mandated by the Constitution for
"to include both preferred and common shares" and "that certain economic activities. At the same time, these opinions
where the law does not distinguish, the courts shall not highlight the conflicting, contradictory, and inconsistent
distinguish." positions taken by the DOJ and the SEC on the definition of
xxxx the term "capital" found in the economic provisions of the
Constitution.
In light of the foregoing jurisprudence, it is my opinion that
the stock-swap transaction in question may not be The opinions issued by SEC legal officers do not have the
constitutionally upheld. While it may be ordinary corporate force and effect of SEC rules and regulations because only the
practice to classify corporate shares into common voting SEC en banc can adopt rules and regulations. As expressly
shares and preferred non-voting shares, any arrangement provided in Section 4.6 of the Securities Regulation
which attempts to defeat the constitutional purpose should be Code,12 the SEC cannot delegate to any of its individual
eschewed. Thus, the resultant equity arrangement which Commissioner or staff the power to adopt any rule or
would place ownership of 60%11 of the common (voting) regulation. Further, under Section 5.1 of the same Code, it
shares in the Japanese group, while retaining 60% of the total is the SEC as a collegial body, and not any of its legal officers,
percentage of common and preferred shares in Filipino hands that is empowered to issue opinions and approve rules and
would amount to circumvention of the principle of control by regulations. Thus:
Philippine stockholders that is implicit in the 60% Philippine 4.6. The Commission may, for purposes of efficiency,
nationality requirement in the Constitution. (Emphasis delegate any of its functions to any department or office of the
supplied) Commission, an individual Commissioner or staff member of
In short, Minister Mendoza categorically rejected the theory the Commission except its review or appellate authority
that the term "capital" in Section 9, Article XIV of the 1973 and its power to adopt, alter and supplement any rule or
Constitution includes "both preferred and common stocks" regulation.
treated as the same class of shares regardless of differences in The Commission may review upon its own initiative or upon
voting rights and privileges. Minister Mendoza stressed that the petition of any interested party any action of any
the 60-40 ownership requirement in favor of Filipino citizens department or office, individual Commissioner, or staff
in the Constitution is not complied with unless the corporation member of the Commission.
"satisfies the criterion of beneficial ownership" and that in
applying the same "the primordial consideration is situs of SEC. 5. Powers and Functions of the Commission.- 5.1. The
control." Commission shall act with transparency and shall have the
powers and functions provided by this Code, Presidential COMMISSIONER GAITE:
Decree No. 902-A, the Corporation Code, the Investment
Houses Law, the Financing Company Act and other existing That’s correct, Your Honor.
laws. Pursuant thereto the Commission shall have, among JUSTICE CARPIO:
others, the following powers and functions:
So, you combine the two (2), the SEC officer, if delegated that
xxxx power, can issue an opinion but that opinion does not
(g) Prepare, approve, amend or repeal rules, regulations and constitute a rule or regulation, correct?
orders, and issue opinions and provide guidance on and COMMISSIONER GAITE:
supervise compliance with such rules, regulations and orders;
Correct, Your Honor.
x x x x (Emphasis supplied)
JUSTICE CARPIO:
Thus, the act of the individual Commissioners or legal officers
of the SEC in issuing opinions that have the effect of SEC So, all of these opinions that you mentioned they are not rules
rules or regulations is ultra vires. Under Sections 4.6 and and regulations, correct?
5.1(g) of the Code, only the SEC en banc can "issue opinions"
COMMISSIONER GAITE:
that have the force and effect of rules or regulations. Section
4.6 of the Code bars the SEC en banc from delegating to any They are not rules and regulations.
individual Commissioner or staff the power to adopt rules or
regulations. In short, any opinion of individual Commissioners JUSTICE CARPIO:
or SEC legal officers does not constitute a rule or regulation of
If they are not rules and regulations, they apply only to that
the SEC.
particular situation and will not constitute a precedent,
The SEC admits during the Oral Arguments that only the correct?
SEC en banc, and not any of its individual commissioners or
COMMISSIONER GAITE:
legal staff, is empowered to issue opinions which have the
same binding effect as SEC rules and regulations, thus: Yes, Your Honor.14 (Emphasis supplied)
JUSTICE CARPIO: Significantly, the SEC en banc, which is the collegial body
statutorily empowered to issue rules and opinions on behalf of
So, under the law, it is the Commission En Banc that can issue
the SEC, has adopted even the Grandfather Rule in
an
determining compliance with the 60-40 ownership
SEC Opinion, correct? requirement in favor of Filipino citizens mandated by the
Constitution for certain economic activities. This prevailing
COMMISSIONER GAITE:13 SEC ruling, which the SEC correctly adopted to thwart any
circumvention of the required Filipino "ownership and
That’s correct, Your Honor.
control," is laid down in the 25 March 2010 SEC en
JUSTICE CARPIO: banc ruling in Redmont Consolidated Mines, Corp. v.
McArthur Mining, Inc., et al.,15 to wit:
Can the Commission En Banc delegate this function to an
SEC officer? The avowed purpose of the Constitution is to place in the
hands of Filipinos the exploitation of our natural
COMMISSIONER GAITE: resources. Necessarily, therefore, the Rule interpreting the
Yes, Your Honor, we have delegated it to the General constitutional provision should not diminish that right through
Counsel. the legal fiction of corporate ownership and control. But the
constitutional provision, as interpreted and practiced via the
JUSTICE CARPIO: 1967 SEC Rules, has favored foreigners contrary to the
command of the Constitution. Hence, the Grandfather Rule
It can be delegated. What cannot be delegated by the must be applied to accurately determine the actual
Commission En Banc to a commissioner or an individual participation, both direct and indirect, of foreigners in a
employee of the Commission? corporation engaged in a nationalized activity or business.
COMMISSIONER GAITE: Compliance with the constitutional limitation(s) on engaging
Novel opinions that [have] to be decided by the En Banc... in nationalized activities must be determined by ascertaining if
60% of the investing corporation’s outstanding capital stock is
JUSTICE CARPIO: owned by "Filipino citizens", or as interpreted, by natural or
individual Filipino citizens. If such investing corporation is in
What cannot be delegated, among others, is the power to adopt
turn owned to some extent by another investing corporation,
or amend rules and regulations, correct?
the same process must be observed. One must not stop until Otherwise, the corporation is "considered as non-Philippine
the citizenships of the individual or natural stockholders of national[s]." (Emphasis supplied)
layer after layer of investing corporations have been
established, the very essence of the Grandfather Rule. Both the Voting Control Test and the Beneficial Ownership
Test must be applied to determine whether a corporation is a
Lastly, it was the intent of the framers of the 1987 "Philippine national."
Constitution to adopt the Grandfather Rule. In one of the
discussions on what is now Article XII of the present The interpretation by legal officers of the SEC of the term
Constitution, the framers made the following exchange: "capital," embodied in various opinions which respondents
relied upon, is merely preliminary and an opinion only of such
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee officers. To repeat, any such opinion does not constitute an
stated local or Filipino equity and foreign equity; namely, 60- SEC rule or regulation. In fact, many of these opinions contain
40 in Section 3, 60-40 in Section 9, and 2/3-1/3 in Section 15. a disclaimer which expressly states: "x x x the foregoing
opinion is based solely on facts disclosed in your query and
MR. VILLEGAS. That is right. relevant only to the particular issue raised therein and shall not
MR. NOLLEDO. In teaching law, we are always faced with be used in the nature of a standing rule binding upon the
the question: ‘Where do we base the equity requirement, is it Commission in other cases whether of similar or dissimilar
on the authorized capital stock, on the subscribed capital circumstances."16 Thus, the opinions clearly make
stock, or on the paid-up capital stock of a corporation’? Will a caveat that they do not constitute binding precedents on any
the Committee please enlighten me on this? one, not even on the SEC itself.

MR. VILLEGAS. We have just had a long discussion with the Likewise, the opinions of the SEC en banc, as well as of the
members of the team from the UP Law Center who provided DOJ, interpreting the law are neither conclusive nor
us a draft. The phrase that is contained here which we adopted controlling and thus, do not bind the Court. It is hornbook
from the UP draft is ‘60 percent of voting stock.’ doctrine that any interpretation of the law that administrative
or quasi-judicial agencies make is only preliminary, never
MR. NOLLEDO. That must be based on the subscribed capital conclusive on the Court. The power to make a final
stock, because unless declared delinquent, unpaid capital stock interpretation of the law, in this case the term "capital" in
shall be entitled to vote. Section 11, Article XII of the 1987 Constitution, lies with this
Court, not with any other government entity.
MR. VILLEGAS. That is right.
In his motion for reconsideration, the PSE President cites the
MR. NOLLEDO. Thank you. With respect to an investment
cases of National Telecommunications Commission v. Court
by one corporation in another corporation, say, a corporation
of Appeals17 and Philippine Long Distance Telephone
with 60-40 percent equity invests in another corporation which
Company v. National Telecommunications Commission18 in
is permitted by the Corporation Code, does the Committee
arguing that the Court has already defined the term "capital" in
adopt the grandfather rule?
Section 11, Article XII of the 1987 Constitution.19
MR. VILLEGAS. Yes, that is the understanding of the
The PSE President is grossly mistaken. In both cases
Committee.
of National Telecommunications v. Court of
MR. NOLLEDO. Therefore, we need additional Filipino Appeals20 and Philippine Long Distance Telephone Company
capital? v. National Telecommunications Commission,21 the Court did
not define the term "capital" as found in Section 11, Article
MR. VILLEGAS. Yes. (Boldfacing and underscoring XII of the 1987 Constitution. In fact, these two cases never
supplied; italicization in the original) mentioned, discussed or cited Section 11, Article XII of the
Constitution or any of its economic provisions, and thus
This SEC en banc ruling conforms to our 28 June 2011
cannot serve as precedent in the interpretation of Section 11,
Decision that the 60-40 ownership requirement in favor of
Article XII of the Constitution. These two cases dealt solely
Filipino citizens in the Constitution to engage in certain
with the determination of the correct regulatory fees under
economic activities applies not only to voting control of the
Section 40(e) and (f) of the Public Service Act, to wit:
corporation, but also to the beneficial ownership of the
corporation. Thus, in our 28 June 2011 Decision we stated: (e) For annual reimbursement of the expenses incurred by the
Commission in the supervision of other public services and/or
Mere legal title is insufficient to meet the 60 percent
in the regulation or fixing of their rates, twenty centavos for
Filipinoowned "capital" required in the Constitution. Full
each one hundred pesos or fraction thereof, of the capital stock
beneficial ownership of 60 percent of the outstanding capital
subscribed or paid, or if no shares have been issued, of the
stock, coupled with 60 percent of the voting rights, is required.
capital invested, or of the property and equipment whichever
The legal and beneficial ownership of 60 percent of the
is higher.
outstanding capital stock must rest in the hands of Filipino
nationals in accordance with the constitutional mandate.
(f) For the issue or increase of capital stock, twenty centavos The State shall regulate and exercise authority over foreign
for each one hundred pesos or fraction thereof, of the investments within its national jurisdiction and in accordance
increased capital. (Emphasis supplied) with its national goals and priorities.23

The Court’s interpretation in these two cases of the terms Under Section 10, Article XII of the 1987 Constitution,
"capital stock subscribed or paid," "capital stock" and "capital" Congress may "reserve to citizens of the Philippines or to
does not pertain to, and cannot control, the definition of the corporations or associations at least sixty per centum of whose
term "capital" as used in Section 11, Article XII of the capital is owned by such citizens, or such higher percentage as
Constitution, or any of the economic provisions of the Congress may prescribe, certain areas of investments." Thus,
Constitution where the term "capital" is found. The definition in numerous laws Congress has reserved certain areas of
of the term "capital" found in the Constitution must not be investments to Filipino citizens or to corporations at least sixty
taken out of context. A careful reading of these two cases percent of the "capital" of which is owned by Filipino citizens.
reveals that the terms "capital stock subscribed or paid," Some of these laws are: (1) Regulation of Award of
"capital stock" and "capital" were defined solely to determine Government Contracts or R.A. No. 5183; (2) Philippine
the basis for computing the supervision and regulation fees Inventors Incentives Act or R.A. No. 3850; (3) Magna Carta
under Section 40(e) and (f) of the Public Service Act. for Micro, Small and Medium Enterprises or R.A. No. 6977;
(4) Philippine Overseas Shipping Development Act or R.A.
III. No. 7471; (5) Domestic Shipping Development Act of 2004 or
Filipinization of Public Utilities R.A. No. 9295; (6) Philippine Technology Transfer Act of
The Preamble of the 1987 Constitution, as the prologue of the 2009 or R.A. No. 10055; and (7) Ship Mortgage Decree or
supreme law of the land, embodies the ideals that the P.D. No. 1521.
Constitution intends to achieve.22 The Preamble reads: With respect to public utilities, the 1987 Constitution
We, the sovereign Filipino people, imploring the aid of specifically ordains:
Almighty God, in order to build a just and humane society, Section 11. No franchise, certificate, or any other form of
and establish a Government that shall embody our ideals and authorization for the operation of a public utility shall be
aspirations, promote the common good, conserve and develop granted except to citizens of the Philippines or to corporations
our patrimony, and secure to ourselves and our posterity, the or associations organized under the laws of the Philippines, at
blessings of independence and democracy under the rule of least sixty per centum of whose capital is owned by such
law and a regime of truth, justice, freedom, love, equality, and citizens; nor shall such franchise, certificate, or authorization
peace, do ordain and promulgate this Constitution. (Emphasis be exclusive in character or for a longer period than fifty
supplied) years. Neither shall any such franchise or right be granted
Consistent with these ideals, Section 19, Article II of the 1987 except under the condition that it shall be subject to
Constitution declares as State policy the development of a amendment, alteration, or repeal by the Congress when the
national economy "effectively controlled" by Filipinos: common good so requires. The State shall encourage equity
participation in public utilities by the general public. The
Section 19. The State shall develop a self-reliant and participation of foreign investors in the governing body of any
independent national economy effectively controlled by public utility enterprise shall be limited to their proportionate
Filipinos. share in its capital, and all the executive and managing officers
of such corporation or association must be citizens of the
Fortifying the State policy of a Filipino-controlled economy,
Philippines. (Emphasis supplied)
the Constitution decrees:
This provision, which mandates the Filipinization of public
Section 10. The Congress shall, upon recommendation of the
utilities, requires that any form of authorization for the
economic and planning agency, when the national interest
operation of public utilities shall be granted only to "citizens
dictates, reserve to citizens of the Philippines or to
of the Philippines or to corporations or associations organized
corporations or associations at least sixty per centum of whose
under the laws of the Philippines at least sixty per centum of
capital is owned by such citizens, or such higher percentage as
whose capital is owned by such citizens." "The provision is
Congress may prescribe, certain areas of investments. The
[an express] recognition of the sensitive and vital position of
Congress shall enact measures that will encourage the
public utilities both in the national economy and for national
formation and operation of enterprises whose capital is wholly
security."24
owned by Filipinos.
The 1987 Constitution reserves the ownership and operation
In the grant of rights, privileges, and concessions covering the
of public utilities exclusively to (1) Filipino citizens, or (2)
national economy and patrimony, the State shall give
corporations or associations at least 60 percent of whose
preference to qualified Filipinos.
"capital" is owned by Filipino citizens. Hence, in the case of
individuals, only Filipino citizens can validly own and operate
a public utility. In the case of corporations or associations, at
least 60 percent of their "capital" must be owned by Filipino is a Philippine national and at least sixty per cent (60%) of the
citizens. In other words, under Section 11, Article XII of the fund will accrue to the benefit of Philippine nationals:
1987 Constitution, to own and operate a public utility a Provided, That where a corporation and its non-Filipino
corporation’s capital must at least be 60 percent owned stockholders own stock in a registered enterprise, at least sixty
by Philippine nationals. per cent (60%) of the capital stock outstanding and entitled to
vote of both corporations must be owned and held by the
IV. citizens of the Philippines and at least sixty per cent (60%) of
Definition of "Philippine National" the members of the Board of Directors of both corporations
Pursuant to the express mandate of Section 11, Article XII of must be citizens of the Philippines in order that the
the 1987 Constitution, Congress enacted Republic Act No. corporation shall be considered a Philippine national.
7042 or the Foreign Investments Act of 1991 (FIA), as (Boldfacing, italicization and underscoring supplied)
amended, which defined a "Philippine national" as follows: Under Article 48(3)26 of the Omnibus Investments Code of
SEC. 3. Definitions. - As used in this Act: 1987, "no corporation x x x which is not a ‘Philippine
national’ x x x shall do business
a. The term "Philippine national" shall mean a citizen of the
Philippines; or a domestic partnership or association wholly x x x in the Philippines x x x without first securing from the
owned by citizens of the Philippines; or a corporation Board of Investments a written certificate to the effect that
organized under the laws of the Philippines of which at least such business or economic activity x x x would not conflict
sixty percent (60%) of the capital stock outstanding and with the Constitution or laws of the Philippines."27 Thus, a
entitled to vote is owned and held by citizens of the "non-Philippine national" cannot own and operate a reserved
Philippines; or a corporation organized abroad and registered economic activity like a public utility. This means, of course,
as doing business in the Philippines under the Corporation that only a "Philippine national" can own and operate a public
Code of which one hundred percent (100%) of the capital utility.
stock outstanding and entitled to vote is wholly owned by In turn, the definition of a "Philippine national" under Article
Filipinos or a trustee of funds for pension or other employee 15 of the Omnibus Investments Code of 1987 was a reiteration
retirement or separation benefits, where the trustee is a of the meaning of such term as provided in Article 14 of
Philippine national and at least sixty percent (60%) of the fund the Omnibus Investments Code of 1981,28 to wit:
will accrue to the benefit of Philippine nationals: Provided,
That where a corporation and its non-Filipino stockholders Article 14. "Philippine national" shall mean a citizen of the
own stocks in a Securities and Exchange Commission (SEC) Philippines; or a domestic partnership or association wholly
registered enterprise, at least sixty percent (60%) of the capital owned by citizens of the Philippines; or a corporation
stock outstanding and entitled to vote of each of both organized under the laws of the Philippines of which at least
corporations must be owned and held by citizens of the sixty per cent (60%) of the capital stock outstanding and
Philippines and at least sixty percent (60%) of the members of entitled to vote is owned and held by citizens of the
the Board of Directors of each of both corporations must be Philippines; or a trustee of funds for pension or other
citizens of the Philippines, in order that the corporation, shall employee retirement or separation benefits, where the trustee
be considered a "Philippine national." (Boldfacing, is a Philippine national and at least sixty per cent (60%) of the
italicization and underscoring supplied) fund will accrue to the benefit of Philippine nationals:
Provided, That where a corporation and its non-Filipino
Thus, the FIA clearly and unequivocally defines a "Philippine stockholders own stock in a registered enterprise, at least sixty
national" as a Philippine citizen, or a domestic corporation at per cent (60%) of the capital stock outstanding and entitled to
least "60% of the capital stock outstanding and entitled to vote of both corporations must be owned and held by the
vote" is owned by Philippine citizens. citizens of the Philippines and at least sixty per cent (60%) of
The definition of a "Philippine national" in the FIA reiterated the members of the Board of Directors of both corporations
the meaning of such term as provided in its predecessor must be citizens of the Philippines in order that the
statute, Executive Order No. 226 or the Omnibus Investments corporation shall be considered a Philippine national.
Code of 1987,25 which was issued by then President Corazon (Boldfacing, italicization and underscoring supplied)
C. Aquino. Article 15 of this Code states: Under Article 69(3) of the Omnibus Investments Code of
Article 15. "Philippine national" shall mean a citizen of the 1981, "no corporation x x x which is not a ‘Philippine
Philippines or a diplomatic partnership or association wholly- national’ x x x shall do business x x x in the Philippines x x x
owned by citizens of the Philippines; or a corporation without first securing a written certificate from the Board of
organized under the laws of the Philippines of which at least Investments to the effect that such business or economic
sixty per cent (60%) of the capital stock outstanding and activity x x x would not conflict with the Constitution or laws
entitled to vote is owned and held by citizens of the of the Philippines."29 Thus, a "non-Philippine national"
Philippines; or a trustee of funds for pension or other cannot own and operate a reserved economic activity like a
employee retirement or separation benefits, where the trustee
public utility. Again, this means that only a "Philippine Foreign Investments Negative List.32 Section 8 of the law
national" can own and operate a public utility. states:

Prior to the Omnibus Investments Code of 1981, Republic Act SEC. 8. List of Investment Areas Reserved to Philippine
No. 518630 or the Investment Incentives Act, which took Nationals [Foreign Investment Negative List]. - The Foreign
effect on 16 September 1967, contained a similar definition of Investment Negative List shall have two 2 component
a "Philippine national," to wit: lists: A and B:

(f) "Philippine National" shall mean a citizen of the a. List A shall enumerate the areas of activities reserved to
Philippines; or a partnership or association wholly owned by Philippine nationals by mandate of the Constitution and
citizens of the Philippines; or a corporation organized under specific laws.
the laws of the Philippines of which at least sixty per cent of
the capital stock outstanding and entitled to vote is owned and b. List B shall contain the areas of activities and enterprises
held by citizens of the Philippines; or a trustee of funds for regulated pursuant to law:
pension or other employee retirement or separation benefits, 1. which are defense-related activities, requiring prior
where the trustee is a Philippine National and at least sixty per clearance and authorization from the Department of National
cent of the fund will accrue to the benefit of Philippine Defense [DND] to engage in such activity, such as the
Nationals: Provided, That where a corporation and its non- manufacture, repair, storage and/or distribution of firearms,
Filipino stockholders own stock in a registered enterprise, at ammunition, lethal weapons, military ordinance, explosives,
least sixty per cent of the capital stock outstanding and entitled pyrotechnics and similar materials; unless such manufacturing
to vote of both corporations must be owned and held by the or repair activity is specifically authorized, with a substantial
citizens of the Philippines and at least sixty per cent of the export component, to a non-Philippine national by the
members of the Board of Directors of both corporations must Secretary of National Defense; or
be citizens of the Philippines in order that the corporation shall
be considered a Philippine National. (Boldfacing, italicization 2. which have implications on public health and morals, such
and underscoring supplied) as the manufacture and distribution of dangerous drugs; all
forms of gambling; nightclubs, bars, beer houses, dance halls,
Under Section 3 of Republic Act No. 5455 or the Foreign sauna and steam bathhouses and massage clinics. (Boldfacing,
Business Regulations Act, which took effect on 30 September underscoring and italicization supplied)
1968, if the investment in a domestic enterprise by non-
Philippine nationals exceeds 30% of its outstanding capital Section 8 of the FIA enumerates the investment areas
stock, such enterprise must obtain prior approval from the "reserved to Philippine nationals." Foreign Investment
Board of Investments before accepting such investment. Such Negative List A consists of "areas of activities reserved to
approval shall not be granted if the investment "would conflict Philippine nationals by mandate of the Constitution and
with existing constitutional provisions and laws regulating the specific laws," where foreign equity participation in any
degree of required ownership by Philippine nationals in the enterprise shall be limited to the maximum percentage
enterprise."31 A "non-Philippine national" cannot own and expressly prescribed by the Constitution and other specific
operate a reserved economic activity like a public utility. laws. In short, to own and operate a public utility in the
Again, this means that only a "Philippine national" can own Philippines one must be a "Philippine national" as defined in
and operate a public utility. the FIA. The FIA is abundant notice to foreign investors to
what extent they can invest in public utilities in the
The FIA, like all its predecessor statutes, clearly defines a Philippines.
"Philippine national" as a Filipino citizen, or a domestic
corporation "at least sixty percent (60%) of the capital stock To repeat, among the areas of investment covered by the
outstanding and entitled to vote" is owned by Filipino citizens. Foreign Investment Negative List A is the ownership and
A domestic corporation is a "Philippine national" only if at operation of public utilities, which the Constitution expressly
least 60% of its voting stock is owned by Filipino citizens. reserves to Filipino citizens and to corporations at least 60%
This definition of a "Philippine national" is crucial in the owned by Filipino citizens. In other words, Negative List A of
present case because the FIA reiterates and clarifies Section the FIA reserves the ownership and operation of public
11, Article XII of the 1987 Constitution, which limits the utilities only to "Philippine nationals," defined in Section 3(a)
ownership and operation of public utilities to Filipino citizens of the FIA as "(1) a citizen of the Philippines; x x x or (3) a
or to corporations or associations at least 60% Filipino-owned. corporation organized under the laws of the Philippines of
which at least sixty percent (60%) of the capital stock
The FIA is the basic law governing foreign investments in the outstanding and entitled to vote is owned and held by citizens
Philippines, irrespective of the nature of business and area of of the Philippines; or (4) a corporation organized abroad and
investment. The FIA spells out the procedures by which non- registered as doing business in the Philippines under the
Philippine nationals can invest in the Philippines. Among the Corporation Code of which one hundred percent (100%) of the
key features of this law is the concept of a negative list or the capital stock outstanding and entitled to vote is wholly owned
by Filipinos or a trustee of funds for pension or other
employee retirement or separation benefits, where the trustee And even prior to the Omnibus Investments Act of 1987,
is a Philippine national and at least sixty percent (60%) of the under the Omnibus Investments Act of 1981, the same rules
fund will accrue to the benefit of Philippine nationals." apply: x x x only a Philippine national can own and operate a
public utility and a Philippine national, if it is a corporation,
Clearly, from the effectivity of the Investment Incentives Act sixty percent (60%) of its x x x voting stock, must be owned
of 1967 to the adoption of the Omnibus Investments Code of by citizens of the Philippines, correct?
1981, to the enactment of the Omnibus Investments Code of
1987, and to the passage of the present Foreign Investments COMMISSIONER GAITE:
Act of 1991, or for more than four decades, the statutory
definition of the term "Philippine national" has been uniform Correct, Your Honor.
and consistent: it means a Filipino citizen, or a domestic JUSTICE CARPIO:
corporation at least 60% of the voting stock is owned by
Filipinos. Likewise, these same statutes have uniformly and And even prior to that, under [the]1967 Investments Incentives
consistently required that only "Philippine nationals" could Act and the Foreign Company Act of 1968, the same rules
own and operate public utilities in the Philippines. The applied, correct?
following exchange during the Oral Arguments is revealing:
COMMISSIONER GAITE:
JUSTICE CARPIO:
Correct, Your Honor.
Counsel, I have some questions. You are aware of the Foreign
JUSTICE CARPIO:
Investments Act of 1991, x x x? And the FIA of 1991 took
effect in 1991, correct? That’s over twenty (20) years ago, So, for the last four (4) decades, x x x, the law has been very
correct? consistent – only a Philippine national can own and operate a
public utility, and a Philippine national, if it is a corporation, x
COMMISSIONER GAITE:
x x at least sixty percent (60%) of the voting stock must be
Correct, Your Honor. owned by citizens of the Philippines, correct?

JUSTICE CARPIO: COMMISSIONER GAITE:

And Section 8 of the Foreign Investments Act of 1991 states Correct, Your Honor.33 (Emphasis supplied)
that []only Philippine nationals can own and operate public
Government agencies like the SEC cannot simply ignore
utilities[], correct?
Sections 3(a) and 8 of the FIA which categorically prescribe
COMMISSIONER GAITE: that certain economic activities, like the ownership and
operation of public utilities, are reserved to corporations "at
Yes, Your Honor. least sixty percent (60%) of the capital stock outstanding and
JUSTICE CARPIO: entitled to vote is owned and held by citizens of the
Philippines." Foreign Investment Negative List A refers to
And the same Foreign Investments Act of 1991 defines a "activities reserved to Philippine nationals by mandate of the
"Philippine national" either as a citizen of the Philippines, or if Constitution and specific laws." The FIA is the basic statute
it is a corporation at least sixty percent (60%) of the voting regulating foreign investments in the Philippines. Government
stock is owned by citizens of the Philippines, correct? agencies tasked with regulating or monitoring foreign
investments, as well as counsels of foreign investors, should
COMMISSIONER GAITE: start with the FIA in determining to what extent a particular
Correct, Your Honor. foreign investment is allowed in the Philippines. Foreign
investors and their counsels who ignore the FIA do so at their
JUSTICE CARPIO: own peril. Foreign investors and their counsels who rely on
opinions of SEC legal officers that obviously contradict the
And, you are also aware that under the predecessor law of the
FIA do so also at their own peril.
Foreign Investments Act of 1991, the Omnibus Investments
Act of 1987, the same provisions apply: x x x only Philippine Occasional opinions of SEC legal officers that obviously
nationals can own and operate a public utility and the contradict the FIA should immediately raise a red flag. There
Philippine national, if it is a corporation, x x x sixty percent are already numerous opinions of SEC legal officers that cite
(60%) of the capital stock of that corporation must be owned the definition of a "Philippine national" in Section 3(a) of the
by citizens of the Philippines, correct? FIA in determining whether a particular corporation is
qualified to own and operate a nationalized or partially
COMMISSIONER GAITE:
nationalized business in the Philippines. This shows that SEC
Correct, Your Honor. legal officers are not only aware of, but also rely on and
invoke, the provisions of the FIA in ascertaining the eligibility
JUSTICE CARPIO:
of a corporation to engage in partially nationalized industries. Section 11, Article XII of the Constitution regulating foreign
The following are some of such opinions: investments in public utilities. In fact, the Board of
Investments’ Primer on Investment Policies in the
1. Opinion of 23 March 1993, addressed to Mr. Francis F. Philippines,34 which is given out to foreign investors,
How; provides:
2. Opinion of 14 April 1993, addressed to Director Angeles T. PART III. FOREIGN INVESTMENTS WITHOUT
Wong of the Philippine Overseas Employment INCENTIVES
Administration;
Investors who do not seek incentives and/or whose chosen
3. Opinion of 23 November 1993, addressed to Messrs. activities do not qualify for incentives, (i.e., the activity is not
Dominador Almeda and Renato S. Calma; listed in the IPP, and they are not exporting at least 70% of
4. Opinion of 7 December 1993, addressed to Roco Bunag their production) may go ahead and make the investments
Kapunan Migallos & Jardeleza; without seeking incentives. They only have to be guided by
the Foreign Investments Negative List (FINL).
5. SEC Opinion No. 49-04, addressed to Romulo Mabanta
Buenaventura Sayoc & De Los Angeles; The FINL clearly defines investment areas requiring at least
60% Filipino ownership. All other areas outside of this list are
6. SEC-OGC Opinion No. 17-07, addressed to Mr. Reynaldo fully open to foreign investors. (Emphasis supplied)
G. David; and
V.
7. SEC-OGC Opinion No. 03-08, addressed to Attys. Ruby Right to elect directors, coupled with beneficial ownership,
Rose J. Yusi and Rudyard S. Arbolado. translates to effective control.
The SEC legal officers’ occasional but blatant disregard of the The 28 June 2011 Decision declares that the 60 percent
definition of the term "Philippine national" in the FIA signifies Filipino ownership required by the Constitution to engage in
their lack of integrity and competence in resolving issues on certain economic activities applies not only to voting control
the 60-40 ownership requirement in favor of Filipino citizens of the corporation, but also to the beneficial ownership of the
in Section 11, Article XII of the Constitution. corporation. To repeat, we held:
The PSE President argues that the term "Philippine national" Mere legal title is insufficient to meet the 60 percent Filipino-
defined in the FIA should be limited and interpreted to refer to owned "capital" required in the Constitution. Full beneficial
corporations seeking to avail of tax and fiscal incentives under ownership of 60 percent of the outstanding capital stock,
investment incentives laws and cannot be equated with the coupled with 60 percent of the voting rights, is required. The
term "capital" in Section 11, Article XII of the 1987 legal and beneficial ownership of 60 percent of the
Constitution. Pangilinan similarly contends that the FIA and outstanding capital stock must rest in the hands of Filipino
its predecessor statutes do not apply to "companies which nationals in accordance with the constitutional mandate.
have not registered and obtained special incentives under the Otherwise, the corporation is "considered as non-Philippine
schemes established by those laws." national[s]." (Emphasis supplied)
Both are desperately grasping at straws. The FIA does not This is consistent with Section 3 of the FIA which provides
grant tax or fiscal incentives to any enterprise. Tax and fiscal that where 100% of the capital stock is held by "a trustee of
incentives to investments are granted separately under the funds for pension or other employee retirement or separation
Omnibus Investments Code of 1987, not under the FIA. In benefits," the trustee is a Philippine national if "at least sixty
fact, the FIA expressly repealed Articles 44 to 56 of Book II of percent (60%) of the fund will accrue to the benefit of
the Omnibus Investments Code of 1987, which articles Philippine nationals." Likewise, Section 1(b) of the
previously regulated foreign investments in nationalized or Implementing Rules of the FIA provides that "for stocks to be
partially nationalized industries. deemed owned and held by Philippine citizens or Philippine
nationals, mere legal title is not enough to meet the required
The FIA is the applicable law regulating foreign investments
Filipino equity. Full beneficial ownership of the stocks,
in nationalized or partially nationalized industries. There is
coupled with appropriate voting rights, is essential."
nothing in the FIA, or even in the Omnibus Investments Code
of 1987 or its predecessor statutes, that states, expressly or Since the constitutional requirement of at least 60 percent
impliedly, that the FIA or its predecessor statutes do not apply Filipino ownership applies not only to voting control of the
to enterprises not availing of tax and fiscal incentives under corporation but also to the beneficial ownership of the
the Code. The FIA and its predecessor statutes apply to corporation, it is therefore imperative that such requirement
investments in all domestic enterprises, whether or not such apply uniformly and across the board to all classes of shares,
enterprises enjoy tax and fiscal incentives under the Omnibus regardless of nomenclature and category, comprising the
Investments Code of 1987 or its predecessor statutes. The capital of a corporation. Under the Corporation Code, capital
reason is quite obvious – mere non-availment of tax and fiscal stock35 consists of all classes of shares issued to stockholders,
incentives by a non-Philippine national cannot exempt it from
that is, common shares as well as preferred shares, which may VI.
have different rights, privileges or restrictions as stated in the Intent of the framers of the Constitution
articles of incorporation.36
While Justice Velasco quoted in his Dissenting Opinion38 a
The Corporation Code allows denial of the right to vote to portion of the deliberations of the Constitutional Commission
preferred and redeemable shares, but disallows denial of the to support his claim that the term "capital" refers to the total
right to vote in specific corporate matters. Thus, common outstanding shares of stock, whether voting or non-voting, the
shares have the right to vote in the election of directors, while following excerpts of the deliberations reveal otherwise. It is
preferred shares may be denied such right. Nonetheless, clear from the following exchange that the term "capital"
preferred shares, even if denied the right to vote in the election refers to controlling interest of a corporation, thus:
of directors, are entitled to vote on the following corporate
matters: (1) amendment of articles of incorporation; (2) MR. NOLLEDO. In Sections 3, 9 and 15, the Committee
increase and decrease of capital stock; (3) incurring, creating stated local or Filipino equity and foreign equity; namely, 60-
or increasing bonded indebtedness; (4) sale, lease, mortgage or 40 in Section 3, 60-40 in Section 9 and 2/3-1/3 in Section 15.
other disposition of substantially all corporate assets; (5) MR. VILLEGAS. That is right.
investment of funds in another business or corporation or for a
purpose other than the primary purpose for which the MR. NOLLEDO. In teaching law, we are always faced with
corporation was organized; (6) adoption, amendment and this question: "Where do we base the equity requirement, is it
repeal of by-laws; (7) merger and consolidation; and (8) on the authorized capital stock, on the subscribed capital
dissolution of corporation.37 stock, or on the paid-up capital stock of a corporation"? Will
the Committee please enlighten me on this?
Since a specific class of shares may have rights and privileges
or restrictions different from the rest of the shares in a MR. VILLEGAS. We have just had a long discussion with the
corporation, the 60-40 ownership requirement in favor of members of the team from the UP Law Center who provided
Filipino citizens in Section 11, Article XII of the Constitution us a draft. The phrase that is contained here which we adopted
must apply not only to shares with voting rights but also to from the UP draft is "60 percent of voting stock."
shares without voting rights. Preferred shares, denied the right
MR. NOLLEDO. That must be based on the subscribed capital
to vote in the election of directors, are anyway still entitled to
stock, because unless declared delinquent, unpaid capital stock
vote on the eight specific corporate matters mentioned
shall be entitled to vote.
above. Thus, if a corporation, engaged in a partially
nationalized industry, issues a mixture of common and MR. VILLEGAS. That is right.
preferred non-voting shares, at least 60 percent of the common
shares and at least 60 percent of the preferred non-voting MR. NOLLEDO. Thank you.
shares must be owned by Filipinos. Of course, if a corporation
With respect to an investment by one corporation in another
issues only a single class of shares, at least 60 percent of such
corporation, say, a corporation with 60-40 percent equity
shares must necessarily be owned by Filipinos. In short, the
invests in another corporation which is permitted by the
60-40 ownership requirement in favor of Filipino citizens
Corporation Code, does the Committee adopt the grandfather
must apply separately to each class of shares, whether
rule?
common, preferred non-voting, preferred voting or any other
class of shares. This uniform application of the 60-40 MR. VILLEGAS. Yes, that is the understanding of the
ownership requirement in favor of Filipino citizens clearly Committee.
breathes life to the constitutional command that the ownership
and operation of public utilities shall be reserved exclusively MR. NOLLEDO. Therefore, we need additional Filipino
to corporations at least 60 percent of whose capital is Filipino- capital?
owned. Applying uniformly the 60-40 ownership requirement
MR. VILLEGAS. Yes.39
in favor of Filipino citizens to each class of shares, regardless
of differences in voting rights, privileges and restrictions, xxxx
guarantees effective Filipino control of public utilities, as
mandated by the Constitution. MR. AZCUNA. May I be clarified as to that portion that was
accepted by the Committee.
Moreover, such uniform application to each class of shares
insures that the "controlling interest" in public utilities always MR. VILLEGAS. The portion accepted by the Committee is
lies in the hands of Filipino citizens. This addresses and the deletion of the phrase "voting stock or controlling
extinguishes Pangilinan’s worry that foreigners, owning most interest."
of the non-voting shares, will exercise greater control over MR. AZCUNA. Hence, without the Davide amendment, the
fundamental corporate matters requiring two-thirds or committee report would read: "corporations or associations at
majority vote of all shareholders. least sixty percent of whose CAPITAL is owned by such
citizens."
MR. VILLEGAS. Yes. to "develop a self-reliant and independent national
economy effectively controlled by Filipinos."
MR. AZCUNA. So if the Davide amendment is lost, we are
stuck with 60 percent of the capital to be owned by citizens. As we held in our 28 June 2011 Decision, to construe broadly
the term "capital" as the total outstanding capital stock, treated
MR. VILLEGAS. That is right. as a single class regardless of the actual classification of
MR. AZCUNA. But the control can be with the foreigners shares, grossly contravenes the intent and letter of the
even if they are the minority. Let us say 40 percent of the Constitution that the "State shall develop a self-reliant and
capital is owned by them, but it is the voting capital, whereas, independent national economy effectively controlled by
the Filipinos own the nonvoting shares. So we can have a Filipinos." We illustrated the glaring anomaly which would
situation where the corporation is controlled by foreigners result in defining the term "capital" as the total outstanding
despite being the minority because they have the voting capital stock of a corporation, treated as a single class of
capital. That is the anomaly that would result here. shares regardless of the actual classification of shares, to wit:

MR. BENGZON. No, the reason we eliminated the word Let us assume that a corporation has 100 common shares
"stock" as stated in the 1973 and 1935 Constitutions is that owned by foreigners and 1,000,000 non-voting preferred
according to Commissioner Rodrigo, there are associations shares owned by Filipinos, with both classes of share having a
that do not have stocks. That is why we say "CAPITAL." par value of one peso (₱ 1.00) per share. Under the broad
definition of the term "capital," such corporation would be
MR. AZCUNA. We should not eliminate the phrase considered compliant with the 40 percent constitutional limit
"controlling interest." on foreign equity of public utilities since the overwhelming
majority, or more than 99.999 percent, of the total outstanding
MR. BENGZON. In the case of stock corporations, it is
capital stock is Filipino owned. This is obviously absurd.
assumed.40 (Boldfacing and underscoring supplied)
In the example given, only the foreigners holding the common
Thus, 60 percent of the "capital" assumes, or should result in,
shares have voting rights in the election of directors, even if
a "controlling interest" in the corporation.
they hold only 100 shares. The foreigners, with a minuscule
The use of the term "capital" was intended to replace the word equity of less than 0.001 percent, exercise control over the
"stock" because associations without stocks can operate public public utility. On the other hand, the Filipinos, holding more
utilities as long as they meet the 60-40 ownership requirement than 99.999 percent of the equity, cannot vote in the election
in favor of Filipino citizens prescribed in Section 11, Article of directors and hence, have no control over the public utility.
XII of the Constitution. However, this did not change the This starkly circumvents the intent of the framers of the
intent of the framers of the Constitution to reserve exclusively Constitution, as well as the clear language of the Constitution,
to Philippine nationals the "controlling interest" in public to place the control of public utilities in the hands of Filipinos.
utilities. xxx

During the drafting of the 1935 Constitution, economic Further, even if foreigners who own more than forty percent of
protectionism was "the battle-cry of the nationalists in the the voting shares elect an all-Filipino board of directors, this
Convention."41 The same battle-cry resulted in the situation does not guarantee Filipino control and does not in
nationalization of the public utilities.42 This is also the same any way cure the violation of the Constitution. The
intent of the framers of the 1987 Constitution who adopted the independence of the Filipino board members so elected by
exact formulation embodied in the 1935 and 1973 such foreign shareholders is highly doubtful. As the OSG
Constitutions on foreign equity limitations in partially pointed out, quoting Justice George Sutherland’s words
nationalized industries. in Humphrey’s Executor v. US,44 "x x x it is quite evident
that one who holds his office only during the pleasure of
The OSG, in its own behalf and as counsel for the another cannot be depended upon to maintain an attitude of
State,43 agrees fully with the Court’s interpretation of the independence against the latter’s will." Allowing foreign
term "capital." In its Consolidated Comment, the OSG shareholders to elect a controlling majority of the board, even
explains that the deletion of the phrase "controlling interest" if all the directors are Filipinos, grossly circumvents the letter
and replacement of the word "stock" with the term "capital" and intent of the Constitution and defeats the very purpose of
were intended specifically to extend the scope of the entities our nationalization laws.
qualified to operate public utilities to include associations
without stocks. The framers’ omission of the phrase VII.
"controlling interest" did not mean the inclusion of all shares Last sentence of Section 11, Article XII of the Constitution
of stock, whether voting or non-voting. The OSG reiterated
The last sentence of Section 11, Article XII of the 1987
essentially the Court’s declaration that the Constitution
Constitution reads:
reserved exclusively to Philippine nationals the ownership and
operation of public utilities consistent with the State’s policy The participation of foreign investors in the governing body of
any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive and x x x x45
managing officers of such corporation or association must be
citizens of the Philippines. MS. ROSARIO BRAID. Madam President.

During the Oral Arguments, the OSG emphasized that there THE PRESIDENT. Commissioner Rosario Braid is
was never a question on the intent of the framers of the recognized.
Constitution to limit foreign ownership, and assure majority MS. ROSARIO BRAID. Yes, in the interest of equal time,
Filipino ownership and control of public utilities. The OSG may I also read from a memorandum by the spokesman of the
argued, "while the delegates disagreed as to the percentage Philippine Chamber of Communications on why they would
threshold to adopt, x x x the records show they clearly like to maintain the present equity, I am referring to the 66
understood that Filipino control of the public utility 2/3. They would prefer to have a 75-25 ratio but would settle
corporation can only be and is obtained only through the for 66 2/3. x x x
election of a majority of the members of the board."
xxxx
Indeed, the only point of contention during the deliberations of
the Constitutional Commission on 23 August 1986 was the THE PRESIDENT. Just to clarify, would Commissioner
extent of majority Filipino control of public utilities. This is Rosario Braid support the proposal of two-thirds rather than
evident from the following exchange: the 60 percent?

THE PRESIDENT. Commissioner Jamir is recognized. MS. ROSARIO BRAID. I have added a clause that will put
management in the hands of Filipino citizens.
MR. JAMIR. Madam President, my proposed amendment on
lines 20 and 21 is to delete the phrase "two thirds of whose x x x x46
voting stock or controlling interest," and instead substitute the
While they had differing views on the percentage of Filipino
words "SIXTY PERCENT OF WHOSE CAPITAL" so that
ownership of capital, it is clear that the framers of the
the sentence will read: "No franchise, certificate, or any other
Constitution intended public utilities to be majority Filipino-
form of authorization for the operation of a public utility shall
owned and controlled. To ensure that Filipinos control public
be granted except to citizens of the Philippines or to
utilities, the framers of the Constitution approved, as
corporations or associations organized under the laws of the
additional safeguard, the inclusion of the last sentence of
Philippines at least SIXTY PERCENT OF WHOSE
Section 11, Article XII of the Constitution commanding that
CAPITAL is owned by such citizens."
"[t]he participation of foreign investors in the governing body
xxxx of any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive and
THE PRESIDENT: Will Commissioner Jamir first explain? managing officers of such corporation or association must be
MR. JAMIR. Yes, in this Article on National Economy and citizens of the Philippines." In other words, the last sentence
Patrimony, there were two previous sections in which we of Section 11, Article XII of the Constitution mandates that (1)
fixed the Filipino equity to 60 percent as against 40 percent for the participation of foreign investors in the governing body of
foreigners. It is only in this Section 15 with respect to public the corporation or association shall be limited to their
utilities that the committee proposal was increased to two- proportionate share in the capital of such entity; and (2) all
thirds. I think it would be better to harmonize this provision by officers of the corporation or association must be Filipino
providing that even in the case of public utilities, the minimum citizens.
equity for Filipino citizens should be 60 percent. Commissioner Rosario Braid proposed the inclusion of the
MR. ROMULO. Madam President. phrase requiring the managing officers of the corporation or
association to be Filipino citizens specifically to prevent
THE PRESIDENT. Commissioner Romulo is recognized. management contracts, which were designed primarily to
circumvent the Filipinization of public utilities, and to assure
MR. ROMULO. My reason for supporting the amendment is Filipino control of public utilities, thus:
based on the discussions I have had with representatives of the
Filipino majority owners of the international record carriers, MS. ROSARIO BRAID. x x x They also like to suggest that
and the subsequent memoranda they submitted to me. x x x we amend this provision by adding a phrase which states:
"THE MANAGEMENT BODY OF EVERY
Their second point is that under the Corporation Code, the CORPORATION OR ASSOCIATION SHALL IN ALL
management and control of a corporation is vested in the CASES BE CONTROLLED BY CITIZENS OF THE
board of directors, not in the officers but in the board of PHILIPPINES." I have with me their position paper.
directors. The officers are only agents of the board. And they
believe that with 60 percent of the equity, the Filipino majority THE PRESIDENT. The Commissioner may proceed.
stockholders undeniably control the board. Only on important
corporate acts can the 40-percent foreign equity exercise a MS. ROSARIO BRAID. The three major international record
veto, x x x. carriers in the Philippines, which Commissioner Romulo
mentioned – Philippine Global Communications, Eastern PROPORTIONATE SHARE IN THE CAPITAL THEREOF
Telecommunications, Globe Mackay Cable – are 40-percent AND..."
owned by foreign multinational companies and 60-percent
owned by their respective Filipino partners. All three, MR. VILLEGAS. "ALL THE EXECUTIVE AND
however, also have management contracts with these foreign MANAGING OFFICERS OF SUCH CORPORATIONS
companies – Philcom with RCA, ETPI with Cable and AND ASSOCIATIONS MUST BE CITIZENS OF THE
Wireless PLC, and GMCR with ITT. Up to the present time, PHILIPPINES."
the general managers of these carriers are foreigners. While MR. BENGZON. Will Commissioner Bernas read the whole
the foreigners in these common carriers are only minority thing again?
owners, the foreign multinationals are the ones managing and
controlling their operations by virtue of their management FR. BERNAS. "THE PARTICIPATION OF FOREIGN
contracts and by virtue of their strength in the governing INVESTORS IN THE GOVERNING BODY OF ANY
bodies of these carriers.47 PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO
THEIR PROPORTIONATE SHARE IN THE CAPITAL
xxxx THEREOF..." I do not have the rest of the copy.
MR. OPLE. I think a number of us have agreed to ask MR. BENGZON. "AND ALL THE EXECUTIVE AND
Commissioner Rosario Braid to propose an amendment with MANAGING OFFICERS OF SUCH CORPORATIONS OR
respect to the operating management of public utilities, and in ASSOCIATIONS MUST BE CITIZENS OF THE
this amendment, we are associated with Fr. Bernas, PHILIPPINES." Is that correct?
Commissioners Nieva and Rodrigo. Commissioner Rosario
Braid will state this amendment now. MR. VILLEGAS. Yes.

Thank you. MR. BENGZON. Madam President, I think that was said in a
more elegant language. We accept the amendment. Is that all
MS. ROSARIO BRAID. Madam President. right with Commissioner Rosario Braid?
THE PRESIDENT. This is still on Section 15. MS. ROSARIO BRAID. Yes.
MS. ROSARIO BRAID. Yes. xxxx
MR. VILLEGAS. Yes, Madam President. MR. DE LOS REYES. The governing body refers to the board
xxxx of directors and trustees.

MS. ROSARIO BRAID. Madam President, I propose a new MR. VILLEGAS. That is right.
section to read: ‘THE MANAGEMENT BODY OF EVERY MR. BENGZON. Yes, the governing body refers to the board
CORPORATION OR ASSOCIATION SHALL IN ALL of directors.
CASES BE CONTROLLED BY CITIZENS OF THE
PHILIPPINES." MR. REGALADO. It is accepted.

This will prevent management contracts and assure control by MR. RAMA. The body is now ready to vote, Madam
Filipino citizens. Will the committee assure us that this President.
amendment will insure that past activities such as management
VOTING
contracts will no longer be possible under this amendment?
xxxx
xxxx
The results show 29 votes in favor and none against; so the
FR. BERNAS. Madam President.
proposed amendment is approved.
THE PRESIDENT. Commissioner Bernas is recognized.
xxxx
FR. BERNAS. Will the committee accept a reformulation of
THE PRESIDENT. All right. Can we proceed now to vote on
the first part?
Section 15?
MR. BENGZON. Let us hear it.
MR. RAMA. Yes, Madam President.
FR. BERNAS. The reformulation will be essentially the
THE PRESIDENT. Will the chairman of the committee please
formula of the 1973 Constitution which reads: "THE
read Section 15?
PARTICIPATION OF FOREIGN INVESTORS IN THE
GOVERNING BODY OF ANY PUBLIC UTILITY MR. VILLEGAS. The entire Section 15, as amended, reads:
ENTERPRISE SHALL BE LIMITED TO THEIR "No franchise, certificate, or any other form of authorization
for the operation of a public utility shall be granted except to
citizens of the Philippines or to corporations or associations Such question indisputably calls for a presentation and
organized under the laws of the Philippines at least 60 determination of evidence through a hearing, which is
PERCENT OF WHOSE CAPITAL is owned by such generally outside the province of the Court’s jurisdiction, but
citizens." May I request Commissioner Bengzon to please well within the SEC’s statutory powers. Thus, for obvious
continue reading. reasons, the Court limited its decision on the purely legal and
threshold issue on the definition of the term "capital" in
MR. BENGZON. "THE PARTICIPATION OF FOREIGN Section 11, Article XII of the Constitution and directed the
INVESTORS IN THE GOVERNING BODY OF ANY SEC to apply such definition in determining the exact
PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO percentage of foreign ownership in PLDT.
THEIR PROPORTIONATE SHARE IN THE CAPITAL
THEREOF AND ALL THE EXECUTIVE AND IX.
MANAGING OFFICERS OF SUCH CORPORATIONS OR PLDT is not an indispensable party;
ASSOCIATIONS MUST BE CITIZENS OF THE SEC is impleaded in this case.
PHILIPPINES."
In his petition, Gamboa prays, among others:
MR. VILLEGAS. "NOR SHALL SUCH FRANCHISE,
CERTIFICATE OR AUTHORIZATION BE EXCLUSIVE IN xxxx
CHARACTER OR FOR A PERIOD LONGER THAN 5. For the Honorable Court to issue a declaratory relief that
TWENTY-FIVE YEARS RENEWABLE FOR NOT MORE ownership of common or voting shares is the sole basis in
THAN TWENTY-FIVE YEARS. Neither shall any such determining foreign equity in a public utility and that any
franchise or right be granted except under the condition that it other government rulings, opinions, and regulations
shall be subject to amendment, alteration, or repeal by inconsistent with this declaratory relief be declared
Congress when the common good so requires. The State shall unconstitutional and a violation of the intent and spirit of the
encourage equity participation in public utilities by the general 1987 Constitution;
public."
6. For the Honorable Court to declare null and void all sales of
VOTING common stocks to foreigners in excess of 40 percent of the
xxxx total subscribed common shareholdings; and

The results show 29 votes in favor and 4 against; Section 15, 7. For the Honorable Court to direct the Securities and
as amended, is approved.48 (Emphasis supplied) Exchange Commission and Philippine Stock Exchange to
require PLDT to make a public disclosure of all of its foreign
The last sentence of Section 11, Article XII of the 1987 shareholdings and their actual and real beneficial owners.
Constitution, particularly the provision on the limited
participation of foreign investors in the governing body of Other relief(s) just and equitable are likewise prayed for.
public utilities, is a reiteration of the last sentence of Section 5, (Emphasis supplied)
Article XIV of the 1973 Constitution,49 signifying its As can be gleaned from his prayer, Gamboa clearly asks this
importance in reserving ownership and control of public Court to compel the SEC to perform its statutory duty to
utilities to Filipino citizens. investigate whether "the required percentage of ownership of
VIII. the capital stock to be owned by citizens of the Philippines has
The undisputed facts been complied with [by PLDT] as required by x x x the
Constitution."51 Such plea clearly negates SEC’s argument
There is no dispute, and respondents do not claim the contrary, that it was not impleaded.
that (1) foreigners own 64.27% of the common shares of
PLDT, which class of shares exercises the sole right to vote in Granting that only the SEC Chairman was impleaded in this
the election of directors, and thus foreigners control PLDT; (2) case, the Court has ample powers to order the SEC’s
Filipinos own only 35.73% of PLDT’s common shares, compliance with its directive contained in the 28 June 2011
constituting a minority of the voting stock, and thus Filipinos Decision in view of the far-reaching implications of this case.
do not control PLDT; (3) preferred shares, 99.44% owned by In Domingo v. Scheer,52 the Court dispensed with the
Filipinos, have no voting rights; (4) preferred shares earn only amendment of the pleadings to implead the Bureau of
1/70 of the dividends that common shares earn;50 (5) Customs considering (1) the unique backdrop of the case; (2)
preferred shares have twice the par value of common shares; the utmost need to avoid further delays; and (3) the issue of
and (6) preferred shares constitute 77.85% of the authorized public interest involved. The Court held:
capital stock of PLDT and common shares only 22.15%. The Court may be curing the defect in this case by adding the
Despite the foregoing facts, the Court did not decide, and in BOC as party-petitioner. The petition should not be dismissed
fact refrained from ruling on the question of whether PLDT because the second action would only be a repetition of the
violated the 60-40 ownership requirement in favor of Filipino first. In Salvador, et al., v. Court of Appeals, et al., we held
citizens in Section 11, Article XII of the 1987 Constitution. that this Court has full powers, apart from that power and
authority which is inherent, to amend the processes, pleadings, Notably, the foregoing issues were left untouched by the
proceedings and decisions by substituting as party-plaintiff the Court. The Court did not rule on the factual issues raised by
real party-in-interest. The Court has the power to avoid delay Gamboa, except the single and purely legal issue on the
in the disposition of this case, to order its amendment as to definition of the term "capital" in Section 11, Article XII of
implead the BOC as party-respondent. Indeed, it may no the Constitution. The Court confined the resolution of the
longer be necessary to do so taking into account the unique instant case to this threshold legal issue in deference to the
backdrop in this case, involving as it does an issue of public fact-finding power of the SEC.
interest. After all, the Office of the Solicitor General has
represented the petitioner in the instant proceedings, as well as Needless to state, the Court can validly, properly, and fully
in the appellate court, and maintained the validity of the dispose of the fundamental legal issue in this case even
deportation order and of the BOC’s Omnibus Resolution. It without the participation of PLDT since defining the term
cannot, thus, be claimed by the State that the BOC was not "capital" in Section 11, Article XII of the Constitution does
afforded its day in court, simply because only the petitioner, not, in any way, depend on whether PLDT was impleaded.
the Chairperson of the BOC, was the respondent in the CA, Simply put, PLDT is not indispensable for a complete
and the petitioner in the instant recourse. In Alonso v. resolution of the purely legal question in this case.55 In fact,
Villamor, we had the occasion to state: the Court, by treating the petition as one for
mandamus,56 merely directed the SEC to apply the Court’s
There is nothing sacred about processes or pleadings, their definition of the term "capital" in Section 11, Article XII of
forms or contents. Their sole purpose is to facilitate the the Constitution in determining whether PLDT committed any
application of justice to the rival claims of contending violation of the said constitutional provision. The dispositive
parties. They were created, not to hinder and delay, but to portion of the Court’s ruling is addressed not to PLDT but
facilitate and promote, the administration of justice. They do solely to the SEC, which is the administrative agency tasked to
not constitute the thing itself, which courts are always striving enforce the 60-40 ownership requirement in favor of Filipino
to secure to litigants. They are designed as the means best citizens in Section 11, Article XII of the Constitution.
adapted to obtain that thing. In other words, they are a means
to an end. When they lose the character of the one and become Since the Court limited its resolution on the purely legal issue
the other, the administration of justice is at fault and courts are on the definition of the term "capital" in Section 11, Article
correspondingly remiss in the performance of their obvious XII of the 1987 Constitution, and directed the SEC to
duty.53 (Emphasis supplied) investigate any violation by PLDT of the 60-40 ownership
requirement in favor of Filipino citizens under the
In any event, the SEC has expressly manifested54 that it will Constitution,57 there is no deprivation of PLDT’s property or
abide by the Court’s decision and defer to the Court’s denial of PLDT’s right to due process, contrary to Pangilinan
definition of the term "capital" in Section 11, Article XII of and Nazareno’s misimpression. Due process will be afforded
the Constitution. Further, the SEC entered its special to PLDT when it presents proof to the SEC that it complies, as
appearance in this case and argued during the Oral Arguments, it claims here, with Section 11, Article XII of the Constitution.
indicating its submission to the Court’s jurisdiction. It is clear,
therefore, that there exists no legal impediment against the X.
proper and immediate implementation of the Court’s directive Foreign Investments in the Philippines
to the SEC. Movants fear that the 28 June 2011 Decision would spell
PLDT is an indispensable party only insofar as the other disaster to our economy, as it may result in a sudden flight of
issues, particularly the factual questions, are concerned. In existing foreign investors to "friendlier" countries and
other words, PLDT must be impleaded in order to fully simultaneously deterring new foreign investors to our country.
resolve the issues on (1) whether the sale of 111,415 PTIC In particular, the PSE claims that the 28 June 2011 Decision
shares to First Pacific violates the constitutional limit on may result in the following: (1) loss of more than ₱ 630 billion
foreign ownership of PLDT; (2) whether the sale of common in foreign investments in PSE-listed shares; (2) massive
shares to foreigners exceeded the 40 percent limit on foreign decrease in foreign trading transactions; (3) lower PSE
equity in PLDT; and (3) whether the total percentage of the Composite Index; and (4) local investors not investing in PSE-
PLDT common shares with voting rights complies with the listed shares.58
60-40 ownership requirement in favor of Filipino citizens Dr. Bernardo M. Villegas, one of the amici curiae in the Oral
under the Constitution for the ownership and operation of Arguments, shared movants’ apprehension. Without providing
PLDT. These issues indisputably call for an examination of specific details, he pointed out the depressing state of the
the parties’ respective evidence, and thus are clearly within the Philippine economy compared to our neighboring countries
jurisdiction of the SEC. In short, PLDT must be impleaded, which boast of growing economies. Further, Dr. Villegas
and must necessarily be heard, in the proceedings before the explained that the solution to our economic woes is for the
SEC where the factual issues will be thoroughly threshed out government to "take-over" strategic industries, such as the
and resolved. public utilities sector, thus:

JUSTICE CARPIO:
I would like also to get from you Dr. Villegas if you have of the Constitution. Thus, there is no dispute that it is only
additional information on whether this high FDI59 countries after the SEC has determined PLDT’s violation, if any exists
in East Asia have allowed foreigners x x x control [of] their at the time of the commencement of the administrative case or
public utilities, so that we can compare apples with apples. investigation, that the SEC may impose the statutory sanctions
against PLDT. In other words, once the 28 June 2011 Decision
DR. VILLEGAS: becomes final, the SEC shall impose the appropriate sanctions
Correct, but let me just make a comment. When these only if it finds after due hearing that, at the start of the
neighbors of ours find an industry strategic, their solution is administrative case or investigation, there is an existing
not to "Filipinize" or "Vietnamize" or "Singaporize." Their violation of Section 11, Article XII of the Constitution. Under
solution is to make sure that those industries are in the hands prevailing jurisprudence, public utilities that fail to comply
of state enterprises. So, in these countries, nationalization with the nationality requirement under Section 11, Article XII
means the government takes over. And because their and the FIA can cure their deficiencies prior to the start of the
governments are competent and honest enough to the public, administrative case or investigation.61
that is the solution. x x x 60 (Emphasis supplied) XII.
If government ownership of public utilities is the solution, Final Word
then foreign investments in our public utilities serve no The Constitution expressly declares as State policy the
purpose. Obviously, there can never be foreign investments in development of an economy "effectively controlled" by
public utilities if, as Dr. Villegas claims, the "solution is to Filipinos. Consistent with such State policy, the Constitution
make sure that those industries are in the hands of state explicitly reserves the ownership and operation of public
enterprises." Dr. Villegas’s argument that foreign investments utilities to Philippine nationals, who are defined in the Foreign
in telecommunication companies like PLDT are badly needed Investments Act of 1991 as Filipino citizens, or corporations
to save our ailing economy contradicts his own theory that the or associations at least 60 percent of whose capital with voting
solution is for government to take over these companies. Dr. rights belongs to Filipinos. The FIA’s implementing rules
Villegas is barking up the wrong tree since State ownership of explain that "[f]or stocks to be deemed owned and held by
public utilities and foreign investments in such industries are Philippine citizens or Philippine nationals, mere legal title is
diametrically opposed concepts, which cannot possibly be not enough to meet the required Filipino equity. Full
reconciled. beneficial ownership of the stocks, coupled with appropriate
In any event, the experience of our neighboring countries voting rights is essential." In effect, the FIA clarifies, reiterates
cannot be used as argument to decide the present case and confirms the interpretation that the term "capital" in
differently for two reasons. First, the governments of our Section 11, Article XII of the 1987 Constitution refers
neighboring countries have, as claimed by Dr. Villegas, taken to shares with voting rights, as well as with full beneficial
over ownership and control of their strategic public utilities ownership. This is precisely because the right to vote in the
like the telecommunications industry. Second, our election of directors, coupled with full beneficial ownership of
Constitution has specific provisions limiting foreign stocks, translates to effective control of a corporation.
ownership in public utilities which the Court is sworn to Any other construction of the term "capital" in Section 11,
uphold regardless of the experience of our neighboring Article XII of the Constitution contravenes the letter and intent
countries. of the Constitution. Any other meaning of the term "capital"
In our jurisdiction, the Constitution expressly reserves the openly invites alien domination of economic activities
ownership and operation of public utilities to Filipino citizens, reserved exclusively to Philippine nationals. Therefore,
or corporations or associations at least 60 percent of whose respondents’ interpretation will ultimately result in handing
capital belongs to Filipinos. Following Dr. Villegas’s claim, over effective control of our national economy to foreigners in
the Philippines appears to be more liberal in allowing foreign patent violation of the Constitution, making Filipinos second-
investors to own 40 percent of public utilities, unlike in other class citizens in their own country.
Asian countries whose governments own and operate such Filipinos have only to remind themselves of how this country
industries. was exploited under the Parity Amendment, which gave
XI. Americans the same rights as Filipinos in the exploitation of
Prospective Application of Sanctions natural resources, and in the ownership and control of public
utilities, in the Philippines. To do this the 1935 Constitution,
In its Motion for Partial Reconsideration, the SEC sought to which contained the same 60 percent Filipino ownership and
clarify the reckoning period of the application and imposition control requirement as the present 1987 Constitution, had to
of appropriate sanctions against PLDT if found violating be amended to give Americans parity rights with Filipinos.
Section 11, Article XII of the Constitution.1avvphi1 There was bitter opposition to the Parity Amendment62 and
many Filipinos eagerly awaited its expiration. In late 1968,
As discussed, the Court has directed the SEC to investigate
PLDT was one of the American-controlled public utilities that
and determine whether PLDT violated Section 11, Article XII
became Filipino-controlled when the controlling American
stockholders divested in anticipation of the expiration of the
Parity Amendment on 3 July 1974.63 No economic suicide
happened when control of public utilities and mining
corporations passed to Filipinos’ hands upon expiration of the
Parity Amendment.

Movants’ interpretation of the term "capital" would bring us


back to the same evils spawned by the Parity
Amendment, effectively giving foreigners parity rights with
Filipinos, but this time even without any amendment to the
present Constitution. Worse, movants’ interpretation opens up
our national economy to effective control not only by
Americans but also by all foreigners, be they Indonesians,
Malaysians or Chinese, even in the absence of reciprocal
treaty arrangements. At least the Parity Amendment, as
implemented by the Laurel-Langley Agreement, gave the
capital-starved Filipinos theoretical parity – the same rights as
Americans to exploit natural resources, and to own and control
public utilities, in the United States of America. Here,
movants’ interpretation would effectively mean
a unilateral opening up of our national economy to all
foreigners, without any reciprocal arrangements. That would
mean that Indonesians, Malaysians and Chinese nationals
could effectively control our mining companies and public
utilities while Filipinos, even if they have the capital, could
not control similar corporations in these countries.

The 1935, 1973 and 1987 Constitutions have the same 60


percent Filipino ownership and control requirement for public
utilities like PLOT. Any deviation from this requirement
necessitates an amendment to the Constitution as exemplified
by the Parity Amendment. This Court has no power to amend
the Constitution for its power and duty is only to faithfully
apply and interpret the Constitution.

WHEREFORE, we DENY the motions for


reconsideration WITH FINALITY. No further pleadings shall
be entertained.

SO ORDERED.
G.R. No. 160261 November 10, 2003 branches where the delicate functions of enacting, interpreting
and enforcing laws are harmonized to achieve a unity of
ERNESTO B. FRANCISCO, JR., petitioner, et al, governance, guided only by what is in the greater interest and
vs. well-being of the people. Verily, salus populi est suprema lex.
THE HOUSE OF REPRESENTATIVES, REPRESENTED
BY SPEAKER JOSE G. DE VENECIA, et al, respondents. Article XI of our present 1987 Constitution provides:

CARPIO MORALES, J.: ARTICLE XI

There can be no constitutional crisis arising from a conflict, no Accountability of Public Officers
matter how passionate and seemingly irreconcilable it may
appear to be, over the determination by the independent SECTION 1. Public office is a public trust. Public officers and
branches of government of the nature, scope and extent of employees must at all times be accountable to the people,
their respective constitutional powers where the Constitution serve them with utmost responsibility, integrity, loyalty, and
itself provides for the means and bases for its resolution. efficiency, act with patriotism and justice, and lead modest
lives.
Our nation's history is replete with vivid illustrations of the
often frictional, at times turbulent, dynamics of the SECTION 2. The President, the Vice-President, the Members
relationship among these co-equal branches. This Court is of the Supreme Court, the Members of the Constitutional
confronted with one such today involving the legislature and Commissions, and the Ombudsman may be removed from
the judiciary which has drawn legal luminaries to chart office, on impeachment for, and conviction of, culpable
antipodal courses and not a few of our countrymen to vent violation of the Constitution, treason, bribery, graft and
cacophonous sentiments thereon. corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from
There may indeed be some legitimacy to the characterization office as provided by law, but not by impeachment.
that the present controversy subject of the instant petitions –
whether the filing of the second impeachment complaint SECTION 3. (1) The House of Representatives shall have
against Chief Justice Hilario G. Davide, Jr. with the House of the exclusive power to initiate all cases of impeachment.
Representatives falls within the one year bar provided in the (2) A verified complaint for impeachment may be filed by any
Constitution, and whether the resolution thereof is a political Member of the House of Representatives or by any citizen
question – has resulted in a political crisis. Perhaps even more upon a resolution of endorsement by any Member thereof,
truth to the view that it was brought upon by a political crisis which shall be included in the Order of Business within ten
of conscience. session days, and referred to the proper Committee within
In any event, it is with the absolute certainty that our three session days thereafter. The Committee, after hearing,
Constitution is sufficient to address all the issues which this and by a majority vote of all its Members, shall submit its
controversy spawns that this Court unequivocally pronounces, report to the House within sixty session days from such
at the first instance, that the feared resort to extra- referral, together with the corresponding resolution. The
constitutional methods of resolving it is neither necessary nor resolution shall be calendared for consideration by the House
legally permissible. Both its resolution and protection of the within ten session days from receipt thereof.
public interest lie in adherence to, not departure from, the (3) A vote of at least one-third of all the Members of the
Constitution. House shall be necessary either to affirm a favorable
In passing over the complex issues arising from the resolution with the Articles of Impeachment of the Committee,
controversy, this Court is ever mindful of the essential truth or override its contrary resolution. The vote of each Member
that the inviolate doctrine of separation of powers among the shall be recorded.
legislative, executive or judicial branches of government by no (4) In case the verified complaint or resolution of
means prescribes for absolute autonomy in the discharge by impeachment is filed by at least one-third of all the Members
each of that part of the governmental power assigned to it by of the House, the same shall constitute the Articles of
the sovereign people. Impeachment, and trial by the Senate shall forthwith proceed.
At the same time, the corollary doctrine of checks and (5) No impeachment proceedings shall be initiated against the
balances which has been carefully calibrated by the same official more than once within a period of one year.
Constitution to temper the official acts of each of these three
branches must be given effect without destroying their (6) The Senate shall have the sole power to try and decide all
indispensable co-equality. cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President
Taken together, these two fundamental doctrines of republican of the Philippines is on trial, the Chief Justice of the Supreme
government, intended as they are to insure that governmental Court shall preside, but shall not vote. No person shall be
power is wielded only for the good of the people, mandate a convicted without the concurrence of two-thirds of all the
relationship of interdependence and coordination among these Members of the Senate.
(7) Judgment in cases of impeachment shall not extend further House Committee on Justice voted to dismiss it, the second
than removal from office and disqualification to hold any impeachment complaint11 was filed with the Secretary
office under the Republic of the Philippines, but the party General of the House12 by Representatives Gilberto C.
convicted shall nevertheless be liable and subject to Teodoro, Jr. (First District, Tarlac) and Felix William B.
prosecution, trial, and punishment according to law. Fuentebella (Third District, Camarines Sur) against Chief
Justice Hilario G. Davide, Jr., founded on the alleged results
(8) The Congress shall promulgate its rules on impeachment to of the legislative inquiry initiated by above-mentioned House
effectively carry out the purpose of this section. (Emphasis Resolution. This second impeachment complaint was
and underscoring supplied) accompanied by a "Resolution of Endorsement/Impeachment"
Following the above-quoted Section 8 of Article XI of the signed by at least one-third (1/3) of all the Members of the
Constitution, the 12th Congress of the House of House of Representatives.13
Representatives adopted and approved the Rules of Procedure Thus arose the instant petitions against the House of
in Impeachment Proceedings (House Impeachment Rules) on Representatives, et. al., most of which petitions contend that
November 28, 2001, superseding the previous House the filing of the second impeachment complaint is
Impeachment Rules1 approved by the 11th Congress. unconstitutional as it violates the provision of Section 5 of
The relevant distinctions between these two Congresses' Article XI of the Constitution that "[n]o impeachment
House Impeachment Rules are shown in the following proceedings shall be initiated against the same official more
tabulation: than once within a period of one year."
On July 22, 2002, the House of Representatives adopted a In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr.,
Resolution,2 sponsored by Representative Felix William D. alleging that he has a duty as a member of the Integrated Bar
Fuentebella, which directed the Committee on Justice "to of the Philippines to use all available legal remedies to stop an
conduct an investigation, in aid of legislation, on the manner unconstitutional impeachment, that the issues raised in his
of disbursements and expenditures by the Chief Justice of the petition for Certiorari, Prohibition and Mandamus are of
Supreme Court of the Judiciary Development Fund (JDF)."3 transcendental importance, and that he "himself was a victim
On June 2, 2003, former President Joseph E. Estrada filed an of the capricious and arbitrary changes in the Rules of
impeachment complaint4 (first impeachment complaint) Procedure in Impeachment Proceedings introduced by the 12th
against Chief Justice Hilario G. Davide Jr. and seven Congress,"14 posits that his right to bring an impeachment
Associate Justices5 of this Court for "culpable violation of the complaint against then Ombudsman Aniano Desierto had been
Constitution, betrayal of the public trust and other high violated due to the capricious and arbitrary changes in the
crimes."6 The complaint was endorsed by Representatives House Impeachment Rules adopted and approved on
Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang November 28, 2001 by the House of Representatives and
Dilangalen,7 and was referred to the House Committee on prays that (1) Rule V, Sections 16 and 17 and Rule III,
Justice on August 5, 20038 in accordance with Section 3(2) of Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional;
Article XI of the Constitution which reads: (2) this Court issue a writ of mandamus directing respondents
House of Representatives et. al. to comply with Article IX,
Section 3(2) A verified complaint for impeachment may be Section 3 (2), (3) and (5) of the Constitution, to return the
filed by any Member of the House of Representatives or by second impeachment complaint and/or strike it off the records
any citizen upon a resolution of endorsement by any Member of the House of Representatives, and to promulgate rules
thereof, which shall be included in the Order of Business which are consistent with the Constitution; and (3) this Court
within ten session days, and referred to the proper Committee permanently enjoin respondent House of Representatives from
within three session days thereafter. The Committee, after proceeding with the second impeachment complaint.
hearing, and by a majority vote of all its Members, shall
submit its report to the House within sixty session days from In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et.
such referral, together with the corresponding resolution. The al., as citizens and taxpayers, alleging that the issues of the
resolution shall be calendared for consideration by the House case are of transcendental importance, pray, in their petition
within ten session days from receipt thereof. for Certiorari/Prohibition, the issuance of a writ "perpetually"
prohibiting respondent House of Representatives from filing
The House Committee on Justice ruled on October 13, 2003 any Articles of Impeachment against the Chief Justice with the
that the first impeachment complaint was "sufficient in Senate; and for the issuance of a writ "perpetually" prohibiting
form,"9 but voted to dismiss the same on October 22, 2003 for respondents Senate and Senate President Franklin Drilon from
being insufficient in substance.10 To date, the Committee accepting any Articles of Impeachment against the Chief
Report to this effect has not yet been sent to the House in Justice or, in the event that the Senate has accepted the same,
plenary in accordance with the said Section 3(2) of Article XI from proceeding with the impeachment trial.
of the Constitution.
In G.R. No. 160263, petitioners Arturo M. de Castro and
Four months and three weeks since the filing on June 2, 2003 Soledad Cagampang, as citizens, taxpayers, lawyers and
of the first complaint or on October 23, 2003, a day after the members of the Integrated Bar of the Philippines, alleging that
their petition for Prohibition involves public interest as it of the Integrated Bar of the Philippines, and petitioner Engr.
involves the use of public funds necessary to conduct the Maximo N. Menez, Jr., as a taxpayer, pray in their petition for
impeachment trial on the second impeachment complaint, pray the issuance of a Temporary Restraining Order and Permanent
for the issuance of a writ of prohibition enjoining Congress Injunction to enjoin the House of Representatives from
from conducting further proceedings on said second proceeding with the second impeachment complaint.
impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging Philippines, alleging that it is mandated by the Code of
that this Court has recognized that he has locus standi to bring Professional Responsibility to uphold the Constitution, prays
petitions of this nature in the cases of Chavez v. in its petition for Certiorari and Prohibition that Sections 16
PCGG15 and Chavez v. PEA-Amari Coastal Bay and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the
Development Corporation,16 prays in his petition for House Impeachment Rules be declared unconstitutional and
Injunction that the second impeachment complaint be declared that the House of Representatives be permanently enjoined
unconstitutional. from proceeding with the second impeachment complaint.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores
al., as taxpayers and members of the legal profession, pray in prays in his petition for Certiorari and Prohibition that the
their petition for Prohibition for an order prohibiting House Impeachment Rules be declared unconstitutional.
respondent House of Representatives from drafting, adopting,
approving and transmitting to the Senate the second In G.R. No. 160365, petitioners U.P. Law Alumni Cebu
impeachment complaint, and respondents De Venecia and Foundation Inc., et. al., in their petition for Prohibition and
Nazareno from transmitting the Articles of Impeachment to Injunction which they claim is a class suit filed in behalf of all
the Senate. citizens, citing Oposa v. Factoran17 which was filed in behalf
of succeeding generations of Filipinos, pray for the issuance of
In G.R. No. 160295, petitioners Representatives Salacnib F. a writ prohibiting respondents House of Representatives and
Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, the Senate from conducting further proceedings on the second
as members of the House of Representatives, they have a legal impeachment complaint and that this Court declare as
interest in ensuring that only constitutional impeachment unconstitutional the second impeachment complaint and the
proceedings are initiated, pray in their petition for acts of respondent House of Representatives in interfering
Certiorari/Prohibition that the second impeachment complaint with the fiscal matters of the Judiciary.
and any act proceeding therefrom be declared null and void.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio
In G.R. No. 160310, petitioners Leonilo R. Alfonso et Callangan Aquino, alleging that the issues in his petition for
al., claiming that they have a right to be protected against all Prohibition are of national and transcendental significance and
forms of senseless spending of taxpayers' money and that they that as an official of the Philippine Judicial Academy, he has a
have an obligation to protect the Supreme Court, the Chief direct and substantial interest in the unhampered operation of
Justice, and the integrity of the Judiciary, allege in their the Supreme Court and its officials in discharging their duties
petition for Certiorari and Prohibition that it is instituted as "a in accordance with the Constitution, prays for the issuance of a
class suit" and pray that (1) the House Resolution endorsing writ prohibiting the House of Representatives from
the second impeachment complaint as well as all issuances transmitting the Articles of Impeachment to the Senate and the
emanating therefrom be declared null and void; and (2) this Senate from receiving the same or giving the impeachment
Court enjoin the Senate and the Senate President from taking complaint due course.
cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a
commanding the Senate, its prosecutors and agents to desist taxpayer, alleges in his petition for Prohibition that
from conducting any proceedings or to act on the respondents Fuentebella and Teodoro at the time they filed the
impeachment complaint. second impeachment complaint, were "absolutely without any
legal power to do so, as they acted without jurisdiction as far
In G.R. No. 160318, petitioner Public Interest Center, Inc., as the Articles of Impeachment assail the alleged abuse of
whose members are citizens and taxpayers, and its co- powers of the Chief Justice to disburse the (JDF)."
petitioner Crispin T. Reyes, a citizen, taxpayer and a member
of the Philippine Bar, both allege in their petition, which does In G.R. No. 160392, petitioners Attorneys Venicio S. Flores
not state what its nature is, that the filing of the second and Hector L. Hofileña, alleging that as professors of law they
impeachment complaint involves paramount public interest have an abiding interest in the subject matter of their petition
and pray that Sections 16 and 17 of the House Impeachment for Certiorari and Prohibition as it pertains to a constitutional
Rules and the second impeachment complaint/Articles of issue "which they are trying to inculcate in the minds of their
Impeachment be declared null and void. students," pray that the House of Representatives be enjoined
from endorsing and the Senate from trying the Articles of
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as Impeachment and that the second impeachment complaint be
a citizen and a member of the Philippine Bar Association and declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., Before acting on the petitions with prayers for temporary
without alleging his locus standi, but alleging that the second restraining order and/or writ of preliminary injunction which
impeachment complaint is founded on the issue of whether or were filed on or before October 28, 2003, Justices Puno and
not the Judicial Development Fund (JDF) was spent in Vitug offered to recuse themselves, but the Court rejected
accordance with law and that the House of Representatives their offer. Justice Panganiban inhibited himself, but the Court
does not have exclusive jurisdiction in the examination and directed him to participate.
audit thereof, prays in his petition "To Declare Complaint Null
and Void for Lack of Cause of Action and Jurisdiction" that Without necessarily giving the petitions due course, this Court
the second impeachment complaint be declared null and void. in its Resolution of October 28, 2003, resolved to (a)
consolidate the petitions; (b) require respondent House of
In G.R. No. 160403, petitioner Philippine Bar Association, Representatives and the Senate, as well as the Solicitor
alleging that the issues raised in the filing of the second General, to comment on the petitions not later than 4:30 p.m.
impeachment complaint involve matters of transcendental of November 3, 2003; (c) set the petitions for oral arguments
importance, prays in its petition for Certiorari/Prohibition that on November 5, 2003, at 10:00 a.m.; and (d) appointed
(1) the second impeachment complaint and all proceedings distinguished legal experts as amici curiae.20 In addition, this
arising therefrom be declared null and void; (2) respondent Court called on petitioners and respondents to maintain the
House of Representatives be prohibited from transmitting the status quo, enjoining all the parties and others acting for and in
Articles of Impeachment to the Senate; and (3) respondent their behalf to refrain from committing acts that would render
Senate be prohibited from accepting the Articles of the petitions moot.
Impeachment and from conducting any proceedings thereon.
Also on October 28, 2003, when respondent House of
In G.R. No. 160405, petitioners Democrit C. Barcenas et. Representatives through Speaker Jose C. De Venecia, Jr.
al., as citizens and taxpayers, pray in their petition for and/or its co-respondents, by way of special appearance,
Certiorari/Prohibition that (1) the second impeachment submitted a Manifestation asserting that this Court has no
complaint as well as the resolution of endorsement and jurisdiction to hear, much less prohibit or enjoin the House of
impeachment by the respondent House of Representatives be Representatives, which is an independent and co-equal branch
declared null and void and (2) respondents Senate and Senate of government under the Constitution, from the performance
President Franklin Drilon be prohibited from accepting any of its constitutionally mandated duty to initiate impeachment
Articles of Impeachment against the Chief Justice or, in the cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his
event that they have accepted the same, that they be prohibited own behalf, filed a Motion to Intervene (Ex Abudante
from proceeding with the impeachment trial. Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over
Petitions bearing docket numbers G.R. Nos. 160261, 160262 the issues affecting the impeachment proceedings and that the
and 160263, the first three of the eighteen which were filed sole power, authority and jurisdiction of the Senate as the
before this Court,18 prayed for the issuance of a Temporary impeachment court to try and decide impeachment cases,
Restraining Order and/or preliminary injunction to prevent the including the one where the Chief Justice is the respondent, be
House of Representatives from transmitting the Articles of recognized and upheld pursuant to the provisions of Article XI
Impeachment arising from the second impeachment complaint of the Constitution."22
to the Senate. Petition bearing docket number G.R. No.
160261 likewise prayed for the declaration of the November Acting on the other petitions which were subsequently filed,
28, 2001 House Impeachment Rules as null and void for being this Court resolved to (a) consolidate them with the earlier
unconstitutional. consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and
Petitions bearing docket numbers G.R. Nos. 160277, 160292 (c) include them for oral arguments on November 5, 2003.
and 160295, which were filed on October 28, 2003, sought
similar relief. In addition, petition bearing docket number G.R. On October 29, 2003, the Senate of the Philippines, through
No. 160292 alleged that House Resolution No. 260 (calling for Senate President Franklin M. Drilon, filed a Manifestation
a legislative inquiry into the administration by the Chief stating that insofar as it is concerned, the petitions are plainly
Justice of the JDF) infringes on the constitutional doctrine of premature and have no basis in law or in fact, adding that as of
separation of powers and is a direct violation of the the time of the filing of the petitions, no justiciable issue was
constitutional principle of fiscal autonomy of the judiciary. presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only
On October 28, 2003, during the plenary session of the House upon its receipt of the Articles of Impeachment, which it had
of Representatives, a motion was put forth that the second not, and (2) the principal issues raised by the petitions pertain
impeachment complaint be formally transmitted to the Senate, exclusively to the proceedings in the House of
but it was not carried because the House of Representatives Representatives.
adjourned for lack of quorum,19 and as reflected above, to
date, the Articles of Impeachment have yet to be forwarded to On October 30, 2003, Atty. Jaime Soriano filed a "Petition for
the Senate. Leave to Intervene" in G.R. Nos. 160261, 160262, 160263,
160277, 160292, and 160295, questioning the status issues yet remaining. These matters shall now be discussed in
quo Resolution issued by this Court on October 28, 2003 on seriatim.
the ground that it would unnecessarily put Congress and this
Court in a "constitutional deadlock" and praying for the Judicial Review
dismissal of all the petitions as the matter in question is not yet As reflected above, petitioners plead for this Court to exercise
ripe for judicial determination. the power of judicial review to determine the validity of the
On November 3, 2003, Attorneys Romulo B. Macalintal and second impeachment complaint.
Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for This Court's power of judicial review is conferred on the
Leave of Court to Intervene and to Admit the Herein judicial branch of the government in Section 1, Article VIII of
Incorporated Petition in Intervention." our present 1987 Constitution:
On November 4, 2003, Nagmamalasakit na mga Manananggol SECTION 1. The judicial power shall be vested in one
ng mga Manggagawang Pilipino, Inc. filed a Motion for Supreme Court and in such lower courts as may be established
Intervention in G.R. No. 160261. On November 5, 2003, by law.
World War II Veterans Legionnaires of the Philippines, Inc.
also filed a "Petition-in-Intervention with Leave to Intervene" Judicial power includes the duty of the courts of justice to
in G.R. Nos. 160261, 160262, 160263, 160277, 160292, settle actual controversies involving rights which are legally
160295, and 160310. demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
The motions for intervention were granted and both Senator or excess of jurisdiction on the part of any branch or
Pimentel's Comment and Attorneys Macalintal and Quadra's instrumentality of the government. (Emphasis supplied)
Petition in Intervention were admitted.
Such power of judicial review was early on exhaustively
On November 5-6, 2003, this Court heard the views of expounded upon by Justice Jose P. Laurel in the definitive
the amici curiae and the arguments of petitioners, intervenors 1936 case of Angara v. Electoral Commission23 after the
Senator Pimentel and Attorney Makalintal, and Solicitor effectivity of the 1935 Constitution whose provisions, unlike
General Alfredo Benipayo on the principal issues outlined in the present Constitution, did not contain the present provision
an Advisory issued by this Court on November 3, 2003, to wit: in Article VIII, Section 1, par. 2 on what judicial power
Whether the certiorari jurisdiction of the Supreme Court may includes. Thus, Justice Laurel discoursed:
be invoked; who can invoke it; on what issues and at what x x x In times of social disquietude or political excitement, the
time; and whether it should be exercised by this Court at this great landmarks of the Constitution are apt to be forgotten or
time. marred, if not entirely obliterated. In cases of conflict, the
In discussing these issues, the following may be taken up: judicial department is the only constitutional organ which can
be called upon to determine the proper allocation of powers
a) locus standi of petitioners; between the several departments and among the integral or
constituent units thereof.
b) ripeness(prematurity; mootness);
As any human production, our Constitution is of course
c) political question/justiciability; lacking perfection and perfectibility, but as much as it was
d) House's "exclusive" power to initiate all cases of within the power of our people, acting through their delegates
impeachment; to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican
e) Senate's "sole" power to try and decide all cases of government intended to operate and function as a harmonious
impeachment; whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said
f) constitutionality of the House Rules on Impeachment vis-a-
instrument. The Constitution sets forth in no uncertain
vis Section 3(5) of Article XI of the Constitution; and
language the restrictions and limitations upon governmental
g) judicial restraint (Italics in the original) powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had
In resolving the intricate conflux of preliminary and not provided for a mechanism by which to direct the course of
substantive issues arising from the instant petitions as well as government along constitutional channels,for then the
the myriad arguments and opinions presented for and against distribution of powers would be mere verbiage, the bill of
the grant of the reliefs prayed for, this Court has sifted and rights mere expressions of sentiment, and the principles of
determined them to be as follows: (1) the threshold and novel good government mere political apothegms. Certainly, the
issue of whether or not the power of judicial review extends to limitations and restrictions embodied in our Constitution are
those arising from impeachment proceedings; (2) whether or real as they should be in any living constitution. In the United
not the essential pre-requisites for the exercise of the power of States where no express constitutional grant is found in their
judicial review have been fulfilled; and (3) the substantive
constitution, the possession of this moderating power of the United States generally, but those only which shall be made in
courts, not to speak of its historical origin and development pursuance of the constitution, have that rank.
there, has been set at rest by popular acquiescence for a period
of more than one and a half centuries. In our case, this Thus, the particular phraseology of the constitution of the
moderating power is granted, if not expressly, by clear United States confirms and strengthens the principle, supposed
implication from section 2 of article VIII of our Constitution. to be essential to all written constitutions, that a law repugnant
to the constitution is void; and that courts, as well as other
The Constitution is a definition of the powers of departments, are bound by that instrument.28(Italics in the
government. Who is to determine the nature, scope and extent original; emphasis supplied)
of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when In our own jurisdiction, as early as 1902, decades before its
the judiciary mediates to allocate constitutional boundaries, express grant in the 1935 Constitution, the power of judicial
it does not assert any superiority over the other departments; it review was exercised by our courts to invalidate
does not in reality nullify or invalidate an act of the constitutionally infirm acts.29 And as pointed out by noted
legislature, but only asserts the solemn and sacred obligation political law professor and former Supreme Court Justice
assigned to it by the Constitution to determine conflicting Vicente V. Mendoza,30 the executive and legislative branches
claims of authority under the Constitution and to establish for of our government in fact effectively acknowledged this
the parties in an actual controversy the rights which that power of judicial review in Article 7 of the Civil Code, to wit:
instrument secures and guarantees to them. This is in truth all Article 7. Laws are repealed only by subsequent ones, and
that is involved in what is termed "judicial supremacy" which their violation or non-observance shall not be excused by
properly is the power of judicial review under the disuse, or custom or practice to the contrary.
Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after When the courts declare a law to be inconsistent with the
full opportunity of argument by the parties, and limited further Constitution, the former shall be void and the latter shall
to the constitutional question raised or the very lis govern.
mota presented. Any attempt at abstraction could only lead to
Administrative or executive acts, orders and regulations shall
dialectics and barren legal questions and to sterile conclusions
be valid only when they are not contrary to the laws or the
unrelated to actualities. Narrowed as its function is in this
Constitution. (Emphasis supplied)
manner, the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts As indicated in Angara v. Electoral Commission,31 judicial
accord the presumption of constitutionality to legislative review is indeed an integral component of the delicate system
enactments, not only because the legislature is presumed to of checks and balances which, together with the corollary
abide by the Constitution but also because the judiciary in the principle of separation of powers, forms the bedrock of our
determination of actual cases and controversies must reflect republican form of government and insures that its vast
the wisdom and justice of the people as expressed through powers are utilized only for the benefit of the people for which
their representatives in the executive and legislative it serves.
departments of the government.24 (Italics in the original;
emphasis and underscoring supplied) The separation of powers is a fundamental principle in our
system of government. It obtains not through express
As pointed out by Justice Laurel, this "moderating power" to provision but by actual division in our Constitution. Each
"determine the proper allocation of powers" of the different department of the government has exclusive cognizance of
branches of government and "to direct the course of matters within its jurisdiction, and is supreme within its own
government along constitutional channels" is inherent in all sphere. But it does not follow from the fact that the three
courts25 as a necessary consequence of the judicial power powers are to be kept separate and distinct that the
itself, which is "the power of the court to settle actual Constitution intended them to be absolutely unrestrained and
controversies involving rights which are legally demandable independent of each other. The Constitution has provided for
and enforceable."26 an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the
Thus, even in the United States where the power of judicial
government. x x x And the judiciary in turn, with the Supreme
review is not explicitly conferred upon the courts by its
Court as the final arbiter, effectively checks the other
Constitution, such power has "been set at rest by popular
departments in the exercise of its power to determine the law,
acquiescence for a period of more than one and a half
and hence to declare executive and legislative acts void if
centuries." To be sure, it was in the 1803 leading case
violative of the Constitution.32 (Emphasis and underscoring
of Marbury v. Madison27 that the power of judicial review
supplied)
was first articulated by Chief Justice Marshall, to wit:
In the scholarly estimation of former Supreme Court Justice
It is also not entirely unworthy of observation, that in
Florentino Feliciano, "x x x judicial review is essential for the
declaring what shall be the supreme law of the land, the
maintenance and enforcement of the separation of powers and
constitution itself is first mentioned; and not the laws of the
the balancing of powers among the three great departments of of its officers. In other words, the judiciary is the final arbiter
government through the definition and maintenance of the on the question whether or not a branch of government or any
boundaries of authority and control between them."33 To him, of its officials has acted without jurisdiction or in excess of
"[j]udicial review is the chief, indeed the only, medium of jurisdiction, or so capriciously as to constitute an abuse of
participation – or instrument of intervention – of the judiciary discretion amounting to excess of jurisdiction or lack of
in that balancing operation."34 jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.
To ensure the potency of the power of judicial review to curb
grave abuse of discretion by "any branch or instrumentalities This is the background of paragraph 2 of Section 1, which
of government," the afore-quoted Section 1, Article VIII of the means that the courts cannot hereafter evade the duty to settle
Constitution engraves, for the first time into its history, into matters of this nature, by claiming that such matters constitute
block letter law the so-called "expanded certiorari jurisdiction" a political question.35 (Italics in the original; emphasis and
of this Court, the nature of and rationale for which are underscoring supplied)
mirrored in the following excerpt from the sponsorship speech
of its proponent, former Chief Justice Constitutional To determine the merits of the issues raised in the instant
Commissioner Roberto Concepcion: petitions, this Court must necessarily turn to the Constitution
itself which employs the well-settled principles of
xxx constitutional construction.

The first section starts with a sentence copied from former First, verba legis, that is, wherever possible, the words used in
Constitutions. It says: the Constitution must be given their ordinary meaning except
where technical terms are employed. Thus, in J.M. Tuason &
The judicial power shall be vested in one Supreme Court and Co., Inc. v. Land Tenure Administration,36 this Court,
in such lower courts as may be established by law. speaking through Chief Justice Enrique Fernando, declared:
I suppose nobody can question it. We look to the language of the document itself in our search
The next provision is new in our constitutional law. I will read for its meaning. We do not of course stop there, but that is
it first and explain. where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
Judicial power includes the duty of courts of justice to settle sought to be attained. They are to be given their ordinary
actual controversies involving rights which are legally meaning except where technical terms are employed in which
demandable and enforceable and to determine whether or not case the significance thus attached to them prevails. As the
there has been a grave abuse of discretion amounting to lack Constitution is not primarily a lawyer's document, it being
or excess of jurisdiction on the part or instrumentality of the essential for the rule of law to obtain that it should ever be
government. present in the people's consciousness, its language as much as
possible should be understood in the sense they have in
Fellow Members of this Commission, this is actually a product
common use. What it says according to the text of the
of our experience during martial law. As a matter of fact, it
provision to be construed compels acceptance and negates the
has some antecedents in the past, but the role of the judiciary
power of the courts to alter it, based on the postulate that the
during the deposed regime was marred considerably by the
framers and the people mean what they say. Thus these are the
circumstance that in a number of cases against the
cases where the need for construction is reduced to a
government, which then had no legal defense at all, the
minimum.37 (Emphasis and underscoring supplied)
solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles Second, where there is ambiguity, ratio legis est anima. The
concerning particularly the writ of habeas corpus, that is, the words of the Constitution should be interpreted in accordance
authority of courts to order the release of political detainees, with the intent of its framers. And so did this Court apply this
and other matters related to the operation and effect of martial principle in Civil Liberties Union v. Executive Secretary38 in
law failed because the government set up the defense of this wise:
political question. And the Supreme Court said: "Well, since it
is political, we have no authority to pass upon it." The A foolproof yardstick in constitutional construction is the
Committee on the Judiciary feels that this was not a proper intention underlying the provision under consideration. Thus,
solution of the questions involved. It did not merely request an it has been held that the Court in construing a Constitution
encroachment upon the rights of the people, but it, in effect, should bear in mind the object sought to be accomplished by
encouraged further violations thereof during the martial law its adoption, and the evils, if any, sought to be prevented or
regime. x x x remedied. A doubtful provision will be examined in the light
of the history of the times, and the condition and
xxx circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of
Briefly stated, courts of justice determine the limits of power
the Constitution to enact the particular provision and the
of the agencies and offices of the government as well as those
purpose sought to be accomplished thereby, in order to
construe the whole as to make the words consonant to that of the Constitution when the meaning is clear. Debates in the
reason and calculated to effect that purpose.39 (Emphasis and constitutional convention "are of value as showing the views
underscoring supplied) of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the
As it did in Nitafan v. Commissioner on Internal large majority who did not talk, much less of the mass of our
Revenue40 where, speaking through Madame Justice fellow citizens whose votes at the polls gave that instrument
Amuerfina A. Melencio-Herrera, it declared: the force of fundamental law. We think it safer to construe the
x x x The ascertainment of that intent is but in keeping with constitution from what appears upon its face." The proper
the fundamental principle of constitutional construction that interpretation therefore depends more on how it was
the intent of the framers of the organic law and of the people understood by the people adopting it than in the framers's
adopting it should be given effect. The primary task in understanding thereof.46 (Emphasis and underscoring
constitutional construction is to ascertain and thereafter assure supplied)
the realization of the purpose of the framers and of the people It is in the context of the foregoing backdrop of constitutional
in the adoption of the Constitution. It may also be safely refinement and jurisprudential application of the power of
assumed that the people in ratifying the Constitution were judicial review that respondents Speaker De Venecia, et.
guided mainly by the explanation offered by the al. and intervenor Senator Pimentel raise the novel argument
framers.41 (Emphasis and underscoring supplied) that the Constitution has excluded impeachment proceedings
Finally, ut magis valeat quam pereat. The Constitution is to be from the coverage of judicial review.
interpreted as a whole. Thus, in Chiongbian v. De Leon,42 this Briefly stated, it is the position of respondents Speaker De
Court, through Chief Justice Manuel Moran declared: Venecia et. al. that impeachment is a political action which
x x x [T]he members of the Constitutional Convention could cannot assume a judicial character. Hence, any question, issue
not have dedicated a provision of our Constitution merely for or incident arising at any stage of the impeachment proceeding
the benefit of one person without considering that it could also is beyond the reach of judicial review.47
affect others.When they adopted subsection 2, they permitted, For his part, intervenor Senator Pimentel contends that the
if not willed, that said provision should function to the full Senate's "sole power to try" impeachment cases48 (1) entirely
extent of its substance and its terms, not by itself alone, but in excludes the application of judicial review over it; and (2)
conjunction with all other provisions of that great necessarily includes the Senate's power to determine
document.43 (Emphasis and underscoring supplied) constitutional questions relative to impeachment
Likewise, still in Civil Liberties Union v. Executive proceedings.49
Secretary,44 this Court affirmed that: In furthering their arguments on the proposition that
It is a well-established rule in constitutional construction that impeachment proceedings are outside the scope of judicial
no one provision of the Constitution is to be separated from all review, respondents Speaker De Venecia, et. al. and intervenor
the others, to be considered alone, but that all the provisions Senator Pimentel rely heavily on American authorities,
bearing upon a particular subject are to be brought into view principally the majority opinion in the case of Nixon v. United
and to be so interpreted as to effectuate the great purposes of States.50 Thus, they contend that the exercise of judicial
the instrument. Sections bearing on a particular subject should review over impeachment proceedings is inappropriate since it
be considered and interpreted together as to effectuate the runs counter to the framers' decision to allocate to different
whole purpose of the Constitution and one section is not to be fora the powers to try impeachments and to try crimes; it
allowed to defeat another, if by any reasonable construction, disturbs the system of checks and balances, under which
the two can be made to stand together. impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in
In other words, the court must harmonize them, if practicable, fashioning relief.51 Respondents likewise point to
and must lean in favor of a construction which will render deliberations on the US Constitution to show the intent to
every word operative, rather than one which may make the isolate judicial power of review in cases of impeachment.
words idle and nugatory.45 (Emphasis supplied)
Respondents' and intervenors' reliance upon American
If, however, the plain meaning of the word is not found to be jurisprudence, the American Constitution and American
clear, resort to other aids is available. In still the same case authorities cannot be credited to support the proposition that
of Civil Liberties Union v. Executive Secretary, this Court the Senate's "sole power to try and decide impeachment
expounded: cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional
While it is permissible in this jurisdiction to consult
commitment of all issues pertaining to impeachment to the
the debates and proceedings of the constitutional convention
legislature, to the total exclusion of the power of judicial
in order to arrive at the reason and purpose of the resulting
review to check and restrain any grave abuse of the
Constitution, resort thereto may be had only when other
impeachment process. Nor can it reasonably support the
guides fail as said proceedings are powerless to vary the terms
interpretation that it necessarily confers upon the Senate the The cases of Romulo v. Yniguez58 and Alejandrino v.
inherently judicial power to determine constitutional questions Quezon,59 cited by respondents in support of the argument
incident to impeachment proceedings. that the impeachment power is beyond the scope of judicial
review, are not in point. These cases concern the denial of
Said American jurisprudence and authorities, much less the petitions for writs of mandamus to compel the legislature to
American Constitution, are of dubious application for these perform non-ministerial acts, and do not concern the exercise
are no longer controlling within our jurisdiction and have only of the power of judicial review.
limited persuasive merit insofar as Philippine constitutional
law is concerned. As held in the case of Garcia vs. There is indeed a plethora of cases in which this Court
COMELEC,52 "[i]n resolving constitutional disputes, [this exercised the power of judicial review over congressional
Court] should not be beguiled by foreign jurisprudence some action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled
of which are hardly applicable because they have been that it is well within the power and jurisdiction of the Court to
dictated by different constitutional settings and inquire whether the Senate or its officials committed a
needs."53 Indeed, although the Philippine Constitution can violation of the Constitution or grave abuse of discretion in the
trace its origins to that of the United States, their paths of exercise of their functions and prerogatives. In Tanada v.
development have long since diverged. In the colorful words Angara,61 in seeking to nullify an act of the Philippine Senate
of Father Bernas, "[w]e have cut the umbilical cord." on the ground that it contravened the Constitution, it held that
the petition raises a justiciable controversy and that when an
The major difference between the judicial power of the action of the legislative branch is seriously alleged to have
Philippine Supreme Court and that of the U.S. Supreme Court infringed the Constitution, it becomes not only the right but in
is that while the power of judicial review is fact the duty of the judiciary to settle the dispute. In Bondoc v.
only impliedly granted to the U.S. Supreme Court and is Pineda,62 this Court declared null and void a resolution of the
discretionary in nature, that granted to the Philippine Supreme House of Representatives withdrawing the nomination, and
Court and lower courts, as expressly provided for in the rescinding the election, of a congressman as a member of the
Constitution, is not just a power but also a duty, and it House Electoral Tribunal for being violative of Section 17,
was given an expanded definition to include the power to Article VI of the Constitution. In Coseteng v. Mitra,63 it held
correct any grave abuse of discretion on the part of any that the resolution of whether the House representation in the
government branch or instrumentality. Commission on Appointments was based on proportional
There are also glaring distinctions between the U.S. representation of the political parties as provided in Section
Constitution and the Philippine Constitution with respect to 18, Article VI of the Constitution is subject to judicial review.
the power of the House of Representatives over impeachment In Daza v. Singson,64 it held that the act of the House of
proceedings. While the U.S. Constitution bestows sole power Representatives in removing the petitioner from the
of impeachment to the House of Representatives without Commission on Appointments is subject to judicial review.
limitation,54 our Constitution, though vesting in the House of In Tanada v. Cuenco,65 it held that although under the
Representatives the exclusive power to initiate impeachment Constitution, the legislative power is vested exclusively in
cases,55 provides for several limitations to the exercise of Congress, this does not detract from the power of the courts to
such power as embodied in Section 3(2), (3), (4) and (5), pass upon the constitutionality of acts of Congress. In Angara
Article XI thereof. These limitations include the manner of v. Electoral Commission,66 it ruled that confirmation by the
filing, required vote to impeach, and the one year bar on the National Assembly of the election of any member, irrespective
impeachment of one and the same official. of whether his election is contested, is not essential before
such member-elect may discharge the duties and enjoy the
Respondents are also of the view that judicial review of privileges of a member of the National Assembly.
impeachments undermines their finality and may also lead to
conflicts between Congress and the judiciary. Thus, they call Finally, there exists no constitutional basis for the contention
upon this Court to exercise judicial statesmanship on the that the exercise of judicial review over impeachment
principle that "whenever possible, the Court should defer to proceedings would upset the system of checks and balances.
the judgment of the people expressed legislatively, Verily, the Constitution is to be interpreted as a whole and
recognizing full well the perils of judicial willfulness and "one section is not to be allowed to defeat another."67 Both
pride."56 are integral components of the calibrated system of
independence and interdependence that insures that no branch
But did not the people also express their will when they of government act beyond the powers assigned to it by the
instituted the above-mentioned safeguards in the Constitution? Constitution.
This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Essential Requisites for Judicial Review
Instead, it provided for certain well-defined limits, or in the As clearly stated in Angara v. Electoral Commission, the
language of Baker v. Carr,57"judicially discoverable courts' power of judicial review, like almost all powers
standards" for determining the validity of the exercise of such conferred by the Constitution, is subject to several limitations,
discretion, through the power of judicial review. namely: (1) an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act There is, however, a difference between the rule on real-party-
must have "standing" to challenge; he must have a personal in-interest and the rule on standing, for the former is a concept
and substantial interest in the case such that he has sustained, of civil procedure73 while the latter has constitutional
or will sustain, direct injury as a result of its enforcement; (3) underpinnings.74 In view of the arguments set forth regarding
the question of constitutionality must be raised at the earliest standing, it behooves the Court to reiterate the ruling
possible opportunity; and (4) the issue of constitutionality in Kilosbayan, Inc. v. Morato75 to clarify what is meant by
must be the very lis mota of the case. locus standi and to distinguish it from real party-in-interest.

x x x Even then, this power of judicial review is limited to The difference between the rule on standing and real party in
actual cases and controversies to be exercised after full interest has been noted by authorities thus: "It is important to
opportunity of argument by the parties, and limited further to note . . . that standing because of its constitutional and public
the constitutional question raised or the very lis policy underpinnings, is very different from questions relating
mota presented. Any attempt at abstraction could only lead to to whether a particular plaintiff is the real party in interest or
dialectics and barren legal questions and to sterile conclusions has capacity to sue. Although all three requirements are
unrelated to actualities. Narrowed as its function is in this directed towards ensuring that only certain parties can
manner, the judiciary does not pass upon questions of wisdom, maintain an action, standing restrictions require a partial
justice or expediency of legislation. More than that, courts consideration of the merits, as well as broader policy concerns
accord the presumption of constitutionality to legislative relating to the proper role of the judiciary in certain areas.
enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the Standing is a special concern in constitutional law because in
determination of actual cases and controversies must reflect some cases suits are brought not by parties who have been
the wisdom and justice of the people as expressed through personally injured by the operation of a law or by official
their representatives in the executive and legislative action taken, but by concerned citizens, taxpayers or voters
departments of the government.68 (Italics in the original) who actually sue in the public interest. Hence the question in
standing is whether such parties have "alleged such a personal
Standing stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues
Locus standi or legal standing or has been defined as a upon which the court so largely depends for illumination of
personal and substantial interest in the case such that the party difficult constitutional questions."
has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the xxx
question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that On the other hand, the question as to "real party in interest" is
concrete adverseness which sharpens the presentation of issues whether he is "the party who would be benefited or injured by
upon which the court depends for illumination of difficult the judgment, or the 'party entitled to the avails of the
constitutional questions.69 suit.'"76 (Citations omitted)

Intervenor Soriano, in praying for the dismissal of the While rights personal to the Chief Justice may have been
petitions, contends that petitioners do not have standing since injured by the alleged unconstitutional acts of the House of
only the Chief Justice has sustained and will sustain direct Representatives, none of the petitioners before us asserts a
personal injury. Amicus curiae former Justice Minister and violation of the personal rights of the Chief Justice. On the
Solicitor General Estelito Mendoza similarly contends. contrary, they invariably invoke the vindication of their own
rights – as taxpayers; members of Congress; citizens,
Upon the other hand, the Solicitor General asserts that individually or in a class suit; and members of the bar and of
petitioners have standing since this Court had, in the past, the legal profession – which were supposedly violated by the
accorded standing to taxpayers, voters, concerned citizens, alleged unconstitutional acts of the House of Representatives.
legislators in cases involving paramount public interest70 and
transcendental importance,71 and that procedural matters are In a long line of cases, however, concerned citizens, taxpayers
subordinate to the need to determine whether or not the other and legislators when specific requirements have been met
branches of the government have kept themselves within the have been given standing by this Court.
limits of the Constitution and the laws and that they have not When suing as a citizen, the interest of the petitioner assailing
abused the discretion given to them.72 Amicus curiae Dean the constitutionality of a statute must be direct and personal.
Raul Pangalangan of the U.P. College of Law is of the same He must be able to show, not only that the law or any
opinion, citing transcendental importance and the well- government act is invalid, but also that he sustained or is in
entrenched rule exception that, when the real party in interest imminent danger of sustaining some direct injury as a result of
is unable to vindicate his rights by seeking the same remedies, its enforcement, and not merely that he suffers thereby in
as in the case of the Chief Justice who, for ethical reasons, some indefinite way. It must appear that the person
cannot himself invoke the jurisdiction of this Court, the courts complaining has been or is about to be denied some right or
will grant petitioners standing. privilege to which he is lawfully entitled or that he is about to
be subjected to some burdens or penalties by reason of the petitioners additionallyallege standing as citizens and
statute or act complained of.77 In fine, when the proceeding taxpayers, however, their petition will stand.
involves the assertion of a public right,78 the mere fact that he
is a citizen satisfies the requirement of personal interest. The Philippine Bar Association, in G.R. No. 160403, invokes
the sole ground of transcendental importance, while Atty.
In the case of a taxpayer, he is allowed to sue where there is a Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his
claim that public funds are illegally disbursed, or that public standing.
money is being deflected to any improper purpose, or that
there is a wastage of public funds through the enforcement of There being no doctrinal definition of transcendental
an invalid or unconstitutional law.79 Before he can invoke the importance, the following instructive determinants formulated
power of judicial review, however, he must specifically prove by former Supreme Court Justice Florentino P. Feliciano are
that he has sufficient interest in preventing the illegal instructive: (1) the character of the funds or other assets
expenditure of money raised by taxation and that he would involved in the case; (2) the presence of a clear case of
sustain a direct injury as a result of the enforcement of the disregard of a constitutional or statutory prohibition by the
questioned statute or contract. It is not sufficient that he has public respondent agency or instrumentality of the
merely a general interest common to all members of the government; and (3) the lack of any other party with a more
public.80 direct and specific interest in raising the questions being
raised.90 Applying these determinants, this Court is satisfied
At all events, courts are vested with discretion as to whether or that the issues raised herein are indeed of transcendental
not a taxpayer's suit should be entertained.81 This Court opts importance.
to grant standing to most of the petitioners, given their
allegation that any impending transmittal to the Senate of the In not a few cases, this Court has in fact adopted a liberal
Articles of Impeachment and the ensuing trial of the Chief attitude on the locus standi of a petitioner where the petitioner
Justice will necessarily involve the expenditure of public is able to craft an issue of transcendental significance to the
funds. people, as when the issues raised are of paramount importance
to the public.91 Such liberality does not, however, mean that
As for a legislator, he is allowed to sue to question the validity the requirement that a party should have an interest in the
of any official action which he claims infringes his matter is totally eliminated. A party must, at the very least,
prerogatives as a legislator.82 Indeed, a member of the House still plead the existence of such interest, it not being one of
of Representatives has standing to maintain inviolate the which courts can take judicial notice. In petitioner Vallejos'
prerogatives, powers and privileges vested by the Constitution case, he failed to allege any interest in the case. He does not
in his office.83 thus have standing.

While an association has legal personality to represent its With respect to the motions for intervention, Rule 19, Section
members,84 especially when it is composed of substantial 2 of the Rules of Court requires an intervenor to possess a
taxpayers and the outcome will affect their vital legal interest in the matter in litigation, or in the success of
interests,85 the mere invocation by the Integrated Bar of the either of the parties, or an interest against both, or is so
Philippines or any member of the legal profession of the duty situated as to be adversely affected by a distribution or other
to preserve the rule of law and nothing more, although disposition of property in the custody of the court or of an
undoubtedly true, does not suffice to clothe it with standing. officer thereof. While intervention is not a matter of right, it
Its interest is too general. It is shared by other groups and the may be permitted by the courts when the applicant shows facts
whole citizenry. However, a reading of the petitions shows which satisfy the requirements of the law authorizing
that it has advanced constitutional issues which deserve the intervention.92
attention of this Court in view of their seriousness, novelty and
weight as precedents.86 It, therefore, behooves this Court to In Intervenors Attorneys Romulo Macalintal and Pete Quirino
relax the rules on standing and to resolve the issues presented Quadra's case, they seek to join petitioners Candelaria, et.
by it. al. in G.R. No. 160262. Since, save for one additional issue,
they raise the same issues and the same standing, and no
In the same vein, when dealing with class suits filed in behalf objection on the part of petitioners Candelaria, et. al. has been
of all citizens, persons intervening must be sufficiently interposed, this Court as earlier stated, granted the Motion for
numerous to fully protect the interests of all concerned87 to Leave of Court to Intervene and Petition-in-Intervention.
enable the court to deal properly with all interests involved in
the suit,88 for a judgment in a class suit, whether favorable or Nagmamalasakit na mga Manananggol ng mga
unfavorable to the class, is, under the res judicata principle, Manggagawang Pilipino, Inc., et. al. sought to join petitioner
binding on all members of the class whether or not they were Francisco in G.R. No. 160261. Invoking their right as citizens
before the court.89 Where it clearly appears that not all to intervene, alleging that "they will suffer if this insidious
interests can be sufficiently represented as shown by the scheme of the minority members of the House of
divergent issues raised in the numerous petitions before this Representatives is successful," this Court found the requisites
Court, G.R. No. 160365 as a class suit ought to fail. Since for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. pass on the validity of what was done, if and when the latter is
160261, 160262, 160263, 160277, 160292, 160295, and challenged in an appropriate legal proceeding.
160310 were of transcendental importance, World War II
Veterans Legionnaires of the Philippines, Inc. filed a The instant petitions raise in the main the issue of the validity
"Petition-in-Intervention with Leave to Intervene" to raise the of the filing of the second impeachment complaint against the
additional issue of whether or not the second impeachment Chief Justice in accordance with the House Impeachment
complaint against the Chief Justice is valid and based on any Rules adopted by the 12th Congress, the constitutionality of
of the grounds prescribed by the Constitution. which is questioned. The questioned acts having been carried
out, i.e., the second impeachment complaint had been filed
Finding that Nagmamalasakit na mga Manananggol ng mga with the House of Representatives and the 2001 Rules have
Manggagawang Pilipino, Inc., et al. and World War II already been already promulgated and enforced, the
Veterans Legionnaires of the Philippines, Inc. possess a legal prerequisite that the alleged unconstitutional act should be
interest in the matter in litigation the respective motions to accomplished and performed before suit, as Tan v.
intervene were hereby granted. Macapagal holds, has been complied with.

Senator Aquilino Pimentel, on the other hand, sought to Related to the issue of ripeness is the question of whether the
intervene for the limited purpose of making of record and instant petitions are premature. Amicus curiae former Senate
arguing a point of view that differs with Senate President President Jovito R. Salonga opines that there may be no urgent
Drilon's. He alleges that submitting to this Court's jurisdiction need for this Court to render a decision at this time, it being
as the Senate President does will undermine the independence the final arbiter on questions of constitutionality anyway. He
of the Senate which will sit as an impeachment court once the thus recommends that all remedies in the House and Senate
Articles of Impeachment are transmitted to it from the House should first be exhausted.
of Representatives. Clearly, Senator Pimentel possesses a legal
interest in the matter in litigation, he being a member of Taking a similar stand is Dean Raul Pangalangan of the U.P.
Congress against which the herein petitions are directed. For College of Law who suggests to this Court to take judicial
this reason, and to fully ventilate all substantial issues relating notice of on-going attempts to encourage signatories to the
to the matter at hand, his Motion to Intervene was granted and second impeachment complaint to withdraw their signatures
he was, as earlier stated, allowed to argue. and opines that the House Impeachment Rules provide for an
opportunity for members to raise constitutional questions
Lastly, as to Jaime N. Soriano's motion to intervene, the same themselves when the Articles of Impeachment are presented
must be denied for, while he asserts an interest as a taxpayer, on a motion to transmit to the same to the Senate. The dean
he failed to meet the standing requirement for bringing maintains that even assuming that the Articles are transmitted
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit: to the Senate, the Chief Justice can raise the issue of their
constitutional infirmity by way of a motion to dismiss.
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do The dean's position does not persuade. First, the withdrawal
said petitioners allege that their tax money is "being extracted by the Representatives of their signatures would not, by itself,
and spent in violation of specific constitutional protection cure the House Impeachment Rules of their constitutional
against abuses of legislative power," or that there is a infirmity. Neither would such a withdrawal, by itself,
misapplication of such funds by respondent COMELEC, or obliterate the questioned second impeachment complaint since
that public money is being deflected to any improper purpose. it would only place it under the ambit of Sections 3(2) and (3)
Neither do petitioners seek to restrain respondent from of Article XI of the Constitution97 and, therefore, petitioners
wasting public funds through the enforcement of an invalid or would continue to suffer their injuries.
unconstitutional law.94 (Citations omitted)
Second and most importantly, the futility of seeking remedies
In praying for the dismissal of the petitions, Soriano failed from either or both Houses of Congress before coming to this
even to allege that the act of petitioners will result in illegal Court is shown by the fact that, as previously discussed,
disbursement of public funds or in public money being neither the House of Representatives nor the Senate is clothed
deflected to any improper purpose. Additionally, his mere with the power to rule with definitiveness on the issue of
interest as a member of the Bar does not suffice to clothe him constitutionality, whether concerning impeachment
with standing. proceedings or otherwise, as said power is exclusively vested
in the judiciary by the earlier quoted Section I, Article VIII of
Ripeness and Prematurity the Constitution. Remedy cannot be sought from a body which
In Tan v. Macapagal,95 this Court, through Chief Justice is bereft of power to grant it.
Fernando, held that for a case to be considered ripe for Justiciability
adjudication, "it is a prerequisite that something had by then
been accomplished or performed by either branch before a In the leading case of Tanada v. Cuenco,98 Chief Justice
court may come into the picture."96 Only then may the courts Roberto Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, demandable and enforceable and to determine whether or not
what it means in ordinary parlance, namely, a question of there has been a grave abuse of discretion amounting to lack
policy. In other words, in the language of Corpus Juris or excess of jurisdiction on the part or instrumentality of the
Secundum, it refers to "those questions which, under the government.
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has Fellow Members of this Commission, this is actually a product
been delegated to the Legislature or executive branch of the of our experience during martial law. As a matter of fact, it
Government." It is concerned with issues dependent upon has some antecedents in the past, but the role of the judiciary
the wisdom, not legality, of a particular measure.99(Italics in during the deposed regime was marred considerably by the
the original) circumstance that in a number of cases against the
government, which then had no legal defense at all, the
Prior to the 1973 Constitution, without consistency and solicitor general set up the defense of political questions and
seemingly without any rhyme or reason, this Court vacillated got away with it. As a consequence, certain principles
on its stance of taking cognizance of cases which involved concerning particularly the writ of habeas corpus, that is, the
political questions. In some cases, this Court hid behind the authority of courts to order the release of political detainees,
cover of the political question doctrine and refused to exercise and other matters related to the operation and effect of martial
its power of judicial review.100 In other cases, however, law failed because the government set up the defense of
despite the seeming political nature of the therein issues political question. And the Supreme Court said: "Well, since it
involved, this Court assumed jurisdiction whenever it found is political, we have no authority to pass upon it." The
constitutionally imposed limits on powers or functions Committee on the Judiciary feels that this was not a proper
conferred upon political bodies.101 Even in the landmark solution of the questions involved. It did not merely request an
1988 case of Javellana v. Executive Secretary102 which raised encroachment upon the rights of the people, but it, in effect,
the issue of whether the 1973 Constitution was ratified, hence, encouraged further violations thereof during the martial law
in force, this Court shunted the political question doctrine and regime. I am sure the members of the Bar are familiar with
took cognizance thereof. Ratification by the people of a this situation. But for the benefit of the Members of the
Constitution is a political question, it being a question decided Commission who are not lawyers, allow me to explain. I will
by the people in their sovereign capacity. start with a decision of the Supreme Court in 1973 on the case
of Javellana vs. the Secretary of Justice, if I am not mistaken.
The frequency with which this Court invoked the political Martial law was announced on September 22, although the
question doctrine to refuse to take jurisdiction over certain proclamation was dated September 21. The obvious reason for
cases during the Marcos regime motivated Chief Justice the delay in its publication was that the administration had
Concepcion, when he became a Constitutional Commissioner, apprehended and detained prominent newsmen on September
to clarify this Court's power of judicial review and its 21. So that when martial law was announced on September 22,
application on issues involving political questions, viz: the media hardly published anything about it. In fact, the
MR. CONCEPCION. Thank you, Mr. Presiding Officer. media could not publish any story not only because our main
writers were already incarcerated, but also because those who
I will speak on the judiciary. Practically, everybody has made, succeeded them in their jobs were under mortal threat of being
I suppose, the usual comment that the judiciary is the weakest the object of wrath of the ruling party. The 1971
among the three major branches of the service. Since the Constitutional Convention had begun on June 1, 1971 and by
legislature holds the purse and the executive the sword, the September 21 or 22 had not finished the Constitution; it had
judiciary has nothing with which to enforce its decisions or barely agreed in the fundamentals of the Constitution. I forgot
commands except the power of reason and appeal to to say that upon the proclamation of martial law, some
conscience which, after all, reflects the will of God, and is the delegates to that 1971 Constitutional Convention, dozens of
most powerful of all other powers without exception. x x x them, were picked up. One of them was our very own
And so, with the body's indulgence, I will proceed to read the colleague, Commissioner Calderon. So, the unfinished draft of
provisions drafted by the Committee on the Judiciary. the Constitution was taken over by representatives of
Malacañang. In 17 days, they finished what the delegates to
The first section starts with a sentence copied from former
the 1971 Constitutional Convention had been unable to
Constitutions. It says:
accomplish for about 14 months. The draft of the 1973
The judicial power shall be vested in one Supreme Court and Constitution was presented to the President around December
in such lower courts as may be established by law. 1, 1972, whereupon the President issued a decree calling a
plebiscite which suspended the operation of some provisions
I suppose nobody can question it. in the martial law decree which prohibited discussions, much
less public discussions of certain matters of public concern.
The next provision is new in our constitutional law. I will read
The purpose was presumably to allow a free discussion on the
it first and explain.
draft of the Constitution on which a plebiscite was to be held
Judicial power includes the duty of courts of justice to settle sometime in January 1973. If I may use a word famous by our
actual controversies involving rights which are legally colleague, Commissioner Ople, during the interregnum,
however, the draft of the Constitution was analyzed and x x x When your Committee on the Judiciary began to perform
criticized with such a telling effect that Malacañang felt the its functions, it faced the following questions: What is judicial
danger of its approval. So, the President suspended power? What is a political question?
indefinitely the holding of the plebiscite and announced that
he would consult the people in a referendum to be held from The Supreme Court, like all other courts, has one main
January 10 to January 15. But the questions to be submitted in function: to settle actual controversies involving conflicts of
the referendum were not announced until the eve of its rights which are demandable and enforceable. There are rights
scheduled beginning, under the supposed supervision not of which are guaranteed by law but cannot be enforced by a
the Commission on Elections, but of what was then designated judiciary party. In a decided case, a husband complained that
as "citizens assemblies or barangays." Thus the barangays his wife was unwilling to perform her duties as a wife. The
came into existence. The questions to be propounded were Court said: "We can tell your wife what her duties as such are
released with proposed answers thereto, suggesting that it was and that she is bound to comply with them, but we cannot
unnecessary to hold a plebiscite because the answers given in force her physically to discharge her main marital duty to her
the referendum should be regarded as the votes cast in the husband. There are some rights guaranteed by law, but they
plebiscite. Thereupon, a motion was filed with the Supreme are so personal that to enforce them by actual compulsion
Court praying that the holding of the referendum be would be highly derogatory to human dignity."
suspended. When the motion was being heard before the This is why the first part of the second paragraph of Section I
Supreme Court, the Minister of Justice delivered to the Court a provides that:
proclamation of the President declaring that the new
Constitution was already in force because the overwhelming Judicial power includes the duty of courts to settle actual
majority of the votes cast in the referendum favored the controversies involving rights which are legally demandable
Constitution. Immediately after the departure of the Minister or enforceable . . .
of Justice, I proceeded to the session room where the case was
The courts, therefore, cannot entertain, much less decide,
being heard. I then informed the Court and the parties the
hypothetical questions. In a presidential system of
presidential proclamation declaring that the 1973 Constitution
government, the Supreme Court has, also another important
had been ratified by the people and is now in force.
function. The powers of government are generally considered
A number of other cases were filed to declare the presidential divided into three branches: the Legislative, the Executive and
proclamation null and void. The main defense put up by the the Judiciary. Each one is supreme within its own sphere and
government was that the issue was a political question and that independent of the others. Because of that supremacy power to
the court had no jurisdiction to entertain the case. determine whether a given law is valid or not is vested in
courts of justice.
xxx
Briefly stated, courts of justice determine the limits of power
The government said that in a referendum held from January of the agencies and offices of the government as well as those
10 to January 15, the vast majority ratified the draft of the of its officers. In other words, the judiciary is the final arbiter
Constitution. Note that all members of the Supreme Court on the question whether or not a branch of government or any
were residents of Manila, but none of them had been notified of its officials has acted without jurisdiction or in excess of
of any referendum in their respective places of residence, jurisdiction, or so capriciously as to constitute an abuse of
much less did they participate in the alleged referendum. None discretion amounting to excess of jurisdiction or lack of
of them saw any referendum proceeding. jurisdiction. This is not only a judicial power but a duty to
In the Philippines, even local gossips spread like wild fire. So, pass judgment on matters of this nature.
a majority of the members of the Court felt that there had been This is the background of paragraph 2 of Section 1, which
no referendum. means that the courts cannot hereafter evade the duty to settle
Second, a referendum cannot substitute for a plebiscite. There matters of this nature, by claiming that such matters constitute
is a big difference between a referendum and a plebiscite. But a political question.
another group of justices upheld the defense that the issue was I have made these extended remarks to the end that the
a political question. Whereupon, they dismissed the case. This Commissioners may have an initial food for thought on the
is not the only major case in which the plea of "political subject of the judiciary.103 (Italics in the original; emphasis
question" was set up. There have been a number of other cases supplied)
in the past.
During the deliberations of the Constitutional Commission,
x x x The defense of the political question was rejected Chief Justice Concepcion further clarified the concept of
because the issue was clearly justiciable. judicial power, thus:
xxx MR. NOLLEDO. The Gentleman used the term "judicial
power" but judicial power is not vested in the Supreme Court
alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes. maintained. On the other hand, by virtue of Section 1, Article
VIII of the Constitution, courts can review questions which
MR. NOLLEDO. And so, is this only an example? are not truly political in nature.
MR. CONCEPCION. No, I know this is not. The Gentleman As pointed out by amicus curiae former dean Pacifico Agabin
seems to identify political questions with jurisdictional of the UP College of Law, this Court has in fact in a number
questions. But there is a difference. of cases taken jurisdiction over questions which are not truly
MR. NOLLEDO. Because of the expression "judicial power"? political following the effectivity of the present Constitution.

MR. CONCEPCION. No. Judicial power, as I said, refers to In Marcos v. Manglapus,105 this Court, speaking through
ordinary cases but where there is a question as to whether the Madame Justice Irene Cortes, held:
government had authority or had abused its authority to the The present Constitution limits resort to the political question
extent of lacking jurisdiction or excess of jurisdiction, that is doctrine and broadens the scope of judicial inquiry into areas
not a political question. Therefore, the court has the duty to which the Court, under previous constitutions, would have
decide. normally left to the political departments to decide.106 x x x
xxx In Bengzon v. Senate Blue Ribbon Committee,107 through
FR. BERNAS. Ultimately, therefore, it will always have to be Justice Teodoro Padilla, this Court declared:
decided by the Supreme Court according to the new numerical The "allocation of constitutional boundaries" is a task that this
need for votes. Court must perform under the Constitution. Moreover, as held
On another point, is it the intention of Section 1 to do away in a recent case, "(t)he political question doctrine neither
with the political question doctrine? interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries
MR. CONCEPCION. No. has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said
FR. BERNAS. It is not.
provision by no means does away with the applicability of the
MR. CONCEPCION. No, because whenever there is an abuse principle in appropriate cases."108 (Emphasis and
of discretion, amounting to a lack of jurisdiction. . . underscoring supplied)

FR. BERNAS. So, I am satisfied with the answer that it is not And in Daza v. Singson,109 speaking through Justice Isagani
intended to do away with the political question doctrine. Cruz, this Court ruled:

MR. CONCEPCION. No, certainly not. In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
When this provision was originally drafted, it sought to define were to assume that the issue presented before us was political
what is judicial power. But the Gentleman will notice it says, in nature, we would still not be precluded from resolving it
"judicial power includes" and the reason being that the under the expanded jurisdiction conferred upon us that now
definition that we might make may not cover all possible covers, in proper cases, even the political question.110 x x x
areas. (Emphasis and underscoring supplied.)
FR. BERNAS. So, this is not an attempt to solve the problems Section 1, Article VIII, of the Court does not define what are
arising from the political question doctrine. justiciable political questions and non-justiciable political
questions, however. Identification of these two species of
MR. CONCEPCION. It definitely does not eliminate the fact
political questions may be problematic. There has been no
that truly political questions are beyond the pale of judicial
clear standard. The American case of Baker v.
power.104 (Emphasis supplied)
Carr111 attempts to provide some:
From the foregoing record of the proceedings of the 1986
x x x Prominent on the surface of any case held to involve a
Constitutional Commission, it is clear that judicial power is
political question is found a textually demonstrable
not only a power; it is also a duty, a duty which cannot be
constitutional commitment of the issue to a coordinate
abdicated by the mere specter of this creature called the
political department; or a lack of judicially discoverable and
political question doctrine. Chief Justice Concepcion hastened
manageable standards for resolving it; or the impossibility of
to clarify, however, that Section 1, Article VIII was not
deciding without an initial policy determination of a kind
intended to do away with "truly political questions." From this
clearly for non-judicial discretion; or the impossibility of a
clarification it is gathered that there are two species of
court's undertaking independent resolution without expressing
political questions: (1) "truly political questions" and (2) those
lack of the respect due coordinate branches of government;
which "are not truly political questions."
or an unusual need for questioning adherence to a political
Truly political questions are thus beyond judicial review, the decision already made; or the potentiality of embarrassment
reason for respect of the doctrine of separation of powers to be
from multifarious pronouncements by various departments on namely, other high crimes and betrayal of public trust, elude a
one question.112(Underscoring supplied) precise definition. In fact, an examination of the records of the
1986 Constitutional Commission shows that the framers could
Of these standards, the more reliable have been the first three: find no better way to approximate the boundaries of betrayal
(1) a textually demonstrable constitutional commitment of the of public trust and other high crimes than by alluding to both
issue to a coordinate political department; (2) the lack of positive and negative examples of both, without arriving at
judicially discoverable and manageable standards for their clear cut definition or even a standard
resolving it; and (3) the impossibility of deciding without an therefor.114 Clearly, the issue calls upon this court to decide a
initial policy determination of a kind clearly for non-judicial non-justiciable political question which is beyond the scope of
discretion. These standards are not separate and distinct its judicial power under Section 1, Article VIII.
concepts but are interrelated to each in that the presence of one
strengthens the conclusion that the others are also present. Lis Mota

The problem in applying the foregoing standards is that the It is a well-settled maxim of adjudication that an issue
American concept of judicial review is radically different from assailing the constitutionality of a governmental act should be
our current concept, for Section 1, Article VIII of the avoided whenever possible. Thus, in the case of Sotto v.
Constitution provides our courts with far less discretion in Commission on Elections,115 this Court held:
determining whether they should pass upon a constitutional
issue. x x x It is a well-established rule that a court should not pass
upon a constitutional question and decide a law to be
In our jurisdiction, the determination of a truly political unconstitutional or invalid, unless such question is raised by
question from a non-justiciable political question lies in the the parties and that when it is raised, if the record also presents
answer to the question of whether there are constitutionally some other ground upon which the court may rest its
imposed limits on powers or functions conferred upon judgment, that course will be adopted and the constitutional
political bodies. If there are, then our courts are duty-bound to question will be left for consideration until a case arises in
examine whether the branch or instrumentality of the which a decision upon such question will be
government properly acted within such limits. This Court shall unavoidable.116 [Emphasis and underscoring supplied]
thus now apply this standard to the present controversy.
The same principle was applied in Luz Farms v. Secretary of
These petitions raise five substantial issues: Agrarian Reform,117 where this Court invalidated Sections 13
and 32 of Republic Act No. 6657 for being confiscatory and
I. Whether the offenses alleged in the Second impeachment violative of due process, to wit:
complaint constitute valid impeachable offenses under the
Constitution. It has been established that this Court will assume jurisdiction
over a constitutional question only if it is shown that the
II. Whether the second impeachment complaint was filed in essential requisites of a judicial inquiry into such a question
accordance with Section 3(4), Article XI of the Constitution. are first satisfied. Thus, there must be an actual case or
III. Whether the legislative inquiry by the House Committee controversy involving a conflict of legal rights susceptible of
on Justice into the Judicial Development Fund is an judicial determination, the constitutional question must have
unconstitutional infringement of the constitutionally mandated been opportunely raised by the proper party, and the resolution
fiscal autonomy of the judiciary. of the question is unavoidably necessary to the decision of the
case itself.118 [Emphasis supplied]
IV. Whether Sections 15 and 16 of Rule V of the Rules on
Impeachment adopted by the 12th Congress are Succinctly put, courts will not touch the issue of
unconstitutional for violating the provisions of Section 3, constitutionality unless it is truly unavoidable and is the
Article XI of the Constitution. very lis mota or crux of the controversy.

V. Whether the second impeachment complaint is barred As noted earlier, the instant consolidated petitions, while all
under Section 3(5) of Article XI of the Constitution. seeking the invalidity of the second impeachment complaint,
collectively raise several constitutional issues upon which the
The first issue goes into the merits of the second impeachment outcome of this controversy could possibly be made to rest. In
complaint over which this Court has no jurisdiction. More determining whether one, some or all of the remaining
importantly, any discussion of this issue would require this substantial issues should be passed upon, this Court is guided
Court to make a determination of what constitutes an by the related cannon of adjudication that "the court should
impeachable offense. Such a determination is a purely political not form a rule of constitutional law broader than is required
question which the Constitution has left to the sound by the precise facts to which it is applied."119
discretion of the legislation. Such an intent is clear from the
deliberations of the Constitutional Commission.113 In G.R. No. 160310, petitioners Leonilo R. Alfonso, et
al. argue that, among other reasons, the second impeachment
Although Section 2 of Article XI of the Constitution complaint is invalid since it directly resulted from a
enumerates six grounds for impeachment, two of these,
Resolution120 calling for a legislative inquiry into the JDF, of the House, the same shall constitute the Articles of
which Resolution and legislative inquiry petitioners claim to Impeachment, and trial by the Senate shall forthwith proceed.
likewise be unconstitutional for being: (a) a violation of the
rules and jurisprudence on investigations in aid of legislation; They assert that while at least 81 members of the House of
(b) an open breach of the doctrine of separation of powers; (c) Representatives signed a Resolution of
a violation of the constitutionally mandated fiscal autonomy of Endorsement/Impeachment, the same did not satisfy the
the judiciary; and (d) an assault on the independence of the requisites for the application of the afore-mentioned section in
judiciary.121 that the "verified complaint or resolution of impeachment"
was not filed "by at least one-third of all the Members of the
Without going into the merits of petitioners Alfonso, et. al.'s House." With the exception of Representatives Teodoro and
claims, it is the studied opinion of this Court that the issue of Fuentebella, the signatories to said Resolution are alleged to
the constitutionality of the said Resolution and resulting have verified the same merely as a "Resolution of
legislative inquiry is too far removed from the issue of the Endorsement." Intervenors point to the "Verification" of the
validity of the second impeachment complaint. Moreover, the Resolution of Endorsement which states that:
resolution of said issue would, in the Court's opinion, require
it to form a rule of constitutional law touching on the separate "We are the proponents/sponsors of the Resolution of
and distinct matter of legislative inquiries in general, which Endorsement of the abovementioned Complaint of
would thus be broader than is required by the facts of these Representatives Gilberto Teodoro and Felix William B.
consolidated cases. This opinion is further strengthened by the Fuentebella x x x"124
fact that said petitioners have raised other grounds in support Intervenors Macalintal and Quadra further claim that what the
of their petition which would not be adversely affected by the Constitution requires in order for said second impeachment
Court's ruling. complaint to automatically become the Articles of
En passant, this Court notes that a standard for the conduct of Impeachment and for trial in the Senate to begin "forthwith,"
legislative inquiries has already been enunciated by this Court is that the verified complaint be "filed," not merely endorsed,
in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz: by at least one-third of the Members of the House of
Representatives. Not having complied with this requirement,
The 1987 Constitution expressly recognizes the power of both they concede that the second impeachment complaint should
houses of Congress to conduct inquiries in aid of legislation. have been calendared and referred to the House Committee on
Thus, Section 21, Article VI thereof provides: Justice under Section 3(2), Article XI of the Constitution, viz:

The Senate or the House of Representatives or any of its Section 3(2) A verified complaint for impeachment may be
respective committees may conduct inquiries in aid of filed by any Member of the House of Representatives or by
legislation in accordance with its duly published rules of any citizen upon a resolution of endorsement by any Member
procedure. The rights of persons appearing in or affected by thereof, which shall be included in the Order of Business
such inquiries shall be respected. within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after
The power of both houses of Congress to conduct inquiries in hearing, and by a majority vote of all its Members, shall
aid of legislation is not, therefore absolute or unlimited. Its submit its report to the House within sixty session days from
exercise is circumscribed by the afore-quoted provision of the such referral, together with the corresponding resolution. The
Constitution. Thus, as provided therein, the investigation must resolution shall be calendared for consideration by the House
be "in aid of legislation in accordance with its duly published within ten session days from receipt thereof.
rules of procedure" and that "the rights of persons appearing in
or affected by such inquiries shall be respected." It follows Intervenors' foregoing position is echoed by Justice
then that the right rights of persons under the Bill of Rights Maambong who opined that for Section 3 (4), Article XI of
must be respected, including the right to due process and the the Constitution to apply, there should be 76 or more
right not be compelled to testify against one's self.123 representatives who signed and verified the second
impeachment complaint as complainants, signed and verified
In G.R. No. 160262, intervenors Romulo B. Macalintal and the signatories to a resolution of impeachment. Justice
Pete Quirino Quadra, while joining the original petition of Maambong likewise asserted that the Resolution of
petitioners Candelaria, et. al., introduce the new argument that Endorsement/Impeachment signed by at least one-third of the
since the second impeachment complaint was verified and members of the House of Representatives
filed only by Representatives Gilberto Teodoro, Jr. and Felix as endorsers is not the resolution of impeachment
William Fuentebella, the same does not fall under the contemplated by the Constitution, such resolution of
provisions of Section 3 (4), Article XI of the Constitution endorsement being necessary only from at least one Member
which reads: whenever a citizen files a verified impeachment complaint.
Section 3(4) In case the verified complaint or resolution of While the foregoing issue, as argued by intervenors Macalintal
impeachment is filed by at least one-third of all the Members and Quadra, does indeed limit the scope of the constitutional
issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis do so.128 On the occasion that this Court had been an
mota or crux of the present controversy. Chief among this is interested party to the controversy before it, it has acted upon
the fact that only Attorneys Macalintal and Quadra, the matter "not with officiousness but in the discharge of an
intervenors in G.R. No. 160262, have raised this issue as a unavoidable duty and, as always, with detachment and
ground for invalidating the second impeachment complaint. fairness."129 After all, "by [his] appointment to the office, the
Thus, to adopt this additional ground as the basis for deciding public has laid on [a member of the judiciary] their confidence
the instant consolidated petitions would not only render for that [he] is mentally and morally fit to pass upon the merits of
naught the efforts of the original petitioners in G.R. No. their varied contentions. For this reason, they expect [him] to
160262, but the efforts presented by the other petitioners as be fearless in [his] pursuit to render justice, to be unafraid to
well. displease any person, interest or power and to be equipped
with a moral fiber strong enough to resist the temptations
Again, the decision to discard the resolution of this issue as lurking in [his] office."130
unnecessary for the determination of the instant cases is made
easier by the fact that said intervenors Macalintal and Quadra The duty to exercise the power of adjudication regardless of
have joined in the petition of Candelaria, et. al., adopting the interest had already been settled in the case of Abbas v. Senate
latter's arguments and issues as their own. Consequently, they Electoral Tribunal.131 In that case, the petitioners filed with
are not unduly prejudiced by this Court's decision. the respondent Senate Electoral Tribunal a Motion for
Disqualification or Inhibition of the Senators-Members thereof
In sum, this Court holds that the two remaining issues, from the hearing and resolution of SET Case No. 002-87 on
inextricably linked as they are, constitute the very lis mota of the ground that all of them were interested parties to said case
the instant controversy: (1) whether Sections 15 and 16 of as respondents therein. This would have reduced the
Rule V of the House Impeachment Rules adopted by the 12th Tribunal's membership to only its three Justices-Members
Congress are unconstitutional for violating the provisions of whose disqualification was not sought, leaving them to decide
Section 3, Article XI of the Constitution; and (2) whether, as a the matter. This Court held:
result thereof, the second impeachment complaint is barred
under Section 3(5) of Article XI of the Constitution. Where, as here, a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of his
Judicial Restraint other colleagues in the Senate without inviting the same
Senator Pimentel urges this Court to exercise judicial restraint objections to the substitute's competence, the proposed mass
on the ground that the Senate, sitting as an impeachment court, disqualification, if sanctioned and ordered, would leave the
has the sole power to try and decide all cases of impeachment. Tribunal no alternative but to abandon a duty that no other
Again, this Court reiterates that the power of judicial review court or body can perform, but which it cannot lawfully
includes the power of review over justiciable issues in discharge if shorn of the participation of its entire membership
impeachment proceedings. of Senators.

On the other hand, respondents Speaker De Venecia et. al. To our mind, this is the overriding consideration — that the
argue that "[t]here is a moral compulsion for the Court to not Tribunal be not prevented from discharging a duty which it
assume jurisdiction over the impeachment because all the alone has the power to perform, the performance of which is
Members thereof are subject to impeachment."125But this in the highest public interest as evidenced by its being
argument is very much like saying the Legislature has a moral expressly imposed by no less than the fundamental law.
compulsion not to pass laws with penalty clauses because It is aptly noted in the first of the questioned Resolutions that
Members of the House of Representatives are subject to them. the framers of the Constitution could not have been unaware
The exercise of judicial restraint over justiciable issues is not of the possibility of an election contest that would involve all
an option before this Court. Adjudication may not be declined, Senators—elect, six of whom would inevitably have to sit in
because this Court is not legally disqualified. Nor can judgment thereon. Indeed, such possibility might surface again
jurisdiction be renounced as there is no other tribunal to which in the wake of the 1992 elections when once more, but for the
the controversy may be referred."126 Otherwise, this Court last time, all 24 seats in the Senate will be at stake. Yet the
would be shirking from its duty vested under Art. VIII, Sec. Constitution provides no scheme or mode for settling such
1(2) of the Constitution. More than being clothed with unusual situations or for the substitution of Senators
authority thus, this Court is duty-bound to take cognizance of designated to the Tribunal whose disqualification may be
the instant petitions.127 In the august words of amicus sought. Litigants in such situations must simply place their
curiae Father Bernas, "jurisdiction is not just a power; it is a trust and hopes of vindication in the fairness and sense of
solemn duty which may not be renounced. To renounce it, justice of the Members of the Tribunal. Justices and Senators,
even if it is vexatious, would be a dereliction of duty." singly and collectively.

Even in cases where it is an interested party, the Court under Let us not be misunderstood as saying that no Senator-
our system of government cannot inhibit itself and must rule Member of the Senate Electoral Tribunal may inhibit or
upon the challenge because no other office has the authority to disqualify himself from sitting in judgment on any case before
said Tribunal. Every Member of the Tribunal may, as his involving a constitutional question, the other a question of
conscience dictates, refrain from participating in the resolution statutory construction or general law, the Court will decide
of a case where he sincerely feels that his personal interests or only the latter. Appeals from the highest court of a state
biases would stand in the way of an objective and impartial challenging its decision of a question under the Federal
judgment. What we are merely saying is that in the light of the Constitution are frequently dismissed because the judgment
Constitution, the Senate Electoral Tribunal cannot legally can be sustained on an independent state ground.
function as such, absent its entire membership of Senators and
that no amendment of its Rules can confer on the three 5. The Court will not pass upon the validity of a statute upon
Justices-Members alone the power of valid adjudication of a complaint of one who fails to show that he is injured by its
senatorial election contest. operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one
More recently in the case of Estrada v. Desierto,132 it was who lacks a personal or property right. Thus, the challenge by
held that: a public official interested only in the performance of his
official duty will not be entertained . . . In Fairchild v.
Moreover, to disqualify any of the members of the Court, Hughes, the Court affirmed the dismissal of a suit brought by
particularly a majority of them, is nothing short of pro a citizen who sought to have the Nineteenth Amendment
tanto depriving the Court itself of its jurisdiction as established declared unconstitutional. In Massachusetts v. Mellon, the
by the fundamental law. Disqualification of a judge is a challenge of the federal Maternity Act was not entertained
deprivation of his judicial power. And if that judge is the one although made by the Commonwealth on behalf of all its
designated by the Constitution to exercise the jurisdiction of citizens.
his court, as is the case with the Justices of this Court, the
deprivation of his or their judicial power is equivalent to the 6. The Court will not pass upon the constitutionality of a
deprivation of the judicial power of the court itself. It affects statute at the instance of one who has availed himself of its
the very heart of judicial independence. The proposed mass benefits.
disqualification, if sanctioned and ordered, would leave the
Court no alternative but to abandon a duty which it cannot 7. When the validity of an act of the Congress is drawn in
lawfully discharge if shorn of the participation of its entire question, and even if a serious doubt of constitutionality is
membership of Justices.133 (Italics in the original) raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible
Besides, there are specific safeguards already laid down by the by which the question may be avoided (citations omitted).
Court when it exercises its power of judicial review.
The foregoing "pillars" of limitation of judicial review,
In Demetria v. Alba,134 this Court, through Justice Marcelo summarized in Ashwander v. TVA from different decisions of
Fernan cited the "seven pillars" of limitations of the power of the United States Supreme Court, can be encapsulated into the
judicial review, enunciated by US Supreme Court Justice following categories:
Brandeis in Ashwander v. TVA135 as follows:
1. that there be absolute necessity of deciding a case
1. The Court will not pass upon the constitutionality of
legislation in a friendly, non-adversary proceeding, declining 2. that rules of constitutional law shall be formulated only as
because to decide such questions 'is legitimate only in the last required by the facts of the case
resort, and as a necessity in the determination of real, earnest 3. that judgment may not be sustained on some other ground
and vital controversy between individuals. It never was the
thought that, by means of a friendly suit, a party beaten in the 4. that there be actual injury sustained by the party by reason
legislature could transfer to the courts an inquiry as to the of the operation of the statute
constitutionality of the legislative act.'
5. that the parties are not in estoppel
2. The Court will not 'anticipate a question of constitutional
6. that the Court upholds the presumption of constitutionality.
law in advance of the necessity of deciding it.' . . . 'It is not the
habit of the Court to decide questions of a constitutional As stated previously, parallel guidelines have been adopted by
nature unless absolutely necessary to a decision of the case.' this Court in the exercise of judicial review:
3. The Court will not 'formulate a rule of constitutional law 1. actual case or controversy calling for the exercise of judicial
broader than is required by the precise facts to which it is to be power
applied.'
2. the person challenging the act must have "standing" to
4. The Court will not pass upon a constitutional question challenge; he must have a personal and substantial interest in
although properly presented by the record, if there is also the case such that he has sustained, or will sustain, direct
present some other ground upon which the case may be injury as a result of its enforcement
disposed of. This rule has found most varied application.
Thus, if a case can be decided on either of two grounds, one 3. the question of constitutionality must be raised at the
earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the Obedience to the rule of law forms the bedrock of our system
case.136 of justice. If [public officers], under the guise of religious or
political beliefs were allowed to roam unrestricted beyond
Respondents Speaker de Venecia, et. al. raise another boundaries within which they are required by law to exercise
argument for judicial restraint the possibility that "judicial the duties of their office, then law becomes meaningless. A
review of impeachments might also lead to embarrassing government of laws, not of men excludes the exercise of broad
conflicts between the Congress and the [J]udiciary." They discretionary powers by those acting under its authority.
stress the need to avoid the appearance of impropriety or Under this system, [public officers] are guided by the Rule of
conflicts of interest in judicial hearings, and the scenario that it Law, and ought "to protect and enforce it without fear or
would be confusing and humiliating and risk serious political favor," resist encroachments by governments, political parties,
instability at home and abroad if the judiciary countermanded or even the interference of their own personal beliefs.142
the vote of Congress to remove an impeachable
official.137 Intervenor Soriano echoes this argument by Constitutionality of the Rules of Procedure
alleging that failure of this Court to enforce its Resolution for Impeachment Proceedings
against Congress would result in the diminution of its judicial adopted by the 12th Congress
authority and erode public confidence and faith in the
judiciary. Respondent House of Representatives, through Speaker De
Venecia, argues that Sections 16 and 17 of Rule V of the
Such an argument, however, is specious, to say the least. As House Impeachment Rules do not violate Section 3 (5) of
correctly stated by the Solicitor General, the possibility of the Article XI of our present Constitution, contending that the
occurrence of a constitutional crisis is not a reason for this term "initiate" does not mean "to file;" that Section 3 (1) is
Court to refrain from upholding the Constitution in all clear in that it is the House of Representatives, as a collective
impeachment cases. Justices cannot abandon their body, which has the exclusive power to initiate all cases of
constitutional duties just because their action may start, if not impeachment; that initiate could not possibly mean "to file"
precipitate, a crisis. because filing can, as Section 3 (2), Article XI of the
Constitution provides, only be accomplished in 3 ways, to wit:
Justice Feliciano warned against the dangers when this Court (1) by a verified complaint for impeachment by any member
refuses to act. of the House of Representatives; or (2) by any citizen upon a
x x x Frequently, the fight over a controversial legislative or resolution of endorsement by any member; or (3) by at least
executive act is not regarded as settled until the Supreme 1/3 of all the members of the House. Respondent House of
Court has passed upon the constitutionality of the act Representatives concludes that the one year bar prohibiting the
involved, the judgment has not only juridical effects but also initiation of impeachment proceedings against the same
political consequences. Those political consequences may officials could not have been violated as the impeachment
follow even where the Court fails to grant the petitioner's complaint against Chief Justice Davide and seven Associate
prayer to nullify an act for lack of the necessary number of Justices had not been initiated as the House of
votes. Frequently, failure to act explicitly, one way or the Representatives, acting as the collective body, has yet to act
other, itself constitutes a decision for the respondent and on it.
validation, or at least quasi-validation, follows." 138 The resolution of this issue thus hinges on the interpretation of
Thus, in Javellana v. Executive Secretary139 where this Court the term "initiate." Resort to statutory construction is,
was split and "in the end there were not enough votes either to therefore, in order.
grant the petitions, or to sustain respondent's claims,"140 the That the sponsor of the provision of Section 3(5) of the
pre-existing constitutional order was disrupted which paved Constitution, Commissioner Florenz Regalado, who
the way for the establishment of the martial law regime. eventually became an Associate Justice of this Court, agreed
Such an argument by respondents and intervenor also on the meaning of "initiate" as "to file," as proffered and
presumes that the coordinate branches of the government explained by Constitutional Commissioner Maambong during
would behave in a lawless manner and not do their duty under the Constitutional Commission proceedings, which he
the law to uphold the Constitution and obey the laws of the (Commissioner Regalado) as amicus curiae affirmed during
land. Yet there is no reason to believe that any of the branches the oral arguments on the instant petitions held on November
of government will behave in a precipitate manner and risk 5, 2003 at which he added that the act of "initiating" included
social upheaval, violence, chaos and anarchy by encouraging the act of taking initial action on the complaint, dissipates any
disrespect for the fundamental law of the land. doubt that indeed the word "initiate" as it twice appears in
Article XI (3) and (5) of the Constitution means to file the
Substituting the word public officers for judges, this Court is complaint and take initial action on it.
well guided by the doctrine in People v. Veneracion,
to wit:141 "Initiate" of course is understood by ordinary men to mean, as
dictionaries do, to begin, to commence, or set going. As
Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate As the phraseology now runs, which may be corrected by the
the first action," which jibes with Justice Regalado's position, Committee on Style, it appears that the initiation starts on the
and that of Father Bernas, who elucidated during the oral floor. If we only have time, I could cite examples in the case
arguments of the instant petitions on November 5, 2003 in this of the impeachment proceedings of President Richard Nixon
wise: wherein the Committee on the Judiciary submitted the
recommendation, the resolution, and the Articles of
Briefly then, an impeachment proceeding is not a single act. It Impeachment to the body, and it was the body who approved
is a comlexus of acts consisting of a beginning, a middle and the resolution. It is not the body which initiates it. It only
an end. The end is the transmittal of the articles of approves or disapproves the resolution. So, on that score,
impeachment to the Senate. The middle consists of those probably the Committee on Style could help in rearranging
deliberative moments leading to the formulation of the articles these words because we have to be very technical about this. I
of impeachment. The beginning or the initiation is the filing of have been bringing with me The Rules of the House of
the complaint and its referral to the Committee on Justice. Representatives of the U.S. Congress. The Senate Rules are
Finally, it should be noted that the House Rule relied upon by with me. The proceedings on the case of Richard Nixon are
Representatives Cojuangco and Fuentebella says that with me. I have submitted my proposal, but the Committee has
impeachment is "deemed initiated" when the Justice already decided. Nevertheless, I just want to indicate this on
Committee votes in favor of impeachment or when the House record.
reverses a contrary vote of the Committee. Note that the Rule xxx
does not say "impeachment proceedings" are initiated but
rather are "deemed initiated." The language is recognition that MR. MAAMBONG. I would just like to move for a
initiation happened earlier, but by legal fiction there is an reconsideration of the approval of Section 3 (3). My
attempt to postpone it to a time after actual initiation. reconsideration will not at all affect the substance, but it is
(Emphasis and underscoring supplied) only in keeping with the exact formulation of the Rules of the
House of Representatives of the United States regarding
As stated earlier, one of the means of interpreting the impeachment.
Constitution is looking into the intent of the law. Fortunately,
the intent of the framers of the 1987 Constitution can be pried I am proposing, Madam President, without doing damage to
from its records: any of this provision, that on page 2, Section 3 (3), from lines
17 to 18, we delete the words which read: "to initiate
MR. MAAMBONG. With reference to Section 3, regarding impeachment proceedings" and the comma (,) and insert on
the procedure and the substantive provisions on impeachment, line 19 after the word "resolution" the phrase WITH THE
I understand there have been many proposals and, I think, ARTICLES, and then capitalize the letter "i" in
these would need some time for Committee action. "impeachment" and replace the word "by" with OF, so that the
However, I would just like to indicate that I submitted to the whole section will now read: "A vote of at least one-third of
Committee a resolution on impeachment proceedings, copies all the Members of the House shall be necessary either to
of which have been furnished the Members of this body. This affirm a resolution WITH THE ARTICLES of Impeachment
is borne out of my experience as a member of the Committee OF the Committee or to override its contrary resolution. The
on Justice, Human Rights and Good Government which took vote of each Member shall be recorded."
charge of the last impeachment resolution filed before the First I already mentioned earlier yesterday that the initiation, as far
Batasang Pambansa. For the information of the Committee, as the House of Representatives of the United States is
the resolution covers several steps in the impeachment concerned, really starts from the filing of the verified
proceedings starting with initiation, action of the Speaker complaint and every resolution to impeach always carries with
committee action, calendaring of report, voting on the report, it the Articles of Impeachment. As a matter of fact, the words
transmittal referral to the Senate, trial and judgment by the "Articles of Impeachment" are mentioned on line 25 in the
Senate. case of the direct filing of a verified compliant of one-third of
xxx all the Members of the House. I will mention again, Madam
President, that my amendment will not vary the substance in
MR. MAAMBONG. Mr. Presiding Officer, I am not moving any way. It is only in keeping with the uniform procedure of
for a reconsideration of the approval of the amendment the House of Representatives of the United States Congress.
submitted by Commissioner Regalado, but I will just make of Thank you, Madam President.143 (Italics in the original;
record my thinking that we do not really initiate the filing of emphasis and udnerscoring supplied)
the Articles of Impeachment on the floor. The procedure, as I
have pointed out earlier, was that the initiation starts with the This amendment proposed by Commissioner Maambong was
filing of the complaint. And what is actually done on the floor clarified and accepted by the Committee on the Accountability
is that the committee resolution containing the Articles of of Public Officers.144
Impeachment is the one approved by the body. It is thus clear that the framers intended "initiation" to start
with the filing of the complaint. In his amicus curiae brief,
Commissioner Maambong explained that "the obvious reason complaint by the House of Representatives which either
in deleting the phrase "to initiate impeachment proceedings" affirms a favorable resolution of the Committee or overrides a
as contained in the text of the provision of Section 3 (3) was to contrary resolution by a vote of one-third of all the members.
settle and make it understood once and for all that the If at least one third of all the Members upholds the complaint,
initiation of impeachment proceedings starts with the filing of Articles of Impeachment are prepared and transmitted to the
the complaint, and the vote of one-third of the House in a Senate. It is at this point that the House "initiates an
resolution of impeachment does not initiate the impeachment impeachment case." It is at this point that an impeachable
proceedings which was already initiated by the filing of a public official is successfully impeached. That is, he or she is
verified complaint under Section 3, paragraph (2), Article XI successfully charged with an impeachment "case" before the
of the Constitution."145 Senate as impeachment court.

Amicus curiae Constitutional Commissioner Regalado is of Father Bernas further explains: The "impeachment
the same view as is Father Bernas, who was also a member of proceeding" is not initiated when the complaint is transmitted
the 1986 Constitutional Commission, that the word "initiate" to the Senate for trial because that is the end of the House
as used in Article XI, Section 3(5) means to file, both adding, proceeding and the beginning of another proceeding, namely
however, that the filing must be accompanied by an action to the trial. Neither is the "impeachment proceeding" initiated
set the complaint moving. when the House deliberates on the resolution passed on to it
by the Committee, because something prior to that has already
During the oral arguments before this Court, Father Bernas been done. The action of the House is already a further step in
clarified that the word "initiate," appearing in the the proceeding, not its initiation or beginning. Rather, the
constitutional provision on impeachment, viz: proceeding is initiated or begins, when a verified complaint is
Section 3 (1) The House of Representatives shall have the filed and referred to the Committee on Justice for action. This
exclusive power to initiate all cases of impeachment. is the initiating step which triggers the series of steps that
follow.
xxx
The framers of the Constitution also understood initiation in
(5) No impeachment proceedings shall be initiated against the its ordinary meaning. Thus when a proposal reached the floor
same official more than once within a period of one year, proposing that "A vote of at least one-third of all the Members
(Emphasis supplied) of the House shall be necessary… to initiate impeachment
proceedings," this was met by a proposal to delete the line on
refers to two objects, "impeachment case" and "impeachment
the ground that the vote of the House does not initiate
proceeding."
impeachment proceeding but rather the filing of a complaint
Father Bernas explains that in these two provisions, the does.146 Thus the line was deleted and is not found in the
common verb is "to initiate." The object in the first sentence is present Constitution.
"impeachment case." The object in the second sentence is
Father Bernas concludes that when Section 3 (5) says, "No
"impeachment proceeding." Following the principle
impeachment proceeding shall be initiated against the same
of reddendo singuala sinuilis, the term "cases" must be
official more than once within a period of one year," it means
distinguished from the term "proceedings." An impeachment
that no second verified complaint may be accepted and
case is the legal controversy that must be decided by the
referred to the Committee on Justice for action. By his
Senate. Above-quoted first provision provides that the House,
explanation, this interpretation is founded on the common
by a vote of one-third of all its members, can bring a case to
understanding of the meaning of "to initiate" which means to
the Senate. It is in that sense that the House has "exclusive
begin. He reminds that the Constitution is ratified by the
power" to initiate all cases of impeachment. No other body
people, both ordinary and sophisticated, as they understand it;
can do it. However, before a decision is made to initiate a case
and that ordinary people read ordinary meaning into ordinary
in the Senate, a "proceeding" must be followed to arrive at a
words and not abstruse meaning, they ratify words as they
conclusion. A proceeding must be "initiated." To initiate,
understand it and not as sophisticated lawyers confuse it.
which comes from the Latin word initium, means to begin. On
the other hand, proceeding is a progressive noun. It has a To the argument that only the House of Representatives as a
beginning, a middle, and an end. It takes place not in the body can initiate impeachment proceedings because Section 3
Senate but in the House and consists of several steps: (1) there (1) says "The House of Representatives shall have the
is the filing of a verified complaint either by a Member of the exclusive power to initiate all cases of impeachment," This is
House of Representatives or by a private citizen endorsed by a a misreading of said provision and is contrary to the principle
Member of the House of the Representatives; (2) there is the of reddendo singula singulis by equating "impeachment cases"
processing of this complaint by the proper Committee which with "impeachment proceeding."
may either reject the complaint or uphold it; (3) whether the
resolution of the Committee rejects or upholds the complaint, From the records of the Constitutional Commission, to
the resolution must be forwarded to the House for further the amicus curiae briefs of two former Constitutional
processing; and (4) there is the processing of the same Commissioners, it is without a doubt that the term "to initiate"
refers to the filing of the impeachment complaint coupled with Section 3 (8) of Article XI provides that "The Congress shall
Congress' taking initial action of said complaint. promulgate its rules on impeachment to effectively carry out
the purpose of this section." Clearly, its power to promulgate
Having concluded that the initiation takes place by the act of its rules on impeachment is limited by the phrase "to
filing and referral or endorsement of the impeachment effectively carry out the purpose of this section." Hence, these
complaint to the House Committee on Justice or, by the filing rules cannot contravene the very purpose of the Constitution
by at least one-third of the members of the House of which said rules were intended to effectively carry out.
Representatives with the Secretary General of the House, the Moreover, Section 3 of Article XI clearly provides for other
meaning of Section 3 (5) of Article XI becomes clear. Once an specific limitations on its power to make rules, viz:
impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same Section 3. (1) x x x
official within a one year period.
(2) A verified complaint for impeachment may be filed by any
Under Sections 16 and 17 of Rule V of the House Member of the House of Representatives or by any citizen
Impeachment Rules, impeachment proceedings are deemed upon a resolution of endorsement by any Member thereof,
initiated (1) if there is a finding by the House Committee on which shall be included in the Order of Business within ten
Justice that the verified complaint and/or resolution is session days, and referred to the proper Committee within
sufficient in substance, or (2) once the House itself affirms or three session days thereafter. The Committee, after hearing,
overturns the finding of the Committee on Justice that the and by a majority vote of all its Members, shall submit its
verified complaint and/or resolution is not sufficient in report to the House within sixty session days from such
substance or (3) by the filing or endorsement before the referral, together with the corresponding resolution. The
Secretary-General of the House of Representatives of a resolution shall be calendared for consideration by the House
verified complaint or a resolution of impeachment by at least within ten session days from receipt thereof.
1/3 of the members of the House. These rules clearly
contravene Section 3 (5) of Article XI since the rules give the (3) A vote of at least one-third of all the Members of the
term "initiate" a meaning different meaning from filing and House shall be necessary to either affirm a favorable
referral. resolution with the Articles of Impeachment of the Committee,
or override its contrary resolution. The vote of each Member
In his amicus curiae brief, Justice Hugo Gutierrez posits that shall be recorded.
this Court could not use contemporaneous construction as an
aid in the interpretation of Sec.3 (5) of Article XI, citing Vera (4) In case the verified complaint or resolution of
v. Avelino147 wherein this Court stated that "their personal impeachment is filed by at least one-third of all the Members
opinions (referring to Justices who were delegates to the of the House, the same shall constitute the Articles of
Constitution Convention) on the matter at issue expressed Impeachment, and trial by the Senate shall forthwith proceed.
during this Court's our deliberations stand on a different (5) No impeachment proceedings shall be initiated against the
footing from the properly recorded utterances of debates and same official more than once within a period of one year.
proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention It is basic that all rules must not contravene the Constitution
to actors who are so absorbed in their emotional roles that which is the fundamental law. If as alleged Congress
intelligent spectators may know more about the real meaning had absolute rule making power, then it would by necessary
because of the latter's balanced perspectives and implication have the power to alter or amend the meaning of
disinterestedness.148 the Constitution without need of referendum.

Justice Gutierrez's statements have no application in the In Osmeña v. Pendatun,149 this Court held that it is within the
present petitions. There are at present only two members of province of either House of Congress to interpret its rules and
this Court who participated in the 1986 Constitutional that it was the best judge of what constituted "disorderly
Commission – Chief Justice Davide and Justice Adolf Azcuna. behavior" of its members. However, in Paceta v. Secretary of
Chief Justice Davide has not taken part in these proceedings the Commission on Appointments,150 Justice (later Chief
for obvious reasons. Moreover, this Court has not simply Justice) Enrique Fernando, speaking for this Court and quoting
relied on the personal opinions now given by members of the Justice Brandeis in United States v. Smith,151 declared that
Constitutional Commission, but has examined the records of where the construction to be given to a rule affects persons
the deliberations and proceedings thereof. other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De
Respondent House of Representatives counters that under Venecia,152 quoting United States v. Ballin, Joseph &
Section 3 (8) of Article XI, it is clear and unequivocal that it Co.,153 Justice Vicente Mendoza, speaking for this Court,
and only it has the power to make and interpret its rules held that while the Constitution empowers each house to
governing impeachment. Its argument is premised on the determine its rules of proceedings, it may not by its rules
assumption that Congress has absolute power to promulgate ignore constitutional restraints or violate fundamental rights,
its rules. This assumption, however, is misplaced. and further that there should be a reasonable relation between
the mode or method of proceeding established by the rule and make rules is not one which once exercised is exhausted. It is
the result which is sought to be attained. It is only within these a continuous power, always subject to be exercised by the
limitations that all matters of method are open to the House, and within the limitations suggested, absolute and
determination of the Legislature. In the same case of Arroyo v. beyond the challenge of any other body or tribunal."
De Venecia, Justice Reynato S. Puno, in his Concurring and
Dissenting Opinion, was even more emphatic as he stressed Ballin, clearly confirmed the jurisdiction of courts to pass
that in the Philippine setting there is even more reason for upon the validity of congressional rules, i.e, whether they are
courts to inquire into the validity of the Rules of constitutional. Rule XV was examined by the Court and it was
Congress, viz: found to satisfy the test: (1) that it did not ignore any
constitutional restraint; (2) it did not violate any fundamental
With due respect, I do not agree that the issues posed by the right; and (3) its method had a reasonable relationship with the
petitioner are non-justiciable. Nor do I agree that we will result sought to be attained. By examining Rule XV, the Court
trivialize the principle of separation of power if we assume did not allow its jurisdiction to be defeated by the mere
jurisdiction over he case at bar. Even in the United States, the invocation of the principle of separation of powers.154
principle of separation of power is no longer an impregnable
impediment against the interposition of judicial power on xxx
cases involving breach of rules of procedure by legislators. In the Philippine setting, there is a more compelling reason for
Rightly, the ponencia uses the 1891 case of US v Ballin (144 courts to categorically reject the political question defense
US 1) as a window to view the issues before the Court. It is when its interposition will cover up abuse of power. For
in Ballin where the US Supreme Court first defined the section 1, Article VIII of our Constitution
boundaries of the power of the judiciary to review was intentionally cobbled to empower courts "x x x to
congressional rules. It held: determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the
"x x x part of any branch or instrumentality of the government." This
power is new and was not granted to our courts in the 1935
"The Constitution, in the same section, provides, that each and 1972 Constitutions. It was not also xeroxed from the US
house may determine the rules of its proceedings." It appears Constitution or any foreign state constitution. The CONCOM
that in pursuance of this authority the House had, prior to that granted this enormous power to our courts in view of our
day, passed this as one of its rules: experience under martial law where abusive exercises of state
Rule XV power were shielded from judicial scrutiny by the misuse of
the political question doctrine. Led by the eminent former
3. On the demand of any member, or at the suggestion of the Chief Justice Roberto Concepcion, the CONCOM expanded
Speaker, the names of members sufficient to make a quorum and sharpened the checking powers of the judiciary vis-à-vis
in the hall of the House who do not vote shall be noted by the the Executive and the Legislative departments of
clerk and recorded in the journal, and reported to the Speaker government.155
with the names of the members voting, and be counted and
announced in determining the presence of a quorum to do xxx
business. (House Journal, 230, Feb. 14, 1890) The Constitution cannot be any clearer. What it granted to this
The action taken was in direct compliance with this rule. The Court is not a mere power which it can decline to exercise.
question, therefore, is as to the validity of this rule, and not Precisely to deter this disinclination, the Constitution imposed
what methods the Speaker may of his own motion resort to for it as a duty of this Court to strike down any act of a branch or
determining the presence of a quorum, nor what matters the instrumentality of government or any of its officials done with
Speaker or clerk may of their own volition place upon the grave abuse of discretion amounting to lack or excess of
journal. Neither do the advantages or disadvantages, the jurisdiction. Rightly or wrongly, the Constitution has
wisdom or folly, of such a rule present any matters for judicial elongated the checking powers of this Court against the other
consideration. With the courts the question is only one of branches of government despite their more democratic
power. The Constitution empowers each house to determine character, the President and the legislators being elected by the
its rules of proceedings. It may not by its rules ignore people.156
constitutional restraints or violate fundamental rights, and xxx
there should be a reasonable relation between the mode or
method of proceedings established by the rule and the result The provision defining judicial power as including the 'duty of
which is sought to be attained. But within these limitations all the courts of justice. . . to determine whether or not there has
matters of method are open to the determination of the House, been a grave abuse of discretion amounting to lack or excess
and it is no impeachment of the rule to say that some other of jurisdiction on the part of any branch or instrumentality of
way would be better, more accurate, or even more just. It is no the Government' constitutes the capstone of the efforts of the
objection to the validity of a rule that a different one has been Constitutional Commission to upgrade the powers of this court
prescribed and in force for a length of time. The power to vis-à-vis the other branches of government. This provision
was dictated by our experience under martial law which taught proceedings are deemed initiated (1) if there is a finding by the
us that a stronger and more independent judiciary is needed to House Committee on Justice that the verified complaint and/or
abort abuses in government. x x x resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on
xxx Justice that the verified complaint and/or resolution is not
In sum, I submit that in imposing to this Court the duty to sufficient in substance or (3) by the filing or endorsement
annul acts of government committed with grave abuse of before the Secretary-General of the House of Representatives
discretion, the new Constitution transformed this Court from of a verified complaint or a resolution of impeachment by at
passivity to activism. This transformation, dictated by our least 1/3 of the members of the House thus clearly contravene
distinct experience as nation, is not merely evolutionary but Section 3 (5) of Article XI as they give the term "initiate" a
revolutionary.Under the 1935 and the 1973 Constitutions, this meaning different from "filing."
Court approached constitutional violations by initially Validity of the Second Impeachment Complaint
determining what it cannot do; under the 1987 Constitution,
there is a shift in stress – this Court is mandated to approach Having concluded that the initiation takes place by the act of
constitutional violations not by finding out what it should not filing of the impeachment complaint and referral to the House
do but what it must do. The Court must discharge this solemn Committee on Justice, the initial action taken thereon, the
duty by not resuscitating a past that petrifies the present. meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated in the foregoing
I urge my brethren in the Court to give due and serious manner, another may not be filed against the same official
consideration to this new constitutional provision as the case within a one year period following Article XI, Section 3(5) of
at bar once more calls us to define the parameters of our the Constitution.
power to review violations of the rules of the House. We will
not be true to our trust as the last bulwark against government In fine, considering that the first impeachment complaint, was
abuses if we refuse to exercise this new power or if we wield it filed by former President Estrada against Chief Justice Hilario
with timidity. To be sure, it is this exceeding timidity to G. Davide, Jr., along with seven associate justices of this
unsheathe the judicial sword that has increasingly emboldened Court, on June 2, 2003 and referred to the House Committee
other branches of government to denigrate, if not defy, orders on Justice on August 5, 2003, the second impeachment
of our courts. In Tolentino, I endorsed the view of former complaint filed by Representatives Gilberto C. Teodoro, Jr.
Senator Salonga that this novel provision stretching the and Felix William Fuentebella against the Chief Justice on
latitude of judicial power is distinctly Filipino and its October 23, 2003 violates the constitutional prohibition
interpretation should not be depreciated by undue reliance on against the initiation of impeachment proceedings against the
inapplicable foreign jurisprudence. In resolving the case at same impeachable officer within a one-year period.
bar, the lessons of our own history should provide us the light
and not the experience of foreigners.157 (Italics in the original Conclusion
emphasis and underscoring supplied) If there is anything constant about this country, it is that there
Thus, the ruling in Osmena v. Pendatun is not applicable to the is always a phenomenon that takes the center stage of our
instant petitions. Here, the third parties alleging the violation individual and collective consciousness as a people with our
of private rights and the Constitution are involved. characteristic flair for human drama, conflict or tragedy. Of
course this is not to demean the seriousness of the controversy
Neither may respondent House of Representatives' rely over the Davide impeachment. For many of us, the past two
on Nixon v. US158 as basis for arguing that this Court may weeks have proven to be an exasperating, mentally and
not decide on the constitutionality of Sections 16 and 17 of the emotionally exhausting experience. Both sides have fought
House Impeachment Rules. As already observed, the U.S. bitterly a dialectical struggle to articulate what they
Federal Constitution simply provides that "the House of respectively believe to be the correct position or view on the
Representatives shall have the sole power of impeachment." It issues involved. Passions had ran high as demonstrators,
adds nothing more. It gives no clue whatsoever as to how this whether for or against the impeachment of the Chief Justice,
"sole power" is to be exercised. No limitation whatsoever is took to the streets armed with their familiar slogans and chants
given. Thus, the US Supreme Court concluded that there was a to air their voice on the matter. Various sectors of society -
textually demonstrable constitutional commitment of a from the business, retired military, to the academe and
constitutional power to the House of Representatives. This denominations of faith – offered suggestions for a return to a
reasoning does not hold with regard to impeachment power of state of normalcy in the official relations of the governmental
the Philippine House of Representatives since our branches affected to obviate any perceived resulting instability
Constitution, as earlier enumerated, furnishes several upon areas of national life.
provisions articulating how that "exclusive power" is to be
exercised. Through all these and as early as the time when the Articles of
Impeachment had been constituted, this Court was specifically
The provisions of Sections 16 and 17 of Rule V of the House asked, told, urged and argued to take no action of any kind and
Impeachment Rules which state that impeachment form with respect to the prosecution by the House of
Representatives of the impeachment complaint against the whatever imputations or speculations could be made to it, so
subject respondent public official. When the present petitions long as it rendered judgment according to the law and the
were knocking so to speak at the doorsteps of this Court, the facts. Why can it not now be trusted to wield judicial power in
same clamor for non-interference was made through what are these petitions just because it is the highest ranking magistrate
now the arguments of "lack of jurisdiction," "non- who is involved when it is an incontrovertible fact that the
justiciability," and "judicial self-restraint" aimed at halting the fundamental issue is not him but the validity of a government
Court from any move that may have a bearing on the branch's official act as tested by the limits set by the
impeachment proceedings. Constitution? Of course, there are rules on the inhibition of
any member of the judiciary from taking part in a case in
This Court did not heed the call to adopt a hands-off stance as specified instances. But to disqualify this entire institution
far as the question of the constitutionality of initiating the now from the suit at bar is to regard the Supreme Court as
impeachment complaint against Chief Justice Davide is likely incapable of impartiality when one of its members is a
concerned. To reiterate what has been already explained, the party to a case, which is simply a non sequitur.
Court found the existence in full of all the requisite conditions
for its exercise of its constitutionally vested power and duty of No one is above the law or the Constitution. This is a basic
judicial review over an issue whose resolution precisely called precept in any legal system which recognizes equality of all
for the construction or interpretation of a provision of the men before the law as essential to the law's moral authority
fundamental law of the land. What lies in here is an issue of a and that of its agents to secure respect for and obedience to its
genuine constitutional material which only this Court can commands. Perhaps, there is no other government branch or
properly and competently address and adjudicate in instrumentality that is most zealous in protecting that principle
accordance with the clear-cut allocation of powers under our of legal equality other than the Supreme Court which has
system of government. Face-to-face thus with a matter or discerned its real meaning and ramifications through its
problem that squarely falls under the Court's jurisdiction, no application to numerous cases especially of the high-profile
other course of action can be had but for it to pass upon that kind in the annals of jurisprudence. The Chief Justice is not
problem head on. above the law and neither is any other member of this Court.
But just because he is the Chief Justice does not imply that he
The claim, therefore, that this Court by judicially entangling gets to have less in law than anybody else. The law is
itself with the process of impeachment has effectively set up a solicitous of every individual's rights irrespective of his station
regime of judicial supremacy, is patently without basis in fact in life.
and in law.
The Filipino nation and its democratic institutions have no
This Court in the present petitions subjected to judicial doubt been put to test once again by this impeachment case
scrutiny and resolved on the merits only the main issue of against Chief Justice Hilario Davide. Accordingly, this Court
whether the impeachment proceedings initiated against the has resorted to no other than the Constitution in search for a
Chief Justice transgressed the constitutionally imposed one- solution to what many feared would ripen to a crisis in
year time bar rule. Beyond this, it did not go about assuming government. But though it is indeed immensely a blessing for
jurisdiction where it had none, nor indiscriminately turn this Court to have found answers in our bedrock of legal
justiciable issues out of decidedly political questions. Because principles, it is equally important that it went through this
it is not at all the business of this Court to assert judicial crucible of a democratic process, if only to discover that it can
dominance over the other two great branches of the resolve differences without the use of force and aggression
government. Rather, the raison d'etre of the judiciary is to upon each other.
complement the discharge by the executive and legislative of
their own powers to bring about ultimately the beneficent WHEREFORE, Sections 16 and 17 of Rule V of the Rules of
effects of having founded and ordered our society upon the Procedure in Impeachment Proceedings which were approved
rule of law. by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment
It is suggested that by our taking cognizance of the issue of complaint against Chief Justice Hilario G. Davide, Jr. which
constitutionality of the impeachment proceedings against the was filed by Representatives Gilberto C. Teodoro, Jr. and
Chief Justice, the members of this Court have actually closed Felix William B. Fuentebella with the Office of the Secretary
ranks to protect a brethren. That the members' interests in General of the House of Representatives on October 23, 2003
ruling on said issue is as much at stake as is that of the Chief is barred under paragraph 5, section 3 of Article XI of the
Justice. Nothing could be farther from the truth. Constitution.
The institution that is the Supreme Court together with all SO ORDERED.
other courts has long held and been entrusted with the judicial
power to resolve conflicting legal rights regardless of the
personalities involved in the suits or actions. This Court has
dispensed justice over the course of time, unaffected by
whomsoever stood to benefit or suffer therefrom, unfraid by
G.R. No. 83896 February 22, 1991 in favor of the subordinate official who is next in rank, but in
no case shall any official hold more than two positions other
CIVIL LIBERTIES UNION, petitioner, than his primary position.
vs.
THE EXECUTIVE SECRETARY, respondent. Sec. 3. In order to fully protect the interest of the government
in government-owned or controlled corporations, at least one-
G.R. No. 83815 February 22, 1991 third (1/3) of the members of the boards of such corporation
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and should either be a secretary, or undersecretary, or assistant
CRISPIN T. REYES, petitioners, secretary.
vs. Petitioners maintain that this Executive Order which, in effect,
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; allows members of the Cabinet, their undersecretaries and
CARLOS DOMINGUEZ, as Secretary of Agriculture; assistant secretaries to hold other government offices or
LOURDES QUISUMBING, as Secretary of Education, positions in addition to their primary positions, albeit subject
Culture and Sports; FULGENCIO FACTORAN, JR., as to the limitation therein imposed, runs counter to Section 13,
Secretary of Environment and Natural Resources; VICENTE Article VII of the 1987 Constitution,2 which provides as
V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, follows:
as Secretary of Justice; FRANKLIN N. DRILON, as Secretary
of Labor and Employment; LUIS SANTOS, as Secretary of Sec. 13. The President, Vice-President, the Members of the
Local Government; FIDEL V. RAMOS, as Secretary of Cabinet, and their deputies or assistants shall not, unless
National Defense; TEODORO F. BENIGNO, as Press otherwise provided in this Constitution, hold any other office
Secretary; JUANITO FERRER, as Secretary of Public Works or employment during their tenure. They shall not, during said
and Highways; ANTONIO ARRIZABAL, as Secretary of tenure, directly or indirectly practice any other profession,
Science and Technology; JOSE CONCEPCION, as Secretary participate in any business, or be financially interested in any
of Trade and Industry; JOSE ANTONIO GONZALEZ, as contract with, or in any franchise, or special privilege granted
Secretary of Tourism; ALFREDO R.A. BENGZON, as by the Government or any subdivision, agency, or
Secretary of Health; REINERIO D. REYES, as Secretary of instrumentality thereof, including government-owned or
Transportation and Communication; GUILLERMO controlled corporations or their subsidiaries. They shall strictly
CARAGUE, as Commissioner of the Budget; and SOLITA avoid conflict of interest in the conduct of their office.
MONSOD, as Head of the National Economic Development
Authority, respondents. It is alleged that the above-quoted Section 13, Article VII
prohibits public respondents, as members of the Cabinet,
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and along with the other public officials enumerated in the list
Juan T. David for petitioners in 83896. attached to the petitions as Annex "C" in G.R. No.
Antonio P. Coronel for petitioners in 83815. 838153 and as Annex "B" in G.R. No. 838964 from holding
any other office or employment during their tenure. In
addition to seeking a declaration of the unconstitutionality of
Executive Order No. 284, petitioner Anti-Graft League of the
FERNAN, C.J.:p Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a
These two (2) petitions were consolidated per resolution dated temporary restraining order directing public respondents
August 9, 19881 and are being resolved jointly as both seek a therein to cease and desist from holding, in addition to their
declaration of the unconstitutionality of Executive Order No. primary positions, dual or multiple positions other than those
284 issued by President Corazon C. Aquino on July 25, 1987. authorized by the 1987 Constitution and from receiving any
The pertinent provisions of the assailed Executive Order are: salaries, allowances, per diems and other forms of privileges
and the like appurtenant to their questioned positions, and
Sec. 1. Even if allowed by law or by the ordinary functions of
compelling public respondents to return, reimburse or refund
his position, a member of the Cabinet, undersecretary or
any and all amounts or benefits that they may have received
assistant secretary or other appointive officials of the
from such positions.
Executive Department may, in addition to his primary
position, hold not more than two positions in the government Specifically, petitioner Anti-Graft League of the Philippines
and government corporations and receive the corresponding charges that notwithstanding the aforequoted "absolute and
compensation therefor; Provided, that this limitation shall not self-executing" provision of the 1987 Constitution, then
apply to ad hoc bodies or committees, or to boards, councils or Secretary of Justice Sedfrey Ordoñez, construing Section 13,
bodies of which the President is the Chairman. Article VII in relation to Section 7, par. (2), Article IX-B,
rendered on July 23, 1987 Opinion No. 73, series of
Sec. 2. If a member of the cabinet, undersecretary or assistant
1987,5 declaring that Cabinet members, their deputies
secretary or other appointive official of the Executive
(undersecretaries) and assistant secretaries may hold other
Department holds more positions than what is allowed in
public office, including membership in the boards of
Section 1 hereof, they (sic) must relinquish the excess position
government corporations: (a) when directly provided for in the by virtue of the phrase "unless otherwise provided in this
Constitution as in the case of the Secretary of Justice who is Constitution," the only exceptions against holding any other
made an ex-officio member of the Judicial and Bar Council office or employment in Government are those provided in the
under Section 8, paragraph 1, Article VIII; or (b) if allowed by Constitution, namely: (1) The Vice-President may be
law; or (c) if allowed by the primary functions of their appointed as a Member of the Cabinet under Section 3, par.
respective positions; and that on the basis of this Opinion, the (2), Article VII thereof; and (2) the Secretary of Justice is
President of the Philippines, on July 25, 1987 or two (2) days an ex-officio member of the Judicial and Bar Council by
before Congress convened on July 27, 1987: promulgated virtue of Section 8 (1), Article VIII.
Executive Order No. 284.6
Petitioners further argue that the exception to the prohibition
Petitioner Anti-Graft League of the Philippines objects to both in Section 7, par. (2), Article I-XB on the Civil Service
DOJ Opinion No. 73 and Executive Order No. 284 as they Commission applies to officers and employees of the Civil
allegedly "lumped together" Section 13, Article VII and the Service in general and that said exceptions do not apply and
general provision in another article, Section 7, par. (2), Article cannot be extended to Section 13, Article VII which applies
I-XB. This "strained linkage" between the two provisions, specifically to the President, Vice-President, Members of the
each addressed to a distinct and separate group of public Cabinet and their deputies or assistants.
officers –– one, the President and her official family, and the
other, public servants in general –– allegedly "abolished the There is no dispute that the prohibition against the President,
clearly separate, higher, exclusive, and mandatory Vice-President, the members of the Cabinet and their deputies
constitutional rank assigned to the prohibition against multiple or assistants from holding dual or multiple positions in the
jobs for the President, the Vice-President, the members of the Government admits of certain exceptions. The disagreement
Cabinet, and their deputies and subalterns, who are the leaders between petitioners and public respondents lies on the
of government expected to lead by example."7 Article IX-B, constitutional basis of the exception. Petitioners insist that
Section 7, par. (2)8 provides: because of the phrase "unless otherwise provided in this
Constitution" used in Section 13 of Article VII, the exception
Sec. 7. . . . . . must be expressly provided in the Constitution, as in the case
of the Vice-President being allowed to become a Member of
Unless otherwise allowed by law or by the primary functions the Cabinet under the second paragraph of Section 3, Article
of his position, no appointive official shall hold any other VII or the Secretary of Justice being designated an ex-
office or employment in the government or any subdivision, officio member of the Judicial and Bar Council under Article
agency or instrumentality thereof, including government- VIII, Sec. 8 (1). Public respondents, on the other hand,
owned or controlled corporations or their subsidiaries. maintain that the phrase "unless otherwise provided in the
The Solicitor General counters that Department of Justice DOJ Constitution" in Section 13, Article VII makes reference to
Opinion No. 73, series of 1987, as further elucidated and Section 7, par. (2), Article I-XB insofar as the appointive
clarified by DOJ Opinion No. 129, series of 19879 and DOJ officials mentioned therein are concerned.
Opinion No. 155, series of 1988,10 being the first official The threshold question therefore is: does the prohibition in
construction and interpretation by the Secretary of Justice of Section 13, Article VII of the 1987 Constitution insofar as
Section 13, Article VII and par. (2) of Section 7, Article I-XB Cabinet members, their deputies or assistants are concerned
of the Constitution, involving the same subject of admit of the broad exceptions made for appointive officials in
appointments or designations of an appointive executive general under Section 7, par. (2), Article I-XB which, for easy
official to positions other than his primary position, is reference is quoted anew, thus: "Unless otherwise allowed by
"reasonably valid and constitutionally firm," and that law or by the primary functions of his position, no appointive
Executive Order No. 284, promulgated pursuant to DOJ official shall hold any other office or employment in the
Opinion No. 73, series of 1987 is consequently constitutional. Government or any subdivision, agency or instrumentality
It is worth noting that DOJ Opinion No. 129, series of 1987 thereof, including government-owned or controlled
and DOJ Opinion No. 155, series of 1988 construed the corporation or their subsidiaries."
limitation imposed by E.O. No. 284 as not applying to ex-
officio positions or to positions which, although not so We rule in the negative.
designated as ex-officio are allowed by the primary functions
of the public official, but only to the holding of multiple A foolproof yardstick in constitutional construction is the
positions which are not related to or necessarily included in intention underlying the provision under consideration. Thus,
the position of the public official concerned (disparate it has been held that the Court in construing a Constitution
positions). should bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be prevented or
In sum, the constitutionality of Executive Order No. 284 is remedied. A doubtful provision will be examined in the light
being challenged by petitioners on the principal submission of the history of the times, and the condition and
that it adds exceptions to Section 13, Article VII other than circumstances under which the Constitution was framed. The
those provided in the Constitution. According to petitioners, object is to ascertain the reason which induced the framers of
the Constitution to enact the particular provision and the one of the strongest selling points of the 1987 Constitution
purpose sought to be accomplished thereby, in order to during the campaign for its ratification was the assurance
construe the whole as to make the words consonant to that given by its proponents that the scandalous practice of Cabinet
reason and calculated to effect that purpose.11 members holding multiple positions in the government and
collecting unconscionably excessive compensation therefrom
The practice of designating members of the Cabinet, their would be discontinued.
deputies and assistants as members of the governing bodies or
boards of various government agencies and instrumentalities, But what is indeed significant is the fact that although Section
including government-owned and controlled corporations, 7, Article I-XB already contains a blanket prohibition against
became prevalent during the time legislative powers in this the holding of multiple offices or employment in the
country were exercised by former President Ferdinand E. government subsuming both elective and appointive public
Marcos pursuant to his martial law authority. There was a officials, the Constitutional Commission should see it fit to
proliferation of newly-created agencies, instrumentalities and formulate another provision, Sec. 13, Article VII, specifically
government-owned and controlled corporations created by prohibiting the President, Vice-President, members of the
presidential decrees and other modes of presidential issuances Cabinet, their deputies and assistants from holding any other
where Cabinet members, their deputies or assistants were office or employment during their tenure, unless otherwise
designated to head or sit as members of the board with the provided in the Constitution itself.
corresponding salaries, emoluments, per diems, allowances
and other perquisites of office. Most of these instrumentalities Evidently, from this move as well as in the different
have remained up to the present time. phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a
This practice of holding multiple offices or positions in the stricter prohibition on the President and his official family in
government soon led to abuses by unscrupulous public so far as holding other offices or employment in the
officials who took advantage of this scheme for purposes of government or elsewhere is concerned.
self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the Moreover, such intent is underscored by a comparison of
Batasang Pambansa.12 This condemnation came in reaction to Section 13, Article VII with other provisions of the
the published report of the Commission on Audit, entitled Constitution on the disqualifications of certain public officials
"1983 Summary Annual Audit Report on: Government- or employees from holding other offices or employment.
Owned and Controlled Corporations, Self-Governing Boards Under Section 13, Article VI, "(N)o Senator or Member of the
and Commissions" which carried as its Figure No. 4 a House of Representatives may hold any other office or
"Roaster of Membership in Governing Boards of Government- employment in the Government . . .". Under Section 5(4),
Owned and Controlled Corporations as of December 31, Article XVI, "(N)o member of the armed forces in the active
1983." service shall, at any time, be appointed in any capacity to a
civilian position in the Government,including government-
Particularly odious and revolting to the people's sense of owned or controlled corporations or any of their subsidiaries."
propriety and morality in government service were the data Even Section 7 (2), Article IX-B, relied upon by respondents
contained therein that Roberto V. Ongpin was a member of the provides "(U)nless otherwise allowed by law or by the
governing boards of twenty-nine (29) governmental agencies, primary functions of his position, no appointive official shall
instrumentalities and corporations; Imelda R. Marcos of hold any other office or employment in the Government."
twenty-three (23); Cesar E.A. Virata of twenty-two (22);
Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and It is quite notable that in all these provisions on
Geronimo Z. Velasco, of fourteen each (14); Cesar C. disqualifications to hold other office or employment, the
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño prohibition pertains to an office or employment in the
of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, government and government-owned or controlled corporations
and Edgardo Tordesillas of eleven (11) each; and Lilia or their subsidiaries. In striking contrast is the wording of
Bautista and Teodoro Q. Peña of ten (10) each.13 Section 13, Article VII which states that "(T)he President,
Vice-President, the Members of the Cabinet, and their
The blatant betrayal of public trust evolved into one of the deputies or assistants shall not, unless otherwise provided in
serious causes of discontent with the Marcos regime. It was this Constitution, hold any other office or employment during
therefore quite inevitable and in consonance with the their tenure." In the latter provision, the disqualification is
overwhelming sentiment of the people that the 1986 absolute, not being qualified by the phrase "in the
Constitutional Commission, convened as it was after the Government." The prohibition imposed on the President and
people successfully unseated former President Marcos, should his official family is therefore all-embracing and covers both
draft into its proposed Constitution the provisions under public and private office or employment.
consideration which are envisioned to remedy, if not correct,
the evils that flow from the holding of multiple governmental Going further into Section 13, Article VII, the second sentence
offices and employment. In fact, as keenly observed by Mr. provides: "They shall not, during said tenure, directly or
Justice Isagani A. Cruz during the deliberations in these cases, indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in Moreover, respondents' reading of the provisions in question
any franchise, or special privilege granted by the Government would render certain parts of the Constitution inoperative.
or any subdivision, agency or instrumentality thereof, This observation applies particularly to the Vice-President
including government-owned or controlled corporations or who, under Section 13 of Article VII is allowed to hold other
their subsidiaries." These sweeping, all-embracing office or employment when so authorized by the Constitution,
prohibitions imposed on the President and his official family, but who as an elective public official under Sec. 7, par. (1) of
which prohibitions are not similarly imposed on other public Article I-XB is absolutely ineligible "for appointment or
officials or employees such as the Members of Congress, designation in any capacity to any public office or position
members of the civil service in general and members of the during his tenure." Surely, to say that the phrase "unless
armed forces, are proof of the intent of the 1987 Constitution otherwise provided in this Constitution" found in Section 13,
to treat the President and his official family as a class by itself Article VII has reference to Section 7, par. (1) of Article I-XB
and to impose upon said class stricter prohibitions. would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a
Such intent of the 1986 Constitutional Commission to be member of the Cabinet,15 and to act as President without
stricter with the President and his official family was also relinquishing the Vice-Presidency where the President shall
succinctly articulated by Commissioner Vicente Foz after not nave been chosen or fails to qualify.16 Such absurd
Commissioner Regalado Maambong noted during the floor consequence can be avoided only by interpreting the two
deliberations and debate that there was no symmetry between provisions under consideration as one, i.e., Section 7, par. (1)
the Civil Service prohibitions, originally found in the General of Article I-XB providing the general rule and the other, i.e.,
Provisions and the anticipated report on the Executive Section 13, Article VII as constituting the exception thereto. In
Department. Commissioner Foz Commented, "We actually the same manner must Section 7, par. (2) of Article I-XB be
have to be stricter with the President and the members of the construed vis-a-vis Section 13, Article VII.
Cabinet because they exercise more powers and, therefore,
more cheeks and restraints on them are called for because It is a well-established rule in Constitutional construction that
there is more possibility of abuse in their case."14 no one provision of the Constitution is to be separated from all
the others, to be considered alone, but that all the provisions
Thus, while all other appointive officials in the civil service bearing upon a particular subject are to be brought into view
are allowed to hold other office or employment in the and to be so interpreted as to effectuate the great purposes of
government during their tenure when such is allowed by law the instrument.17 Sections bearing on a particular subject
or by the primary functions of their positions, members of the should be considered and interpreted together as to effectuate
Cabinet, their deputies and assistants may do so only when the whole purpose of the Constitution18 and one section is not
expressly authorized by the Constitution itself. In other words, to be allowed to defeat another, if by any reasonable
Section 7, Article I-XB is meant to lay down the general rule construction, the two can be made to stand together.19
applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the In other words, the court must harmonize them, if practicable,
exception applicable only to the President, the Vice- President, and must lean in favor of a construction which will render
Members of the Cabinet, their deputies and assistants. every word operative, rather than one which may make the
words idle and nugatory.20
This being the case, the qualifying phrase "unless otherwise
provided in this Constitution" in Section 13, Article VII Since the evident purpose of the framers of the 1987
cannot possibly refer to the broad exceptions provided under Constitution is to impose a stricter prohibition on the
Section 7, Article I-XB of the 1987 Constitution. To construe President, Vice-President, members of the Cabinet, their
said qualifying phrase as respondents would have us do, deputies and assistants with respect to holding multiple offices
would render nugatory and meaningless the manifest intent or employment in the government during their tenure, the
and purpose of the framers of the Constitution to impose a exception to this prohibition must be read with equal severity.
stricter prohibition on the President, Vice-President, Members On its face, the language of Section 13, Article VII is
of the Cabinet, their deputies and assistants with respect to prohibitory so that it must be understood as intended to be a
holding other offices or employment in the government during positive and unequivocal negation of the privilege of holding
their tenure. Respondents' interpretation that Section 13 of multiple government offices or employment. Verily, wherever
Article VII admits of the exceptions found in Section 7, par. the language used in the constitution is prohibitory, it is to be
(2) of Article IX-B would obliterate the distinction so understood as intended to be a positive and unequivocal
carefully set by the framers of the Constitution as to when the negation.21 The phrase "unless otherwise provided in this
high-ranking officials of the Executive Branch from the Constitution" must be given a literal interpretation to refer
President to Assistant Secretary, on the one hand, and the only to those particular instances cited in the Constitution
generality of civil servants from the rank immediately below itself, to wit: the Vice-President being appointed as a member
Assistant Secretary downwards, on the other, may hold any of the Cabinet under Section 3, par. (2), Article VII; or acting
other office or position in the government during their tenure. as President in those instances provided under Section 7, pars.
(2) and (3), Article VII; and, the Secretary of Justice being ex-
officiomember of the Judicial and Bar Council by virtue of further warrant or appointment.28 To illustrate, by express
Section 8 (1), Article VIII. provision of law, the Secretary of Transportation and
Communications is the ex-officioChairman of the Board of the
The prohibition against holding dual or multiple offices or Philippine Ports Authority,29 and the Light Rail Transit
employment under Section 13, Article VII of the Constitution Authority.30
must not, however, be construed as applying to posts occupied
by the Executive officials specified therein without additional The Court had occasion to explain the meaning of an ex-
compensation in an ex-officio capacity as provided by law and officio position in Rafael vs. Embroidery and Apparel Control
as required22 by the primary functions of said officials' office. and Inspection Board,31 thus: "An examination of section 2 of
The reason is that these posts do no comprise "any other the questioned statute (R.A. 3137) reveals that for the
office" within the contemplation of the constitutional chairman and members of the Board to qualify they need only
prohibition but are properly an imposition of additional duties be designated by the respective department heads. With the
and functions on said officials.23 To characterize these posts exception of the representative from the private sector, they
otherwise would lead to absurd consequences, among which sit ex-officio. In order to be designated they must already be
are: The President of the Philippines cannot chair the National holding positions in the offices mentioned in the law. Thus,
Security Council reorganized under Executive Order No. 115 for instance, one who does not hold a previous appointment in
(December 24, 1986). Neither can the Vice-President, the the Bureau of Customs, cannot, under the act, be designated a
Executive Secretary, and the Secretaries of National Defense, representative from that office. The same is true with respect
Justice, Labor and Employment and Local Government sit in to the representatives from the other offices. No new
this Council, which would then have no reason to exist for appointments are necessary. This is as it should be, because
lack of a chairperson and members. The respective the representatives so designated merely perform duties in the
undersecretaries and assistant secretaries, would also be Board in addition to those already performed under their
prohibited. original appointments."32

The Secretary of Labor and Employment cannot chair the The term "primary" used to describe "functions" refers to the
Board of Trustees of the National Manpower and Youth order of importance and thus means chief or principal
Council (NMYC) or the Philippine Overseas Employment function. The term is not restricted to the singular but may
Administration (POEA), both of which are attached to his refer to the plural.33 The additional duties must not only be
department for policy coordination and guidance. Neither can closely related to, but must be required by the official's
his Undersecretaries and Assistant Secretaries chair these primary functions. Examples of designations to positions by
agencies. virtue of one's primary functions are the Secretaries of Finance
and Budget sitting as members of the Monetary Board, and the
The Secretaries of Finance and Budget cannot sit in the Secretary of Transportation and Communications acting as
Monetary Board.24 Neither can their respective Chairman of the Maritime Industry Authority34 and the Civil
undersecretaries and assistant secretaries. The Central Bank Aeronautics Board.
Governor would then be assisted by lower ranking employees
in providing policy direction in the areas of money, banking If the functions required to be performed are merely
and credit.25 incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official,
Indeed, the framers of our Constitution could not have such additional functions would fall under the purview of "any
intended such absurd consequences. A Constitution, viewed as other office" prohibited by the Constitution. An example
a continuously operative charter of government, is not to be would be the Press Undersecretary sitting as a member of the
interpreted as demanding the impossible or the impracticable; Board of the Philippine Amusement and Gaming Corporation.
and unreasonable or absurd consequences, if possible, should The same rule applies to such positions which confer on the
be avoided.26 cabinet official management functions and/or monetary
To reiterate, the prohibition under Section 13, Article VII is compensation, such as but not limited to chairmanships or
not to be interpreted as covering positions held without directorships in government-owned or controlled corporations
additional compensation in ex-officio capacities as provided and their subsidiaries.
by law and as required by the primary functions of the Mandating additional duties and functions to the President,
concerned official's office. The term ex-officio means "from Vice-President, Cabinet Members, their deputies or assistants
office; by virtue of office." It refers to an "authority derived which are not inconsistent with those already prescribed by
from official character merely, not expressly conferred upon their offices or appointments by virtue of their special
the individual character, but rather annexed to the official knowledge, expertise and skill in their respective executive
position." Ex-officio likewise denotes an "act done in an offices is a practice long-recognized in many jurisdictions. It
official character, or as a consequence of office, and without is a practice justified by the demands of efficiency, policy
any other appointment or authority than that conferred by the direction, continuity and coordination among the different
office."27 An ex-officio member of a board is one who is a offices in the Executive Branch in the discharge of its
member by virtue of his title to a certain office, and without multifarious tasks of executing and implementing laws
affecting national interest and general welfare and delivering by virtue of Section 7, par. (2) of Article I-XB. This colloquy
basic services to the people. It is consistent with the power between the two Commissioners took place in the plenary
vested on the President and his alter egos, the Cabinet session of September 27, 1986. Under consideration then was
members, to have control of all the executive departments, Section 3 of Committee Resolution No. 531 which was the
bureaus and offices and to ensure that the laws are faithfully proposed article on General Provisions.39 At that time, the
executed.35 Without these additional duties and functions article on the Civil Service Commission had been approved on
being assigned to the President and his official family to sit in third reading on July 22, 1986,40 while the article on the
the governing bodies or boards of governmental agencies or Executive Department, containing the more specific
instrumentalities in an ex-officio capacity as provided by law prohibition in Section 13, had also been earlier approved on
and as required by their primary functions, they would be third reading on August 26, 1986.41 It was only after the draft
supervision, thereby deprived of the means for control and Constitution had undergone reformatting and "styling" by the
resulting in an unwieldy and confused bureaucracy. Committee on Style that said Section 3 of the General
Provisions became Section 7, par. (2) of Article IX-B and
It bears repeating though that in order that such additional reworded "Unless otherwise allowed by law or by the primary
duties or functions may not transgress the prohibition functions of his position. . . ."
embodied in Section 13, Article VII of the 1987 Constitution,
such additional duties or functions must be required by the What was clearly being discussed then were general principles
primary functions of the official concerned, who is to perform which would serve as constitutional guidelines in the absence
the same in an ex-officio capacity as provided by law, without of specific constitutional provisions on the matter. What was
receiving any additional compensation therefor. primarily at issue and approved on that occasion was the
adoption of the qualified and delimited phrase "primary
The ex-officio position being actually and in legal functions" as the basis of an exception to the general rule
contemplation part of the principal office, it follows that the covering all appointive public officials. Had the Constitutional
official concerned has no right to receive additional Commission intended to dilute the specific prohibition in said
compensation for his services in the said position. The reason Section 13 of Article VII, it could have re-worded said Section
is that these services are already paid for and covered by the 13 to conform to the wider exceptions provided in then
compensation attached to his principal office. It should be Section 3 of the proposed general Provisions, later placed as
obvious that if, say, the Secretary of Finance attends a meeting Section 7, par. (2) of Article IX-B on the Civil Service
of the Monetary Board as an ex-officio member thereof, he is Commission.
actually and in legal contemplation performing the primary
function of his principal office in defining policy in monetary That this exception would in the final analysis apply also to
and banking matters, which come under the jurisdiction of his the President and his official family is by reason of the legal
department. For such attendance, therefore, he is not entitled principles governing additional functions and duties of public
to collect any extra compensation, whether it be in the form of officials rather than by virtue of Section 7, par. 2, Article IX-B
a per them or an honorarium or an allowance, or some other At any rate, we have made it clear that only the additional
such euphemism. By whatever name it is designated, such functions and duties "required," as opposed to "allowed," by
additional compensation is prohibited by the Constitution. the primary functions may be considered as not constituting
"any other office."
It is interesting to note that during the floor deliberations on
the proposal of Commissioner Christian Monsod to add to While it is permissible in this jurisdiction to consult the
Section 7, par. (2), Article IX-B, originally found as Section 3 debates and proceedings of the constitutional convention in
of the General Provisions, the exception "unless required by order to arrive at the reason and purpose of the resulting
the functions of his position,"36 express reference to certain Constitution, resort thereto may be had only when other
high-ranking appointive public officials like members of the guides fail42 as said proceedings are powerless to vary the
Cabinet were made.37 Responding to a query of terms of the Constitution when the meaning is
Commissioner Blas Ople, Commissioner Monsod pointed out clear.1âwphi1Debates in the constitutional convention "are of
that there are instances when although not required by current value as showing the views of the individual members, and as
law, membership of certain high-ranking executive officials indicating the reasons for their votes, but they give us no light
in other offices and corporations is necessary by reason of said as to the views of the large majority who did not talk, much
officials' primary functions. The example given by less of the mass of our fellow citizens whose votes at the polls
Commissioner Monsod was the Minister of Trade and gave that instrument the force of fundamental law. We think it
Industry.38 safer to construe the constitution from what appears upon its
face."43 The proper interpretation therefore depends more on
While this exchange between Commissioners Monsod and how it was understood by the people adopting it than in the
Ople may be used as authority for saying that additional framers's understanding thereof.44
functions and duties flowing from the primary functions of the
official may be imposed upon him without offending the It being clear, as it was in fact one of its best selling points,
constitutional prohibition under consideration, it cannot, that the 1987 Constitution seeks to prohibit the President,
however, be taken as authority for saying that this exception is Vice-President, members of the Cabinet, their deputies or
assistants from holding during their tenure multiple offices or and Natural Resources Fulgencio Factoran, Jr., Secretary of
employment in the government, except in those cases Local Government45 Luis Santos, Secretary of National
specified in the Constitution itself and as above clarified with Defense Fidel V. Ramos, Secretary of Health Alfredo R.A.
respect to posts held without additional compensation in Bengzon and Secretary of the Budget Guillermo Carague to
an ex-officio capacity as provided by law and as required by immediately relinquish their other offices or employment, as
the primary functions of their office, the citation of Cabinet herein defined, in the government, including government-
members (then called Ministers) as examples during the owned or controlled corporations and their subsidiaries. With
debate and deliberation on the general rule laid down for all respect to the other named respondents, the petitions have
appointive officials should be considered as mere personal become moot and academic as they are no longer occupying
opinions which cannot override the constitution's manifest the positions complained of.
intent and the people' understanding thereof.
During their tenure in the questioned positions, respondents
In the light of the construction given to Section 13, Article VII may be considered de facto officers and as such entitled to
in relation to Section 7, par. (2), Article IX-B of the 1987 emoluments for actual services rendered.46 It has been held
Constitution, Executive Order No. 284 dated July 23, 1987 is that "in cases where there is no de jure,officer, a de
unconstitutional. Ostensibly restricting the number of facto officer, who, in good faith has had possession of the
positions that Cabinet members, undersecretaries or assistant office and has discharged the duties pertaining thereto, is
secretaries may hold in addition to their primary position to legally entitled to the emoluments of the office, and may in an
not more than two (2) positions in the government and appropriate action recover the salary, fees and other
government corporations, Executive Order No. 284 actually compensations attached to the office. This doctrine is,
allows them to hold multiple offices or employment in direct undoubtedly, supported on equitable grounds since it seems
contravention of the express mandate of Section 13, Article unjust that the public should benefit by the services of an
VII of the 1987 Constitution prohibiting them from doing so, officer de facto and then be freed from all liability to pay any
unless otherwise provided in the 1987 Constitution itself. one for such services.47 Any per diem, allowances or other
emoluments received by the respondents by virtue of actual
The Court is alerted by respondents to the impractical services rendered in the questioned positions may therefore be
consequences that will result from a strict application of the retained by them.
prohibition mandated under Section 13, Article VII on the
operations of the Government, considering that Cabinet WHEREFORE, subject to the qualification above-stated, the
members would be stripped of their offices held in an ex- petitions are GRANTED. Executive Order No. 284 is hereby
officio capacity, by reason of their primary positions or by declared null and void and is accordingly set aside.
virtue of legislation. As earlier clarified in this decision, ex-
officio posts held by the executive official concerned without SO ORDERED.
additional compensation as provided by law and as required
by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of the
constitutional prohibition. With respect to other offices or
employment held by virtue of legislation, including
chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries, suffice it to say
that the feared impractical consequences are more apparent
than real. Being head of an executive department is no mean
job. It is more than a full-time job, requiring full attention,
specialized knowledge, skills and expertise. If maximum
benefits are to be derived from a department head's ability and
expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental
offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness
and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and
taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm,


the court hereby orders respondents Secretary of Environment
G.R. No. 122156 February 3, 1997 b. The Highest Bidder must execute the Stock Purchase and
Sale Agreement with GSIS . . . .
MANILA PRINCE HOTEL petitioner,
vs. K. DECLARATION OF THE WINNING
GOVERNMENT SERVICE INSURANCE SYSTEM, BIDDER/STRATEGIC PARTNER —
MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT The Highest Bidder will be declared the Winning
CORPORATE COUNSEL, respondents. Bidder/Strategic Partner after the following conditions are
met:
BELLOSILLO, J.:
a. Execution of the necessary contracts with GSIS/MHC not
The FiIipino First Policy enshrined in the 1987 later than October 23, 1995 (reset to November 3, 1995); and
Constitution, i.e., in the grant of rights, privileges, and
concessions covering the national economy and patrimony, the b. Requisite approvals from the GSIS/MHC and COP
State shall give preference to qualified Filipinos,1 is in oked (Committee on Privatization)/OGCC (Office of the
by petitioner in its bid to acquire 51% of the shares of the Government Corporate Counsel) are obtained.3
Manila Hotel Corporation (MHC) which owns the historic Pending the declaration of Renong Berhad as the winning
Manila Hotel. Opposing, respondents maintain that the bidder/strategic partner and the execution of the necessary
provision is not self-executing but requires an implementing contracts, petitioner in a letter to respondent GSIS dated 28
legislation for its enforcement. Corollarily, they ask whether September 1995 matched the bid price of P44.00 per share
the 51% shares form part of the national economy and tendered by Renong Berhad.4 In a subsequent letter dated 10
patrimony covered by the protective mantle of the October 1995 petitioner sent a manager's check issued by
Constitution. Philtrust Bank for Thirty-three Million Pesos
The controversy arose when respondent Government Service (P33.000.000.00) as Bid Security to match the bid of the
Insurance System (GSIS), pursuant to the privatization Malaysian Group, Messrs. Renong Berhad . . .5 which
program of the Philippine Government under Proclamation respondent GSIS refused to accept.
No. 50 dated 8 December 1986, decided to sell through public On 17 October 1995, perhaps apprehensive that respondent
bidding 30% to 51% of the issued and outstanding shares of GSIS has disregarded the tender of the matching bid and that
respondent MHC. The winning bidder, or the eventual the sale of 51% of the MHC may be hastened by respondent
"strategic partner," is to provide management expertise and/or GSIS and consummated with Renong Berhad, petitioner came
an international marketing/reservation system, and financial to this Court on prohibition and mandamus. On 18 October
support to strengthen the profitability and performance of the 1995 the Court issued a temporary restraining order enjoining
Manila Hotel.2 In a close bidding held on 18 September 1995 respondents from perfecting and consummating the sale to the
only two (2) bidders participated: petitioner Manila Prince Malaysian firm.
Hotel Corporation, a Filipino corporation, which offered to
buy 51% of the MHC or 15,300,000 shares at P41.58 per On 10 September 1996 the instant case was accepted by the
share, and Renong Berhad, a Malaysian firm, with ITT- Court En Banc after it was referred to it by the First Division.
Sheraton as its hotel operator, which bid for the same number The case was then set for oral arguments with former Chief
of shares at P44.00 per share, or P2.42 more than the bid of Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J.,
petitioner. as amici curiae.

Pertinent provisions of the bidding rules prepared by In the main, petitioner invokes Sec. 10, second par., Art. XII,
respondent GSIS state — of the 1987 Constitution and submits that the Manila Hotel has
been identified with the Filipino nation and has practically
I. EXECUTION OF THE NECESSARY CONTRACTS become a historical monument which reflects the vibrancy of
WITH GSIS/MHC — Philippine heritage and culture. It is a proud legacy of an
1. The Highest Bidder must comply with the conditions set earlier generation of Filipinos who believed in the nobility and
forth below by October 23, 1995 (reset to November 3, 1995) sacredness of independence and its power and capacity to
or the Highest Bidder will lose the right to purchase the Block release the full potential of the Filipino people. To all intents
of Shares and GSIS will instead offer the Block of Shares to and purposes, it has become a part of the national
the other Qualified Bidders: patrimony.6 Petitioner also argues that since 51% of the shares
of the MHC carries with it the ownership of the business of
a. The Highest Bidder must negotiate and execute with the the hotel which is owned by respondent GSIS, a government-
GSIS/MHC the Management Contract, International owned and controlled corporation, the hotel business of
Marketing/Reservation System Contract or other type of respondent GSIS being a part of the tourism industry is
contract specified by the Highest Bidder in its strategic plan unquestionably a part of the national economy. Thus, any
for the Manila Hotel. . . . transaction involving 51% of the shares of stock of the MHC
is clearly covered by the term national economy, to which Sec. giving rise to the exercise of the privilege to submit a
10, second par., Art. XII, 1987 Constitution, applies.7 matching bid had not yet taken place.

It is also the thesis of petitioner that since Manila Hotel is part Finally, the prayer for prohibition grounded on grave abuse of
of the national patrimony and its business also unquestionably discretion should fail since respondent GSIS did not exercise
part of the national economy petitioner should be preferred its discretion in a capricious, whimsical manner, and if ever it
after it has matched the bid offer of the Malaysian firm. For did abuse its discretion it was not so patent and gross as to
the bidding rules mandate that if for any reason, the Highest amount to an evasion of a positive duty or a virtual refusal to
Bidder cannot be awarded the Block of Shares, GSIS may perform a duty enjoined by law. Similarly, the petition
offer this to the other Qualified Bidders that have validly for mandamus should fail as petitioner has no clear legal right
submitted bids provided that these Qualified Bidders are to what it demands and respondents do not have an imperative
willing to match the highest bid in terms of price per share.8 duty to perform the act required of them by petitioner.

Respondents except. They maintain that: First, Sec. 10, second We now resolve. A constitution is a system of fundamental
par., Art. XII, of the 1987 Constitution is merely a statement laws for the governance and administration of a nation. It is
of principle and policy since it is not a self-executing supreme, imperious, absolute and unalterable except by the
provision and requires implementing legislation(s) . . . Thus, authority from which it emanates. It has been defined as
for the said provision to Operate, there must be existing laws the fundamental and paramount law of the nation. 10 It
"to lay down conditions under which business may be done."9 prescribes the permanent framework of a system of
government, assigns to the different departments their
Second, granting that this provision is self-executing, Manila respective powers and duties, and establishes certain fixed
Hotel does not fall under the term national patrimony which principles on which government is founded. The fundamental
only refers to lands of the public domain, waters, minerals, conception in other words is that it is a supreme law to which
coal, petroleum and other mineral oils, all forces of potential all other laws must conform and in accordance with which all
energy, fisheries, forests or timber, wildlife, flora and fauna private rights must be determined and all public authority
and all marine wealth in its territorial sea, and exclusive administered. 11 Under the doctrine of constitutional
marine zone as cited in the first and second paragraphs of Sec. supremacy, if a law or contract violates any norm of the
2, Art. XII, 1987 Constitution. According to respondents, constitution that law or contract whether promulgated by the
while petitioner speaks of the guests who have slept in the legislative or by the executive branch or entered into by
hotel and the events that have transpired therein which make private persons for private purposes is null and void and
the hotel historic, these alone do not make the hotel fall under without any force and effect. Thus, since the Constitution is
the patrimony of the nation. What is more, the mandate of the the fundamental, paramount and supreme law of the nation, it
Constitution is addressed to the State, not to respondent GSIS is deemed written in every statute and contract.
which possesses a personality of its own separate and distinct
from the Philippines as a State. Admittedly, some constitutions are merely declarations of
policies and principles. Their provisions command the
Third, granting that the Manila Hotel forms part of legislature to enact laws and carry out the purposes of the
the national patrimony, the constitutional provision invoked is framers who merely establish an outline of government
still inapplicable since what is being sold is only 51% of the providing for the different departments of the governmental
outstanding shares of the corporation, not the hotel building machinery and securing certain fundamental and inalienable
nor the land upon which the building stands. Certainly, 51% of rights of citizens. 12 A provision which lays down a general
the equity of the MHC cannot be considered part of principle, such as those found in Art. II of the 1987
the national patrimony. Moreover, if the disposition of the Constitution, is usually not self-executing. But a provision
shares of the MHC is really contrary to the Constitution, which is complete in itself and becomes operative without the
petitioner should have questioned it right from the beginning aid of supplementary or enabling legislation, or that which
and not after it had lost in the bidding. supplies sufficient rule by means of which the right it grants
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of may be enjoyed or protected, is self-executing. Thus a
the bidding rules which provides that if for any reason, the constitutional provision is self-executing if the nature and
Highest Bidder cannot be awarded the Block of Shares, GSIS extent of the right conferred and the liability imposed are fixed
may offer this to the other Qualified Bidders that have validly by the constitution itself, so that they can be determined by an
submitted bids provided that these Qualified Bidders are examination and construction of its terms, and there is no
willing to match the highest bid in terms of price per share, is language indicating that the subject is referred to the
misplaced. Respondents postulate that the privilege of legislature for action. 13
submitting a matching bid has not yet arisen since it only takes As against constitutions of the past, modern constitutions have
place if for any reason, the Highest Bidder cannot be awarded been generally drafted upon a different principle and have
the Block of Shares. Thus the submission by petitioner of a often become in effect extensive codes of laws intended to
matching bid is premature since Renong Berhad could still operate directly upon the people in a manner similar to that of
very well be awarded the block of shares and the condition statutory enactments, and the function of constitutional
conventions has evolved into one more like that of a In self-executing constitutional provisions, the legislature may
legislative body. Hence, unless it is expressly provided that a still enact legislation to facilitate the exercise of powers
legislative act is necessary to enforce a constitutional mandate, directly granted by the constitution, further the operation of
the presumption now is that all provisions of the constitution such a provision, prescribe a practice to be used for its
are self-executing If the constitutional provisions are treated as enforcement, provide a convenient remedy for the protection
requiring legislation instead of self-executing, the legislature of the rights secured or the determination thereof, or place
would have the power to ignore and practically nullify the reasonable safeguards around the exercise of the right. The
mandate of the fundamental law.14 This can be cataclysmic. mere fact that legislation may supplement and add to or
That is why the prevailing view is, as it has always been, that prescribe a penalty for the violation of a self-executing
— constitutional provision does not render such a provision
ineffective in the absence of such legislation. The omission
. . . in case of doubt, the Constitution should be considered from a constitution of any express provision for a remedy for
self-executing rather than non-self-executing . . . . Unless the enforcing a right or liability is not necessarily an indication
contrary is clearly intended, the provisions of the Constitution that it was not intended to be self-executing. The rule is that a
should be considered self-executing, as a contrary rule would self-executing provision of the constitution does not
give the legislature discretion to determine when, or whether, necessarily exhaust legislative power on the subject, but any
they shall be effective. These provisions would be legislation must be in harmony with the constitution, further
subordinated to the will of the lawmaking body, which could the exercise of constitutional right and make it more
make them entirely meaningless by simply refusing to pass the available. 17 Subsequent legislation however does not
needed implementing statute. 15 necessarily mean that the subject constitutional provision is
Respondents argue that Sec. 10, second par., Art. XII, of the not, by itself, fully enforceable.
1987 Constitution is clearly not self-executing, as they quote Respondents also argue that the non-self-executing nature of
from discussions on the floor of the 1986 Constitutional Sec. 10, second par., of Art. XII is implied from the tenor of
Commission — the first and third paragraphs of the same section which
MR. RODRIGO. Madam President, I am asking this question undoubtedly are not self-executing. 18 The argument is
as the Chairman of the Committee on Style. If the wording of flawed. If the first and third paragraphs are not self-executing
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it because Congress is still to enact measures to encourage the
be understood as a preference to qualified Filipinos vis-a- formation and operation of enterprises fully owned by
vis Filipinos who are not qualified. So, why do we not make it Filipinos, as in the first paragraph, and the State still needs
clear? To qualified Filipinos as against aliens? legislation to regulate and exercise authority over foreign
investments within its national jurisdiction, as in the third
THE PRESIDENT. What is the question of Commissioner paragraph, then a fortiori, by the same logic, the second
Rodrigo? Is it to remove the word "QUALIFIED?". paragraph can only be self-executing as it does not by its
language require any legislation in order to give preference to
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
qualified Filipinos in the grant of rights, privileges and
FILIPINOS" as against whom? As against aliens or over
concessions covering the national economy and patrimony. A
aliens?
constitutional provision may be self-executing in one part and
MR. NOLLEDO. Madam President, I think that is understood. non-self-executing in another. 19
We use the word "QUALIFIED" because the existing laws or
Even the cases cited by respondents holding that certain
prospective laws will always lay down conditions under which
constitutional provisions are merely statements of principles
business may be done. For example, qualifications on the
and policies, which are basically not self-executing and only
setting up of other financial structures, et cetera (emphasis
placed in the Constitution as moral incentives to legislation,
supplied by respondents)
not as judicially enforceable rights — are simply not in
MR. RODRIGO. It is just a matter of style. point. Basco v. Philippine Amusements and Gaming
Corporation 20 speaks of constitutional provisions on personal
MR. NOLLEDO Yes, 16 dignity, 21 the sanctity of family life, 22 the vital role of the
youth in nation-building 23 the promotion of social
Quite apparently, Sec. 10, second par., of Art XII is couched
justice, 24 and the values of education. 25 Tolentino
in such a way as not to make it appear that it is non-self-
v. Secretary of Finance 26 refers to the constitutional
executing but simply for purposes of style. But, certainly, the
provisions on social justice and human rights 27 and on
legislature is not precluded from enacting other further laws to
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites
enforce the constitutional provision so long as the
provisions on the promotion of general welfare, 30 the sanctity
contemplated statute squares with the Constitution. Minor
of family life, 31 the vital role of the youth in nation-
details may be left to the legislature without impairing the
building 32 and the promotion of total human liberation and
self-executing nature of constitutional provisions.
development. 33A reading of these provisions indeed clearly
shows that they are not judicially enforceable constitutional
rights but merely guidelines for legislation. The very terms of and 1960's, the hotel became the center of political activities,
the provisions manifest that they are only principles upon playing host to almost every political convention. In 1970 the
which the legislations must be based. Res ipsa loquitur. hotel reopened after a renovation and reaped numerous
international recognitions, an acknowledgment of the Filipino
On the other hand, Sec. 10, second par., Art. XII of the of the talent and ingenuity. In 1986 the hotel was the site of a
1987 Constitution is a mandatory, positive command which is failed coup d' etat where an aspirant for vice-president was
complete in itself and which needs no further guidelines or "proclaimed" President of the Philippine Republic.
implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in For more than eight (8) decades Manila Hotel has bore mute
operation. It is per se judicially enforceable When our witness to the triumphs and failures, loves and frustrations of
Constitution mandates that [i]n the grant of rights, privileges, the Filipinos; its existence is impressed with public interest; its
and concessions covering national economy and patrimony, own historicity associated with our struggle for sovereignty,
the State shall give preference to qualified Filipinos, it means independence and nationhood. Verily, Manila Hotel has
just that — qualified Filipinos shall be preferred. And when become part of our national economy and patrimony. For sure,
our Constitution declares that a right exists in certain specified 51% of the equity of the MHC comes within the purview of
circumstances an action may be maintained to enforce such the constitutional shelter for it comprises the majority and
right notwithstanding the absence of any legislation on the controlling stock, so that anyone who acquires or owns the
subject; consequently, if there is no statute especially enacted 51% will have actual control and management of the hotel. In
to enforce such constitutional right, such right enforces itself this instance, 51% of the MHC cannot be disassociated from
by its own inherent potency and puissance, and from which all the hotel and the land on which the hotel edifice stands.
legislations must take their bearings. Where there is a right Consequently, we cannot sustain respondents' claim that
there is a remedy. Ubi jus ibi remedium. the Filipino First Policy provision is not applicable since what
is being sold is only 51% of the outstanding shares of the
As regards our national patrimony, a member of the 1986 corporation, not the Hotel building nor the land upon which
Constitutional Commission 34 explains — the building stands. 38
The patrimony of the Nation that should be conserved and The argument is pure sophistry. The term qualified
developed refers not only to out rich natural resources but also Filipinos as used in Our Constitution also includes
to the cultural heritage of out race. It also refers to our corporations at least 60% of which is owned by Filipinos. This
intelligence in arts, sciences and letters. Therefore, we should is very clear from the proceedings of the 1986 Constitutional
develop not only our lands, forests, mines and other natural Commission
resources but also the mental ability or faculty of our people.
THE PRESIDENT. Commissioner Davide is recognized.
We agree. In its plain and ordinary meaning, the term
patrimony pertains to heritage. 35 When the Constitution MR. DAVIDE. I would like to introduce an amendment to the
speaks of national patrimony, it refers not only to the natural Nolledo amendment. And the amendment would consist in
resources of the Philippines, as the Constitution could have substituting the words "QUALIFIED FILIPINOS" with the
very well used the term natural resources, but also to following: "CITIZENS OF THE PHILIPPINES OR
the cultural heritage of the Filipinos. CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL
OR CONTROLLING STOCK IS WHOLLY OWNED BY
Manila Hotel has become a landmark — a living testimonial SUCH CITIZENS.
of Philippine heritage. While it was restrictively an American
hotel when it first opened in 1912, it immediately evolved to xxx xxx xxx
be truly Filipino, Formerly a concourse for the elite, it has
since then become the venue of various significant events MR. MONSOD. Madam President, apparently the proponent
which have shaped Philippine history. It was called is agreeable, but we have to raise a question. Suppose it is a
the Cultural Center of the 1930's. It was the site of the corporation that is 80-percent Filipino, do we not give it
festivities during the inauguration of the Philippine preference?
Commonwealth. Dubbed as the Official Guest House of the MR. DAVIDE. The Nolledo amendment would refer to an
Philippine Government. it plays host to dignitaries and official individual Filipino. What about a corporation wholly owned
visitors who are accorded the traditional Philippine by Filipino citizens?
hospitality. 36
MR. MONSOD. At least 60 percent, Madam President.
The history of the hotel has been chronicled in the book The
Manila Hotel: The Heart and Memory of a City. 37During MR. DAVIDE. Is that the intention?
World War II the hotel was converted by the Japanese
MR. MONSOD. Yes, because, in fact, we would be limiting it
Military Administration into a military headquarters. When
if we say that the preference should only be 100-percent
the American forces returned to recapture Manila the hotel
Filipino.
was selected by the Japanese together with Intramuros as the
two (2) places fro their final stand. Thereafter, in the 1950's
MR: DAVIDE. I want to get that meaning clear because the FILIPINO FIRST Policy . . . This provision was never
"QUALIFIED FILIPINOS" may refer only to individuals and found in previous Constitutions . . . .
not to juridical personalities or entities.
The term "qualified Filipinos" simply means that preference
MR. MONSOD. We agree, Madam President. 39 shall be given to those citizens who can make a viable
contribution to the common good, because of credible
xxx xxx xxx competence and efficiency. It certainly does NOT mandate the
MR. RODRIGO. Before we vote, may I request that the pampering and preferential treatment to Filipino citizens or
amendment be read again. organizations that are incompetent or inefficient, since such an
indiscriminate preference would be counter productive and
MR. NOLLEDO. The amendment will read: "IN THE inimical to the common good.
GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND In the granting of economic rights, privileges, and
PATRIMONY, THE STATE SHALL GIVE PREFERENCE concessions, when a choice has to be made between a
TO QUALIFIED FILIPINOS." And the word "Filipinos" here, "qualified foreigner" end a "qualified Filipino," the latter shall
as intended by the proponents, will include not only individual be chosen over the former."
Filipinos but also Filipino-controlled entities or entities fully- Lastly, the word qualified is also determinable. Petitioner was
controlled by Filipinos. 40 so considered by respondent GSIS and selected as one of
The phrase preference to qualified Filipinos was explained the qualified bidders. It was pre-qualified by respondent GSIS
thus — in accordance with its own guidelines so that the sole
inference here is that petitioner has been found to be possessed
MR. FOZ. Madam President, I would like to request of proven management expertise in the hotel industry, or it has
Commissioner Nolledo to please restate his amendment so that significant equity ownership in another hotel company, or it
I can ask a question. has an overall management and marketing proficiency to
successfully operate the Manila Hotel. 44
MR. NOLLEDO. "IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS COVERING THE The penchant to try to whittle away the mandate of the
NATIONAL ECONOMY AND PATRIMONY, THE STATE Constitution by arguing that the subject provision is not self-
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." executory and requires implementing legislation is quite
disturbing. The attempt to violate a clear constitutional
MR FOZ. In connection with that amendment, if a foreign
provision — by the government itself — is only too
enterprise is qualified and a Filipino enterprise is also
distressing. To adopt such a line of reasoning is to renounce
qualified, will the Filipino enterprise still be given a
the duty to ensure faithfulness to the Constitution. For, even
preference?
some of the provisions of the Constitution which evidently
MR. NOLLEDO. Obviously. need implementing legislation have juridical life of their own
and can be the source of a judicial remedy. We cannot simply
MR. FOZ. If the foreigner is more qualified in some aspects afford the government a defense that arises out of the failure to
than the Filipino enterprise, will the Filipino still be preferred? enact further enabling, implementing or guiding legislation. In
fine, the discourse of Fr. Joaquin G. Bernas, S.J., on
MR. NOLLEDO. The answer is "yes."
constitutional government is apt —
MR. FOZ. Thank you, 41
The executive department has a constitutional duty to
Expounding further on the Filipino First Policy provision implement laws, including the Constitution, even before
Commissioner Nolledo continues — Congress acts — provided that there are discoverable legal
standards for executive action. When the executive acts, it
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," must be guided by its own understanding of the constitutional
it will be "SHALL — THE STATE SHALL GlVE command and of applicable laws. The responsibility for
PREFERENCE TO QUALIFIED FILIPINOS. This embodies reading and understanding the Constitution and the laws is not
the so-called "Filipino First" policy. That means that Filipinos the sole prerogative of Congress. If it were, the executive
should be given preference in the grant of concessions, would have to ask Congress, or perhaps the Court, for an
privileges and rights covering the national patrimony. 42 interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional
The exchange of views in the sessions of the Constitutional
government operates. 45
Commission regarding the subject provision was still further
clarified by Commissioner Nolledo 43 — Respondents further argue that the constitutional provision is
addressed to the State, not to respondent GSIS which by itself
Paragraph 2 of Section 10 explicitly mandates the "Pro-
possesses a separate and distinct personality. This argument
Filipino" bias in all economic concerns. It is better known as
again is at best specious. It is undisputed that the sale of 51%
of the MHC could only be carried out with the prior approval
of the State acting through respondent Committee on share. 47 Certainly, the constitutional mandate itself is reason
Privatization. As correctly pointed out by Fr. Joaquin G. enough not to award the block of shares immediately to the
Bernas, S.J., this fact alone makes the sale of the assets of foreign bidder notwithstanding its submission of a higher, or
respondents GSIS and MHC a "state action." In constitutional even the highest, bid. In fact, we cannot conceive of a stronger
jurisprudence, the acts of persons distinct from the reason than the constitutional injunction itself.
government are considered "state action" covered by the
Constitution (1) when the activity it engages in is a "public In the instant case, where a foreign firm submits the highest
function;" (2) when the government is so significantly bid in a public bidding concerning the grant of rights,
involved with the private actor as to make the government privileges and concessions covering the national economy and
responsible for his action; and, (3) when the government has patrimony, thereby exceeding the bid of a Filipino, there is no
approved or authorized the action. It is evident that the act of question that the Filipino will have to be allowed to match the
respondent GSIS in selling 51% of its share in respondent bid of the foreign entity. And if the Filipino matches the bid of
MHC comes under the second and third categories of "state a foreign firm the award should go to the Filipino. It must be
action." Without doubt therefore the transaction. although so if we are to give life and meaning to the Filipino First
entered into by respondent GSIS, is in fact a transaction of the Policy provision of the 1987 Constitution. For, while this may
State and therefore subject to the constitutional command. 46 neither be expressly stated nor contemplated in the bidding
rules, the constitutional fiat is, omnipresent to be simply
When the Constitution addresses the State it refers not only to disregarded. To ignore it would be to sanction a perilous
the people but also to the government as elements of the State. skirting of the basic law.
After all, government is composed of three (3) divisions of
power — legislative, executive and judicial. Accordingly, a This Court does not discount the apprehension that this policy
constitutional mandate directed to the State is correspondingly may discourage foreign investors. But the Constitution and
directed to the three(3) branches of government. It is laws of the Philippines are understood to be always open to
undeniable that in this case the subject constitutional public scrutiny. These are given factors which investors must
injunction is addressed among others to the Executive consider when venturing into business in a foreign
Department and respondent GSIS, a government jurisdiction. Any person therefore desiring to do business in
instrumentality deriving its authority from the State. the Philippines or with any of its agencies or instrumentalities
is presumed to know his rights and obligations under the
It should be stressed that while the Malaysian firm offered the Constitution and the laws of the forum.
higher bid it is not yet the winning bidder. The bidding rules
expressly provide that the highest bidder shall only be The argument of respondents that petitioner is now estopped
declared the winning bidder after it has negotiated and from questioning the sale to Renong Berhad since petitioner
executed the necessary contracts, and secured the requisite was well aware from the beginning that a foreigner could
approvals. Since the "Filipino First Policy provision of the participate in the bidding is meritless. Undoubtedly, Filipinos
Constitution bestows preference on qualified Filipinos the and foreigners alike were invited to the bidding. But
mere tending of the highest bid is not an assurance that the foreigners may be awarded the sale only if no Filipino
highest bidder will be declared the winning bidder. qualifies, or if the qualified Filipino fails to match the highest
Resultantly, respondents are not bound to make the award yet, bid tendered by the foreign entity. In the case before us, while
nor are they under obligation to enter into one with the highest petitioner was already preferred at the inception of the bidding
bidder. For in choosing the awardee respondents are mandated because of the constitutional mandate, petitioner had not yet
to abide by the dictates of the 1987 Constitution the provisions matched the bid offered by Renong Berhad. Thus it did not
of which are presumed to be known to all the bidders and have the right or personality then to compel respondent GSIS
other interested parties. to accept its earlier bid. Rightly, only after it had matched the
bid of the foreign firm and the apparent disregard by
Adhering to the doctrine of constitutional supremacy, the respondent GSIS of petitioner's matching bid did the latter
subject constitutional provision is, as it should be, impliedly have a cause of action.
written in the bidding rules issued by respondent GSIS, lest
the bidding rules be nullified for being violative of the Besides, there is no time frame for invoking the constitutional
Constitution. It is a basic principle in constitutional law that all safeguard unless perhaps the award has been finally made. To
laws and contracts must conform with the fundamental law of insist on selling the Manila Hotel to foreigners when there is a
the land. Those which violate the Constitution lose their Filipino group willing to match the bid of the foreign group is
reason for being. to insist that government be treated as any other ordinary
market player, and bound by its mistakes or gross errors of
Paragraph V. J. 1 of the bidding rules provides that [if] for any judgment, regardless of the consequences to the Filipino
reason the Highest Bidder cannot be awarded the Block of people. The miscomprehension of the Constitution is
Shares, GSIS may offer this to other Qualified Bidders that regrettable. Thus we would rather remedy the indiscretion
have validly submitted bids provided that these Qualified while there is still an opportunity to do so than let the
Bidders are willing to match the highest bid in terms of price government develop the habit of forgetting that the
per
Constitution lays down the basic conditions and parameters nobler non-material values. Indeed, the Court will always
for its actions. defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any
Since petitioner has already matched the bid price tendered by economic policy as to draw itself beyond judicial review when
Renong Berhad pursuant to the bidding rules, respondent the Constitution is involved. 49
GSIS is left with no alternative but to award to petitioner the
block of shares of MHC and to execute the necessary Nationalism is inherent, in the very concept of the Philippines
agreements and documents to effect the sale in accordance not being a democratic and republican state, with sovereignty
only with the bidding guidelines and procedures but with the residing in the Filipino people and from whom all government
Constitution as well. The refusal of respondent GSIS to authority emanates. In nationalism, the happiness and welfare
execute the corresponding documents with petitioner as of the people must be the goal. The nation-state can have no
provided in the bidding rules after the latter has matched the higher purpose. Any interpretation of any constitutional
bid of the Malaysian firm clearly constitutes grave abuse of provision must adhere to such basic concept. Protection of
discretion. foreign investments, while laudible, is merely a policy. It
cannot override the demands of nationalism. 50
The Filipino First Policy is a product of Philippine
nationalism. It is embodied in the 1987 Constitution not The Manila Hotel or, for that matter, 51% of the MHC, is not
merely to be used as a guideline for future legislation but just any commodity to be sold to the highest bidder solely for
primarily to be enforced; so must it be enforced. This Court as the sake of privatization. We are not talking about an ordinary
the ultimate guardian of the Constitution will never shun, piece of property in a commercial district. We are talking
under any reasonable circumstance, the duty of upholding the about a historic relic that has hosted many of the most
majesty of the Constitution which it is tasked to defend. It is important events in the short history of the Philippines as a
worth emphasizing that it is not the intention of this Court to nation. We are talking about a hotel where heads of states
impede and diminish, much less undermine, the influx of would prefer to be housed as a strong manifestation of their
foreign investments. Far from it, the Court encourages and desire to cloak the dignity of the highest state function to their
welcomes more business opportunities but avowedly sanctions official visits to the Philippines. Thus the Manila Hotel has
the preference for Filipinos whenever such preference is played and continues to play a significant role as an authentic
ordained by the Constitution. The position of the Court on this repository of twentieth century Philippine history and culture.
matter could have not been more appropriately articulated by In this sense, it has become truly a reflection of the Filipino
Chief Justice Narvasa — soul — a place with a history of grandeur; a most historical
setting that has played a part in the shaping of a country. 51
As scrupulously as it has tried to observe that it is not its
function to substitute its judgment for that of the legislature or This Court cannot extract rhyme nor reason from the
the executive about the wisdom and feasibility of legislation determined efforts of respondents to sell the historical
economic in nature, the Supreme Court has not been spared landmark — this Grand Old Dame of hotels in Asia — to a
criticism for decisions perceived as obstacles to economic total stranger. For, indeed, the conveyance of this epic
progress and development . . . in connection with a temporary exponent of the Filipino psyche to alien hands cannot be less
injunction issued by the Court's First Division against the sale than mephistophelian for it is, in whatever manner viewed, a
of the Manila Hotel to a Malaysian Firm and its partner, veritable alienation of a nation's soul for some pieces of
certain statements were published in a major daily to the effect foreign silver. And so we ask: What advantage, which cannot
that injunction "again demonstrates that the Philippine legal be equally drawn from a qualified Filipino, can be gained by
system can be a major obstacle to doing business here. the Filipinos Manila Hotel — and all that it stands for — is
sold to a non-Filipino? How much of national pride will
Let it be stated for the record once again that while it is no vanish if the nation's cultural heritage is entrusted to a foreign
business of the Court to intervene in contracts of the kind entity? On the other hand, how much dignity will be preserved
referred to or set itself up as the judge of whether they are and realized if the national patrimony is safekept in the hands
viable or attainable, it is its bounden duty to make sure that of a qualified, zealous and well-meaning Filipino? This is the
they do not violate the Constitution or the laws, or are not plain and simple meaning of the Filipino First Policy provision
adopted or implemented with grave abuse of discretion of the Philippine Constitution. And this Court, heeding the
amounting to lack or excess of jurisdiction. It will never shirk clarion call of the Constitution and accepting the duty of being
that duty, no matter how buffeted by winds of unfair and ill- the elderly watchman of the nation, will continue to respect
informed criticism. 48 and protect the sanctity of the Constitution.
Privatization of a business asset for purposes of enhancing its WHEREFORE, respondents GOVERNMENT SERVICE
business viability and preventing further losses, regardless of INSURANCE SYSTEM, MANILA HOTEL
the character of the asset, should not take precedence over CORPORATION, COMMITTEE ON PRIVATIZATION and
non-material values. A commercial, nay even a budgetary, OFFICE OF THE GOVERNMENT CORPORATE
objective should not be pursued at the expense of national COUNSEL are directed to CEASE and DESIST from selling
pride and dignity. For the Constitution enshrines higher and 51% of the shares of the Manila Hotel Corporation to
RENONG BERHAD, and to ACCEPT the matching bid of
petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel
Corporation at P44.00 per share and thereafter to execute the
necessary clearances and to do such other acts and deeds as
may be necessary for purpose.

SO ORDERED.
G.R. No. 161872 April 13, 2004 First, the constitutional and legal dimensions involved.

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, Implicit in the petitioner’s invocation of the constitutional
vs. provision ensuring "equal access to opportunities for public
COMMISSION ON ELECTIONS, respondent. office" is the claim that there is a constitutional right to run for
or hold public office and, particularly in his case, to seek the
RESOLUTION presidency. There is none. What is recognized is merely a
TINGA, J.: privilege subject to limitations imposed by law. Section 26,
Article II of the Constitution neither bestows such a right nor
Petitioner Rev. Elly Velez Pamatong filed his Certificate of elevates the privilege to the level of an enforceable right.
Candidacy for President on December 17, 2003. Respondent There is nothing in the plain language of the provision which
Commission on Elections (COMELEC) refused to give due suggests such a thrust or justifies an interpretation of the sort.
course to petitioner’s Certificate of Candidacy in
its Resolution No. 6558 dated January 17, 2004. The decision, The "equal access" provision is a subsumed part of Article II
however, was not unanimous since Commissioners of the Constitution, entitled "Declaration of Principles and
Luzviminda G. Tancangco and Mehol K. Sadain voted to State Policies." The provisions under the Article are generally
include petitioner as they believed he had parties or considered not self-executing,2 and there is no plausible
movements to back up his candidacy. reason for according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in Article
On January 15, 2004, petitioner moved for reconsideration II, the provision does not contain any judicially enforceable
of Resolution No. 6558. Petitioner’s Motion for constitutional right but merely specifies a guideline for
Reconsideration was docketed as SPP (MP) No. 04-001. The legislative or executive action.3 The disregard of the provision
COMELEC, acting on petitioner’s Motion for does not give rise to any cause of action before the courts.4
Reconsideration and on similar motions filed by other
aspirants for national elective positions, denied the same under An inquiry into the intent of the framers5 produces the same
the aegis of Omnibus Resolution No. 6604 dated February 11, determination that the provision is not self-executory. The
2004. The COMELEC declared petitioner and thirty-five (35) original wording of the present Section 26, Article II had read,
others nuisance candidates who could not wage a nationwide "The State shall broaden opportunities to public office and
campaign and/or are not nominated by a political party or are prohibit public dynasties."6 Commissioner (now Chief
not supported by a registered political party with a national Justice) Hilario Davide, Jr. successfully brought forth an
constituency. Commissioner Sadain maintained his vote for amendment that changed the word "broaden" to the phrase
petitioner. By then, Commissioner Tancangco had retired. "ensure equal access," and the substitution of the word
"office" to "service." He explained his proposal in this wise:
In this Petition For Writ of Certiorari, petitioner seeks to
reverse the resolutions which were allegedly rendered in I changed the word "broaden" to "ENSURE EQUAL
violation of his right to "equal access to opportunities for ACCESS TO" because what is important would be equal
public service" under Section 26, Article II of the 1987 access to the opportunity. If you broaden, it would necessarily
mean that the government would be mandated to create as
Constitution,1 by limiting the number of qualified candidates many offices as are possible to accommodate as many people
only to those who can afford to wage a nationwide campaign as are also possible. That is the meaning of broadening
and/or are nominated by political parties. In so doing, opportunities to public service. So, in order that we should not
petitioner argues that the COMELEC indirectly amended the mandate the State to make the government the number one
constitutional provisions on the electoral process and limited employer and to limit offices only to what may be necessary
the power of the sovereign people to choose their leaders. The and expedient yet offering equal opportunities to access to it, I
COMELEC supposedly erred in disqualifying him since he is change the word "broaden."7 (emphasis supplied)
the most qualified among all the presidential candidates, i.e.,
he possesses all the constitutional and legal qualifications for Obviously, the provision is not intended to compel the State to
the office of the president, he is capable of waging a national enact positive measures that would accommodate as many
campaign since he has numerous national organizations under people as possible into public office. The approval of the
his leadership, he also has the capacity to wage an "Davide amendment" indicates the design of the framers to
international campaign since he has practiced law in other cast the provision as simply enunciatory of a desired policy
countries, and he has a platform of government. Petitioner objective and not reflective of the imposition of a clear State
likewise attacks the validity of the form for the Certificate of burden.
Candidacy prepared by the COMELEC. Petitioner claims that Moreover, the provision as written leaves much to be desired
the form does not provide clear and reasonable guidelines for if it is to be regarded as the source of positive rights. It is
determining the qualifications of candidates since it does not difficult to interpret the clause as operative in the absence of
ask for the candidate’s bio-data and his program of legislation since its effective means and reach are not properly
government. defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be entirely open-
ended.8 Words and phrases such as "equal access," The COMELEC itself recognized these practical
"opportunities," and "public service" are susceptible to considerations when it promulgated Resolution No. 6558 on
countless interpretations owing to their inherent 17 January 2004, adopting the study Memorandum of its Law
impreciseness. Certainly, it was not the intention of the Department dated 11 January 2004. As observed in the
framers to inflict on the people an operative but amorphous COMELEC’s Comment:
foundation from which innately unenforceable rights may be
sourced. There is a need to limit the number of candidates especially in
the case of candidates for national positions because the
As earlier noted, the privilege of equal access to opportunities election process becomes a mockery even if those who cannot
to public office may be subjected to limitations. Some valid clearly wage a national campaign are allowed to run. Their
limitations specifically on the privilege to seek elective office names would have to be printed in the Certified List of
are found in the provisions9 of the Omnibus Election Code on Candidates, Voters Information Sheet and the Official Ballots.
"Nuisance Candidates" and COMELEC Resolution No. These would entail additional costs to the government. For the
645210 dated December 10, 2002 outlining the instances official ballots in automated counting and canvassing of votes,
wherein the COMELEC may motu proprio refuse to give due an additional page would amount to more or less FOUR
course to or cancel a Certificate of Candidacy. HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).

As long as the limitations apply to everybody equally without xxx[I]t serves no practical purpose to allow those candidates
discrimination, however, the equal access clause is not to continue if they cannot wage a decent campaign enough to
violated. Equality is not sacrificed as long as the burdens project the prospect of winning, no matter how slim.12
engendered by the limitations are meant to be borne by any
one who is minded to file a certificate of candidacy. In the The preparation of ballots is but one aspect that would be
case at bar, there is no showing that any person is exempt from affected by allowance of "nuisance candidates" to run in the
the limitations or the burdens which they create. elections. Our election laws provide various entitlements for
candidates for public office, such as watchers in every polling
Significantly, petitioner does not challenge the place,13 watchers in the board of canvassers,14 or even the
constitutionality or validity of Section 69 of the Omnibus receipt of electoral contributions.15Moreover, there are
Election Code and COMELEC Resolution No. 6452 dated 10 election rules and regulations the formulations of which are
December 2003. Thus, their presumed validity stands and has dependent on the number of candidates in a given election.
to be accorded due weight.
Given these considerations, the ignominious nature of a
Clearly, therefore, petitioner’s reliance on the equal access nuisance candidacy becomes even more galling. The
clause in Section 26, Article II of the Constitution is organization of an election with bona fide candidates standing
misplaced. is onerous enough. To add into the mix candidates with no
serious intentions or capabilities to run a viable campaign
The rationale behind the prohibition against nuisance would actually impair the electoral process. This is not to
candidates and the disqualification of candidates who have not mention the candidacies which are palpably ridiculous so as to
evinced a bona fide intention to run for office is easy to divine. constitute a one-note joke. The poll body would be bogged by
The State has a compelling interest to ensure that its electoral irrelevant minutiae covering every step of the electoral
exercises are rational, objective, and orderly. Towards this process, most probably posed at the instance of these nuisance
end, the State takes into account the practical considerations in candidates. It would be a senseless sacrifice on the part of the
conducting elections. Inevitably, the greater the number of State.
candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and Owing to the superior interest in ensuring a credible and
resources in preparation for the election. These practical orderly election, the State could exclude nuisance candidates
difficulties should, of course, never exempt the State from the and need not indulge in, as the song goes, "their trips to the
conduct of a mandated electoral exercise. At the same time, moon on gossamer wings."
remedial actions should be available to alleviate these
logistical hardships, whenever necessary and proper. The Omnibus Election Code and COMELEC Resolution No.
Ultimately, a disorderly election is not merely a textbook 6452 are cognizant of the compelling State interest to ensure
example of inefficiency, but a rot that erodes faith in our orderly and credible elections by excising impediments
democratic institutions. As the United States Supreme Court thereto, such as nuisance candidacies that distract and detract
held: from the larger purpose. The COMELEC is mandated by the
Constitution with the administration of elections16 and
[T]here is surely an important state interest in requiring some endowed with considerable latitude in adopting means and
preliminary showing of a significant modicum of support methods that will ensure the promotion of free, orderly and
before printing the name of a political organization and its honest elections.17 Moreover, the Constitution guarantees that
candidates on the ballot – the interest, if no other, in avoiding only bona fide candidates for public office shall be free from
confusion, deception and even frustration of the democratic any form of harassment and discrimination.18 The
[process].11 determination of bona fidecandidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined
in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved


are, their proper application in the case of the petitioner cannot
be tested and reviewed by this Court on the basis of what is
now before it. The assailed resolutions of the COMELEC do
not direct the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate. This
precludes the Court from reviewing at this instance whether
the COMELEC committed grave abuse of discretion in
disqualifying petitioner, since such a review would necessarily
take into account the matters which the COMELEC
considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of


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

The question of whether a candidate is a nuisance candidate or


not is both legal and factual. The basis of the factual
determination is not before this Court. Thus, the remand of
this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s


aspiration and offer to serve in the government. It deserves not
a cursory treatment but a hearing which conforms to the
requirements of due process.

As to petitioner’s attacks on the validity of the form for the


certificate of candidacy, suffice it to say that the form strictly
complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of
candidacy should contain, with the required information
tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the
Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP


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

The COMELEC is directed to hold and complete the reception


of evidence and report its findings to this Court with deliberate
dispatch.

SO ORDERED.
G.R. No. L-2662 March 26, 1949 Third. — That Attorneys Hussey and Port have no personality
as prosecution the United State not being a party in interest in
SHIGENORI KURODA, petitioner, the case.
vs.
Major General RAFAEL JALANDONI, Brigadier General Executive Order No. 68, establishing a National War Crimes
CALIXTO DUQUE, Colonel MARGARITO TORALBA, Office prescribing rule and regulation governing the trial of
Colonel IRENEO BUENCONSEJO, Colonel PEDRO accused war criminals, was issued by the President of the
TABUENA, Major FEDERICO ARANAS, MELVILLE S. Philippines on the 29th days of July, 1947 This Court holds
HUSSEY and ROBERT PORT, respondents. that this order is valid and constitutional. Article 2 of our
Constitution provides in its section 3, that —
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for
petitioner. The Philippines renounces war as an instrument of national
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., policy and adopts the generally accepted principles of
Ricardo A. Arcilla and S. Melville Hussey for respondents. international law as part of the of the nation.

MORAN, C.J.: In accordance with the generally accepted principle of


international law of the present day including the Hague
Shigenori Kuroda, formerly a Lieutenant-General of the Convention the Geneva Convention and significant precedents
Japanese Imperial Army and Commanding General of the of international jurisprudence established by the United Nation
Japanese Imperial Forces in The Philippines during a period all those person military or civilian who have been guilty of
covering 19433 and 19444 who is now charged before a planning preparing or waging a war of aggression and of the
military Commission convened by the Chief of Staff of the commission of crimes and offenses consequential and
Armed forces of the Philippines with having unlawfully incidental thereto in violation of the laws and customs of war,
disregarded and failed "to discharge his duties as such of humanity and civilization are held accountable therefor.
command, permitting them to commit brutal atrocities and Consequently in the promulgation and enforcement of
other high crimes against noncombatant civilians and Execution Order No. 68 the President of the Philippines has
prisoners of the Imperial Japanese Forces in violation of the acted in conformity with the generally accepted and policies of
laws and customs of war" — comes before this Court seeking international law which are part of the our Constitution.
to establish the illegality of Executive Order No. 68 of the
President of the Philippines: to enjoin and prohibit The promulgation of said executive order is an exercise by the
respondents Melville S. Hussey and Robert Port from President of his power as Commander in chief of all our armed
participating in the prosecution of petitioner's case before the forces as upheld by this Court in the case of
Military Commission and to permanently prohibit respondents Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we
from proceeding with the case of petitioners. said —

In support of his case petitioner tenders the following principal War is not ended simply because hostilities have ceased. After
arguments. cessation of armed hostilities incident of war may remain
pending which should be disposed of as in time of war. An
First. — "That Executive Order No. 68 is illegal on the ground importance incident to a conduct of war is the adoption of
that it violates not only the provision of our constitutional law measure by the military command not only to repel and defeat
but also our local laws to say nothing of the fact (that) the the enemies but to seize and subject to disciplinary measure
Philippines is not a signatory nor an adherent to the Hague those enemies who in their attempt to thwart or impede our
Convention on Rules and Regulations covering Land Warfare military effort have violated the law of war. (Ex parte Quirin
and therefore petitioners is charged of 'crimes' not based on 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a
law, national and international." Hence petitioner argues — military commission for the trial and punishment of war
"That in view off the fact that this commission has been criminals is an aspect of waging war. And in the language of a
empanelled by virtue of an unconstitutional law an illegal writer a military commission has jurisdiction so long as a
order this commission is without jurisdiction to try herein technical state of war continues. This includes the period of an
petitioner." armistice or military occupation up to the effective of a treaty
Second. — That the participation in the prosecution of the of peace and may extend beyond by treaty agreement.
case against petitioner before the Commission in behalf of the (Cowles Trial of War Criminals by Military Tribunals,
United State of America of attorneys Melville Hussey and America Bar Association Journal June, 1944.)
Robert Port who are not attorneys authorized by the Supreme Consequently, the President as Commander in Chief is fully
Court to practice law in the Philippines is a diminution of our empowered to consummate this unfinished aspect of war
personality as an independent state and their appointment as namely the trial and punishment of war criminal through the
prosecutor are a violation of our Constitution for the reason issuance and enforcement of Executive Order No. 68.
that they are not qualified to practice law in the Philippines.
Petitioner argues that respondent Military Commission has no
Jurisdiction to try petitioner for acts committed in violation of
the Hague Convention and the Geneva Convention because proper that United States, which has submitted the vindication
the Philippines is not a signatory to the first and signed the of crimes against her government and her people to a tribunal
second only in 1947. It cannot be denied that the rules and of our nation should be allowed representation in the trial of
regulation of the Hague and Geneva conventions form, part of those very crimes. If there has been any relinquishment of
and are wholly based on the generally accepted principals of sovereignty it has not been by our government but by the
international law. In facts these rules and principles were United State Government which has yielded to us the trial and
accepted by the two belligerent nation the United State and punishment of her enemies. The least that we could do in the
Japan who were signatories to the two Convention, Such rule spirit of comity is to allow them representation in said trials.
and principles therefore form part of the law of our nation
even if the Philippines was not a signatory to the conventions Alleging that the United State is not a party in interest in the
embodying them for our Constitution has been deliberately case petitioner challenges the personality of attorneys Hussey
general and extensive in its scope and is not confined to the and Port as prosecutors. It is of common knowledge that the
recognition of rule and principle of international law as United State and its people have been equally if not more
continued inn treaties to which our government may have been greatly aggrieved by the crimes with which petitioner stands
or shall be a signatory. charged before the Military Commission. It can be considered
a privilege for our Republic that a leader nation should submit
Furthermore when the crimes charged against petitioner were the vindication of the honor of its citizens and its government
allegedly committed the Philippines was under the sovereignty to a military tribunal of our country.
of United States and thus we were equally bound together with
the United States and with Japan to the right and obligation The Military Commission having been convened by virtue of a
contained in the treaties between the belligerent countries. valid law with jurisdiction over the crimes charged which fall
These rights and obligation were not erased by our assumption under the provisions of Executive Order No. 68, and having
of full sovereignty. If at all our emergency as a free state said petitioner in its custody, this Court will not interfere with
entitles us to enforce the right on our own of trying and the due process of such Military commission.
punishing those who committed crimes against crimes against For all the foregoing the petition is denied with costs de oficio.
our people. In this connection it is well to remember what we
have said in the case of Laurel vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth


to Republic does not affect the prosecution of those charged
with the crime of treason committed during then
Commonwealth because it is an offense against the same
sovereign people. . . .

By the same token war crimes committed against our people


and our government while we were a Commonwealth are
triable and punishable by our present Republic.

Petitioner challenges the participation of two American


attorneys namely Melville S. Hussey and Robert Port in the
prosecution of his case on the ground that said attorney's are
not qualified to practice law in Philippines in accordance with
our Rules of court and the appointment of said attorneys as
prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special


military tribunal governed by a special law and not by the
Rules of court which govern ordinary civil court. It has
already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a
valid and constitutional law. There is nothing in said executive
order which requires that counsel appearing before said
commission must be attorneys qualified to practice law in the
Philippines in accordance with the Rules of Court. In facts it is
common in military tribunals that counsel for the parties are
usually military personnel who are neither attorneys nor even
possessed of legal training.

Secondly the appointment of the two American attorneys is


not violative of our nation sovereignty. It is only fair and
G.R. No. L-44 September 13, 1945 No. 286 (Schedule A-2) wherein the Commitment Order is in
exactly the same terms as in Schedule A. The specific
LILY RAQUIZA, ET AL., petitioners, complaint or charge against petitioner Tee Han Kee in
vs. Schedule A-2 is "Active collaboration with the enemy."
LT. COL. L.J. BRADFORD, ET AL., respondents.
With regard to petitioner Emma Link Infante, it appears that
Guillermo B. Guevarra for petitioners. by virtue of the same proclamation she, on April 10, 1945,
J.A. Wolfson for respondents. was arrested by the 493rd Counter Intelligence Corps
HILADO, J.: Detachment of the United States Army Forces in the Far East,
and detained under Commitment of that date (Schedule A-1),
Alleging in their petition for a writ of habeas corpus, dated wherein she was charged with "Active collaboration with the
August 30, 1945, that they have been and are being "confined, Japanese." Her previous association with the enemy
restrained and deprived" of their liberty in the Correctional constitutes a present security risk to the United States Armed
Institution for Women, petitioners, Lily Raquiza, Haydee Tee Forces.
Han Kee and Emma Link Infante, pray that the officers therein
named, to wit, Lt. Col. L.J. Bradford and Capt. Inez L. The said proclamation reads:
Twindle of the CIC, U.S. Army, "or whoever acts in her place GENERAL HEADQUARTERS
or stead," be directed to appear before this Court and produce
the bodies of petitioners, and to show cause why petitioners SOUTHWEST PACIFIC AREA
should not forthwith be set at liberty.
PROCLAMATION
Respondent Lt. Col., Bradford, having been served with this
Court's order to show cause dated August 31, 1945, made PROVIDING FOR MILITARY MEASURES TO BE TAKEN
return thereto dated September 5, 1945, to which are attached UPON THE APPREHENSION OF CITIZENS OF THE
as parts thereof certain commitment orders marked Schedules PHILIPPINES WHO VOLUNTARILY HAVE GIVEN AID,
A, A-1 and A-2, the first and last emanating from the COMFORT AND SUSTENANCE TO THE ENEMY.
Headquarters of the Sixth Army, 306th Counter Intelligence WHEREAS evidence is before me that certain citizens of the
Corps Detachment, and the second from that of the United Philippines voluntarily have given aid, comfort and sustenance
States Army Forces in the Far East, 493rd Counter to the enemy in violation of allegiance due the Governments
Intelligence Corps Detachment. of the United States and the Commonwealth of the
Respondent Captain Caroline De Eason, WAC, having been Philippines; and
served with this Court's order to show cause dated September WHEREAS military necessity requires that such persons be
7, 1945, made return thereto dated on the same day, enemy in violation of allegiance due the Governments of the
incorporating therein by reference Schedules A, A-1 and A-2 United States and the Commonwealth of the Philippines; and
of her co-respondents' return above mentioned.
NOW, THEREFORE, I, Douglas MacArthur, General of the
It appears from these returns, as well as from the arguments of Army, United States Army, as Commander-in-Chief
counsel, that by virtue of the proclamation issued by General Southwest Pacific Area, hereby do publish and declare it to be
of the Army MacArthur on December 29, 1944, petitioner Lily my purpose to remove such persons, when apprehended, from
Raquiza was on March 13, 1945, arrested by the 306th any position of political and economic influence in the
Counter Intelligence Corps Detachment of the U.S. Sixth Philippines and to hold them in restraint for the duration of the
Army, and detained under Security Commitment Order No. war; whereafter I shall release them to the Philippine
385 (Schedule A), wherein she was charged as follows: Government for its judgment upon their respective cases.
Commitment Order. — The person named and described Done at General Headquarters, Southwest Pacific Area, in the
above is deemed a risk to the security of the U.S. Forces for field, this twenty-ninth day of December, 1944.
the reasons set forth above. The commanding officer of any
military stockade, jail, or comparable installation in which this DOUGLAS MACARTHUR
person may be confined is authorized and directed to detain General of the Army
him in custody until released by competent military authority. United States Army
In said Schedule A the specific complaint or charge against Commander-in-Chief
complaint or charge against petitioner Lily Raquiza is
"Espionage activity for Japanese." Of course, the power of the Commander in Chief of the United
States Army to issue the foregoing proclamation cannot be
As to petitioner Haydee Tee Han Kee, it appears that by virtue seriously questioned. It has not been questioned in this case.
of the aforesaid proclamation she, on February 25, 1945, was Where opinions are divided as to its interpretation and effects.
arrested by the same 306th Counter Intelligence Corps
Detachment, and detained under Security Commitment Order
General of the Army MacArthur therein published and And even if the war had terminated, we are of opinion that
declared it to be his purpose, among other things, to hold in under the aforesaid proclamation the petitioners, who are held
restraint the persons referred to, when apprehended, "for the in restraint thereunder, would continue legally under custody
duration of the war; whereafter, I shall release them to the of the proper military authorities of General of the Army
Philippine Government for its judgment upon their respective MacArthur's or his successors' command, for a reasonable
cases." He premised his proclamation upon two grave reasons, time after termination of the war.
to wit, (1) that evidence was before him "that certain citizens
of the Philippines voluntarily have given aid, comfort and If General of the Army MacArthur had, in express terms,
sustenance to the enemy in violation of allegiance due the declared in his aforesaid proclamation that after termination of
Government of the United States and the Commonwealth of the war he will release the persons therein named to the
the Philippines;" and (2) that "military necessity requires that Philippine Government within a reasonable time, we think that
such persons be removed from any opportunity to threaten the he could have done so within his legitimate powers as
security of our military forces or the success of our military Commander in Chief of the United States Army; and not only
operations." this, but that for obvious reasons he should be the best and,
therefore, the only judge of how long or how short that time
In the very nature of things, the Commander in Chief of the should be under the circumstances. And in order to give his
Army of liberation at the time of issuing that proclamation had proclamation a reasonable construction, we are of opinion that
to act upon the evidence then before him. The exigencies of this should be implied from the context. Otherwise, we would
the mighty military operations that he had then but recently be giving to this solemn document the irrational interpretation
begun for the destruction or defeat of the powerful enemy who that said Commander in Chief thereby announced a purpose
was at that time occupying the Islands, did not permit of any which would be physically impossible for him to carry out;
other procedure. And to deny him the exclusive power and namely, to make delivery to the Philippine
competency to determine the strength and sufficiency of such Government immediately upon termination of the war of
evidence would have been destructive of that military persons under restraint whose number he could not then
efficieny with which, in the interest of all the citizens of the foresee but which he could reasonably expect to be more or
Philippines themselves, not excluding the herein petitioners, less considerable, with their respective charges and pertinent
the operations for their liberation had to be conducted. And evidence, papers, and the like. It was not a matter of delivering
once having apprehended the persons to whom the a certain quantity or amount of personal property but human
proclamation referred, the same exigencies required that the beings who although under custody, had to be properly
said Commander in Chief be invested with the exclusive housed, maintained and otherwise treated as becoming the
power and authority to decide when he should deliver them to "dignity of the human person," which is one of the cardinal
the Commonwealth of the Philippines. principles of democracy for which the United Nations have
fought in this war.
Has the war terminated within the meaning of that part of his
proclamation wherein the Commander in Chief declared his The fact that, as this Court can take judicial notice of, delivery
purpose to hold such persons in restraint "for the duration of of certain persons under custody of the United States Army
the war"? We are of opinion that it has not. pursuant to the said proclamation has already begun does not
mean that the war has, in the legal sense, already terminated,
In the case of United States vs. Tubig (3 Phil., 244, 254), this which it clearly has not. Such delivery is undoubtedly within
Court said: the power of the proper military authorities to make even
From that day the fighting continued, and the insurrection did before the termination of the war. The existence of the military
not end officially until the President proclaimed it an end, July necessity to which General of the Army MacArthur refers in
4, 1902. It is necessary to refer to a public act of the Executive his proclamation, as well as its continuance, is a question
Department to fix the date of the closing of the war. exclusively for the military authorities to determine, as regards
(Freeborn vs. The Protector, 79 U.S., 700.) each and every person under detention. For obvious reasons,
the civil courts should not here interfere, and it is to be
If it be alleged that, notwithstanding the insurrection, there presumed that in the judgment of said military authorities that
were no actual hostilities in Nueva Ecija at the times above necessity no longer requires the detention by them of the
mentioned, the answer is that the condition of hostility persons whom they have already delivered to the Philippine
remained impressed on the whole island until it was removed Government.
by the proclamation of the President. . . .
In the case of Coleman vs. Tennessee (97 U.S., 509), the
War, in the legal sense, continues until, and terminates at the Supreme Court of the United States, among other things, said:
time of, some formal proclamation of peace by an authority
competent to proclaim it. It is the province of the political It is well settled that a foreign army, permitted to march
department, and not of the judicial department, of government through a friendly country or to be stationed in it, by
to determine when war is at an end. . . . (67 C.J., 429, sec. permission of its government or sovereign, is exempt from the
195.) civil and the criminal jurisdiction of the place. The sovereign
is understood, said this court in the celebrated case of The
Exchange, 7 Cranch, 139, to cede a portion of his territorial interchange of those good offices which humanity dictates and
jurisdiction when he allows the troops of a foreign prince to its wants require, all sovereigns have consented to a relaxation
pass through his dominions: "In such case, without any in practice, in cases under certain peculiar circumstances, of
express declaration waiving jurisdiction over the army to that absolute and complete jurisdiction within their respective
which this right of passage has been granted, it would territories which sovereignty confers.
certainly be considered as violating his faith. By exercising it,
the purpose for which the free passage was granted would be xxx xxx xxx
defeated, and a portion of the military force of a foreign This perfect equality and absolute independence of sovereigns,
independent nation would be diverted from those national and this common interest impelling them to mutual
objects and duties to which it was applicable, and would be intercourse, and interchange of good offices with each other,
withdrawn from the control of the sovereign whose power and have given rise to a class of cases in which every sovereign is
whose safety might greatly depend on retaining the exclusive understood to waive the exercise of a part of that complete
command and disposition of this force. The grant of a free exclusive territorial jurisdiction, which has been stated to be
passage, therefore, implies a waiver of all jurisdiction over the the attribute of every nation.
troops during their passage, and permits the foreign general to
use that discipline and to inflict those punishments which the Furthermore, we are of the opinion that the present petitioners,
government of this army may require." (Emphasis ours.) while under the custody of the United States military forces,
may be considered as prisoners of war. In volume II, Hydee
In the case of the United States Army of liberation, not only International Law, page 345, section 676, we read:
has the Commonwealth Government asked, and the United
States Government agreed, that it come and be stationed in the . . . It should be borne in mind that an army in the field, in the
Philippines, but it is here for the very realization of the course of any operation in any locality . . . may also avail
overruling and vehement desire and dream of the Filipino to itself, of the right to make civilians prisoners of war.
be freed from the shackles of Japanese tyranny, and to see this
The author cites from the Rules of Land Warfare which
was brought to a victorious end. If a foreign army permitted to
contain an enumeration of civilians who may be made
be stationed in a friendly country, "by permission of its
prisoners of war. This enumeration includes:
government or sovereign," is exempt from the civil and
criminal jurisdiction of the place, with much more reason (c) Persons whose services are of a particular use and benefit
should the Army of the United States which is not only to the hostile army or its government, such as the higher civil
permitted by the Commonwealth Government to be stationed officials, diplomatic agents, couriers, guides, etc. . . .
here but has come to the islands and stayed in them for the (Emphasis ours.)
express purpose of liberating them, and further prosecuting the
war to a successful conclusion, be exempt from the civil and We think that the petitioners would prima facie come within
criminal jurisdiction of this place, at least for the time covered this classification under the charges of "Espionage activity for
by said agreement of the two Governments. By analogy, an Japanese," "Active collaboration with the Japanese," and
attempt of our civil courts to exercise jurisdiction over the "Active collaboration with the enemy."
United States Army before such period expires, would be
We are not unmindful of the fact that the detention of the
considered as a violation of this country's faith, which this
petitioners may have subjected them to hardships, but this
Court should not be the last to keep and uphold. By exercising
situation is one of those born of all wars where hardships of all
it, paraphrasing the foregoing quotation, the purpose for which
description are visited upon even the most innocent people. At
the stationing of the army in the islands was requested or
any rate, we do not think that the petitioners are totally
agreed upon may be hampered or prejudiced, and a portion of
without remedy. We think they may have recourse to the
said military force would be withdrawn from the control of the
proper military authorities by making due representation to
sovereign to whom they belong. And, again, by analogy, the
them.
agreement, for the stationing of the United States Army or a
part of its forces in the Philippines implies as a waiver of all These military authorities, we can safely presume, will not
jurisdiction over their troops during the time covered by such deny to the petitioners any remedy which may be available
agreement, and permits the allied general or commander in under the military laws and under the prevailing
chief to retain that exclusive control and discipline which the circumstances. The United States army forces which have
government of his army may require. come to the Philippines for the express purpose of liberating
the Filipinos and to restore them the blessings of liberty under
Chief Justice Marshall, in the case of the Schooner
a democratic government, just as fast as the military situation
Exchange (7 Cranch, 139), gave the reasons underlying the
would permit, would not be — we can justly assume — the
doctrine of mutual waiver of jurisdiction between nations in
very ones to take from them any of those liberties without
the following paragraphs:
legal reason or justification. But the present state of the world
The world being composed of distinct sovereignties, is such that military exigencies or military necessity may,
possessing equal rights and equal independence, whose mutual under certain circumstances, still require some limitation on
benefit is promoted by intercourse with each other, and by an
the restoration or enjoyment of those liberties. The present
case is, in our opinion, one such situation.

Whether the doctrine here laid down would be applicable to


cases arising in time of peace, we do not decide.

In conclusion, we hold that the petition should be dismissed.


No special pronouncement as to costs. So ordered.
G.R. No. L-24294 May 3, 1974 therein pointed out that he is the chief or head of an agency or
instrumentality of the United States of America, with the
DONALD BAER, Commander U.S. Naval Base, Subic Bay, subject matter of the action being official acts done by him for
Olongapo, Zambales, petitioner, and in behalf of the United States of America. It was added
vs. that in directing the cessation of logging operations by
HON. TITO V. TIZON, as Presiding Judge of the Court of respondent Gener within the Naval Base, petitioner was
First Instance of Bataan, and EDGARDO entirely within the scope of his authority and official duty, the
GENER, respondents. maintenance of the security of the Naval Base and of the
Sycip, Salazar, Luna Manalo & Feliciano for petitioner. installations therein being the first concern and most important
duty of the Commander of the Base.6 There was, on
A. E. Dacanay for private respondent. December 14, 1964, an opposition and reply to petitioner's
motion to dismiss by respondent Gener, relying on the
Office of the Solicitor General Camilo D. Quiason as amicus
principle that "a private citizen claiming title and right of
curiae.
possession of certain property may, to recover possession of
FERNANDO, J.:p said property, sue as individuals, officers and agents of the
Government, who are said to be illegally withholding the same
There is nothing novel about the question raised in this from him, though in doing so, said officers and agents claim
certiorari proceeding against the then Judge Tito V. Tizon, that they are acting for the Government." That was his basis
filed by petitioner Donald Baer, then Commander of the for sustaining the jurisdiction of respondent Judge.7 Petitioner,
United States Naval Base, Subic Bay, Olongapo, Zambales, thereafter, on January 12, 1965, made a written offer of
seeking to nullify the orders of respondent Judge denying his documentary evidence, including certified copies of telegrams
motion to dismiss a complaint filed against him by the private of the Forestry Director to Forestry personnel in Balanga,
respondent, Edgardo Gener, on the ground of sovereign Bataan dated January 8, and January 11, 1965, directing
immunity of a foreign power, his contention being that it was immediate investigation of illegal timber cutting in Bataan and
in effect a suit against the United States, which had not given calling attention to the fact that the records of the office show
its consent. The answer given is supplied by a number of cases no new renewal of timber license or temporary extension
coming from this Tribunal starting from a 1945 permits.8 The above notwithstanding, respondent Judge, on
decision, Raquiza v. Bradford1 to Johnson v. January 12, 1965, issued an order granting respondent Gener's
Turner,2 promulgated in 1954. The doctrine of immunity from application for the issuance of a writ of preliminary injunction
suit is of undoubted applicability in this jurisdiction. It cannot and denying petitioner's motion to dismiss the opposition to
be otherwise, for under the 1935 Constitution, as now, it is the application for a writ of preliminary injunction.9
expressly made clear that the Philippines "adopts the generally
accepted principles of international law as part of the law of A motion for reconsideration having proved futile, this
the Nation."3 As will subsequently be shown, there was a petition for certiorari was filed with this Court. The prayer was
failure on the part of the lower court to accord deference and for the nullification and setting aside of the writ of preliminary
respect to such a basic doctrine, a failure compounded by its injunction issued by respondent Judge in the aforesaid Civil
refusal to take note of the absence of any legal right on the Case No. 2984 of the Court of First Instance of Bataan. A
part of petitioner. Hence, certiorari is the proper remedy. resolution of March 17, 1965 was issued by this Court
requiring respondents to file an answer and upon petitioner's
The facts are not in dispute. On November 17, 1964, posting a bond of P5,000.00 enjoining them from enforcing
respondent Edgardo Gener, as plaintiff, filed a complaint for such writ of preliminary injunction. The answer was duly
injunction with the Court of First Instance of Bataan against forthcoming. It sought to meet the judicial question raised by
petitioner, Donald Baer, Commander of the United States the legal proposition that a private citizen claiming title and
Naval Base in Olongapo. It was docketed as Civil Case No. right of possession of a certain property may, to recover the
2984 of the Court of First Instance of Bataan. He alleged that same, sue as individuals officers and agents of the government
he was engaged in the business of logging in an area situated alleged to be illegally withholding such property even if there
in Barrio Mabayo, Municipality of Morong, Bataan and that is an assertion on their part that they are acting for the
the American Naval Base authorities stopped his logging government. Support for such a view is found in the American
operations. He prayed for a writ of preliminary injunction Supreme Court decisions of United States v. Lee10 and Land
restraining petitioner from interfering with his logging v. Dollar.11Thus the issue is squarely joined whether or not
operations. A restraining order was issued by respondent the doctrine of immunity from suit without consent is
Judge on November 23, 1964.4 Counsel for petitioner, upon applicable. Thereafter, extensive memoranda were filed both
instructions of the American Ambassador to the Philippines, by petitioner and respondents. In addition, there was a
entered their appearance for the purpose of contesting the manifestation and memorandum of the Republic of the
jurisdiction of respondent Judge on the ground that the suit Philippines as amicus curiae where, after a citation of
was one against a foreign sovereign without its American Supreme Court decisions going back to Schooner
consent.5 Then, on December 12, 1964, petitioner filed a Exchange v. M'faddon,12 an 1812 decision, to United States
motion to dismiss, wherein such ground was reiterated. It was
v. Belmont,13 decided in 1937, the plea was made that the eventually be a charge against or financial liability of the
petition for certiorari be granted.. United States Government because ..., the Commission has no
funds of its own for the purpose of paying money
A careful study of the crucial issue posed in this dispute yields judgments."24 The Syquiaruling was again explicitly relied
the conclusion, as already announced, that petitioner should upon in Marquez Lim v. Nelson,25 involving a complaint for
prevail. the recovery of a motor launch, plus damages, the special
1. The invocation of the doctrine of immunity from suit of a defense interposed being "that the vessel belonged to the
foreign state without its consent is appropriate. More United States Government, that the defendants merely acted as
specifically, insofar as alien armed forces is concerned, the agents of said Government, and that the United States
starting point is Raquiza v. Bradford, a 1945 decision.14In Government is therefore the real party in interest."26 So it was
dismissing a habeas corpus petition for the release of in Philippine Alien Property Administration v.
petitioners confined by American army authorities, Justice Castelo,27 where it was held that a suit against the Alien
Hilado, speaking for the Court, cited from Coleman v. Property Custodian and the Attorney General of the United
Tennessee,15 where it was explicitly declared: "It is well States involving vested property under the Trading with the
settled that a foreign army, permitted to march through a Enemy Act is in substance a suit against the United States. To
friendly country or to be stationed in it, by permission of its the same effect is Parreno v. McGranery,28 as the following
government or sovereign, is exempt from the civil and excerpt from the opinion of Justice Tuason clearly shows: "It
criminal jurisdiction of the place."16 Two years later, in Tubb is a widely accepted principle of international law, which is
and Tedrow v. Griess,17 this Court relied on the ruling made a part of the law of the land (Article II, Section 3 of the
in Raquiza v. Bradford and cited in support thereof excerpts Constitution), that a foreign state may not be brought to suit
from the works of the following authoritative writers: Vattel, before the courts of another state or its own courts without its
Wheaton, Hall, Lawrence, Oppenhein, Westlake, Hyde, and consent."29 Finally, there is Johnson v. Turner,30 an appeal
McNair and Lauterpacht.18 Accuracy demands the by the defendant, then Commanding General, Philippine
clarification that after the conclusion of the Philippine- Command (Air Force, with office at Clark Field) from a
American Military Bases Agreement, the treaty provisions decision ordering the return to plaintiff of the confiscated
should control on such matter, the assumption being that there military payment certificates known as scrip money. In
was a manifestation of the submission to jurisdiction on the reversing the lower court decision, this Tribunal, through
part of the foreign power whenever appropriate.19More to the Justice Montemayor, relied on Syquia v. Almeda
point is Syquia v. Almeda Lopez,20 where plaintiffs as lessors Lopez,31 explaining why it could not be sustained.
sued the Commanding General of the United States Army in The solidity of the stand of petitioner is therefore evident.
the Philippines, seeking the restoration to them of the What was sought by private respondent and what was granted
apartment buildings they owned leased to United States armed by respondent Judge amounted to an interference with the
forces stationed in the Manila area. A motion to dismiss on the performance of the duties of petitioner in the base area in
ground of non-suability was filed and upheld by respondent accordance with the powers possessed by him under the
Judge. The matter was taken to this Court in a mandamus Philippine-American Military Bases Agreement. This point
proceeding. It failed. It was the ruling that respondent Judge was made clear in these words: "Assuming, for purposes of
acted correctly considering that the "action must be considered argument, that the Philippine Government, through the Bureau
as one against the U.S. Government."21 The opinion of Justice of Forestry, possesses the "authority to issue a Timber License
Montemayor continued: "It is clear that the courts of the to cut logs" inside a military base, the Bases Agreement
Philippines including the Municipal Court of Manila have no subjects the exercise of rights under a timber license issued by
jurisdiction over the present case for unlawful detainer. The the Philippine Government to the exercise by the United States
question of lack of jurisdiction was raised and interposed at of its rights, power and authority of control within the bases;
the very beginning of the action. The U.S. Government has not and the findings of the Mutual Defense Board, an agency of
given its consent to the filing of this suit which is essentially both the Philippine and United States Governments, that
against her, though not in name. Moreover, this is not only a "continued logging operation by Mr. Gener within the
case of a citizen filing a suit against his own Government boundaries of the U.S. Naval Base would not be consistent
without the latter's consent but it is of a citizen filing an action with the security and operation of the Base," is conclusive
against a foreign government without said government's upon the respondent Judge. .. The doctrine of state immunity
consent, which renders more obvious the lack of jurisdiction is not limited to cases which would result in a pecuniary
of the courts of his country. The principles of law behind this charge against the sovereign or would require the doing of an
rule are so elementary and of such general acceptance that we affirmative act by it. Prevention of a sovereign from doing an
deem it unnecessary to cite authorities in support affirmative act pertaining directly and immediately to the most
thereof."22 Then came Marvel Building Corporation v. important public function of any government - the defense of
Philippine War Damage Commission,23 where respondent, a the state — is equally as untenable as requiring it to do an
United States agency established to compensate damages affirmative act."32 That such an appraisal is not opposed to
suffered by the Philippines during World War II was held as the interpretation of the relevant treaty provision by our
falling within the above doctrine as the suit against it "would government is made clear in the aforesaid manifestation and
memorandum as amicus curiae, wherein it joined petitioner for hereby made permanent. Costs against private respondent
the grant of the remedy prayed for. Edgardo Gener.

2. There should be no misinterpretation of the scope of the


decision reached by this Court. Petitioner, as the Commander
of the United States Naval Base in Olongapo, does not possess
diplomatic immunity. He may therefore be proceeded against
in his personal capacity, or when the action taken by him
cannot be imputed to the government which he represents.
Thus, after the Military Bases Agreement, in Miquiabas v.
Commanding General33and Dizon v. The Commanding
General of the Philippine-Ryukus Command,34 both of them
being habeas corpus petitions, there was no question as to the
submission to jurisdiction of the respondents. As a matter of
fact, in Miquiabas v. Commanding General,35 the immediate
release of the petitioner was ordered, it being apparent that the
general court martial appointed by respondent Commanding
General was without jurisdiction to try petitioner. Thereafter,
in the cited cases of Syquia, Marquez Lim, and Johnson, the
parties proceeded against were American army commanding
officers stationed in the Philippines. The insuperable obstacle
to the jurisdiction of respondent Judge is that a foreign
sovereign without its consent is haled into court in connection
with acts performed by it pursuant to treaty provisions and
thus impressed with a governmental character.

3. The infirmity of the actuation of respondent Judge becomes


even more glaring when it is considered that private
respondent had ceased to have any right of entering within the
base area. This is made clear in the petition in these words: "In
1962, respondent Gener was issued by the Bureau of Forestry
an ordinary timber license to cut logs in Barrio Mabayo,
Morong, Bataan. The license was renewed on July 10, 1963.
In 1963, he commenced logging operation inside the United
States Naval Base, Subic Bay, but in November 1963 he was
apprehended and stopped by the Base authorities from logging
inside the Base. The renewal of his license expired on July 30,
1964, and to date his license has not been renewed by the
Bureau of Forestry. .. In July 1964, the Mutual Defense Board,
a joint Philippines-United States agency established pursuant
to an exchange of diplomatic notes between the Secretary of
Foreign Affairs and the United States Ambassador to provide
"direct liaison and consultation between appropriate Philippine
and United States authorities on military matters of mutual
concern,' advised the Secretary of Foreign Affairs in writing
that: "The enclosed map shows that the area in which Mr.
Gener was logging definitely falls within the boundaries of the
base. This map also depicts certain contiguous and
overlapping areas whose functional usage would be interfered
with by the logging operations.'"36 Nowhere in the answer of
respondents, nor in their memorandum, was this point met. It
remained unrefuted.

WHEREFORE, the writ of certiorari prayed for is granted,


nullifying and setting aside the writ of preliminary injunction
issued by respondent Judge in Civil Case No. 2984 of the
Court of First Instance of Bataan. The injunction issued by this
Court on March 18, 1965 enjoining the enforcement of the
aforesaid writ of preliminary injunction of respondent Judge is
G.R. No. L-49112 February 2, 1979 access roads, do hereby direct: 1. That all owners, users or
drivers of motor vehicles shall have at all times in their motor
LEOVILLO C. AGUSTIN, petitioner, vehicles at least one (1) pair of early warning device
vs. consisting of triangular, collapsible reflectorized plates in red
HON. ROMEO F. EDU, in his capacity as Land and yellow colors at least 15 cms. at the base and 40 cms. at
Transportation Commissioner; HON. JUAN PONCE the sides. 2. Whenever any motor vehicle is stalled or disabled
ENRILE, in his capacity as Minister of National Defense; or is parked for thirty (30) minutes or more on any street or
HON. ALFREDO L. JUINIO, in his capacity as Minister Of highway, including expressways or limited access roads, the
Public Works, Transportation and Communications; and owner, user or driver thereof shall cause the warning device
HON: BALTAZAR AQUINO, in his capacity as Minister of mentioned herein to be installed at least four meters away to
Public Highways, respondents. the front and rear of the motor vehicle staged, disabled or
Leovillo C. Agustin Law Office for petitioner. parked. 3. The Land Transportation Commissioner shall cause
Reflectorized Triangular Early Warning Devices, as herein
Solicitor General Estelito P. Mendoza, Assistant Solicitor described, to be prepared and issued to registered owners of
General Ruben E. Agpalo and Solicitor Amado D. Aquino for motor vehicles, except motorcycles and trailers, charging for
respondents. each piece not more than 15 % of the acquisition cost. He shall
also promulgate such rules and regulations as are appropriate
FERNANDO, J.:
to effectively implement this order. 4. All hereby concerned
The validity of a letter of Instruction 1 providing for an early shall closely coordinate and take such measures as are
seaming device for motor vehicles is assailed in this necessary or appropriate to carry into effect then
prohibition proceeding as being violative of the constitutional instruction. 3 Thereafter, on November 15, 1976, it was
guarantee of due process and, insofar as the rules and amended by Letter of Instruction No. 479 in this wise.
regulations for its implementation are concerned, for "Paragraph 3 of Letter of Instruction No. 229 is hereby
transgressing the fundamental principle of non- delegation of amended to read as follows: 3. The Land transportation
legislative power. The Letter of Instruction is stigmatized by Commissioner shall require every motor vehicle owner to
petitioner who is possessed of the requisite standing, as being procure from any and present at the registration of his vehicle,
arbitrary and oppressive. A temporary restraining order as one pair of a reflectorized early warning device, as d bed of
issued and respondents Romeo F. Edu, Land Transportation any brand or make chosen by mid motor vehicle . The Land
Commissioner Juan Ponce Enrile, Minister of National Transportation Commissioner shall also promulgate such rule
Defense; Alfredo L. Juinio, Minister of Public Works, and regulations as are appropriate to effectively implement
Transportation and Communications; and Baltazar Aquino, this order.'" 4 There was issued accordingly, by respondent
Minister of Public Highways; were to answer. That they did in Edu, the implementing rules and regulations on December 10,
a pleading submitted by Solicitor General Estelito P. 1976. 5 They were not enforced as President Marcos on
Mendoza. 2 Impressed with a highly persuasive quality, it January 25, 1977, ordered a six-month period of suspension
makes devoid clear that the imputation of a constitutional insofar as the installation of early warning device as a pre-
infirmity is devoid of justification The Letter of Instruction on registration requirement for motor vehicle was
is a valid police power measure. Nor could the implementing concerned. 6 Then on June 30, 1978, another Letter of
rules and regulations issued by respondent Edu be considered Instruction 7 the lifting of such suspension and directed the
as amounting to an exercise of legislative power. Accordingly, immediate implementation of Letter of Instruction No. 229 as
the petition must be dismissed. amended. 8 It was not until August 29, 1978 that respondent
Edu issued Memorandum Circular No. 32, worded thus: "In
The facts are undisputed. The assailed Letter of Instruction pursuance of Letter of Instruction No. 716, dated June 30,
No. 229 of President Marcos, issued on December 2, 1974, 1978, the implementation of Letter of Instruction No. 229, as
reads in full: "[Whereas], statistics show that one of the major amended by Letter of Instructions No. 479, requiring the use
causes of fatal or serious accidents in land transportation is the of Early Warning Devices (EWD) on motor vehicle, the
presence of disabled, stalled or parked motor vehicles along following rules and regulations are hereby issued: 1. LTC
streets or highways without any appropriate early warning Administrative Order No. 1, dated December 10, 1976; shall
device to signal approaching motorists of their presence; now be implemented provided that the device may come from
[Whereas], the hazards posed by such obstructions to traffic whatever source and that it shall have substantially complied
have been recognized by international bodies concerned with with the EWD specifications contained in Section 2 of said
traffic safety, the 1968 Vienna Convention on Road Signs and administrative order; 2. In order to insure that every motor
Signals and the United Nations Organization (U.N.); vehicle , except motorcycles, is equipped with the device, a
[Whereas], the said Vienna Convention which was ratified by pair of serially numbered stickers, to be issued free of charge
the Philippine Government under P.D. No. 207, recommended by this Commission, shall be attached to each EWD. The
the enactment of local legislation for the installation of road EWD. serial number shall be indicated on the registration
safety signs and devices; [Now, therefore, I, Ferdinand E. certificate and official receipt of payment of current
Marcos], President of the Philippines, in the interest of safety registration fees of the motor vehicle concerned. All Orders,
on all streets and highways, including expressways or limited Circulars, and Memoranda in conflict herewith are hereby
superseded, This Order shall take effect immediately. 9 It was 479 and 716 as well as Land transportation Commission
for immediate implementation by respondent Alfredo L. Administrative Order No. 1 and its Memorandum Circular No.
Juinio, as Minister of Public Works, transportation, and 32 violates the constitutional provisions on due process of law,
Communications. 10 equal protection of law and undue delegation of police power,
and that the same are likewise oppressive, arbitrary,
Petitioner, after setting forth that he "is the owner of a confiscatory, one-sided, onerous, immoral unreasonable and
Volkswagen Beetle Car, Model 13035, already properly illegal the truth being that said allegations are without legal
equipped when it came out from the assembly lines with and factual basis and for the reasons alleged in the Special and
blinking lights fore and aft, which could very well serve as an Affirmative Defenses of this Answer."18 Unlike petitioner
early warning device in case of the emergencies mentioned in who contented himself with a rhetorical recital of his litany of
Letter of Instructions No. 229, as amended, as well as the grievances and merely invoked the sacramental phrases of
implementing rules and regulations in Administrative Order constitutional litigation, the Answer, in demonstrating that the
No. 1 issued by the land transportation assailed Letter of Instruction was a valid exercise of the police
Commission," 11 alleged that said Letter of Instruction No. power and implementing rules and regulations of respondent
229, as amended, "clearly violates the provisions and Edu not susceptible to the charge that there was unlawful
delegation of police power, [sic] * * *: " For him they are delegation of legislative power, there was in the portion
"oppressive, unreasonable, arbitrary, confiscatory, nay captioned Special and Affirmative Defenses, a citation of what
unconstitutional and contrary to the precepts of our respondents believed to be the authoritative decisions of this
compassionate New Society." 12 He contended that they are Tribunal calling for application. They are Calalang v.
"infected with arbitrariness because it is harsh, cruel and Williams, 19 Morfe v. Mutuc, 20 and Edu v.
unconscionable to the motoring public;" 13 are "one-sided, Ericta. 21 Reference was likewise made to the 1968 Vienna
onerous and patently illegal and immoral because [they] will Conventions of the United Nations on road traffic, road signs,
make manufacturers and dealers instant millionaires at the and signals, of which the Philippines was a signatory and
expense of car owners who are compelled to buy a set of the which was duly ratified. 22 Solicitor General Mendoza took
so-called early warning device at the rate of P 56.00 to P72.00 pains to refute in detail, in language calm and dispassionate,
per set." 14 are unlawful and unconstitutional and contrary to the vigorous, at times intemperate, accusation of petitioner
the precepts of a compassionate New Society [as being] that the assailed Letter of Instruction and the implementing
compulsory and confiscatory on the part of the motorists who rules and regulations cannot survive the test of rigorous
could very well provide a practical alternative road safety scrutiny. To repeat, its highly-persuasive quality cannot be
device, or a better substitute to the specified set of denied.
EWD's." 15 He therefore prayed for a judgment both the
assailed Letters of Instructions and Memorandum Circular This Court thus considered the petition submitted for decision,
void and unconstitutional and for a restraining order in the the issues being clearly joined. As noted at the outset, it is far
meanwhile. from meritorious and must be dismissed.

A resolution to this effect was handed down by this Court on 1. The Letter of Instruction in question was issued in the
October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. exercise of the police power. That is conceded by petitioner
Romeo F. Edu, etc., et al.) — Considering the allegations and is the main reliance of respondents. It is the submission of
contained, the issues raised and the arguments adduced in the the former, however, that while embraced in such a category,
petition for prohibition with writ of p prohibitory and/or it has offended against the due process and equal protection
mandatory injunction, the Court Resolved to (require) the safeguards of the Constitution, although the latter point was
respondents to file an answer thereto within ton (10) days mentioned only in passing. The broad and expansive scope of
from notice and not to move to dismiss the petition. The Court the police power which was originally Identified by Chief
further Resolved to [issue] a [temporary restraining order] Justice Taney of the American Supreme Court in an 1847
effective as of this date and continuing until otherwise ordered decision as "nothing more or less than the powers of
by this Court.16 government inherent in every sovereignty" 23 was stressed in
the aforementioned case of Edu v. Ericta thus: "Justice Laurel,
Two motions for extension were filed by the Office of the in the first leading decision after the Constitution came into
Solicitor General and granted. Then on November 15, 1978, force, Calalang v. Williams, Identified police power with state
he Answer for respondents was submitted. After admitting the authority to enact legislation that may interfere with personal
factual allegations and stating that they lacked knowledge or liberty or property in order to promote the general welfare.
information sufficient to form a belief as to petitioner owning Persons and property could thus 'be subjected to all kinds of
a Volkswagen Beetle car," they "specifically deny the restraints and burdens in order to we the general comfort,
allegations and stating they lacked knowledge or information health and prosperity of the state.' Shortly after independence
sufficient to form a belief as to petitioner owning a in 1948, Primicias v. Fugoso reiterated the doctrine, such a
Volkswagen Beetle Car, 17 they specifically deny the competence being referred to as 'the power to prescribe
allegations in paragraphs X and XI (including its regulations to promote the health, morals, peace, education,
subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of good order or safety, and general welfare of the people. The
Instruction No. 229 as amended by Letters of Instructions Nos.
concept was set forth in negative terms by Justice Malcolm in character, the presumption of constitutionality must prevail in
a pre-Commonwealth decision as 'that inherent and plenary the absence of some factual foundation of record in
power in the State which enables it to prohibit all things overthrowing the statute. 29
hurtful to the comfort, safety and welfare of society. In that
sense it could be hardly distinguishable as noted by this Court 4. Nor did the Solicitor General as he very well could, rely
in Morfe v. Mutuc with the totality of legislative power. It is solely on such rebutted presumption of validity. As was
in the above sense the greatest and most powerful at. tribute of pointed out in his Answer "The President certainly had in his
government. It is, to quote Justice Malcolm anew, 'the most possession the necessary statistical information and data at the
essential, insistent, and at least table powers, I extending as time he issued said letter of instructions, and such factual
Justice Holmes aptly pointed out 'to all the great public needs.' foundation cannot be defeated by petitioner's naked assertion
Its scope, ever-expanding to meet the exigencies of the times, that early warning devices 'are not too vital to the prevention
even to anticipate the future where it could be done, provides of nighttime vehicular accidents' because allegedly only 390
enough room for an efficient and flexible response to or 1.5 per cent of the supposed 26,000 motor vehicle accidents
conditions and circumstances thus assuring the greatest that in 1976 involved rear-end collisions (p. 12 of petition).
benefits. In the language of Justice Cardozo: 'Needs that were Petitioner's statistics is not backed up by demonstrable data on
narrow or parochial in the past may be interwoven in the record. As aptly stated by this Honorable Court: Further: "It
present with the well-being of the nation. What is critical or admits of no doubt therefore that there being a presumption of
urgent changes with the time.' The police power is thus a validity, the necessity for evidence to rebut it is unavoidable,
dynamic agency, suitably vague and far from precisely unless the statute or ordinance is void on its face, which is not
defined, rooted in the conception that men in organizing the the case here"' * * *. But even as g the verity of petitioner's
state and imposing upon its government limitations to statistics, is that not reason enough to require the installation
safeguard constitutional rights did not intend thereby to enable of early warning devices to prevent another 390 rear-end
an individual citizen or a group of citizens to obstruct collisions that could mean the death of 390 or more Filipinos
unreasonably the enactment of such salutary measures and the deaths that could likewise result from head-on or
calculated to communal peace, safety, good order, and frontal collisions with stalled vehicles?" 30 It is quite manifest
welfare." 24 then that the issuance of such Letter of Instruction is encased
in the armor of prior, careful study by the Executive
2. It was thus a heavy burden to be shouldered by petitioner, Department. To set it aside for alleged repugnancy to the due
compounded by the fact that the particular police power process clause is to give sanction to conjectural claims that
measure challenged was clearly intended to promote public exceeded even the broadest permissible limits of a pleader's
safety. It would be a rare occurrence indeed for this Court to well known penchant for exaggeration.
invalidate a legislative or executive act of that character. None
has been called to our attention, an indication of its being non- 5. The rather wild and fantastic nature of the charge of
existent. The latest decision in point, Edu v. Ericta, sustained oppressiveness of this Letter of Instruction was exposed in the
the validity of the Reflector Law, 25 an enactment conceived Answer of the Solicitor General thus: "Such early warning
with the same end in view. Calalang v. Williams found device requirement is not an expensive redundancy, nor
nothing objectionable in a statute, the purpose of which was: oppressive, for car owners whose cars are already equipped
"To promote safe transit upon, and. avoid obstruction on roads with 1) blinking lights in the fore and aft of said motor
and streets designated as national roads * * *. 26 As a matter vehicles,' 2) "battery-powered blinking lights inside motor
of fact, the first law sought to be nullified after the effectivity vehicles," 3) "built-in reflectorized tapes on front and rear
of the 1935 Constitution, the National Defense Act, 27 with bumpers of motor vehicles," or 4) "well-lighted two (2)
petitioner failing in his quest, was likewise prompted by the petroleum lamps (the Kinke) * * * because: Being universal
imperative demands of public safety. among the signatory countries to the said 1968 Vienna
Conventions, and visible even under adverse conditions at a
3. The futility of petitioner's effort to nullify both the Letter of distance of at least 400 meters, any motorist from this country
Instruction and the implementing rules and regulations or from any part of the world, who sees a reflectorized
becomes even more apparent considering his failure to lay the rectangular early seaming device installed on the roads,
necessary factual foundation to rebut the presumption of highways or expressways, will conclude, without thinking,
validity. So it was held in Ermita-Malate Hotel and Motel that somewhere along the travelled portion of that road,
Operators Association, Inc. v. City Mayor of Manila. 28 The highway, or expressway, there is a motor vehicle which is
rationale was clearly set forth in an excerpt from a decision of stationary, stalled or disabled which obstructs or endangers
Justice Branders of the American Supreme Court, quoted in passing traffic. On the other hand, a motorist who sees any of
the opinion: "The statute here questioned deals with a subject the aforementioned other built in warning devices or the
clearly within the scope of the police power. We are asked to petroleum lamps will not immediately get adequate advance
declare it void on the ground that the specific method of warning because he will still think what that blinking light is
regulation prescribed is unreasonable and hence deprives the all about. Is it an emergency vehicle? Is it a law enforcement
plaintiff of due process of law. As underlying questions of fact car? Is it an ambulance? Such confusion or uncertainty in the
may condition the constitutionality of legislation of this
mind of the motorist will thus increase, rather than decrease, coordinate branch, the judiciary would substitute its own. If
the danger of collision. 31 there be adherence to the rule of law, as there ought to be, the
last offender should be courts of justice, to which rightly
6. Nor did the other extravagant assertions of constitutional litigants submit their controversy precisely to maintain
deficiency go unrefuted in the Answer of the Solicitor General unimpaired the supremacy of legal norms and prescriptions.
"There is nothing in the questioned Letter of Instruction No. The attack on the validity of the challenged provision likewise
229, as amended, or in Administrative Order No. 1, which insofar as there may be objections, even if valid and cogent on
requires or compels motor vehicle owners to purchase the is wisdom cannot be sustained. 33
early warning device prescribed thereby. All that is required is
for motor vehicle owners concerned like petitioner, to equip 8. The alleged infringement of the fundamental principle of
their motor vehicles with a pair of this early warning device in non-delegation of legislative power is equally without any
question, procuring or obtaining the same from whatever support well-settled legal doctrines. Had petitioner taken the
source. In fact, with a little of industry and practical ingenuity, trouble to acquaint himself with authoritative pronouncements
motor vehicle owners can even personally make or produce from this Tribunal, he would not have the temerity to make
this early warning device so long as the same substantially such an assertion. An exempt from the aforecited decision
conforms with the specifications laid down in said letter of of Edu v. Ericta sheds light on the matter: "To avoid the taint
instruction and administrative order. Accordingly the early of unlawful delegation, there must be a standard, which
warning device requirement can neither be oppressive, implies at the very least that the legislature itself determines
onerous, immoral, nor confiscatory, much less does it make matters of principle and lays down fundamental policy.
manufacturers and dealers of said devices 'instant millionaires Otherwise, the charge of complete abdication may be hard to
at the expense of car owners' as petitioner so sweepingly repel A standard thus defines legislative policy, marks its
concludes * * *. Petitioner's fear that with the early warning maps out its boundaries and specifies the public agency to
device requirement 'a more subtle racket may be committed by apply it. It indicates the circumstances under which the
those called upon to enforce it * * * is an unfounded legislative command is to be effected. It is the criterion by
speculation. Besides, that unscrupulous officials may try to which legislative purpose may be carried out. Thereafter, the
enforce said requirement in an unreasonable manner or to an executive or administrative office designated may in
unreasonable degree, does not render the same illegal or pursuance of the above guidelines promulgate supplemental
immoral where, as in the instant case, the challenged Letter of rules and regulations. The standard may be either express or
Instruction No. 229 and implementing order disclose none of implied. If the former, the non-delegation objection is easily
the constitutional defects alleged against it.32 met. The standard though does not have to be spelled out
specifically. It could be implied from the policy and purpose
7 It does appear clearly that petitioner's objection to this Letter of the act considered as a whole. In the Reflector Law clearly,
of Instruction is not premised on lack of power, the the legislative objective is public safety. What is sought to be
justification for a finding of unconstitutionality, but on the attained as in Calalang v. Williams is "safe transit upon the
pessimistic, not to say negative, view he entertains as to its roads.' This is to adhere to the recognition given expression by
wisdom. That approach, it put it at its mildest, is distinguished, Justice Laurel in a decision announced not too long after the
if that is the appropriate word, by its unorthodoxy. It bears Constitution came into force and effect that the principle of
repeating "that this Court, in the language of Justice Laurel, non-delegation "has been made to adapt itself to the
'does not pass upon questions of wisdom justice or expediency complexities of modern governments, giving rise to the
of legislation.' As expressed by Justice Tuason: 'It is not the adoption, within certain limits, of the principle of "subordinate
province of the courts to supervise legislation and keep it legislation" not only in the United States and England but in
within the bounds of propriety and common sense. That is practically all modern governments.' He continued:
primarily and exclusively a legislative concern.' There can be 'Accordingly, with the growing complexity of modern life, the
no possible objection then to the observation of Justice multiplication of the subjects of governmental regulation, and
Montemayor. 'As long as laws do not violate any the increased difficulty of administering the laws, there is a
Constitutional provision, the Courts merely interpret and apply constantly growing tendency toward the delegation of greater
them regardless of whether or not they are wise or salutary. powers by the legislature and toward the approval of the
For they, according to Justice Labrador, 'are not supposed to practice by the courts.' Consistency with the conceptual
override legitimate policy and * * * never inquire into the approach requires the reminder that what is delegated is
wisdom of the law.' It is thus settled, to paraphrase Chief authority non-legislative in character, the completeness of the
Justice Concepcion in Gonzales v. Commission on Elections, statute when it leaves the hands of Congress being
that only congressional power or competence, not the wisdom assumed." 34
of the action taken, may be the basis for declaring a statute
invalid. This is as it ought to be. The principle of separation of 9. The conclusion reached by this Court that this petition must
powers has in the main wisely allocated the respective be dismissed is reinforced by this consideration. The petition
authority of each department and confined its jurisdiction to itself quoted these two whereas clauses of the assailed Letter
such a sphere. There would then be intrusion not allowable of Instruction: "[Whereas], the hazards posed by such
under the Constitution if on a matter left to the discretion of a obstructions to traffic have been recognized by international
bodies concerned with traffic safety, the 1968 Vienna
Convention on Road Signs and Signals and the United Nations
Organization (U.N.); [Whereas], the said Vionna Convention,
which was ratified by the Philippine Government under P.D.
No. 207, recommended the enactment of local legislation for
the installation of road safety signs and devices; * * * " 35 It
cannot be disputed then that this Declaration of Principle
found in the Constitution possesses relevance: "The
Philippines * * * adopts the generally accepted principles of
international law as part of the law of the land * * *." 36 The
1968 Vienna Convention on Road Signs and Signals is
impressed with such a character. It is not for this country to
repudiate a commitment to which it had pledged its word. The
concept of Pacta sunt servanda stands in the way of such an
attitude, which is, moreover, at war with the principle of
international morality.

10. That is about all that needs be said. The rather court
reference to equal protection did not even elicit any attempt on
the Part of Petitioner to substantiate in a manner clear,
positive, and categorical why such a casual observation should
be taken seriously. In no case is there a more appropriate
occasion for insistence on what was referred to as "the general
rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely,
"that the constitutionality of a law wig not be considered
unless the point is specially pleaded, insisted upon, and
adequately argued." 38 "Equal protection" is not a talismanic
formula at the mere invocation of which a party to a lawsuit
can rightfully expect that success will crown his efforts. The
law is anything but that.

WHEREFORE, this petition is dismissed. The restraining


order is lifted. This decision is immediately executory. No
costs.
G.R. No. L-65366 November 9, 1983 authorities, that "a permit may be issued for the rally if it is to
be held at the Rizal Coliseum or any other enclosed area
JOSE B.L. REYES, in behalf of the ANTI-BASES where the safety of the participants themselves and the general
COALITION (ABC), petitioner, public may be ensured." 8
vs.
RAMON BAGATSING, as Mayor of the City of The oral argument was heard on October 25, 1983, the very
Manila, respondent. same day the answer was filed. The Court then deliberated on
the matter. That same afternoon, a minute resolution was
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for issued by the Court granting the mandatory injunction prayed
petitioner. for on the ground that there was no showing of the existence
The Solicitor General for respondent. of a clear and present danger of a substantive evil that could
justify the denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice Aquino on the
ground that the holding of a rally in front of the US Embassy
FERNANDO, C.J.:ñé+.£ªwph!1
would be violative of Ordinance No. 7295 of the City of
This Court, in this case of first impression, at least as to some Manila. The last sentence of such minute resolution reads:
aspects, is called upon to delineate the boundaries of the "This resolution is without prejudice to a more extended
protected area of the cognate rights to free speech and opinion." 9 Hence this detailed exposition of the Court's stand
peaceable assembly, 1 against an alleged intrusion by on the matter.
respondent Mayor Ramon Bagatsing. Petitioner, retired Justice
1. It is thus clear that the Court is called upon to protect the
JB L. Reyes, on behalf of the Anti-Bases Coalition sought a
exercise of the cognate rights to free speech and peaceful
permit from the City of Manila to hold a peaceful march and
assembly, arising from the denial of a permit. The Constitution
rally on October 26, 1983 from 2:00 to 5:00 in the afternoon,
is quite explicit: "No law shall be passed abridging the
starting from the Luneta, a public park, to the gates of the
freedom of speech, or of the press, or the right of the people
United States Embassy, hardly two blocks away. Once there,
peaceably to assemble and petition the Government for redress
and in an open space of public property, a short program
of grievances." 10 Free speech, like free press, may be
would be held. 2 During the course of the oral argument, 3 it
Identified with the liberty to discuss publicly and truthfully
was stated that after the delivery of two brief speeches, a
any matter of public concern without censorship or
petition based on the resolution adopted on the last day by the
punishment. 11 There is to be then no previous restraint on the
International Conference for General Disbarmament, World
communication of views or subsequent liability whether in
Peace and the Removal of All Foreign Military Bases held in
libel suits, 12 prosecution for sedition, 13 or action for
Manila, would be presented to a representative of the Embassy
damages, 14 or contempt proceedings 15 unless there be a
or any of its personnel who may be there so that it may be
clear and present danger of a substantive evil that [the State]
delivered to the United States Ambassador. The march would
has a right to prevent." 16 Freedom of assembly connotes the
be attended by the local and foreign participants of such
right people to meet peaceably for consultation and discussion
conference. There was likewise an assurance in the petition
of matters Of public concern.17 It is entitled to be accorded
that in the exercise of the constitutional rights to free speech
the utmost deference and respect. It is hot to be limited, much
and assembly, all the necessary steps would be taken by it "to
less denied, except on a showing, as 's the case with freedom
ensure a peaceful march and rally." 4
of expression, of a clear and present danger of a substantive
The filing of this suit for mandamus with alternative prayer for evil that the state has a right to prevent. 18 Even prior to the
writ of preliminary mandatory injunction on October 20, 1983 1935 Constitution, Justice Maicolm had occasion to stress that
was due to the fact that as of that date, petitioner had not been it is a necessary consequence of our republican institutions and
informed of any action taken on his request on behalf of the complements the right of free speech. 19 To paraphrase
organization to hold a rally. On October 25, 1983, the answer opinion of Justice Rutledge speaking for the majority of
of respondent Mayor was filed on his behalf by Assistant the American Supreme Court Thomas v. Collins, 20 it was not
Solicitor General Eduardo G. Montenegro. 5 It turned out that by accident or coincidence that the right to freedom of speech
on October 19, such permit was denied. Petitioner was and of the press were toupled in a single guarantee with the
unaware of such a fact as the denial was sent by ordinary mail. and to petition the rights of the people peaceably to assemble
The reason for refusing a permit was due to police intelligence and to petition the government for redress of grievances. All
reports which strongly militate against the advisability of these rights, while not Identical, are inseparable. the every
issuing such permit at this time and at the place applied case, therefo re there is a limitation placed on the exercise of
for." 6 To be more specific, reference was made to persistent this right, the judiciary is called upon to examine the effects of
intelligence reports affirm[ing] the plans of the challenged governmental actuation. The sole justification
subversive/criminal elements to infiltrate and/or disrupt any for a limitation on the exercise of this right, so fundamental to
assembly or congregations where a large number of people is the maintenance of democratic institutions, is the danger, of a
expected to attend." 7 Respondent Mayor suggested, however, character both grave and imminent, of a serious evil to public
in accordance with the recommendation of the police
safety, public morals, public health, or any other legitimate discussing public questions. Such use of the streets and public
public interest. 21 places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a
2. Nowhere is the rationale that underlies the freedom of citizen of the United States to use the streets and parks for
expression and peaceable assembly better expressed than in communication of views on national questions may be
this excerpt from an opinion of Justice Frankfurter: "It must regulated in the interest of all; it is not absolute, but relative,
never be forgotten, however, that the Bill of Rights was the and must be exercised in subordination to the general comfort
child of the Enlightenment. Back of the guaranty of free and convenience, and in consonance with peace and good
speech lay faith in the power of an appeal to reason by all the order; but it must not, in the guise of regulation, be abridged
peaceful means for gaining access to the mind. It was in order or denied. 26 The above excerpt was quoted with approval in
to avert force and explosions due to restrictions upon rational Primicias v. Fugoso. 27 Primicias made explicit what was
modes of communication that the guaranty of free speech was implicit in Municipality of Cavite v. Rojas," 28 a 1915
given a generous scope. But utterance in a context of violence decision, where this Court categorically affirmed that plazas or
can lose its significance as an appeal to reason and become parks and streets are outside the commerce of man and thus
part of an instrument of force. Such utterance was not meant nullified a contract that leased Plaza Soledad of plaintiff-
to be sheltered by the Constitution." 22 What was rightfully municipality. Reference was made to such plaza "being a
stressed is the abandonment of reason, the utterance, whether promenade for public use," 29 which certainly is not the only
verbal or printed, being in a context of violence. It must purpose that it could serve. To repeat, there can be no valid
always be remembered that this right likewise provides for a reason why a permit should not be granted for the or oposed
safety valve, allowing parties the opportunity to give vent to march and rally starting from a public dark that is the Luneta.
their-views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot 4. Neither can there be any valid objection to the use of the
be availed of, resort to non-peaceful means may be the only streets, to the gates of the US Embassy, hardly two block-
alternative. Nor is this the sole reason for the expression of away at the Roxas Boulevard. Primicias v. Fugoso has
dissent. It means more than just the right to be heard of the resolved any lurking doubt on the matter. In holding that the
person who feels aggrieved or who is dissatisfied with things then Mayor Fugoso of the City of Manila should grant a
as they are. Its value may lie in the fact that there may be permit for a public meeting at Plaza Miranda in Quiapo, this
something worth hearing from the dissenter. That is to ensure Court categorically declared: "Our conclusion finds support in
a true ferment of Ideas. There are, of course, well-defined the decision in the case of Willis Cox vs. State of New
limits. What is guaranteed is peaceable assembly. One may Hampshire, 312 U.S., 569. In that case, the statute of New
not advocate disorder in the name of protest, much less preach Hampshire P. L. chap. 145, section 2, providing that 'no
rebellion under the cloak of dissent. The Constitution frowns parade or procession upon any ground abutting thereon, shall
on disorder or tumult attending a rally or assembly. resort to 'De permitted unless a special license therefor shall first be
force is ruled out and outbreaks of violence to be avoided. The explained from the selectmen of the town or from licensing
utmost calm though is not required. As pointed out in an early committee,' was construed by the Supreme Court of New
Philippine case, penned in 1907 to be precise, United States v. Hampshire as not conferring upon the licensing board
Apurado: 23 "It is rather to be expected that more or less unfettered discretion to refuse to grant the license, and held
disorder will mark the public assembly of the people to protest valid. And the Supreme Court of the United States, in its
against grievances whether real or imaginary, because on such decision (1941) penned by Chief Justice Hughes affirming the
occasions feeling is always wrought to a high pitch of judgment of the State Supreme Court, held that 'a statute
excitement, and the greater the grievance and the more intense requiring persons using the public streets for a parade or
the feeling, the less perfect, as a rule, will be the disciplinary procession to procure a special license therefor from the local
control of the leaders over their irresponsible followers." 24 It authorities is not an unconstitutional abridgment of the rights
bears repeating that for the constitutional right to be invoked, of assembly or of freedom of speech and press, where, as the
riotous conduct, injury to property, and acts of vandalism must statute is construed by the state courts, the licensing
be avoided, To give free rein to one's destructive urges is to authorities are strictly limited, in the issuance of licenses, to a
call for condemnation. It is to make a mockery of the high consideration of the time, place, and manner of the parade or
estate occupied by intellectual liberty in our scheme of values. procession, with a view to conserving the public convenience
and of affording an opportunity to provide proper policing,
3. There can be no legal objection, absent the existence of a and are not invested with arbitrary discretion to issue or refuse
clear and present danger of a substantive evil, on the choice of license, ... " 30 Nor should the point made by Chief Justice
Luneta as the place where the peace rally would start. The Hughes in a subsequent portion of the opinion be ignored,
Philippines is committed to the view expressed in the plurality "Civil liberties, as guaranteed by the Constitution, imply the
opinion, of 1939 vintage, of Justice Roberts in Hague v. existence of an organized society maintaining public order
CIO: 25 Whenever the title of streets and parks may rest, they without which liberty itself would be lost in the excesses of
have immemorially been held in trust for the use of the public unrestricted abuses. The authority of a municipality to impose
and, time out of mind, have been used for purposes of regulations in order to assure the safety and convenience of
assembly, communicating thoughts between citizens, and the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of to a legitimate public interest. There was no justification then
the means of safeguarding the good order upon which they to deny the exercise of the constitutional rights of tree speech
ultimately depend. The control of travel on the streets of cities and peaceable assembly. These rights are assured by our
is the most familiar illustration of this recognition of social Constitution and the Universal Declaration of Human
need. Where a restriction of the use of highways in that Rights. 35 The participants to such assembly, composed
relation is designed to promote the public convenience in the primarily of those in attendance at the International
interest of all, it cannot be disregarded by the attempted Conference for General Disbarmament, World Peace and the
exercise of some civil right which in other circumstances Removal of All Foreign Military Bases would start from the
would be entitled to protection." 31 Luneta. proceeding through Roxas Boulevard to the gates of
the United States Embassy located at the same street. To
5. There is a novel aspect to this case, If the rally were repeat, it is settled law that as to public places, especially so as
confined to Luneta, no question, as noted, would have arisen. to parks and streets, there is freedom of access. Nor is their
So, too, if the march would end at another park. As previously use dependent on who is the applicant for the permit, whether
mentioned though, there would be a short program upon an individual or a group. If it were, then the freedom of access
reaching the public space between the two gates of the United becomes discriminatory access, giving rise to an equal
States Embassy at Roxas Boulevard. That would be followed protection question. The principle under American doctrines
by the handing over of a petition based on the resolution was given utterance by Chief Justice Hughes in these words:
adopted at the closing session of the Anti-Bases Coalition. The "The question, if the rights of free speech and peaceable
Philippines is a signatory of the Vienna Convention on assembly are to be preserved, is not as to the auspices under
Diplomatic Relations adopted in 1961. It was concurred in by which the meeting is held but as to its purpose; not as to The
the then Philippine Senate on May 3, 1965 and the instrument relations of the speakers, but whether their utterances
of ratification was signed by the President on October 11, transcend the bounds of the freedom of speech which the
1965, and was thereafter deposited with the Secretary General Constitution protects." 36 There could be danger to public
of the United Nations on November 15. As of that date then, it peace and safety if such a gathering were marked by
was binding on the Philippines. The second paragraph of the turbulence. That would deprive it of its peaceful character.
Article 22 reads: "2. The receiving State is under a special Even then, only the guilty parties should be held accountable.
duty to take appropriate steps to protect the premises of the It is true that the licensing official, here respondent Mayor, is
mission against any intrusion or damage and to prevent any not devoid of discretion in determining whether or not a
disturbance of the peace of the mission or impairment of its permit would be granted. It is not, however, unfettered
dignity. " 32 The Constitution "adopts the generally accepted discretion. While prudence requires that there be a realistic
principles of international law as part of the law of the land. appraisal not of what may possibly occur but of what
..." 33 To the extent that the Vienna Convention is a may probably occur, given all the relevant circumstances, still
restatement of the generally accepted principles of the assumption — especially so where the assembly is
international law, it should be a part of the law of the scheduled for a specific public — place is that the permit must
land. 34 That being the case, if there were a clear and present be for the assembly being held there. The exercise of such a
danger of any intrusion or damage, or disturbance of the peace right, in the language of Justice Roberts, speaking for the
of the mission, or impairment of its dignity, there would be a American Supreme Court, is not to be "abridged on the plea
justification for the denial of the permit insofar as the terminal that it may be exercised in some other place." 37
point would be the Embassy. Moreover, respondent Mayor
relied on Ordinance No. 7295 of the City of Manila 7. In fairness to respondent Mayor, he acted on the belief
prohibiting the holding or staging of rallies or demonstrations that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang
within a radius of five hundred (500) feet from any foreign Pilipino (PMP.) v. Bagatsing, 39 called for application. While
mission or chancery and for other purposes. Unless the the General rule is that a permit should recognize the right of
ordinance is nullified, or declared ultra vires, its invocation as the applicants to hold their assembly at a public place of their
a defense is understandable but not decisive, in view of the choice, another place may be designated by the licensing
primacy accorded the constitutional rights of free speech and authority if it be shown that there is a clear and present danger
peaceable assembly. Even if shown then to be applicable, that of a substantive evil if no such change were made. In the
question the confronts this Court. Navarro and the Pagkakaisa decisions, this Court was
persuaded that the clear and present danger test was satisfied.
6. There is merit to the observation that except as to the novel The present situation is quite different. Hence the decision
aspects of a litigation, the judgment must be confined within reached by the Court. The mere assertion that subversives may
the limits of previous decisions. The law declared on past infiltrate the ranks of the demonstrators does not suffice. Not
occasions is, on the whole, a safe guide, So it has been here. that it should be overlooked. There was in this case, however,
Hence, as noted, on the afternoon of the hearing, October 25, the assurance of General Narciso Cabrera, Superintendent,
1983, this Court issued the minute resolution granting the Western Police District, Metropolitan Police Force, that the
mandatory injunction allowing the proposed march and rally police force is in a position to cope with such emergency
scheduled for the next day. That conclusion was inevitable ill should it arise That is to comply with its duty to extend
the absence of a clear and present danger of a substantive, evil protection to the participants of such peaceable assembly. Also
from him came the commendable admission that there were the embassy gate is less than 500 feet. Even if it could be
the least five previous demonstrations at the Bayview hotel shown that such a condition is satisfied. it does not follow that
Area and Plaza Ferguson in front of the United States respondent Mayor could legally act the way he did. The
Embassy where no untoward event occurred. It was made validity of his denial of the permit sought could still be
clear by petitioner, through counsel, that no act offensive to challenged. It could be argued that a case of unconstitutional
the dignity of the United States Mission in the Philippines application of such ordinance to the exercise of the right of
would take place and that, as mentioned at the outset of this peaceable assembly presents itself. As in this case there was
opinion, "all the necessary steps would be taken by it 'to no proof that the distance is less than 500 feet, the need to pass
ensure a peaceful march and rally.' " 40 Assistant Solicitor on that issue was obviated, Should it come, then the
General Montenegro expressed the view that the presence of qualification and observation of Justices Makasiar and Plana
policemen may in itself be a provocation. It is a sufficient certainly cannot be summarily brushed aside. The high estate
answer that they should stay at a discreet distance, but ever accorded the rights to free speech and peaceable assembly
ready and alert to cope with any contingency. There is no need demands nothing less.
to repeat what was pointed out by Chief Justice Hughes in Cox
that precisely, it is the duty of the city authorities to provide 10. Ordinarily, the remedy in cases of this character is to set
the proper police protection to those exercising their right to aside the denial or the modification of the permit sought and
peaceable assembly and freedom of expression. order the respondent official, to grant it. Nonetheless, as there
was urgency in this case, the proposed march and rally being
8. By way of a summary The applicants for a permit to hold an scheduled for the next day after the hearing, this Court. in the
assembly should inform the licensing authority of the date, the exercise of its conceded authority, granted the mandatory
public place where and the time when it will take place. If it injunction in the resolution of October 25, 1983. It may be
were a private place, only the consent of the owner or the one noted that the peaceful character of the peace march and rally
entitled to its legal possession is required. Such application on October 26 was not marred by any untoward incident. So it
should be filed well ahead in time to enable the public official has been in other assemblies held elsewhere. It is quite
concerned to appraise whether there may be valid objections reassuring such that both on the part of the national
to the grant of the permit or to its grant but at another public government and the citizens, reason and moderation have
place. It is an indispensable condition to such refusal or prevailed. That is as it should be.
modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that WHEREFORE, the mandatory injunction prayed for is
there is such an imminent and grave danger of a substantive granted. No costs.
evil, the applicants must be heard on the matter. Thereafter,
his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so
minded, then, can have recourse to the proper judicial
authority. Free speech and peaceable assembly, along with the
other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on
the judiciary, — even more so than on the other departments
— rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal
formula, no sanctifying phrase can, of course, dispense with
what has been so felicitiously termed by Justice Holmes "as
the sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do
precedence and primacy. Clearly then, to the extent that there
may be inconsistencies between this resolution and that
of Navarro v. Villegas, that case is pro tanto modified. So it
was made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of


Ordinance No. 7295 of the City of Manila prohibiting the
holding or staging of rallies or demonstrations within a radius
of five hundred (500) feet from any foreign mission or
chancery and for other purposes. It is to be admitted that it
finds support In the previously quoted Article 22 of the
Vienna Convention on Diplomatic Relations. There was no
showing, however, that the distance between the chancery and
G.R. No. 173034 October 9, 2007 On May 15, 2006, the DOH issued herein assailed RIRR
which was to take effect on July 7, 2006.
PHARMACEUTICAL AND HEALTH CARE
ASSOCIATION OF THE PHILIPPINES, petitioner, However, on June 28, 2006, petitioner, representing its
vs. members that are manufacturers of breastmilk substitutes,
HEALTH SECRETARY FRANCISCO T. DUQUE III; filed the present Petition for Certiorari and Prohibition with
HEALTH UNDER SECRETARIES DR. ETHELYN P. Prayer for the Issuance of a Temporary Restraining Order
NIETO, DR. MARGARITA M. GALON, ATTY. (TRO) or Writ of Preliminary Injunction.
ALEXANDER A. PADILLA, & DR. JADE F. DEL
MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. The main issue raised in the petition is whether respondents
VILLAVERDE, DR. DAVID J. LOZADA, AND DR. officers of the DOH acted without or in excess of jurisdiction,
NEMESIO T. GAKO,respondents. or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and in violation of the provisions of the
DECISION Constitution in promulgating the RIRR.3

AUSTRIA-MARTINEZ, J.: On August 15, 2006, the Court issued a Resolution granting a
TRO enjoining respondents from implementing the questioned
The Court and all parties involved are in agreement that the RIRR.
best nourishment for an infant is mother's milk. There is
nothing greater than for a mother to nurture her beloved child After the Comment and Reply had been filed, the Court set the
straight from her bosom. The ideal is, of course, for each and case for oral arguments on June 19, 2007. The Court issued an
every Filipino child to enjoy the unequaled benefits of Advisory (Guidance for Oral Arguments) dated June 5, 2007,
breastmilk. But how should this end be attained? to wit:

Before the Court is a petition for certiorari under Rule 65 of The Court hereby sets the following issues:
the Rules of Court, seeking to nullify Administrative Order
(A.O.) No. 2006-0012 entitled, Revised Implementing Rules 1. Whether or not petitioner is a real party-in-interest;
and Regulations of Executive Order No. 51, Otherwise Known 2. Whether Administrative Order No. 2006-0012 or the
as The "Milk Code," Relevant International Agreements, Revised Implementing Rules and Regulations (RIRR) issued
Penalizing Violations Thereof, and for Other by the Department of Health (DOH) is not constitutional;
Purposes (RIRR). Petitioner posits that the RIRR is not valid
as it contains provisions that are not constitutional and go 2.1 Whether the RIRR is in accord with the provisions of
beyond the law it is supposed to implement. Executive Order No. 51 (Milk Code);

Named as respondents are the Health Secretary, 2.2 Whether pertinent international agreements1 entered into
Undersecretaries, and Assistant Secretaries of the Department by the Philippines are part of the law of the land and may be
of Health (DOH). For purposes of herein petition, the DOH is implemented by the DOH through the RIRR; If in the
deemed impleaded as a co-respondent since respondents affirmative, whether the RIRR is in accord with the
issued the questioned RIRR in their capacity as officials of international agreements;
said executive agency.1
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR
Executive Order No. 51 (Milk Code) was issued by President violate the due process clause and are in restraint of trade; and
Corazon Aquino on October 28, 1986 by virtue of the
2.4 Whether Section 13 of the RIRR on Total Effect provides
legislative powers granted to the president under the Freedom
sufficient standards.
Constitution. One of the preambular clauses of the Milk Code
states that the law seeks to give effect to Article 112 of the _____________
International Code of Marketing of Breastmilk Substitutes
(ICMBS), a code adopted by the World Health Assembly 1 (1) United Nations Convention on the Rights of the Child;
(WHA) in 1981. From 1982 to 2006, the WHA adopted (2) the WHO and Unicef "2002 Global Strategy on Infant and
several Resolutions to the effect that breastfeeding should be Young Child Feeding;" and (3) various World Health
supported, promoted and protected, hence, it should be Assembly (WHA) Resolutions.
ensured that nutrition and health claims are not permitted for
The parties filed their respective memoranda.
breastmilk substitutes.
The petition is partly imbued with merit.
In 1990, the Philippines ratified the International Convention
on the Rights of the Child. Article 24 of said instrument On the issue of petitioner's standing
provides that State Parties should take appropriate measures to
diminish infant and child mortality, and ensure that all With regard to the issue of whether petitioner may prosecute
segments of society, specially parents and children, are this case as the real party-in-interest, the Court adopts the view
informed of the advantages of breastfeeding. enunciated in Executive Secretary v. Court of Appeals,4 to
wit:
The modern view is that an association has standing to international instruments10 regarding infant and young child
complain of injuries to its members. This view fuses the legal nutrition. It is respondents' position that said international
identity of an association with that of its members. An instruments are deemed part of the law of the land and
association has standing to file suit for its workers despite its therefore the DOH may implement them through the RIRR.
lack of direct interest if its members are affected by the action.
An organization has standing to assert the concerns of its The Court notes that the following international instruments
constituents. invoked by respondents, namely: (1) The United Nations
Convention on the Rights of the Child; (2) The International
xxxx Covenant on Economic, Social and Cultural Rights; and (3)
the Convention on the Elimination of All Forms of
x x x We note that, under its Articles of Incorporation, the Discrimination Against Women, only provide in general terms
respondent was organized x x x to act as the representative of that steps must be taken by State Parties to diminish infant and
any individual, company, entity or association on matters child mortality and inform society of the advantages of
related to the manpower recruitment industry, and to perform breastfeeding, ensure the health and well-being of families,
other acts and activities necessary to accomplish the purposes and ensure that women are provided with services and
embodied therein. The respondent is, thus, the appropriate nutrition in connection with pregnancy and lactation. Said
party to assert the rights of its members, because it and its instruments do not contain specific provisions regarding the
members are in every practical sense identical. x x x The use or marketing of breastmilk substitutes.
respondent [association] is but the medium through which its
individual members seek to make more effective the The international instruments that do have specific provisions
expression of their voices and the redress of their regarding breastmilk substitutes are the ICMBS and various
grievances. 5 (Emphasis supplied) WHA Resolutions.

which was reasserted in Purok Bagong Silang Association, Under the 1987 Constitution, international law can become
Inc. v. Yuipco,6 where the Court ruled that an association has part of the sphere of domestic law either
the legal personality to represent its members because the by transformation or incorporation.11 The transformation
results of the case will affect their vital interests.7 method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as
Herein petitioner's Amended Articles of Incorporation local legislation. The incorporation method applies when, by
contains a similar provision just like in Executive Secretary, mere constitutional declaration, international law is deemed to
that the association is formed "to represent directly or through have the force of domestic law.12
approved representatives the pharmaceutical and health care
industry before the Philippine Government and any of its Treaties become part of the law of the land
agencies, the medical professions and the general through transformation pursuant to Article VII, Section 21 of
public."8 Thus, as an organization, petitioner definitely has an the Constitution which provides that "[n]o treaty or
interest in fulfilling its avowed purpose of representing international agreement shall be valid and effective unless
members who are part of the pharmaceutical and health care concurred in by at least two-thirds of all the members of the
industry. Petitioner is duly authorized9 to take the appropriate Senate." Thus, treaties or conventional international law must
course of action to bring to the attention of government go through a process prescribed by the Constitution for it to be
agencies and the courts any grievance suffered by its members transformed into municipal law that can be applied to
which are directly affected by the RIRR. Petitioner, which is domestic conflicts.13
mandated by its Amended Articles of Incorporation to
represent the entire industry, would be remiss in its duties if it The ICMBS and WHA Resolutions are not treaties as they
fails to act on governmental action that would affect any of its have not been concurred in by at least two-thirds of all
industry members, no matter how few or numerous they are. members of the Senate as required under Section 21, Article
Hence, petitioner, whose legal identity is deemed fused with VII of the 1987 Constitution.
its members, should be considered as a real party-in-interest However, the ICMBS which was adopted by the WHA in
which stands to be benefited or injured by any judgment in the 1981 had been transformed into domestic law through local
present action. legislation, the Milk Code. Consequently, it is the Milk Code
On the constitutionality of the provisions of the RIRR that has the force and effect of law in this jurisdiction and not
the ICMBS per se.
First, the Court will determine if pertinent international
instruments adverted to by respondents are part of the law of The Milk Code is almost a verbatim reproduction of the
the land. ICMBS, but it is well to emphasize at this point that the Code
did not adopt the provision in the ICMBS absolutely
Petitioner assails the RIRR for allegedly going beyond the prohibiting advertising or other forms of promotion to the
provisions of the Milk Code, thereby amending and expanding general public of products within the scope of the ICMBS.
the coverage of said law. The defense of the DOH is that the Instead, the Milk Code expressly provides that advertising,
RIRR implements not only the Milk Code but also various promotion, or other marketing materials may be allowed if
such materials are duly authorized and approved by the Inter- that is, how states behave, and the psychological or subjective
Agency Committee (IAC). factor, that is, why they behave the way they do.

On the other hand, Section 2, Article II of the 1987 xxxx


Constitution, to wit:
The initial factor for determining the existence of custom is
SECTION 2. The Philippines renounces war as an instrument the actual behavior of states. This includes several elements:
of national policy, adopts the generally accepted principles of duration, consistency, and generality of the practice of states.
international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation and The required duration can be either short or long. x x x
amity with all nations. (Emphasis supplied) xxxx
embodies the incorporation method.14 Duration therefore is not the most important element. More
In Mijares v. Ranada,15 the Court held thus: important is the consistency and the generality of the practice.
xxx
[G]enerally accepted principles of international law, by virtue
of the incorporation clause of the Constitution, form part of xxxx
the laws of the land even if they do not derive from treaty Once the existence of state practice has been established, it
obligations. The classical formulation in international law sees becomes necessary to determine why states behave the way
those customary rules accepted as binding result from the they do. Do states behave the way they do because they
combination [of] two elements: the established, widespread, consider it obligatory to behave thus or do they do it only as a
and consistent practice on the part of States; and a matter of courtesy? Opinio juris, or the belief that a certain
psychological element known as the opinion juris sive form of behavior is obligatory, is what makes practice an
necessitates (opinion as to law or necessity). Implicit in the international rule. Without it, practice is not
latter element is a belief that the practice in question is law.22(Underscoring and Emphasis supplied)
rendered obligatory by the existence of a rule of law requiring
it.16 (Emphasis supplied) Clearly, customary international law is deemed incorporated
into our domestic system.23
"Generally accepted principles of international law" refers to
norms of general or customary international law which are WHA Resolutions have not been embodied in any local
binding on all states,17 i.e., renunciation of war as an legislation. Have they attained the status of customary law and
instrument of national policy, the principle of sovereign should they then be deemed incorporated as part of the law of
immunity,18 a person's right to life, liberty and due the land?
process,19 and pacta sunt servanda,20 among others. The
The World Health Organization (WHO) is one of the
concept of "generally accepted principles of law" has also
international specialized agencies allied with the United
been depicted in this wise:
Nations (UN) by virtue of Article 57,24 in relation to Article
Some legal scholars and judges look upon certain "general 6325 of the UN Charter. Under the 1946 WHO Constitution, it
principles of law" as a primary source of international law is the WHA which determines the policies of the WHO,26 and
because they have the "character of jus rationale" and are has the power to adopt regulations concerning "advertising
"valid through all kinds of human societies."(Judge Tanaka in and labeling of biological, pharmaceutical and similar
his dissenting opinion in the 1966 South West Africa Case, products moving in international commerce,"27and to "make
1966 I.C.J. 296). O'Connell holds that certain priniciples are recommendations to members with respect to any matter
part of international law because they are "basic to legal within the competence of the Organization."28 The legal
systems generally" and hence part of the jus gentium. These effect of its regulations, as opposed to recommendations, is
principles, he believes, are established by a process of quite different.
reasoning based on the common identity of all legal systems.
Regulations, along with conventions and agreements, duly
If there should be doubt or disagreement, one must look to
adopted by the WHA bind member states thus:
state practice and determine whether the municipal law
principle provides a just and acceptable solution. x x Article 19. The Health Assembly shall have authority to adopt
x 21 (Emphasis supplied) conventions or agreements with respect to any matter within
the competence of the Organization. A two-thirds vote of the
Fr. Joaquin G. Bernas defines customary international law as
Health Assembly shall be required for the adoption of
follows:
such conventions or agreements, which shall come into force
Custom or customary international law means "a general and for each Member when accepted by it in accordance with its
consistent practice of states followed by them from a sense of constitutional processes.
legal obligation [opinio juris]." (Restatement) This statement
Article 20. Each Member undertakes that it will, within
contains the two basic elements of custom: the material factor,
eighteen months after the adoption by the Health Assembly of
a convention or agreement, take action relative to the to the Thirty-fourth World Health Assembly the text of a
acceptance of such convention or agreement. Each Member resolution by which it would adopt the code in the form of a
shall notify the Director-General of the action taken, and if it recommendation rather than a regulation. x x x (Emphasis
does not accept such convention or agreement within the time supplied)
limit, it will furnish a statement of the reasons for non-
acceptance. In case of acceptance, each Member agrees to The legal value of WHA Resolutions as recommendations is
make an annual report to the Director-General in accordance summarized in Article 62 of the WHO Constitution, to wit:
with Chapter XIV. Art. 62. Each member shall report annually on the action taken
Article 21. The Health Assembly shall have authority to adopt with respect to recommendations made to it by the
regulations concerning: (a) sanitary and quarantine Organization, and with respect to conventions, agreements and
requirements and other procedures designed to prevent the regulations.
international spread of disease; (b) nomenclatures with respect Apparently, the WHA Resolution adopting the ICMBS and
to diseases, causes of death and public health practices; (c) subsequent WHA Resolutions urging member states to
standards with respect to diagnostic procedures for implement the ICMBS are merely recommendatory and
international use; (d) standards with respect to the safety, legally non-binding. Thus, unlike what has been done with the
purity and potency of biological, pharmaceutical and similar ICMBS whereby the legislature enacted most of the provisions
products moving in international commerce; (e) advertising into law which is the Milk Code, the subsequent WHA
and labeling of biological, pharmaceutical and similar Resolutions,30 specifically providing for exclusive
products moving in international commerce. breastfeeding from 0-6 months, continued breastfeeding up to
Article 22. Regulations adopted pursuant to Article 21 shall 24 months, and absolutely prohibiting advertisements and
come into force for all Members after due notice has been promotions of breastmilk substitutes, have not been adopted as
given of their adoption by the Health Assembly except for a domestic law.
such Members as may notify the Director-General of rejection It is propounded that WHA Resolutions may constitute "soft
or reservations within the period stated in the law" or non-binding norms, principles and practices that
notice. (Emphasis supplied) influence state behavior.31
On the other hand, under Article 23, recommendations of the "Soft law" does not fall into any of the categories of
WHA do not come into force for members, in the same way international law set forth in Article 38, Chapter III of the
that conventions or agreements under Article 19 1946 Statute of the International Court of Justice.32 It is,
and regulations under Article 21 come into force. Article 23 of however, an expression of non-binding norms, principles, and
the WHO Constitution reads: practices that influence state behavior.33 Certain declarations
Article 23. The Health Assembly shall have authority to make and resolutions of the UN General Assembly fall under this
recommendations to Members with respect to any matter category.34 The most notable is the UN Declaration of Human
within the competence of the Organization. (Emphasis Rights, which this Court has enforced in various cases,
supplied) specifically, Government of Hongkong Special Administrative
Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares
The absence of a provision in Article 23 of any mechanism by v. Rañada37 and Shangri-la International Hotel Management,
which the recommendation would come into force for member Ltd. v. Developers Group of Companies, Inc..38
states is conspicuous.
The World Intellectual Property Organization (WIPO), a
The former Senior Legal Officer of WHO, Sami Shubber, specialized agency attached to the UN with the mandate to
stated that WHA recommendations are generally not binding, promote and protect intellectual property worldwide, has
but they "carry moral and political weight, as they constitute resorted to soft law as a rapid means of norm creation, in order
the judgment on a health issue of the collective membership of "to reflect and respond to the changing needs and demands of
the highest international body in the field of health."29 Even its constituents."39 Other international organizations which
the ICMBS itself was adopted as a mere recommendation, as have resorted to soft law include the International Labor
WHA Resolution No. 34.22 states: Organization and the Food and Agriculture Organization (in
the form of the Codex Alimentarius).40
"The Thirty-Fourth World Health Assembly x x x adopts, in
the sense of Article 23 of the Constitution, the International WHO has resorted to soft law. This was most evident at the
Code of Marketing of Breastmilk Substitutes annexed to the time of the Severe Acute Respiratory Syndrome (SARS) and
present resolution." (Emphasis supplied) Avian flu outbreaks.

The Introduction to the ICMBS also reads as follows: Although the IHR Resolution does not create new
international law binding on WHO member states, it provides
In January 1981, the Executive Board of the World Health an excellent example of the power of "soft law" in
Organization at its sixty-seventh session, considered the fourth international relations. International lawyers typically
draft of the code, endorsed it, and unanimously recommended
distinguish binding rules of international law-"hard law"-from executive agencies without the need of a law enacted by the
non-binding norms, principles, and practices that influence legislature.
state behavior-"soft law." WHO has during its existence
generated many soft law norms, creating a "soft law regime" Second, the Court will determine whether the DOH may
in international governance for public health. implement the provisions of the WHA Resolutions by virtue
of its powers and functions under the Revised Administrative
The "soft law" SARS and IHR Resolutions represent Code even in the absence of a domestic law.
significant steps in laying the political groundwork for
improved international cooperation on infectious diseases. Section 3, Chapter 1, Title IX of the Revised Administrative
These resolutions clearly define WHO member states' Code of 1987 provides that the DOH shall define the national
normative duty to cooperate fully with other countries and health policy and implement a national health plan within the
with WHO in connection with infectious disease surveillance framework of the government's general policies and plans,
and response to outbreaks. and issue orders and regulations concerning the
implementation of established health policies.
This duty is neither binding nor enforceable, but, in the wake
of the SARS epidemic, the duty is powerful politically for two It is crucial to ascertain whether the absolute prohibition on
reasons. First, the SARS outbreak has taught the lesson that advertising and other forms of promotion of breastmilk
participating in, and enhancing, international cooperation on substitutes provided in some WHA Resolutions has been
infectious disease controls is in a country's self-interest x x x if adopted as part of the national health policy.
this warning is heeded, the "soft law" in the SARS and IHR Respondents submit that the national policy on infant and
Resolution could inform the development of general and young child feeding is embodied in A.O. No. 2005-0014,
consistent state practice on infectious disease surveillance and dated May 23, 2005. Basically, the Administrative Order
outbreak response, perhaps crystallizing eventually into declared the following policy guidelines: (1) ideal
customary international law on infectious disease prevention breastfeeding practices, such as early initiation of
and control.41 breastfeeding, exclusive breastfeeding for the first six months,
In the Philippines, the executive department implemented extended breastfeeding up to two years and beyond; (2)
certain measures recommended by WHO to address the appropriate complementary feeding, which is to start at age six
outbreaks of SARS and Avian flu by issuing Executive Order months; (3) micronutrient supplementation; (4) universal salt
(E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on iodization; (5) the exercise of other feeding options; and (6)
February 2, 2004, delegating to various departments broad feeding in exceptionally difficult circumstances. Indeed, the
powers to close down schools/establishments, conduct health primacy of breastfeeding for children is emphasized as a
surveillance and monitoring, and ban importation of poultry national health policy. However, nowhere in A.O. No. 2005-
and agricultural products. 0014 is it declared that as part of such health policy, the
advertisement or promotion of breastmilk substitutes should
It must be emphasized that even under such an international be absolutely prohibited.
emergency, the duty of a state to implement the IHR
Resolution was still considered not binding or enforceable, The national policy of protection, promotion and support of
although said resolutions had great political influence. breastfeeding cannot automatically be equated with a total ban
on advertising for breastmilk substitutes.
As previously discussed, for an international rule to be
considered as customary law, it must be established that such In view of the enactment of the Milk Code which does not
rule is being followed by states because they consider it contain a total ban on the advertising and promotion of
obligatory to comply with such rules (opinio juris). breastmilk substitutes, but instead, specifically creates an IAC
Respondents have not presented any evidence to prove that the which will regulate said advertising and promotion, it follows
WHA Resolutions, although signed by most of the member that a total ban policy could be implemented only pursuant to
states, were in fact enforced or practiced by at least a majority a law amending the Milk Code passed by the constitutionally
of the member states; neither have respondents proven that authorized branch of government, the legislature.
any compliance by member states with said WHA Resolutions Thus, only the provisions of the Milk Code, but not those of
was obligatory in nature. subsequent WHA Resolutions, can be validly implemented by
Respondents failed to establish that the provisions of pertinent the DOH through the subject RIRR.
WHA Resolutions are customary international law that may be Third, the Court will now determine whether the provisions of
deemed part of the law of the land. the RIRR are in accordance with those of the Milk Code.
Consequently, legislation is necessary to transform the In support of its claim that the RIRR is inconsistent with the
provisions of the WHA Resolutions into domestic law. The Milk Code, petitioner alleges the following:
provisions of the WHA Resolutions cannot be considered as
part of the law of the land that can be implemented by
1. The Milk Code limits its coverage to children 0-12 months requirements of infants up to between four to six months of
old, but the RIRR extended its coverage to "young children" age, and adapted to their physiological characteristics"; while
or those from ages two years old and beyond: under Section 4(b), bottle-fed complementary food refers to
"any food, whether manufactured or locally prepared, suitable
2. The Milk Code recognizes that infant formula may be a as a complement to breastmilk or infant formula, when either
proper and possible substitute for breastmilk in certain becomes insufficient to satisfy the nutritional requirements of
instances; but the RIRR provides "exclusive breastfeeding for the infant." An infant under Section 4(e) is a person falling
infants from 0-6 months" and declares that "there is no within the age bracket 0-12 months. It is the nourishment of
substitute nor replacement for breastmilk": this group of infants or children aged 0-12 months that is
3. The Milk Code only regulates and does not impose sought to be promoted and protected by the Milk Code.
unreasonable requirements for advertising and promotion; But there is another target group. Breastmilk substitute is
RIRR imposes an absolute ban on such activities for defined under Section 4(a) as "any food being marketed or
breastmilk substitutes intended for infants from 0-24 months otherwise presented as a partial or total replacement for
old or beyond, and forbids the use of health and nutritional breastmilk, whether or not suitable for that purpose." This
claims. Section 13 of the RIRR, which provides for a "total section conspicuously lacks reference to any particular age-
effect" in the promotion of products within the scope of the group of children. Hence, the provision of the Milk Code
Code, is vague: cannot be considered exclusive for children aged 0-12 months.
5. The Milk Code allows dissemination of information on In other words, breastmilk substitutes may also be intended for
infant formula to health professionals; the RIRR totally young children more than 12 months of age. Therefore, by
prohibits such activity: regulating breastmilk substitutes, the Milk Code also intends
to protect and promote the nourishment of children more than
12 months old.
6. The Milk Code permits milk manufacturers and distributors
to extend assistance in research and continuing education of Evidently, as long as what is being marketed falls within the
health professionals; RIRR absolutely forbids the same. scope of the Milk Code as provided in Section 3, then it can be
subject to regulation pursuant to said law, even if the product
7. The Milk Code regulates the giving of donations; RIRR is to be used by children aged over 12 months.
absolutely prohibits it.
There is, therefore, nothing objectionable with Sections
8. The RIRR provides for administrative sanctions not 242 and 5(ff)43 of the RIRR.
imposed by the Milk Code.
2. It is also incorrect for petitioner to say that the RIRR, unlike
9. The RIRR provides for repeal of existing laws to the the Milk Code, does not recognize that breastmilk substitutes
contrary. may be a proper and possible substitute for breastmilk.
The Court shall resolve the merits of the allegations of The entirety of the RIRR, not merely truncated portions
petitioner seriatim. thereof, must be considered and construed together. As held
in De Luna v. Pascual,44 "[t]he particular words, clauses and
1. Petitioner is mistaken in its claim that the Milk Code's
phrases in the Rule should not be studied as detached and
coverage is limited only to children 0-12 months old. Section
isolated expressions, but the whole and every part thereof
3 of the Milk Code states:
must be considered in fixing the meaning of any of its parts
SECTION 3. Scope of the Code – The Code applies to the and in order to produce a harmonious whole."
marketing, and practices related thereto, of the following
Section 7 of the RIRR provides that "when medically
products: breastmilk substitutes, including infant formula;
indicated and only when necessary, the use of breastmilk
other milk products, foods and beverages, including bottle-fed
substitutes is proper if based on complete and updated
complementary foods, when marketed or otherwise
information." Section 8 of the RIRR also states that
represented to be suitable, with or without modification, for
information and educational materials should include
use as a partial or total replacement of breastmilk; feeding
information on the proper use of infant formula when the use
bottles and teats. It also applies to their quality and
thereof is needed.
availability, and to information concerning their use.
Hence, the RIRR, just like the Milk Code, also recognizes that
Clearly, the coverage of the Milk Code is not dependent on the
in certain cases, the use of breastmilk substitutes may be
age of the child but on the kind of product being marketed to
proper.
the public. The law treats infant formula, bottle-fed
complementary food, and breastmilk substitute as separate and 3. The Court shall ascertain the merits of allegations 345 and
distinct product categories. 446 together as they are interlinked with each other.
Section 4(h) of the Milk Code defines infant formula as "a To resolve the question of whether the labeling requirements
breastmilk substitute x x x to satisfy the normal nutritional and advertising regulations under the RIRR are valid, it is
important to deal first with the nature, purpose, and depth of SECTION 5. Information and Education –
the regulatory powers of the DOH, as defined in general under
the 1987 Administrative Code,47 and as delegated in (a) The government shall ensure that objective and
particular under the Milk Code. consistent information is provided on infant feeding, for use
by families and those involved in the field of infant nutrition.
Health is a legitimate subject matter for regulation by the This responsibility shall cover the planning, provision, design
DOH (and certain other administrative agencies) in exercise of and dissemination of information, and the control thereof, on
police powers delegated to it. The sheer span of jurisprudence infant nutrition. (Emphasis supplied)
on that matter precludes the need to further discuss
it..48 However, health information, particularly advertising Further, DOH is authorized by the Milk Code to control the
materials on apparently non-toxic products like breastmilk content of any information on breastmilk vis-à-visbreastmilk
substitutes and supplements, is a relatively new area for substitutes, supplement and related products, in the following
regulation by the DOH.49 manner:

As early as the 1917 Revised Administrative Code of the SECTION 5. x x x


Philippine Islands,50 health information was already within (b) Informational and educational materials, whether written,
the ambit of the regulatory powers of the predecessor of audio, or visual, dealing with the feeding of infants and
DOH.51 Section 938 thereof charged it with the duty to intended to reach pregnant women and mothers of infants,
protect the health of the people, and vested it with such shall include clear information on all the following points: (1)
powers as "(g) the dissemination of hygienic information the benefits and superiority of breastfeeding; (2) maternal
among the people and especially the inculcation of knowledge nutrition, and the preparation for and maintenance of
as to the proper care of infants and the methods of preventing breastfeeding; (3) the negative effect on breastfeeding of
and combating dangerous communicable diseases." introducing partial bottlefeeding; (4) the difficulty of reversing
Seventy years later, the 1987 Administrative Code tasked the decision not to breastfeed; and (5) where needed, the
respondent DOH to carry out the state policy pronounced proper use of infant formula, whether manufactured
under Section 15, Article II of the 1987 Constitution, which is industrially or home-prepared. When such materials contain
"to protect and promote the right to health of the people information about the use of infant formula, they shall include
and instill health consciousness among them."52 To that end, the social and financial implications of its use; the health
it was granted under Section 3 of the Administrative Code the hazards of inappropriate foods or feeding methods; and, in
power to "(6) propagate health information and educate the particular, the health hazards of unnecessary or improper use
population on important health, medical and environmental of infant formula and other breastmilk substitutes. Such
matters which have health implications."53 materials shall not use any picture or text which may idealize
the use of breastmilk substitutes.
When it comes to information regarding nutrition of infants
and young children, however, the Milk Code specifically SECTION 8. Health Workers –
delegated to the Ministry of Health (hereinafter referred to as xxxx
DOH) the power to ensure that there is adequate, consistent
and objective information on breastfeeding and use of (b) Information provided by manufacturers and distributors to
breastmilk substitutes, supplements and related products; and health professionals regarding products within the scope of
the power to control such information. These are expressly this Code shall be restricted to scientific and factual matters,
provided for in Sections 12 and 5(a), to wit: and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall
SECTION 12. Implementation and Monitoring – also include the information specified in Section 5(b).
xxxx SECTION 10. Containers/Label –
(b) The Ministry of Health shall be principally responsible for (a) Containers and/or labels shall be designed to provide the
the implementation and enforcement of the provisions of this necessary information about the appropriate use of the
Code. For this purpose, the Ministry of Health shall have the products, and in such a way as not to discourage
following powers and functions: breastfeeding.
(1) To promulgate such rules and regulations as are necessary xxxx
or proper for the implementation of this Code and the
accomplishment of its purposes and objectives. (d) The term "humanized," "maternalized" or similar terms
shall not be used. (Emphasis supplied)
xxxx
The DOH is also authorized to control the purpose of the
(4) To exercise such other powers and functions as may be information and to whom such information may be
necessary for or incidental to the attainment of the purposes disseminated under Sections 6 through 9 of the Milk
and objectives of this Code. Code54 to ensure that the information that would reach
pregnant women, mothers of infants, and health professionals Sections 1355 on "total effect" and 2656 of Rule VII of the
and workers in the health care system is restricted to scientific RIRR contain some labeling requirements, specifically: a) that
and factual matters and shall not imply or create a belief that there be a statement that there is no substitute to breastmilk;
bottlefeeding is equivalent or superior to breastfeeding. and b) that there be a statement that powdered infant formula
may contain pathogenic microorganisms and must be prepared
It bears emphasis, however, that the DOH's power under the and used appropriately. Section 1657of the RIRR prohibits all
Milk Code to control information regarding breastmilk vis-a- health and nutrition claims for products within the scope of the
vis breastmilk substitutes is not absolute as the power to Milk Code, such as claims of increased emotional and
control does not encompass the power to absolutely prohibit intellectual abilities of the infant and young child.
the advertising, marketing, and promotion of breastmilk
substitutes. These requirements and limitations are consistent with the
provisions of Section 8 of the Milk Code, to wit:
The following are the provisions of the Milk Code that
unequivocally indicate that the control over information given SECTION 8. Health workers -
to the DOH is not absolute and that absolute prohibition is not
contemplated by the Code: xxxx

a) Section 2 which requires adequate information and (b) Information provided by manufacturers and distributors to
appropriate marketing and distribution of breastmilk health professionals regarding products within the scope of
substitutes, to wit: this Code shall be restricted to scientific and factual matters,
and such information shall notimply or create a belief that
SECTION 2. Aim of the Code – The aim of the Code is to bottlefeeding is equivalent or superior to breastfeeding. It shall
contribute to the provision of safe and adequate nutrition for also include the information specified in Section
infants by the protection and promotion of breastfeeding and 5.58 (Emphasis supplied)
by ensuring the proper use of breastmilk substitutes and
breastmilk supplements when these are necessary, on the basis and Section 10(d)59 which bars the use on containers and
of adequate information and through appropriate marketing labels of the terms "humanized," "maternalized," or similar
and distribution. terms.

b) Section 3 which specifically states that the Code applies to These provisions of the Milk Code expressly forbid
the marketing of and practices related to breastmilk information that would imply or create a belief that there is
substitutes, including infant formula, and to information any milk product equivalent to breastmilk or which is
concerning their use; humanized or maternalized, as such information would be
inconsistent with the superiority of breastfeeding.
c) Section 5(a) which provides that the government shall
ensure that objective and consistent information is provided on It may be argued that Section 8 of the Milk Code refers only to
infant feeding; information given to health workers regarding breastmilk
substitutes, not to containers and labels thereof. However,
d) Section 5(b) which provides that written, audio or visual such restrictive application of Section 8(b) will result in the
informational and educational materials shall not use any absurd situation in which milk companies and distributors are
picture or text which may idealize the use of breastmilk forbidden to claim to health workers that their products are
substitutes and should include information on the health substitutes or equivalents of breastmilk, and yet be allowed to
hazards of unnecessary or improper use of said product; display on the containers and labels of their products the exact
opposite message. That askewed interpretation of the Milk
e) Section 6(a) in relation to Section 12(a) which creates and Code is precisely what Section 5(a) thereof seeks to avoid by
empowers the IAC to review and examine advertising, mandating that all information regarding breastmilk vis-a-
promotion, and other marketing materials; vis breastmilk substitutes be consistent, at the same time
f) Section 8(b) which states that milk companies may provide giving the government control over planning, provision,
information to health professionals but such information design, and dissemination of information on infant feeding.
should be restricted to factual and scientific matters and shall Thus, Section 26(c) of the RIRR which requires containers
not imply or create a belief that bottlefeeding is equivalent or and labels to state that the product offered is not a substitute
superior to breastfeeding; and for breastmilk, is a reasonable means of enforcing Section 8(b)
g) Section 10 which provides that containers or labels should of the Milk Code and deterring circumvention of the
not contain information that would discourage breastfeeding protection and promotion of breastfeeding as embodied in
and idealize the use of infant formula. Section 260 of the Milk Code.

It is in this context that the Court now examines the assailed Section 26(f)61 of the RIRR is an equally reasonable labeling
provisions of the RIRR regarding labeling and advertising. requirement. It implements Section 5(b) of the Milk Code
which reads:
SECTION 5. x x x (a) For purposes of Section 6(a) of this Code, an inter-agency
committee composed of the following members is hereby
xxxx created:
(b) Informational and educational materials, whether written, The members may designate their duly authorized
audio, or visual, dealing with the feeding of infants and representative to every meeting of the Committee.
intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: x x The Committee shall have the following powers and
x (5) where needed, the proper use of infant formula, whether functions:
manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, (1) To review and examine all advertising. promotion or other
they shall include the social and financial implications of its marketing materials, whether written, audio or visual, on
use; the health hazards of inappropriate foods or feeding products within the scope of this Code;
methods; and, in particular, the health hazards of unnecessary (2) To approve or disapprove, delete objectionable portions
or improper use of infant formula and other breastmilk from and prohibit the printing, publication, distribution,
substitutes. Such materials shall not use any picture or text exhibition and broadcast of, all advertising promotion or other
which may idealize the use of breastmilk substitutes. marketing materials, whether written, audio or visual, on
(Emphasis supplied) products within the scope of this Code;
The label of a product contains information about said product (3) To prescribe the internal and operational procedure for the
intended for the buyers thereof. The buyers of breastmilk exercise of its powers and functions as well as the
substitutes are mothers of infants, and Section 26 of the RIRR performance of its duties and responsibilities; and
merely adds a fair warning about the likelihood of pathogenic
microorganisms being present in infant formula and other (4) To promulgate such rules and regulations as are necessary
related products when these are prepared and used or proper for the implementation of Section 6(a) of this
inappropriately. Code. x x x (Emphasis supplied)

Petitioner’s counsel has admitted during the hearing on June However, Section 11 of the RIRR, to wit:
19, 2007 that formula milk is prone to contaminations and
SECTION 11. Prohibition – No advertising, promotions,
there is as yet no technology that allows production of
sponsorships, or marketing materials and activities for
powdered infant formula that eliminates all forms of
breastmilk substitutes intended for infants and young children
contamination.62
up to twenty-four (24) months, shall be allowed, because they
Ineluctably, the requirement under Section 26(f) of the RIRR tend to convey or give subliminal messages or impressions
for the label to contain the message regarding health hazards that undermine breastmilk and breastfeeding or otherwise
including the possibility of contamination with pathogenic exaggerate breastmilk substitutes and/or replacements, as well
microorganisms is in accordance with Section 5(b) of the Milk as related products covered within the scope of this Code.
Code.
prohibits advertising, promotions, sponsorships or marketing
The authority of DOH to control information regarding materials and activities for breastmilk substitutes in line with
breastmilk vis-a-vis breastmilk substitutes and supplements the RIRR’s declaration of principle under Section 4(f), to wit:
and related products cannot be questioned. It is its intervention
SECTION 4. Declaration of Principles –
into the area of advertising, promotion, and marketing that is
being assailed by petitioner. xxxx
In furtherance of Section 6(a) of the Milk Code, to wit: (f) Advertising, promotions, or sponsorships of infant formula,
breastmilk substitutes and other related products are
SECTION 6. The General Public and Mothers. –
prohibited.
(a) No advertising, promotion or other marketing materials,
The DOH, through its co-respondents, evidently arrogated to
whether written, audio or visual, for products within the scope
itself not only the regulatory authority given to the IAC but
of this Code shall be printed, published, distributed, exhibited
also imposed absolute prohibition on advertising, promotion,
and broadcast unless such materials are duly authorized and
and marketing.
approved by an inter-agency committee created herein
pursuant to the applicable standards provided for in this Code. Yet, oddly enough, Section 12 of the RIRR reiterated the
requirement of the Milk Code in Section 6 thereof for prior
the Milk Code invested regulatory authority over advertising,
approval by IAC of all advertising, marketing and promotional
promotional and marketing materials to an IAC, thus:
materials prior to dissemination.
SECTION 12. Implementation and Monitoring -
Even respondents, through the OSG, acknowledged the
authority of IAC, and repeatedly insisted, during the oral
arguments on June 19, 2007, that the prohibition under Section SOLICITOR GENERAL DEVANADERA:
11 is not actually operational, viz:
Your Honor, please, first we would like to stress that there is
SOLICITOR GENERAL DEVANADERA: no total absolute ban. Second, the Inter-Agency Committee is
under the Department of Health, Your Honor.
xxxx
xxxx
x x x Now, the crux of the matter that is being questioned by
Petitioner is whether or not there is an absolute prohibition on ASSOCIATE JUSTICE NAZARIO:
advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute x x x Did I hear you correctly, Madam Solicitor, that there is
prohibition because Section 11 while it states and it is entitled no absolute ban on advertising of breastmilk substitutes in the
prohibition it states that no advertising, promotion, Revised Rules?
sponsorship or marketing materials and activities for breast SOLICITOR GENERAL DEVANADERA:
milk substitutes intended for infants and young children up to
24 months shall be allowed because this is the standard they Yes, your Honor.
tend to convey or give subliminal messages or impression
ASSOCIATE JUSTICE NAZARIO:
undermine that breastmilk or breastfeeding x x x.
But, would you nevertheless agree that there is an absolute ban
We have to read Section 11 together with the other Sections
on advertising of breastmilk substitutes intended for children
because the other Section, Section 12, provides for the inter
two (2) years old and younger?
agency committee that is empowered to process and evaluate
all the advertising and promotion materials. SOLICITOR GENERAL DEVANADERA:
xxxx It's not an absolute ban, Your Honor, because we have the
Inter-Agency Committee that can evaluate some advertising
What AO 2006-12, what it does, it does not prohibit the sale
and promotional materials, subject to the standards that we
and manufacture, it simply regulates the advertisement and the
have stated earlier, which are- they should not undermine
promotions of breastfeeding milk substitutes.
breastfeeding, Your Honor.
xxxx
xxxx
Now, the prohibition on advertising, Your Honor, must be
x x x Section 11, while it is titled Prohibition, it must be taken
taken together with the provision on the Inter-Agency
in relation with the other Sections, particularly 12 and 13 and
Committee that processes and evaluates because there may be
15, Your Honor, because it is recognized that the Inter-Agency
some information dissemination that are straight forward
Committee has that power to evaluate promotional materials,
information dissemination. What the AO 2006 is trying to
Your Honor.
prevent is any material that will undermine the practice of
breastfeeding, Your Honor. ASSOCIATE JUSTICE NAZARIO:
xxxx So in short, will you please clarify there's no absolute ban on
advertisement regarding milk substitute regarding infants two
ASSOCIATE JUSTICE SANTIAGO:
(2) years below?
Madam Solicitor General, under the Milk Code, which body
SOLICITOR GENERAL DEVANADERA:
has authority or power to promulgate Rules and Regulations
regarding the Advertising, Promotion and Marketing of We can proudly say that the general rule is that there is a
Breastmilk Substitutes? prohibition, however, we take exceptions and standards have
been set. One of which is that, the Inter-Agency Committee
SOLICITOR GENERAL DEVANADERA:
can allow if the advertising and promotions will not
Your Honor, please, it is provided that the Inter-Agency undermine breastmilk and breastfeeding, Your Honor.63
Committee, Your Honor.
Sections 11 and 4(f) of the RIRR are clearly violative of the
xxxx Milk Code.

ASSOCIATE JUSTICE SANTIAGO: However, although it is the IAC which is authorized to


promulgate rules and regulations for the approval or rejection
x x x Don't you think that the Department of Health of advertising, promotional, or other marketing materials
overstepped its rule making authority when it totally banned under Section 12(a) of the Milk Code, said provision must be
advertising and promotion under Section 11 prescribed the related to Section 6 thereof which in turn provides that the
total effect rule as well as the content of materials under rules and regulations must be "pursuant to the applicable
Section 13 and 15 of the rules and regulations? standards provided for in this Code." Said standards are set
forth in Sections 5(b), 8(b), and 10 of the Code, which, at the (iv) instructions for appropriate preparation, and a warning
risk of being repetitious, and for easy reference, are quoted against the health hazards of inappropriate preparation.
hereunder:
Section 12(b) of the Milk Code designates the DOH as the
SECTION 5. Information and Education – principal implementing agency for the enforcement of the
provisions of the Code. In relation to such responsibility of the
xxxx DOH, Section 5(a) of the Milk Code states that:
(b) Informational and educational materials, whether written, SECTION 5. Information and Education –
audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants, (a) The government shall ensure that objective and
shall include clear information on all the following points: (1) consistent information is provided on infant feeding, for use
the benefits and superiority of breastfeeding; (2) maternal by families and those involved in the field of infant nutrition.
nutrition, and the preparation for and maintenance of This responsibility shall cover the planning, provision, design
breastfeeding; (3) the negative effect on breastfeeding of and dissemination of information, and the control thereof, on
introducing partial bottlefeeding; (4) the difficulty of reversing infant nutrition. (Emphasis supplied)
the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured Thus, the DOH has the significant responsibility to translate
industrially or home-prepared. When such materials contain into operational terms the standards set forth in Sections 5, 8,
information about the use of infant formula, they shall include and 10 of the Milk Code, by which the IAC shall screen
the social and financial implications of its use; the health advertising, promotional, or other marketing materials.
hazards of inappropriate foods of feeding methods; and, in It is pursuant to such responsibility that the DOH correctly
particular, the health hazards of unnecessary or improper use provided for Section 13 in the RIRR which reads as follows:
of infant formula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize SECTION 13. "Total Effect" - Promotion of products within
the use of breastmilk substitutes. the scope of this Code must be objective and should not equate
or make the product appear to be as good or equal to
xxxx breastmilk or breastfeeding in the advertising concept. It must
SECTION 8. Health Workers. – not in any case undermine breastmilk or breastfeeding. The
"total effect" should not directly or indirectly suggest that
xxxx buying their product would produce better individuals, or
resulting in greater love, intelligence, ability, harmony or in
(b) Information provided by manufacturers and distributors to any manner bring better health to the baby or other such
health professionals regarding products within the scope of exaggerated and unsubstantiated claim.
this Code shall be restricted to scientific and factual
matters and such information shall not imply or create a belief Such standards bind the IAC in formulating its rules and
that bottle feeding is equivalent or superior to breastfeeding. It regulations on advertising, promotion, and marketing.
shall also include the information specified in Section 5(b). Through that single provision, the DOH exercises control over
the information content of advertising, promotional and
xxxx marketing materials on breastmilk vis-a-vis breastmilk
SECTION 10. Containers/Label – substitutes, supplements and other related products. It also sets
a viable standard against which the IAC may screen such
(a) Containers and/or labels shall be designed to provide the materials before they are made public.
necessary information about the appropriate use of the
products, and in such a way as not to discourage In Equi-Asia Placement, Inc. vs. Department of Foreign
breastfeeding. Affairs,64 the Court held:

(b) Each container shall have a clear, conspicuous and easily x x x [T]his Court had, in the past, accepted as sufficient
readable and understandable message in Pilipino or English standards the following: "public interest," "justice and equity,"
printed on it, or on a label, which message can not readily "public convenience and welfare," and "simplicity, economy
become separated from it, and which shall include the and welfare."65
following points: In this case, correct information as to infant feeding and
(i) the words "Important Notice" or their equivalent; nutrition is infused with public interest and welfare.

(ii) a statement of the superiority of breastfeeding; 4. With regard to activities for dissemination of information to
health professionals, the Court also finds that there is no
(iii) a statement that the product shall be used only on the inconsistency between the provisions of the Milk Code and the
advice of a health worker as to the need for its use and the RIRR. Section 7(b)66 of the Milk Code, in relation to Section
proper methods of use; and 8(b)67 of the same Code, allows dissemination of
information to health professionals but such information is accept the assistance. Thus, Sections 9 and 10 of the RIRR
restricted to scientific and factual matters. imposing limitations on the kind of research done or extent of
assistance given by milk companies are completely in accord
Contrary to petitioner's claim, Section 22 of the RIRR does with the Milk Code.
not prohibit the giving of information to health
professionals on scientific and factual matters. What it Petitioner complains that Section 3273 of the RIRR prohibits
prohibits is the involvement of the manufacturer and milk companies from giving assistance, support, logistics or
distributor of the products covered by the Code in activities training to health workers. This provision is within the
for the promotion, education and production of Information, prerogative given to the DOH under Section 8(e)74of the Milk
Education and Communication (IEC) materials regarding Code, which provides that manufacturers and distributors of
breastfeeding that are intended for women and children. Said breastmilk substitutes may assist in researches, scholarships
provision cannot be construed to encompass even and the continuing education, of health professionals in
the dissemination of information to health professionals, as accordance with the rules and regulations promulgated by the
restricted by the Milk Code. Ministry of Health, now DOH.

5. Next, petitioner alleges that Section 8(e)68 of the Milk 6. As to the RIRR's prohibition on donations, said provisions
Code permits milk manufacturers and distributors to extend are also consistent with the Milk Code. Section 6(f) of the
assistance in research and in the continuing education of Milk Code provides that donations may be made by
health professionals, while Sections 22 and 32 of the RIRR manufacturers and distributors of breastmilk substitutes upon
absolutely forbid the same. Petitioner also assails Section the request or with the approval of the DOH. The law does not
4(i)69 of the RIRR prohibiting milk manufacturers' and proscribe the refusal of donations. The Milk Code leaves it
distributors' participation in any policymaking body in relation purely to the discretion of the DOH whether to request or
to the advancement of breastfeeding. accept such donations. The DOH then appropriately exercised
its discretion through Section 5175 of the RIRR which sets
Section 4(i) of the RIRR provides that milk companies and forth its policy not to request or approve donations from
their representatives should not form part of any policymaking manufacturers and distributors of breastmilk substitutes.
body or entity in relation to the advancement of breastfeeding.
The Court finds nothing in said provisions which contravenes It was within the discretion of the DOH when it provided in
the Milk Code. Note that under Section 12(b) of the Milk Section 52 of the RIRR that any donation from milk
Code, it is the DOH which shall be principally responsible for companies not covered by the Code should be coursed through
the implementation and enforcement of the provisions of said the IAC which shall determine whether such donation should
Code. It is entirely up to the DOH to decide which entities to be accepted or refused. As reasoned out by respondents, the
call upon or allow to be part of policymaking bodies on DOH is not mandated by the Milk Code to accept donations.
breastfeeding. Therefore, the RIRR's prohibition on milk For that matter, no person or entity can be forced to accept a
companies’ participation in any policymaking body in relation donation. There is, therefore, no real inconsistency between
to the advancement of breastfeeding is in accord with the Milk the RIRR and the law because the Milk Code does not prohibit
Code. the DOH from refusing donations.

Petitioner is also mistaken in arguing that Section 22 of the 7. With regard to Section 46 of the RIRR providing for
RIRR prohibits milk companies from giving reasearch administrative sanctions that are not found in the Milk Code,
assistance and continuing education to health the Court upholds petitioner's objection thereto.
professionals. Section 2270 of the RIRR does not pertain to
research assistance to or the continuing education of health Respondent's reliance on Civil Aeronautics Board v.
professionals; rather, it deals with breastfeeding promotion Philippine Air Lines, Inc.76 is misplaced. The glaring
and education for women and children. Nothing in Section 22 difference in said case and the present case before the Court is
of the RIRR prohibits milk companies from giving assistance that, in the Civil Aeronautics Board, the Civil Aeronautics
for research or continuing education to health professionals; Administration (CAA) was expressly granted by the law (R.A.
hence, petitioner's argument against this particular provision No. 776) the power to impose fines and civil penalties, while
must be struck down. the Civil Aeronautics Board (CAB) was granted by the same
law the power to review on appeal the order or decision of the
It is Sections 971 and 1072 of the RIRR which govern CAA and to determine whether to impose, remit, mitigate,
research assistance. Said sections of the RIRR provide increase or compromise such fine and civil penalties. Thus, the
that research assistance for health workers and researchers Court upheld the CAB's Resolution imposing administrative
may be allowed upon approval of an ethics committee, and fines.
with certain disclosure requirements imposed on the milk
company and on the recipient of the research award. In a more recent case, Perez v. LPG Refillers Association of
the Philippines, Inc.,77 the Court upheld the Department of
The Milk Code endows the DOH with the power to determine Energy (DOE) Circular No. 2000-06-10
how such research or educational assistance may be given by implementing Batas Pambansa (B.P.) Blg. 33. The circular
milk companies or under what conditions health workers may provided for fines for the commission of prohibited acts. The
Court found that nothing in the circular contravened the law Constitution, and subject to the doctrine of non-delegability
because the DOE was expressly authorized by B.P. Blg. 33 and separability of powers.78 Such express grant of rule-
and R.A. No. 7638 to impose fines or penalties. making power necessarily includes the power to amend,
revise, alter, or repeal the same.79 This is to allow
In the present case, neither the Milk Code nor the Revised administrative agencies flexibility in formulating and
Administrative Code grants the DOH the authority to fix or adjusting the details and manner by which they are to
impose administrative fines. Thus, without any express grant implement the provisions of a law,80 in order to make it more
of power to fix or impose such fines, the DOH cannot provide responsive to the times. Hence, it is a standard provision in
for those fines in the RIRR. In this regard, the DOH again administrative rules that prior issuances of administrative
exceeded its authority by providing for such fines or sanctions agencies that are inconsistent therewith are declared repealed
in Section 46 of the RIRR. Said provision is, therefore, null or modified.
and void.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond
The DOH is not left without any means to enforce its rules and the authority of the DOH to promulgate and in contravention
regulations. Section 12(b) (3) of the Milk Code authorizes the of the Milk Code and, therefore, null and void. The rest of the
DOH to "cause the prosecution of the violators of this Code provisions of the RIRR are in consonance with the Milk Code.
and other pertinent laws on products covered by this Code."
Section 13 of the Milk Code provides for the penalties to be Lastly, petitioner makes a "catch-all" allegation that:
imposed on violators of the provision of the Milk Code or the
rules and regulations issued pursuant to it, to wit: x x x [T]he questioned RIRR sought to be implemented by the
Respondents is unnecessary and oppressive, and is offensive
SECTION 13. Sanctions – to the due process clause of the Constitution, insofar as the
same is in restraint of trade and because a provision therein is
(a) Any person who violates the provisions of this Code or the inadequate to provide the public with a comprehensible basis
rules and regulations issued pursuant to this Code shall, upon to determine whether or not they have committed a
conviction, be punished by a penalty of two (2) months to one violation.81 (Emphasis supplied)
(1) year imprisonment or a fine of not less than One Thousand
Pesos (P1,000.00) nor more than Thirty Thousand Pesos Petitioner refers to Sections
(P30,000.00) or both. Should the offense be committed by a 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as
juridical person, the chairman of the Board of Directors, the the provisions that suppress the trade of milk and, thus, violate
president, general manager, or the partners and/or the persons the due process clause of the Constitution.
directly responsible therefor, shall be penalized.
The framers of the constitution were well aware that trade
(b) Any license, permit or authority issued by any government must be subjected to some form of regulation for the public
agency to any health worker, distributor, manufacturer, or good. Public interest must be upheld over business
marketing firm or personnel for the practice of their profession interests.90 In Pest Management Association of the
or occupation, or for the pursuit of their business, may, upon Philippines v. Fertilizer and Pesticide Authority,91 it was held
recommendation of the Ministry of Health, be suspended or thus:
revoked in the event of repeated violations of this Code, or of
the rules and regulations issued pursuant to this Code. x x x Furthermore, as held in Association of Philippine
(Emphasis supplied) Coconut Desiccators v. Philippine Coconut Authority, despite
the fact that "our present Constitution enshrines free enterprise
8. Petitioner’s claim that Section 57 of the RIRR repeals as a policy, it nonetheless reserves to the government the
existing laws that are contrary to the RIRR is frivolous. power to intervene whenever necessary to promote the general
welfare." There can be no question that the unregulated use or
Section 57 reads: proliferation of pesticides would be hazardous to our
SECTION 57. Repealing Clause - All orders, issuances, and environment. Thus, in the aforecited case, the Court declared
rules and regulations or parts thereof inconsistent with these that "free enterprise does not call for removal of ‘protective
revised rules and implementing regulations are hereby regulations’." x x x It must be clearly explained and proven by
repealed or modified accordingly. competent evidence just exactly how such protective
regulation would result in the restraint of trade. [Emphasis and
Section 57 of the RIRR does not provide for the repeal underscoring supplied]
of laws but only orders, issuances and rules and regulations.
Thus, said provision is valid as it is within the DOH's rule- In this case, petitioner failed to show that the proscription of
making power. milk manufacturers’ participation in any policymaking body
(Section 4(i)), classes and seminars for women and children
An administrative agency like respondent possesses quasi- (Section 22); the giving of assistance, support and logistics or
legislative or rule-making power or the power to make rules training (Section 32); and the giving of donations (Section 52)
and regulations which results in delegated legislation that is would unreasonably hamper the trade of breastmilk
within the confines of the granting statute and the substitutes. Petitioner has not established that the proscribed
activities are indispensable to the trade of breastmilk such, the rest of the RIRR do not constitute illegal restraint of
substitutes. Petitioner failed to demonstrate that the trade nor are they violative of the due process clause of the
aforementioned provisions of the RIRR are unreasonable and Constitution.
oppressive for being in restraint of trade.
WHEREFORE, the petition is PARTIALLY GRANTED.
Petitioner also failed to convince the Court that Section 5(w) Sections 4(f), 11 and 46 of Administrative Order No. 2006-
of the RIRR is unreasonable and oppressive. Said section 0012 dated May 12, 2006 are declared NULL and VOID for
provides for the definition of the term "milk company," to wit: being ultra vires. The Department of Health and respondents
are PROHIBITED from implementing said provisions.
SECTION 5 x x x. (w) "Milk Company" shall refer to the
owner, manufacturer, distributor of infant formula, follow-up The Temporary Restraining Order issued on August 15, 2006
milk, milk formula, milk supplement, breastmilk substitute or is LIFTED insofar as the rest of the provisions of
replacement, or by any other description of such nature, Administrative Order No. 2006-0012 is concerned.
including their representatives who promote or otherwise
advance their commercial interests in marketing those SO ORDERED.
products;

On the other hand, Section 4 of the Milk Code provides:

(d) "Distributor" means a person, corporation or any other


entity in the public or private sector engaged in the business
(whether directly or indirectly) of marketing at the wholesale
or retail level a product within the scope of this Code. A
"primary distributor" is a manufacturer's sales agent,
representative, national distributor or broker.

xxxx

(j) "Manufacturer" means a corporation or other entity in the


public or private sector engaged in the business or function
(whether directly or indirectly or through an agent or and
entity controlled by or under contract with it) of
manufacturing a products within the scope of this Code.

Notably, the definition in the RIRR merely merged together


under the term "milk company" the entities defined separately
under the Milk Code as "distributor" and "manufacturer." The
RIRR also enumerated in Section 5(w) the products
manufactured or distributed by an entity that would qualify it
as a "milk company," whereas in the Milk Code, what is used
is the phrase "products within the scope of this Code." Those
are the only differences between the definitions given in the
Milk Code and the definition as re-stated in the RIRR.

Since all the regulatory provisions under the Milk Code apply
equally to both manufacturers and distributors, the Court sees
no harm in the RIRR providing for just one term to encompass
both entities. The definition of "milk company" in the RIRR
and the definitions of "distributor" and "manufacturer"
provided for under the Milk Code are practically the same.

The Court is not convinced that the definition of "milk


company" provided in the RIRR would bring about any
change in the treatment or regulation of "distributors" and
"manufacturers" of breastmilk substitutes, as defined under the
Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of


the RIRR are in consonance with the objective, purpose and
intent of the Milk Code, constituting reasonable regulation of
an industry which affects public health and welfare and, as
G.R. No. 107369 August 11, 1999 functions, powers and duties of the Bureau. The Chief of the
PNP shall be appointed by the President from among the
JESULITO A. MANALO, petitioner, senior officers down to the rank of the chief superintendent,
vs. subject to confirmation by the Commission on
PEDRO G. SISTOZA, REGINO ARO III, NICASIO MA. Appointments: Provided, That the Chief of the PNP shall
CUSTODIO, GUILLERMO DOMONDON, RAYMUNDO L. serve a term of office not to exceed four (4)
LOGAN, WILFREDO R. REOTUTAR, FELINO C. years: Provided, further, That in times of war or other national
PACHECO, JR., RUBEN J. CRUZ, GERONIMO B. emergency declared by Congress, the President may extend
VALDERRAMA, MERARDO G. ABAYA, EVERLINO B. such term of office."1 (emphasis supplied).
NARTATEZ, ENRIQUE T. BULAN, PEDRO J. NAVARRO,
DOMINADOR M. MANGUBAT, RODOLFO M. GARCIA Sec. 31. Appointment of PNP Officers and Members. — The
and HONORABLE SALVADOR M. ENRIQUEZ II In His appointment of the officers and members of the PNP shall be
Capacity as Secretary of Budget and effected in the following manner:
Management, respondents.
(a) Police Officer I to Senior Police Officer IV — Appointed
PURISIMA, J.: by the PNP regional director for regional personnel or by the
Chief of the PNP for the national headquarters personnel and
The case at bar is not of first impression. The issue posed attested by the Civil Service Commission;
concerning the limits of the power of the Commission on
Appointments to confirm appointments issued by the Chief (b) Inspector to Superintendent — Appointed by the Chief of
Executive has been put to rest in a number of cases. The court the PNP, as recommended by their immediate superiors, and
finds no basis for departing from the ruling laid down in those attested by the Civil Service Commission;
cases.
(c) Senior Superintendent to Deputy Director General —
In this special civil action for Prohibition under Rule 65 of the Appointed by the President upon recommendation of the Chief
Revised Rules of Court, petitioners question the of the PNP, with the proper endorsement by the Chairman of
constitutionality and legality of the permanent appointments the Civil Service Commission and subject to confirmation by
issued by former President Corazon C. Aquino to the the Commission on Appointments; and
respondent senior officers of the Philippine National Police
who were promoted to the ranks of Chief Superintendent and (d) Director General — Appointed by the President from
Director without their appointments submitted to the among the senior officers down to the rank of chief
Commission on Appointments for confirmation under Section superintendent in the service, subject to confirmation by the
16, Article VII of the 1987 Constitution and Republic Act Commission on Appointments; Provided, That the Chief of the
6975 otherwise known as the Local Government Act of 1990. PNP shall serve a tour of duty not to exceed four (4)
Impleaded in the case is the former Secretary of Budget and years; Provided, further, That, in times of war or other national
Management Salvador M. Enriquez III, who approved and emergency declared by Congress, the President may extend
effected the disbursements for the salaries and other such tour of duty. (emphasis supplied).
emoluments of subject police officers.1âwphi1.nêt In accordance therewith, on March 10, 1992, the President of
The antecedents facts are as follows: the Philippines, through then Executive Secretary Franklin M.
Drilon, promoted the fifteen (15) respondent police officers
On December 13, 1990, Republic Act 6975 creating the herein, by appointing them to positions in the Philippine
Department of Interior and Local Government was signed into National Police with the rank of Chief Superintendent to
law by former President Corazon C. Aquino. Pertinent Director2, namely:
provisions of the said Act read:
Chief Supt. PEDRO G.
Sec. 26. Powers, Functions and Term of Office of the PNP Director
SISTOZA
Chief. — The command and direction of the PNP shall be
vested in the Chief of the PNP who shall have the power to
direct and control tactical as well as strategic movements, Chief Supt. REGINO ARO III Director
deployment, placement, utilization of the PNP or any of its
units and personal, including its equipment, facilities and other Chief Supt. NICASIO MA.
resources. Such command and direction of the Chief of the Director
CUSTODIO
PNP may be delegated to subordinate officials with respect to
the units under their respective commands, in accordance with
Chief Supt. GUILLERMO
the rules and regulations prescribed by the Commission. The Director
DOMONDON
Chief of the PNP shall also have the power to issue detailed
implementing policies and instructions regarding personnel,
funds, properties, records, correspondence and such other
matters as may be necessary to effectively carry out the
Chief Supt. RAYMUNDO L. I. Respondent officers, in assuming their offices and
Director discharging the functions attached thereto, despite their invalid
LOGAN
appointments, in view of the failure to secure the required
confirmation of the Commission on Appointments as required
Senior Supt. WILFREDO Chief by the Constitution and the law, are acting without or in
REOTUTAR Superintendent excess of their jurisdiction or with grave abuse of discretion,
considering that:
Senior Supt. FELINO C. Chief
A. Republic Act 6975 is a valid law that duly requires
PACHECO, JR. Superintendent
confirmation of the appointments of officers from the rank of
senior superintendent and higher by the Commission on
Chief Appointments.
Senior Supt. RUBEN J. CRUZ
Superintendent
B. The Philippine National Police is akin to the Armed Forces
where the Constitution specifically requires confirmation by
Senior Supt. GERONIMO B. Chief
the Commission on Appointments.
VALDERRAMA Superintendent
II. Respondent Secretary in allowing and/or effecting
Senior Supt. MERARDO G. Chief disbursements in favor of respondent officers despite the
ABAYA Superintendent unconstitutionality and illegality of their appointments is
acting without or in excess of his jurisdiction or with grave
abuse of discretion.
Senior Supt. EVERLINO Chief
NARTATEZ Superintendent The petition must fail. It is not impressed with merit.

Petitioner theorizes that Republic Act 6975 enjoys the


Senior Supt. ENRIQUE T. Chief presumption of constitutionality and that every statute passed
BULAN Superintendent by Congress is presumed to have been carefully studied and
considered before its enactment. He maintains that the respect
Senior Supt. PEDRO J. Chief accorded to each department of the government requires that
NAVARRO Superintendent the court should avoid, as much as possible, deciding
constitutional questions.
Senior Supt. DOMINADOR Chief The Court agrees with petitioner. However, it is equally
MANGUBAT Superintendent demanded from the courts, as guardians of the Constitution, to
see to it that every law passed by Congress is not repugnant to
Senior Supt. RODOLFO M. Chief the organic law. Courts have the inherent authority to
GARCIA Superintendent determine whether a statute enacted by the legislature
transcends the limit delineated by the fundamental
The appointments of respondent police officers were in a law.4 When it does, the courts will not hesitate to strike down
permanent capacity. Their letters of appointment stated in part: such unconstitutional law.

By virtue hereof, they may qualify and enter upon the The power to make appointments is vested in the Chief
performance of the duties of the office, furnishing this office Executive by Section 16, Article VII of the Constitution,
and the Civil Service Commission with copies of their oath of which provides:
office.3 Sec. 16. The President shall nominate and, with the consent of
Without their names submitted to the Commission on the Commission on Appointments, appoint the heads of the
Appointments for confirmation, the said police officers took executive departments, ambassadors, other public ministers
their oath of office and assumed their respective positions. and consuls, or officers of the armed forces from the rank of
Thereafter, the Department of Budget and Management, under colonel or naval captain, and other officers whose
the then Secretary Salvador M. Enriquez III, authorized appointments are vested in him in this Constitution. He shall
disbursements for their salaries and other emoluments. also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those
On October 21, 1992, the petitioner brought before this Court whom he may be authorized by law to appoint. The Congress
this present original petition for prohibition, as a taxpayer suit, may, by law, vest the appointment of other officers lower in
to assail the legality of subject appointments and rank in the President alone, in the courts, or in the heads of
disbursements made therefor. departments, agencies, commissions, or boards.
Petitioner contends that: The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only and require confirmation of appointments of other government
until disapproval by the Commission on Appointments or until officials not mentioned in the first sentence of Section 16 of
the next adjournment of the Congress. Article VII of the 1987 Constitution.

The aforecited provision of the Constitution has been the Consequently, unconstitutional are Sections 26 and 31 of
subject of several cases on the issue of the restrictive function Republic Act 6975 which empower the Commission on
of the Commission on Appointments with respect to the Appointments to confirm the appointments of public officials
appointing power of the President. This court touched upon whose appointments are not required by the Constitution to be
the historical antecedent of the said provision in the case confirmed. But the unconstitutionality of the aforesaid
of Sarmiento III vs. Mison5 in which it was ratiocinated upon sections notwithstanding, the rest of Republic Act 6975
that Section 16 of Article VII of the 1987 Constitution stands. It is well-settled that when provisions of law declared
requiring confirmation by the Commission on Appointments void are severable from the main statute and the removal of
of certain appointments issued by the President contemplates a the unconstitutional provisions would not affect the validity
system of checks and balances between the executive and and enforceability of the other provisions, the statute remains
legislative branches of government. Experience showed that valid without its voided sections.12
when almost all presidential appointments required the
consent of the Commission on Appointments, as was the case It is petitioner's submission that the Philippine National Police
under the 1935 Constitution, the commission became a venue is akin to the Armed Forces of the Philippines and therefore,
of "horse-trading" and similar malpractices.6 On the other the appointments of police officers whose rank is equal to that
hand, placing absolute power to make appointments in the of colonel or naval captain require confirmation by the
President with hardly any check by the legislature, as what Commission on Appointments.
happened under 1973 Constitution, leads to abuse of such This contention is equally untenable. The Philippine National
power. Thus was perceived the need to establish a "middle Police is separate and distinct from the Armed Forces of the
ground" between the 1935 and 1973 Constitutions. The Philippines. The Constitution, no less, sets forth the
framers of the 1987 Constitution deemed it imperative to distinction. Under Section 4 of Article XVI of the 1987
subject certain high positions in the government to the power Constitution,
of confirmation of the Commission on Appointments and to
allow other positions within the exclusive appointing power of The Armed Forces of the Philippines shall be composed of a
the President.1âwphi1.nêt citizen armed force which shall undergo military training and
service, as may be provided by law. It shall keep a regular
Conformably, as consistently interpreted and ruled in the force necessary for the security of the State.
leading case of Sarmiento III vs. Mison 7, and in the
subsequent cases of Bautista vs. Salonga 8, Quintos-Deles On the other hand, Section 6 of the same Article of the
vs. Constitutional Commission9, and Calderon vs. Carale10; Constitution ordains that:
under Section 16, Article VII, of the Constitution, there are
The State shall establish and maintain one police force, which
four groups of officers of the government to be appointed by
shall be national in scope and civilian in character to be
the President:
administered and controlled by a national police commission.
First, the heads of the executive departments, ambassadors, The authority of local executives over the police units in their
other public ministers and consuls, officers of the armed jurisdiction shall be provided by law.
forces from the rank of colonel or naval captain, and other
To so distinguish the police force from the armed forces,
officers whose appointments are vested in him in this
Congress enacted Republic Act 6975 which states in part:
Constitution;
Sec. 2. Declaration of policy. — It is hereby declared to be the
Second, all other officers of the Government whose
policy of the State to promote peace and order, ensure public
appointments are not otherwise provided for by law;
safety and further strengthen local government capability
Third, those whom the President may be authorized by law to aimed towards the effective delivery of the basic services to
appoint; the citizenry through the establishment of a highly efficient
and competent police force that is national in scope and
Fourth, officers lower in rank whose appointments the civilian in character. . . .
Congress may by law vest in the President alone.
The policy force shall be organized, trained and equipped
It is well-settled that only presidential appointments belonging primarily for the performance of police functions. Its national
to the first group require the confirmation by the Commission scope and civilian character shall be paramount. No element
on Appointments. The appointments of respondent officers of the police force shall be military nor shall any position
who are not within the first category, need not be confirmed thereof be occupied by active members of the Armed Forces
by the Commission on Appointments. As held in the case of the Philippines.
of Tarrosa vs. Singson11 Congress cannot by law expand the
power of confirmation of the Commission on Appointments
Thereunder, the police force is different from and independent
of the armed forces and the ranks in the military are not
similar to those in the Philippine National Police. Thus,
directors and chief superintendents of the PNP, such as the
herein respondent police officers, do not fall under the first
category of presidential appointees requiring the confirmation
by the Commission on Appointments.

In view of the foregoing disquisition and conclusion, the


respondent former Secretary Salvador M. Enriquez III of the
Department of Budget and Management, did not act with
grave abuse of discretion in authorizing and effecting
disbursements for the salaries and other emoluments of the
respondent police officers whose appointments are valid.

WHEREFORE, for lack of merit, the petition under


consideration is hereby DISMISSED. No pronouncement as to
costs.1âwphi1.nêt

SO ORDERED.
G.R. No. L-45892 July 13, 1938 should there be no sufficient men who volunteer to enlist
therein.1ªvvphïl.nët
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. In the United States the courts have held in a series of
TRANQUILINO LAGMAN, defendant-appellant. decisions that the compulsory military service adopted by
reason of the civil war and the world war does not violate the
----------------------------- Constitution, because the power to establish it is derived from
G.R. No. L-45893 July 13, 1938 that granted to Congress to declare war and to organize and
maintain an army. This is so because the right of the
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Government to require compulsory military service is a
vs. consequence of its duty to defend the State and is reciprocal
PRIMITIVO DE SOSA, defendant-appellant. with its duty to defend the life, liberty, and property of the
citizen. In the case of Jacobson vs. Massachusetts (197 U.S.,
Severino P. Izon for appellants.
11; 25 Sup. Ct. Rep., 385), it was said that, without violating
Office of the Solicitor-General Tuason for appellee.
the Constitution, a person may be compelled by force, if need
AVANCEÑA, J.: be, against his will, against his pecuniary interests, and even
against his religious or political convictions, to take his place
In these two cases (G.R. Nos. L-45892 and 45893), the in the ranks of the army of his country, and risk the chance of
appellants Tranquilino and Primitivo de Sosa are charged with being shot down in its defense. In the case of United States vs.
a violation of section 60 of Commonwealth Act No. 1, known Olson (253 Fed., 233), it was also said that this is not
as the National Defense Law. It is alleged that these two deprivation of property without due process of law, because,
appellants, being Filipinos and having reached the age of in its just sense, there is no right of property to an office or
twenty years in 1936, willfully and unlawfully refused to employment.
register in the military service between the 1st and 7th of April
of said year, notwithstanding the fact that they had been The circumstance that these decisions refer to laws enacted by
required to do so. The evidence shows that these two reason on the actual existence of war does not make our case
appellants were duly notified by the corresponding authorities any different, inasmuch as, in the last analysis, what justifies
to appear before the Acceptance Board in order to register for compulsory military service is the defense of the State,
military service in accordance with law, and that the said whether actual or whether in preparation to make it more
appellants, in spite of these notices, had not registered up to effective, in case of need. The circumstance that the appellants
the date of the filing of the information. have dependent families to support does not excuse them from
their duty to present themselves before the Acceptance Board
The appellants do not deny these facts, but they allege in because, if such circumstance exists, they can ask for
defense that they have not registered in the military service determent in complying with their duty and, at all events, they
because Primitivo de Sosa is fatherless and has a mother and a can obtain the proper pecuniary allowance to attend to these
brother eight years old to support, and Tranquilino Lagman family responsibilities (secs. 65 and 69 of Commonwealth Act
also has a father to support, has no military learnings, and does No. 1).
not wish to kill or be killed.
The appealed judgment rendered in these two cases is
Each of these appellants was sentenced by the Court of First affirmed, with the costs to the appellants. So ordered.
Instance to one month and one day of imprisonment, with the
costs.

In this instance, the validity of the National Defense Law,


under which the accused were sentenced, is impugned on the
ground that it is unconstitutional. Section 2, Article II of the
Constitution of the Philippines provides as follows:

SEC. 2. The defense of the state is a prime duty of


government, and in the fulfillment of this duty all citizens may
be required by law to render personal military or civil service.

The National Defense Law, in so far as it establishes


compulsory military service, does not go against this
constitutional provision but is, on the contrary, in faithful
compliance therewith. The duty of the Government to defend
the State cannot be performed except through an army. To
leave the organization of an army to the will of the citizens
would be to make this duty of the Government excusable
G.R. No. L-322 July 28, 1947 Appellant would also have killed the small children including
Clarita Perez and Maria Paulino if he had been allowed to
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, have his way. For when all but the small ones had been
vs. butchered, he proposed to kill them too, but the Japanese
PEDRO MANAYAO, ET AL., defendants. soldiers interceded, saying that the children knew nothing of
PEDRO MANAYAO, appellant. the matter (pp. 15, 49, 51, 66, 67, t.s.n.). Appellant insisted in
J. Antonio Araneta for appellant. his proposal, arguing that the children would be wives of
First Assistant Solicitor General Jose B. L. Reyes and Solicitor guerrillas later when they grew up, but the Japanese decided to
Ramon L. Avanceña for appellee. spare them (p. 22, t.s.n.).

HILADO, J.: The foregoing facts have been clearly established by the
testimony of eye-witnesses — Clarita Paulino, Maria Perez,
Appellant Pedro Manayao and Filomeno Flores and and Policarpio Tigas — to the ruthless massacre of Banaban.
Raymundo Flores were charged with the high crime of treason There is a complete absence of evidence tending to show
with multiple murder in the People's Court. The Floreses not motive on the part of these witnesses for falsely testifying
having been apprehended, only Manayao was tried. Convicted against appellant — such a motive is not even insinuated by
of the offense charged against him with the aggravating the defendant. Indeed, appellant's counsel frankly states (p. 3,
circumstances of (1) the aid of armed men and (2) the brief) that he "does not dispute the findings of fact of the
employment or presence of a band in the commission of the People's Court." Speaking of the testimony of Clarita and
crime, he was sentenced to death, to pay a fine of P20,000, an Maria, both aged ten years, the People's Court, who heard,
indemnity of P2,000 to the heirs of each of the persons named observed and saw them testify, had the following to say:
in the third paragraph of the decision, and the costs. He has
appealed from that decision to this Court. The testimony of the last two in particular is entitled to very
great weight. They are simple barrio girls, only ten years old,
On or about the 27th of January, 1945, the guerrillas raided the whose minds have not yet been tainted by feelings of hatred or
Japanese in Sitio Pulong Tindahan, Municipality of Angat, revenge or by any desire to be spectacular or to exaggerate.
Province of Bulacan. In reprisal, Japanese soldiers and a They were straight-forward and frank in their testimony and
number of Filipinos affiliated with the Makapili, among them did not show any intention to appeal to the sentiments of the
the instant appellant, conceived the diabolical idea of killing court. They could not have been mistaken as to the presence
the residents of Barrio Banaban of the same municipality and identity of the accused for they know him so well that
(Exhibits A, C, and C-1). Pursuant to this plan, said Japanese they referred to him by his pet name of "Indong Pintor" or
soldiers and their Filipino companions, armed with rifles and Pedro, the painter. They could not have erred in the narration
bayonets, gathered the residents of Banaban behind the barrio of the salient phases of the tragic events of January 29, 1945,
chapel on January 29, 1945. Numbering about sixty or in Banaban, for they were forced eye-witnesses to and were
seventy, the residents thus assembled included men, women involved in the whole tragedy, the burning of the houses and
and children — mostly women (Exhibits A, C, amd C-1; pp. the massacre committed by the accused and his Japanese
3-16, 29, 30, 65, 102, t.s.n.). masters took place in broad daylight and were not
consummated in a fleeting moment but during a time
The children were placed in a separate group from the men
sufficient for even girls of tender age to retain a trustworthy
and women — the prosecution star witnesses, Maria Paulino
mental picture of the unusual event they could not help but
and Clarita Perez, were among the children (pp. 3, 40, t.s.n. ).
witness.
Presently, the Japanese and their Filipino comrades set the
surrounding houses on fire (pp. 14, 48, 70, 71, 103, t.s.n.), and Not only this, but the testimony of Clarita Perez and Maria
proceeded to butcher all the persons assembled, excepting the Paulino is so clear, positive and convincing that it would be
small children, thus killing, among others, those known by the sufficient for conviction without any further corroboration.
following names: Patricia, Dodi, Banda, Tana, Uyang, Mina, Yet, there is ample corroborative proof. Thus, Tomas M.
Marta, Sana, Eufemia, Doroteo, Andres, Perly, Tisiang, Pablo declared that he had seen the corpses of the massacred
Urado, Pisan, Dorang, Felisa, and Eulalia (pp. 8, 10, 13, 14, residents of Banaban shortly after the happening of the
31, 32, 47, 48, 61, 63, t.s.n.). heinous crime (p. 136, t.s.n.). And appellant himself admitted
his participation in the massacre in two sworn statements —
Appellant alone killed about six women, two of whom were
one made on August 28, 1945, before Lt. Jesus Cacahit,
Patricia and Dodi whom he bayoneted to death in the presence
Detachment Commander of the Angat 23d MP Command
of their daughters, Maria Paulino and Clarita Perez,
(Exhibit A; pp. 75-77, t.s.n.) and another made on September
respectively (pp. 8, 10, 13, 31, 32, 35, 47, 48, t.s.n.). Patricia
5, 1945 before Feliciano F. Torres, Assistant Provincial Fiscal
and Dodi pleaded with appellant for mercy, he being their
of Bulacan (Exhibits C, C-1; pp. 150-159, t.s.n.).
relative, but he gave the callous answer that no mercy would
be given them because they were wives of guerrillas (pp. 10, In No. 1 of his assignment of errors, appellant's counsel
42, 43, 49, t.s.n.). contends that appellant was a member of the Armed Forces of
Japan, was subject to military law, and not subject to the
jurisdiction of the People's Court; and in No. 2 he advances Air Corps — nor even that he was a member of said Army,
the theory that appellant had lost his Philippine citizenship and Navy, or Air Corps.
was therefore not amenable to the Philippine law of treason.
We cannot uphold either contention. We are of the considered Further, appellant's contention is repugnant to the most
opinion that the Makapili, although organized to render fundamental and elementary principles governing the duties of
military aid to the Japanese Army in the Philippines during the a citizen toward his country under our Constitution. Article II,
late war, was not a part of said army. It was an organization of section 2, of said constitution ordains:
Filipino traitors, pure and simple. As to loss of Philippine "SEC. 2. The defense of the State is a prime duty of
citizenship by appellant, counsel's theory is absolutely government, and in the fulfillment of this duty all citizens may
untenable. He invokes in its support paragraphs 3, 4, and 6 of be required by law to render personal, military or civil
section 1 of Commonwealth Act No. 63, providing: service." (Emphasis supplied.).
. . . A Filipino citizen may lose his citizenship in any of the This constitutional provision covers both time of peace and
following ways and/or events: time of war, but it is brought more immediately and
xxx xxx xxx peremptorily into play when the country is involved in war.
During such a period of stress, under a constitution enshrining
(3) By subscribing to an oath of allegiance to support the such tenets, the citizen cannot be considered free to cast off
constitution or laws of a foreign country upon attaining his loyalty and obligations toward the Fatherland. And it
twenty-one years of age or more; cannot be supposed, without reflecting on the patriotism and
intelligence of the Legislature, that in promulgating
(4) By accepting commission in the military, naval or air Commonwealth Act No. 63, under the aegis of our
service of a foreign country; Constitution, it intended (but did not declare) that the duties of
xxx xxx xxx the citizen solemnly proclaimed in the above-quoted
constitutional precept could be effectively cast off by him
(6) By having been declared, by competent authority, a even when his country is at war, by the simple expedient of
deserter of the Philippine Army, Navy, or Air Corps in time of subscribing to an oath of allegiance to support the constitution
war, unless subsequently a plenary pardon or amnesty has or laws of a foreign country, and an enemy country at that, or
been granted. by accepting a commission in the military, naval or air service
of such country, or by deserting from the Philippine Army,
There is no evidence that appellant has subscribed to an oath
Navy, or Air Corps.
of allegiance to support the constitution or laws of Japan. His
counsel cites (Brief, 4) the fact that in Exhibit A "he It would shock the conscience of any enlightened citizenry to
subscribed an oath before he was admitted into say that this appellant, by the very fact of committing the
the Makapili association, "the aim of which was to help Japan treasonous acts charged against him, the doing of which under
in its fight against the Americans and her allies.'" And the the circumstances of record he does not deny, divested himself
counsel contends from this that the oath was in fact one of of his Philippine citizenship and thereby placed himself
allegiance to support the constitution and laws of Japan. We beyond the arm of our treason law. For if this were so, his very
cannot uphold such a far-fetched deduction. The members of crime would be the shield that would protect him from
the Makapili could have sworn to help Japan in the war punishment.
without necessarily swearing to support her constitution and
laws. The famed "Flying Tiger" who so bravely and resolutely But the laws do no admit that the bare commission of a crime
aided China in her war with Japan certainly did not need to amounts of itself to a divestment of the character of citizen,
swear to support the Chinese constitution and laws, even if and withdraws the criminal from their coercion. They would
they had to help China fight Japan. During the first World War never prescribe an illegal act among the legal modes by which
the "National Volunteers" were organized in the Philippines, a citizen might disfranchise himself; nor render treason, for
pledged to go to Europe and fight on the side of the Allies, instance, innocent, by giving it the force of a dissolution of the
particularly of the United States. In order to carry out that obligation of the criminal to his country. (Moore, International
mission — although the war ended before this could be done Law Digest, Vol. III, p. 731.)
— they surely did not have to take an oath to support the 696. No person, even when he has renounced or incurred the
constitution or laws of the United States or any of its allies. loss of his nationality, shall take up arms against his native
We do not multiply these examples, for they illustrate a country; he shall be held guilty of a felony and treason, if he
proposition which seems self-evident. does not strictly observe this duty. (Fiore's International Law
Neither is there any showing of the acceptance by appellant of Codified, translation from Fifth Italian Edition by Borchard.)
a commission "in the military, naval, or air service" of Japan. As to the third assignment of error, the Solicitor General
Much less is there a scintilla of evidence that appellant had agrees with counsel that it is improper to separately take into
ever been declared a deserter in the Philippine Army, Navy or account against appellant he aggravating circumstances of (1)
the aid of armed men and (2) the employment of a band in
appraising the gravity of the crime. We likewise are of the to pay a fine of P20,000, an indemnity of P2,000 to the heirs
same opinion, considering that under paragraph 6 of article 14 of each of the victims named in the third paragraph of the
of the Revised Penal Code providing that "whenever more lower court's decision, and the costs. So ordered.
than three armed malefactors shall have acted together in the
commission of an offense it shall be deemed to have been
committed by a band," the employment of more than three
armed men is an essential element of and inherent in a band.
So that in appreciating the existence of a band the employment
of more than three armed men is automatically included, there
being only the aggravating circumstance of band to be
considered.

As to appellant's fourth assignment of error, the contention is


clearly unacceptable that appellant acted in obedience to an
order issued by a superior and is therefore exempt from
criminal liability, because he allegedly acted in the fulfillment
of a duty incidental to his service for Japan as a member of
the Makapili. It is obvious that paragraphs 5 and 6 of article 11
of our Revised Penal Code compliance with duties to or orders
from a foreign sovereign, any more than obedience to an
illegal order. The construction contended for by appellant
could entail in its potentialities even the destruction of this
Republic.

The contention that as a member of the Makapili appellant had


to obey his Japanese masters under pain of severe penalty, and
that therefore his acts should be considered as committed
under the impulse of an irresistible force or uncontrollable fear
of an equal or greater injury, is no less repulsive.
Appellant voluntarily joined the Makapili with full knowledge
of its avowed purpose of rendering military aid to Japan. He
knew the consequences to be expected — if the alleged
irresistible force or uncontrollable fear subsequently arose, he
brought them about himself freely and voluntarily. But this is
not all; the truth of the matter is, as the Solicitor General well
remarks, that "the appellant actually acted with gusto during
the butchery of Banaban." He was on that occasion even bent
on more cruelty than the very ruthless Japanese masters — so
fate willed it — were the very ones who saved the little girls,
Clarita Perez and Maria Paulino, who were destined to
become the star witnesses against him on the day of
reckoning.

Conformably to the recommendation of the Solicitor General,


we find appellant guilty of the crime of treason with multiple
murder committed with the attendance of one aggravating
circumstance, that of "armed band," thus discarding the first
aggravating circumstance considered by the trial court. A
majority of the Court voted to affirm the judgment appealed
from, imposing the death penalty, convicting defendant and
appellant to pay a fine of P20,000, an indemnity of P2,000 to
the heirs of each of the victims named in the third paragraph
of the lower court's decision, and the costs. But due to the
dissent of Mr. Justice Perfecto from the imposition of the
death penalty, in accordance with the applicable legal
provisions we modify the judgment appealed from as regards
the punishment to be inflicted, and sentence defendant and
appellant Pedro Manayao to the penalty of reclusion perpetua,
with the accessories of article 41 of the Revised Penal Code,
G.R. No. 118910 November 16, 1995 unexpressed wish to find motives where there are none which
they can impute to some members of the Court.
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA,
CIRILO A. RIGOS, ERME CAMBA, EMILIO C. For the truth is that the statement is no more than an effort
CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, to explain — rather than to justify — the majority's decision to
FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE overrule the ruling in the previous case. It is simply meant to
TAN, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, explain that because the five members of the Court who
JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. dissented in the first case (Melo, Quiason, Puno, Vitug and
FREDDIE WEBB, SEN. WIGBERTO TAÑADA, REP. Kapunan, JJ.) and the two new members (Mendoza and
JOKER P. ARROYO, petitioners, Francisco, JJ.) thought the previous ruling to be
vs. erroneous and its reexamination not to be barred by stare
MANUEL L. MORATO, in his capacity as Chairman of the decisis, res judicata or conclusiveness of judgment, or law of
Philippine Charity Sweepstakes Office, and the PHILIPPINE the case, it was hardly tenable for petitioners to insist on the
GAMING MANAGEMENT CORPORATION, respondents. first ruling.

RESOLUTION Consequently to petitioners' question "What is the glue that


holds them together," implying some ulterior motives on the
part of the new majority in reexamining the two questions, the
MENDOZA, J.: answer is: None, except a conviction on the part of the five,
who had been members of the Court at the time they dissented
Petitioners seek reconsideration of our decision in this case. in the first case, and the two new members that the previous
They insist that the decision in the first case has already settled ruling was erroneous. The eighth Justice (Padilla, J.) on the
(1) whether petitioner Kilosbayan, Inc. has a standing to sue other hand agrees with the seven Justices that the ELA is in a
and (2) whether under its charter (R.A. No. 1169, as amended) real sense a lease agreement and therefore does not violate
the Philippine Charity Sweepstakes Office can enter into any R.A. No. 1169.
form of association or collaboration with any party in
operating an on-line lottery. Consequently, petitioners The decision in the first case was a split decision: 7-6. With
contend, these questions can no longer be reopened. the retirement of one of the original majority (Cruz, J.) and
one of the dissenters (Bidin, J.) it was not surprising that the
Because two members of the Court did not consider first decision in the first case was later reversed.
themselves bound by the decision in the first case, petitioners
suggest that the two, in joining the dissenters in the first case It is argued that, in any case, a reexamination of the two
in reexamining the questions in the present case, acted questions is barred because the PCSO and the Philippine
otherwise than according to law. They cite the following Gaming Management Corporation made a " formal
statement in the opinion of the Court: commitment not to ask for a reconsideration of the Decision in
the first lotto case and instead submit a new agreement that
The voting on petitioners' standing in the previous case was a would be in conformity with the PCSO Charter (R.A. No.
narrow one, with seven (7) members sustaining petitioners' 1169, as amended) and with the Decision of the Supreme
standing and six (6) denying petitioners' right to bring the suit. Court in the first Kilosbayan case against on-line, hi-tech
The majority was thus a tenuous one that is not likely to be lotto."
maintained in any subsequent litigation. In addition, there
have been changes in the membership of the Court, with the To be sure, a new contract was entered into which the majority
retirement of Justices Cruz and Bidin and the appointment of of the Court finds has been purged of the features which made
the writer of this opinion and Justice Francisco. Given this fact the first contract objectionable. Moreover, what the PCSO said
it is hardly tenable to insist on the maintenance of the ruling as in its manifestation in the first case was the following:
to petitioners' standing. 1. They are no longer filing a motion for reconsideration of the
Petitioners claim that this statement "conveys a none too Decision of this Honorable Court dated May 5, 1994, a copy
subtle suggestion, perhaps a Freudian slip, that the two new of which was received on May 6, 1994.
appointees, regardless of the merit of the Decision in the first 2. Respondents PCSO and PGMC are presently negotiating a
Kilosbayan case against the lotto (Kilosbayan, et al. v. new lease agreement consistent with the authority of PCSO
Guingona, 232 SCRA 110 (1994)) must of necessity align under its charter (R.A. No. 1169, as amended by B.P. Blg. 42)
themselves with all the Ramos appointees who were dissenters and conformable with the pronouncements of this Honorable
in the first case and constitute the new majority in the second Court in its Decision of May 5, 1995.
lotto case." And petitioners ask, "why should it be so?"
The PGMC made substantially the same manifestation as the
Petitioners ask a question to which they have made up an PCSO.
answer. Their attempt at psychoanalysis, detecting a Freudian
slip where none exists, may be more revealing of their own There was thus no "formal commitment" — but only a
manifestation — that the parties were not filing a motion for
reconsideration. Even if the parties made a "formal sufficient that she was 23 years of age when she assumed
commitment," the six (6) dissenting Justices certainly could office.
not be bound thereby not to insist on their contrary view on
the question of standing. Much less were the two new In that case, the change in the membership of the Court and
members bound by any "formal commitment" made by the the possibility of change in the ruling were noted without
parties. They believed that the ruling in the first case was anyone — much less would-be psychoanalysts — finding in
erroneous. Since in their view reexamination was not barred the statement of the Court any Freudian slip. The possibility of
by the doctrine of stare decisis, res judicata or conclusiveness change in the rule as a result of change in membership was
of judgment or law of the case, they voted the way they did accepted as a sufficient reason for finding good faith and lack
with the remaining five (5) dissenters in the first case to form of criminal intent on the part of the accused.
a new majority of eight. Indeed, a change in the composition of the Court could prove
Petitioners ask, "Why should this be so?" Because, as the means of undoing an erroneous decision. This was the
explained in the decision, the first decision was lesson of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender
erroneous and no legal doctrine stood in the way of its Acts, which were passed during the Civil War, made U.S.
reexamination. It can, therefore, be asked "with equal candor": notes (greenbacks) legal tender for the payment of debts,
"Why should this not be so?" public or private, with certain exceptions. The validity of the
acts, as applied to preexisting debts, was challenged
Nor is this the first time a split decision was tested, if not in Hepburn v. Griswold, 8 Wall. 603 (1869). The Court was
reversed, in a subsequent case because of change in the then composed of only eight (8) Justices because of
membership of a court. In 1957, this Court, voting 6-5, held Congressional effort to limit the appointing power of President
in Feliciano v. Aquinas, G.R. No. L-10201, Sept. 23, 1957 that Johnson. Voting 5-3, the Court declared the acts void. Chief
the phrase "at the time of the election" in §2174 of the Revised Justice Chase wrote the opinion of the Court in which four
Administrative Code of 1917 meant that a candidate for others, including Justice Grier, concurred. Justices Miller,
municipal elective position must be at least 23 years of age on Swayne and Davis dissented. A private memorandum left by
the date of the election. On the other hand, the dissenters the dissenting Justices described how an effort was made "to
argued that it was enough if he attained that age on the day he convince an aged and infirm member of the court [Justice
assumed office. Grier] that he had not understood the question on which he
voted," with the result that what was originally a 4-4 vote was
Less than three years later, the same question was before the converted into a majority (5-3) for holding the acts invalid.
Court again, as a candidate for municipal councilor stated
under oath in her certificate of candidacy that she was eligible On the day the decision was announced, President Grant
for that position although she attained the requisite age (23 nominated to the Court William Strong and Joseph P. Bradley
years) only when she assumed office. The question was to fill the vacancy caused by the resignation of Justice Grier
whether she could be prosecuted for falsification. In People and to restore the membership of the Court to nine. In
v. Yang, 107 Phi. 888 (1960), the Court ruled she could not. 1871, Hepburn v. Griswold was overruled in the Legal Tender
Justice, later Chief Justice, Benison, who dissented in the first Cases, as Knox v. Lee came to be known, in an opinion by
case, Feliciano v. Aquinas, supra, wrote the opinion of the Justice Strong, with a dissenting opinion by Chief Justice
Court, holding that while the statement that the accused was Chase and the three other surviving members of the former
eligible was "inexact or erroneous, according to the majority majority. There were allegations that the new Justices were
in the Feliciano case," the accused could not be held liable for appointed for their known views on the validity of the Legal
falsification, because Tender Acts, just as there were others who defended the
character and independence of the new Justices. History has
the question [whether the law really required candidates to vindicated the overruling of the Hepburn case by the new
have the required age on the day of the election or whether it majority. The Legal Tender Cases proved to be the Court's
was sufficient that they attained it at the beginning of the term means of salvation from what Chief Justice Hughes later
of office] has not been discussed anew, despite the presence of described as one of the Court's "self-inflicted wounds."1
new members; we simply assume for the purpose of this
decision that the doctrine stands. We now consider the specific grounds for petitioners' motion
for reconsideration.
Thus because in the meantime there had been a change in the
membership of the Court with the retirement of two members I. We have held that because there are no genuine issues of
(Recess and Flex, JJ.) who had taken part in the decision in the constitutionality in this case, the rule concerning real party in
first case and their replacement by new members (Barrera and interest, applicable to private litigation rather than the more
Gutierrez-David, JJ.) and the fact that the vote in the first case liberal rule on standing, applies to petitioners. Two objections
was a narrow one (6 to 5), the Court allowed that the are made against that ruling: (1) that the constitutional policies
continuing validity of its ruling in the first case might well be and principles invoked by petitioners, while not supplying the
doubted. For this reason it gave the accused the benefit of the basis for affirmative relief from the courts, may nonetheless be
doubt that she had acted in the good faith belief that it was resorted to for striking down laws or official actions which are
inconsistent with them and (2) that the Constitution, by These provisions have not changed the traditional rule that
guaranteeing to independent people's organizations "effective only real parties in interest or those with standing, as the case
and reasonable participation at all levels of social, political may be, may invoke the judicial power. The jurisdiction of
and economic decision-making" (Art. XIII, §16), grants them this Court, even in cases involving constitutional questions, is
standing to sue on constitutional grounds. limited by the "case and controversy" requirement of Art.
VIII, §5. This requirement lies at the very heart of the judicial
The policies and principles of the Constitution invoked by function. It is what differentiates decision-making in the courts
petitioner read: from decision-making in the political departments of the
Art. II, §5. The maintenance of peace and order, the protection government and bars the bringing of suits by just any party.
life, liberty, and property, and thepromotion of the general Petitioners quote extensively from the speech of
welfare are essential for the enjoyment by all the people of the Commissioner Garcia before the Constitutional Commission,
blessings of democracy. explaining the provisions on independent people's
Id., §12. The natural and primary right and duty of parents in organizations. There is nothing in the speech, however, which
the rearing of the youth for civic efficiency and supports their claim of standing. On the contrary, the speech
the development of moral character shall receive the support points the way to the legislative and executive branches of the
of the Government. government, rather than to the courts, as the appropriate fora
for the advocacy of petitioners' views.2 Indeed, the provisions
Id., §13. The State recognizes the vital role of the youth in on independent people's organizations may most usefully be
nation-building and shall promote and protect their read in connection with the provision on initiative and
physical, moral, spiritual, intellectual, and social well-being. It referendum as a means whereby the people may propose or
shall inculcate in the youth patriotism and nationalism, and enact laws or reject any of those passed by Congress. For the
encourage their involvement in public and civic affairs. fact is that petitioners' opposition to the contract in question is
nothing more than an opposition to the government policy on
Id., §17. The State shall give priority to education, science and
lotteries.
technology, arts, culture, and sports to foster patriotism and
nationalism, accelerate social progress, and promote total It is nevertheless insisted that this Court has in the past
human liberation and development. accorded standing to taxpayers and concerned citizens in cases
involving "paramount public interest." Taxpayers, voters,
As already stated, however, these provisions are not self-
concerned citizens and legislators have indeed been allowed to
executing. They do not confer rights which can be enforced in
sue but then only (1) in cases involving constitutional
the courts but only provide guidelines for legislative or
issues and
executive action. By authorizing the holding of lottery for
(2) under certain conditions. Petitioners do not meet these
charity, Congress has in effect determined that consistently
requirements on standing.
with these policies and principles of the Constitution, the
PCSO may be given this authority. That is why we said with Taxpayers are allowed to sue, for example, where there is a
respect to the opening by the PAGCOR of a casino in Cagayan claim of illegal disbursement of public funds. (Pascual v.
de Oro, "the morality of gambling is not a justiciable issue. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v.
Gambling is not illegalper se. . . . It is left to Congress to deal Comelec, 73 SCRA 333 (1976); Bugnay Const. & Dev. v.
with the activity as it sees fit." (Magtajas v. Pryce Properties Laron, 176 SCRA 240 (1989); City Council of Cebu v.
Corp., Inc., 234 SCRA 255, 268 [1994]). Cuizon, 47 SCRA 325 [1972]) or where a tax measure is
assailed as unconstitutional. (VAT Cases [Tolentino v.
It is noteworthy that petitioners do not question the validity of
Secretary of Finance], 235 SCRA 630 [1994]) Voters are
the law allowing lotteries. It is the contract entered into by the
allowed to question the validity of election laws because of
PCSO and the PGMC which they are assailing. This case,
their obvious interest in the validity of such laws. (Gonzales v.
therefore, does not raise issues of constitutionality but only of
Comelec, 21 SCRA 774 [1967]) Concerned citizens can bring
contract law, which petitioners, not being privies to the
suits if the constitutional question they raise is of
agreement, cannot raise.
"transcendental importance" which must be settled early.
Nor does Kilosbayan's status as a people's organization give it (Emergency Powers Cases [Araneta v. Dinglasan], 84 Phi. 368
the requisite personality to question the validity of the contract (1949); Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121
in this case. The Constitution provides that "the State shall Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965);
respect the role of independent people's organizations to CLU v. Executive Secretary, 194 SCRA 317
enable the people to pursue and protect, within the democratic [1991]) Legislators are allowed to sue to question the validity
framework, their legitimate and collective interests and of any official action which they claim infringes their
aspirations through peaceful and lawful means," that their prerogatives qua legislators. (Philconsa v. Enriquez, 235 506
right to "effective and reasonable participation at all levels of (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales
social, political, and economic decision-making shall not be v. Macaraig, 191 SCRA 452 (1990); Tolentino v. Comelec, 41
abridged." (Art. XIII, §§ 15-16) SCRA 702 (1971); Tatad v. Garcia, G.R. No. 114222, April
16, 1995 (Mendoza, J., concurring))
Petitioners do not have the same kind of interest that these doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975)
various litigants have. Petitioners assert an interest as where it was held that funds raised from contributions for the
taxpayers, but they do not meet the standing requirement for benefit of the Cultural Center of the Philippines were not
bringing taxpayer's suits as set forth in Dumlao v. Comelec, 95 public funds and petitioner had no standing to bring a
SCRA 392, 403 (1980), to wit: taxpayer's suit to question their disbursement by the President
of the Philippines.
While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do Thus, petitioners' right to sue as taxpayers cannot be sustained.
said petitioners allege that their tax money is "being extracted Nor as concerned citizens can they bring this suit because no
and spent in violation of specific constitutional protections specific injury suffered by them is alleged. As for the
against abuses of legislative power" (Flast v. Cohen, 392 U.S., petitioners, who are members of Congress, their right to sue as
83 [1960]), or that there is a misapplication of such funds by legislators cannot be invoked because they do not complain of
respondent COMELEC (see Pascual vs. Secretary of Public any infringement of their rights as legislators.
Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22,
to restrain respondent from wasting public funds through the 1987, we threw out a petition questioning another form of
enforcement of an invalid or unconstitutional law. (Philippine lottery conducted by the PCSO on the ground that petitioner,
Constitution Association vs. Mathay, 18 SCRA 300 who claimed to be a "citizen, lawyer, taxpayer and father of
[1966]), citing Philippine Constitution Association vs. three minor children," had no direct and personal interest in
Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a the lottery. We said: "He must be able to show, not only that
taxpayer's suit, per se, is no assurance of judicial review. As the law is invalid, but also that he has sustained or is in
held by this Court in Tan vs. Macapagal (43 SCRA 677 immediate danger of sustaining some direct injury as a result
[1972]), speaking through our present Chief Justice, this Court of its enforcement, and not merely that he suffers thereby in
is vested with discretion as to whether or not a taxpayer's suit some indefinite way. It must appear that the person
should be entertained. (Emphasis added) complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to
Petitioners' suit does not fall under any of these categories of be subjected to some burdens or penalties by reason of the
taxpayers' suits. statute complained of." In the case at bar, petitioners have not
shown why, unlike petitioner in the Valmonte case, they
Neither do the other cases cited by petitioners support their should be accorded standing to bring this suit.
contention that taxpayers have standing to question
government contracts regardless of whether public funds are The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is
involved or not. In Gonzales v. National Housing, Corp., 94 different. Citizens' standing to bring a suit seeking the
SCRA 786 (1979), petitioner filed a taxpayer's suit seeking the cancellation of timber licenses was sustained in that case
annulment of a contract between the NHC and a foreign because the Court considered Art. II, §16 a right-conferring
corporation. The case was dismissed by the trial court. The provision which can be enforced in the courts. That provision
dismissal was affirmed by this Court on the grounds of res states:
judicata and pendency of a prejudicial question, thus avoiding
the question of petitioner's standing. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
On the other hand, in Gonzales v. Raquiza, 180 SCRA 254 harmony of nature. (Emphasis)
(1989), petitioner sought the annulment of a contract made by
the government with a foreign corporation for the purchase of In contrast, the policies and principles invoked by petitioners
road construction equipment. The question of standing was not in this case do not permit of such categorization.
discussed, but even if it was, petitioner's standing could be Indeed, as already stated, petitioners' opposition is not really
sustained because he was a minority stockholder of the to the validity of the ELA but to lotteries which they regard to
Philippine National Bank, which was one of the defendants in be immoral. This is not, however, a legal issue, but a policy
the case. matter for Congress to decide and Congress has permitted
In the other case cited by petitioners, City Council of Cebu lotteries for charity.
v. Cuizon, 47 SCRA 325 (1972), members of the city council Nevertheless, although we have concluded that petitioners do
were allowed to sue to question the validity of a contract not have standing, we have not stopped there and dismissed
entered into by the city government for the purchase of road their case. For in the view we take, whether a party has a cause
construction equipment because their contention was that the of action and, therefore, is a real party in interest or one with
contract had been made without their authority. In addition, as standing to raise a constitutional question must turn on
taxpayers they had an interest in seeing to it that public funds whether he has a right which has been violated. For this reason
were spent pursuant to an appropriation made by law. the Court has not ducked the substantive issues raised by
But, in the case at bar, there is an allegation that public funds petitioners.
are being misapplied or misappropriated. The controlling
II. R.A. No. 1169, as amended by B.P No . 42, states: involved in the prior case between the parties. As already
stated, the ELA is substantially different from the Contract of
§1. The Philippine Charity Sweepstakes Office. — The Lease declared void in the first case.
Philippine Charity Sweepstakes Office, hereinafter designated
the Office, shall be the principal government agency for Borrowing from the dissenting opinion of Justice Feliciano,
raising and providing for funds for health programs, medical petitioners argue that the phrase "by itself or in collaboration,
assistance and services and charities of national character, and association or joint venture with any other party" qualifies not
as such shall have the general powers conferred in section only §1 (B) but also §1 (A), because the exception clause
thirteen of Act Numbered One Thousand Four Hundred Fifty- ("except for the activities mentioned in the preceding
Nine, as amended, and shall have the authority: paragraph [A]") "operates, as it were, as a renvoi clause which
refers back to Section 1(A) and in this manner avoids the
A. To hold and conduct charity sweepstakes races, lotteries necessity of simultaneously amending the text of Section
and other similar activities, in such frequency and manner, as 1(A)."
shall be determined, and subject to such rules and regulations
as shall be promulgated by the Board of Directors. This interpretation, however, fails to take into account not
only the location of the phrase in paragraph (B), when it
B. Subject to the approval of the Minister of Human should be in paragraph (A) had that been the intention of the
Settlements, to engage in health and welfare-related lawmaking authority, but also the phrase "by itself." In other
investments, programs, projects and activities which may be words, under paragraph (B), the PCSO is prohibited from
profit-oriented, by itself or in collaboration, association or "engag[ing] in . . . investments, programs, projects and
joint venture with any person, association, company or entity, activities" if these involve sweepstakes races, lotteries and
whether domestic or foreign, except for the activities other similar activities not only "in collaboration, association
mentioned in the preceding paragraph (A), for the purpose of or joint venture" with any other party but also "by itself."
providing for permanent and continuing sources of funds for Obviously, this prohibition cannot apply when the PCSO
health programs, including the expansion of existing ones, conducts these activities itself. Otherwise, what paragraph (A)
medical assistance and services, and/or charitable authorizes the PCSO to do, paragraph (B) would prohibit.
grants: Provided, That such investments will not compete with
the private sector in areas where investments are adequate as The fact is that the phrase in question does not qualify the
may be determined by the National Economic and authority of the PCSO under paragraph (A), but rather the
Development Authority. authority granted to it by paragraph (B). The amendment of
paragraph (B) by B.P. Blg. 42 was intended to enable the
Petitioners insist on the ruling in the previous case that the PCSO to engage in certain investments, programs, projects
PCSO cannot hold and conduct charity sweepstakes, lotteries and activities for the purpose of raising funds for health
and other similar activities in collaboration, association or programs and charity. That is why the law provides that such
joint venture with any other party because of the clause investments by the PCSO should "not compete with the
"except for the activities mentioned in the preceding paragraph private sector in areas where investments are adequate as may
(A)" in paragraph (B) of §1. Petitioners contend that the ruling be determined by the National Economic and Development
is the law of this case because the parties are the same and the Authority." Justice Davide, then an Assemblyman, made a
case involves the same issue, i.e., the meaning of this statutory proposal which was accepted, reflecting the understanding that
provision. the bill they were discussing concerned the authority of the
The "law of the case" doctrine is inapplicable, because this PCSO to invest in the business of others. The following
case is not a continuation of the first one. Petitioners also say excerpt from the Record of the Batasan Pambansa shows this
that inquiry into the same question as to the meaning of the to be the subject of the discussion:
statutory provision is barred by the doctrine of res judicata. MR. DAVIDE. May I introduce an amendment after
The general rule on the "conclusiveness of judgment," "adequate". The intention of the amendment is not to leave the
however, is subject to the exception that a question may be determination of whether it is adequate or not to anybody. And
reopened if it is a legal question and the two actions involve my amendment is to add after "adequate" the words AS MAY
substantially different claims. This is generally accepted in BE DETERMINED BY THE NATIONAL ECONOMIC
American law from which our Rules of Court was adopted. AND DEVELOPMENT AUTHORITY. As a mater of fact, it
(Montana v. United States, 440 U.S. 59 L.Ed.2d 147, 210 will strengthen the authority to invest in these areas, provided
(1979); RESTATEMENT OF THE LAW 2d, ON that the determination of whether the private sector's activity is
JUDGMENTS, §28; P. BATOR, D. MELTZER, P. MISHKIN already adequate must be determined by the National
AND D. SHAPIRO, THE FEDERAL COURTS AND THE Economic and Development Authority.
FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There is
nothing in the record of this case to suggest that this exception Mr. ZAMORA. Mr. Speaker, the committee accepts the
is inapplicable in this jurisdiction. proposed amendment.

Indeed, the questions raised in this case are legal questions and MR. DAVIDE. Thank you, Mr. Speaker.
the claims involved are substantially different from those
(2 RECORD OF THE BATASAN PAMBANSA, Sept. 6, Petitioners' contention will not bear analysis. For example, the
1979, term "supplies" is used in paragraph (a), which provides that a
p. 1007) contract for the furnishing of "supplies" in order to meet an
emergency is exempt from public bidding. Unless "supplies"
Thus what the PCSO is prohibited from doing is from is construed to include "equipment," however, the lease of
investing in a business engaged in sweepstakes races, lotteries heavy equipment needed for rescue operations in case of a
and other similar activities. It is prohibited from doing so calamity will have to be submitted to public bidding before it
whether "in collaboration, association or joint venture" with can be entered into by the government.
others or "by itself." This seems to be the only possible
interpretation of §1 (A) and (B) in light of its text and its In dissent Justice Feliciano says that in such a situation the
legislative history. That there is today no other entity engaged government can simply resort to expropriation, paying
in sweepstakes races, lotteries and the like does not detract compensation afterward. This is just like purchasing the
from the validity of this interpretation. equipment through negotiation when the question is whether
the purchase should be by public bidding, not to mention the
III. The Court noted in its decision that the provisions of the fact that the power to expropriate may not be exercised when
first contract, which were considered to be features of a joint the government can very well negotiate with private owners.
venture agreement, had been removed in the new contract. For
instance, §5 of the ELA provides that in the operation of the Indeed, there are fundamental difficulties in simultaneously
on-line lottery, the PCSO must employ "its own competent contending (1) that E.O. No. 301, §1 covers both contracts of
and qualified personnel." Petitioners claim, however, that the sale and lease agreements and (2) that the words "supplies,"
"contemporaneous interpretation" of PGMC officials of this "materials" and "equipment" can not be interchanged. Thus,
provision is otherwise. They cite the testimony of Glen under paragraph (b) of §1, public bidding is not required
Barroga of the PGMC before a Senate committee to the effect "whenever the supplies are to be used in connection with a
that under the ELA the PGMC would be operating the lottery project or activity which cannot be delayed without causing
system "side by side" with PCSO personnel as part of the detriment to the public service." Following petitioners' theory,
transfer of technology. there should be a public bidding before the government can
enter into a contract for the lease of bulldozers and dredging
Whether the transfer of technology would result in a violation equipment even if these are urgently needed in areas ravaged
of PCSO's franchise should be determined by facts and not by by lahar because, first, lease contracts are covered by the
what some officials of the PGMC state by way of opinion. In general rule and, second, the exception to public bidding in
the absence of proof to the contrary, it must be presumed that paragraph (b) covers only "supplies" but not equipment.
§5 reflects the true intention of the parties. Thus, Art. 1370 of
the Civil Code says that "If the terms of a contract are clear To take still another example. Paragraph (d), which does away
and leave no doubt upon the intention of the contracting with the requirement of public bidding "whenever the supplies
parties, the literal meaning of its stipulations shall control." under procurement have been unsuccessfully placed on bid for
The intention of the parties must be ascertained from their at least two consecutive times, either due to lack of bidders or
"contemporaneous and subsequent acts." (Art. 1371; Atlantic the offers received in each instance were exorbitant or
Gulf Co. v. Insular Government, 10 Phil. 166 [1908]) It cannot nonconforming to specifications." Again, following the theory
simply be judged from what one of them says. On the other of the petitioners, a contract for the lease of equipment cannot
hand, the claim of third parties, like petitioners, that the clause be entered into even if there are no bids because, first, lease
on upgrading of equipment would enable the parties after a contracts are governed by the general rule on public bidding
while to change the contract and enter into something else in and, second, the exception to public bidding in paragraph (d)
violation of the law is mere speculation and cannot be a basis applies only to contracts for the furnishing of "supplies."
for judging the validity of the contract.
Other examples can be given to show the absurdity of
IV. It is contended that §1 of E.O. No. 301 covers all types of interpreting §1 as applicable to any contract for the furnishing
"contract[s] for public services or for furnishing of supplies, of supplies, materials and equipment and of considering the
materials and equipment to the government or to any of its words "supplies," "materials" and "equipment" to be not
branches, agencies or instrumentalities" and not only contracts interchangeable. Our ruling that §1 of E.O. No. 301 does not
of purchase and sale. Consequently, a lease of equipment, like cover the lease of equipment avoids these fundamental
the ELA, must be submitted to public bidding in order to be difficulties and is supported by the text of §1, which is entitled
valid. This contention is based on two premises: (1) that §1 of "Guidelines for Negotiated Contracts" and by the fact that the
E.O. No. 301 applies to any contract whereby the government only provisions of E.O. No. 301 on leases, namely, §§6 and 7,
acquires title to or the use of the equipment and (2) that the concern the lease of buildings by or to the government. Thus
words "supplies," "materials," and "equipment" are distinct the text of §1 reads:
from each other so that when an exception in §1 speaks of
"supplies," it cannot be construed to mean "equipment." §1. Guidelines for Negotiated Contracts. — Any provision of
law, decree, executive order or other issuances to the contrary
notwithstanding, no contract for public services or for
furnishing supplies, materials and equipment to the §7. Jurisdiction Over Lease Contracts. — The heads of agency
government or any of its branches, agencies or intending to rent privately-owned buildings or spaces for their
instrumentalities shall be renewed or entered into without use, or to lease out government-owned buildings or spaces for
public bidding, except under any of the following situations: private use, shall have authority to determine the
reasonableness of the terms of the lease and the rental rates
a. Whenever the supplies are urgently needed to meet an thereof, and to enter into such lease contracts without need of
emergency which may involve the loss of, or danger to, life prior approval by higher authorities, subject to compliance
and/or property; with the uniform standards or guidelines established pursuant
b. Whenever the supplies are to be used in connection with a to Section 6 hereof by the DPWH and to the audit jurisdiction
project or activity which cannot be delayed without causing of COA or its duly authorized representative in accordance
detriment to the public service; with existing rules and regulations.

c. Whenever the materials are sold by an exclusive distributor In sum, E.O. No. 301 applies only to contracts for the
or manufacturer who does not have subdealers selling at lower purchase of supplies, materials and equipment, and it was
prices and for which no suitable substitute can be obtained merely to change the system of administrative review of
elsewhere at more advantageous terms to the government; emergency purchases, as theretofore prescribed by E.O. No.
298, that E.O. No. 301 was issued on July 26, 1987. Part B of
d. Whenever the supplies under procurement have been this Executive Order applies to leases of buildings, not of
unsuccessfully placed on bid for at least two consecutive equipment, and therefore does not govern the lease contract in
times, either due to lack of bidders or the offers received in this case. Even if it applies, it does not require public bidding
each instance were exhorbitant or non-conforming to for entering into it.
specifications;
Our holding that E.O. No. 301, §1 applies only to contracts of
e. In cases where it is apparent that the requisition of the purchase and sale is conformable to P.D. No. 526,
needed supplies through negotiated purchase is most promulgated on August 2, 1974, which is in pari materia. P.D.
advantageous to the government to be determined by the No. 526 requires local governments to hold public bidding in
Department Head concerned; and the "procurement of supplies." By specifying "procurement of
supplies" and excepting from the general
f. Whenever the purchase is made from an agency of the
rule "purchases" when made under certain circumstances, P.D.
government.
No. 526, §12 indicates quite clearly that it applies only to
Indeed, the purpose for promulgating E.O. No. 301 was contracts of purchase and sale. This provision reads:
merely to decentralize the system of reviewing negotiated
§12. Procurement without public bidding. — Procurement of
contracts of purchase for the furnishing of supplies, materials
supplies may be made without the benefit of public bidding in
and equipment as well as lease contracts of buildings.
the following modes:
Theretofore, E.O. No. 298, promulgated on August 12, 1940,
required consultation with the Secretary of Justice and the (1) Personal canvass of responsible merchants;
Department Head concerned and the approval of the President
of the Philippines before contracts for the furnishing of (2) Emergency purchases;
supplies, materials and equipment could be made on a (3) Direct purchases from manufacturers or exclusive
negotiated basis, without public bidding. E.O. No. 301 distributors;
changed this by providing as follows:
(4) Thru the Bureau of Supply Coordination; and
§2. Jurisdiction over Negotiated Contracts. — In line with the
principles of decentralization and accountability, negotiated (5) Purchase from other government entities or foreign
contracts for public services or for furnishing supplies, governments.
materials or equipment may be entered into by the department
or agency head or the governing board of the government- Sec. 3 broadly defines the term "supplies" as including —
owned or controlled corporation concerned, without need of everything except real estate, which may be needed in the
prior approval by higher authorities, subject to availability of transaction of public business, or in the pursuit of any
funds, compliance with the standards or guidelines prescribed undertaking, project, or activity, whether of the nature of
in Section 1 hereof, and to the audit jurisdiction of the equipment, furniture, stationery, materials for construction, or
commission on Audit in accordance with existing rules and personal property of any sort, including non-personal or
regulations. contractual services such as the repair and maintenance of
Negotiated contracts involving P2,000,000 up to P10,000,000 equipment and furniture, as well as trucking, hauling,
shall be signed by the Secretary and two other janitorial, security, and related or analogous services.
Undersecretaries. Thus, the texts of both E.O. No. 301, §1 and of P.D. No. 526,
xxx xxx xxx §§1 and 12, make it clear that only contracts for the purchase
and sale of supplies, materials and equipment are
contemplated by the rule concerning public biddings.

Finally, it is contended that equipment leases are attractive and


commonly used in place of contracts of purchase and sale
because of "multifarious credit and tax constraints" and
therefore could not have been left out from the requirement of
public bidding. Obviously these credit and tax constraints can
have no attraction to the government when considering the
advantages of sale over lease of equipment. The fact that lease
contracts are in common use is not a reason for implying that
the rule on public bidding applies not only to government
purchases but also to lease contracts. For the fact also is that
the government leases equipment, such as copying machines,
personal computers and the like, without going through public
bidding.

FOR THE FOREGOING REASONS, the motion for


reconsideration of petitioners is DENIED with finality.

SO ORDERED.
G.R. No. 157036 June 9, 2004 OUTSIDE THEIR RESIDENCES. THOSE WHO WANT TO
USE THEIR GUNS FOR TARGET PRACTICE WILL BE
FRANCISCO I. CHAVEZ Petitioner, GIVEN SPECIAL AND TEMPORARY PERMITS FROM
vs. TIME TO TIME ONLY FOR THAT PURPOSE. AND THEY
HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS MAY NOT LOAD THEIR GUNS WITH BULLETS UNTIL
EXECUTIVE SECRETARY; DIRECTOR GENERAL THEY ARE IN THE PREMISES OF THE FIRING RANGE.
HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS
THE CHIEF OF THE PNP, ET. AL., respondents. WE CANNOT DISREGARD THE PARAMOUNT NEED
FOR LAW AND ORDER. JUST AS WE CANNOT BE
DECISION HEEDLESS OF OUR PEOPLE’S ASPIRATIONS FOR
SANDOVAL-GUTIERREZ, J.: PEACE."

The right of individuals to bear arms is not absolute, but is Acting on President Arroyo’s directive, respondent Ebdane
subject to regulation. The maintenance of peace and issued the assailed Guidelines quoted as follows:
order1 and the protection of the people against violence are "TO : All Concerned
constitutional duties of the State, and the right to bear arms is
to be construed in connection and in harmony with these FROM : Chief, PNP
constitutional duties.
SUBJECT : Guidelines in the Implementation of the Ban on
Before us is a petition for prohibition and injunction seeking the Carrying of Firearms Outside of Residence.
to enjoin the implementation of the "Guidelines in the
Implementation of the Ban on the Carrying of Firearms DATE : January 31, 2003
Outside of Residence"2 (Guidelines) issued on January 31, 1. Reference: PD 1866 dated June 29, 1983 and its
2003, by respondent Hermogenes E. Ebdane, Jr., Chief of the Implementing Rules and Regulations.
Philippine National Police (PNP).
2. General:
The facts are undisputed:
The possession and carrying of firearms outside of residence is
In January 2003, President Gloria Macapagal-Arroyo a privilege granted by the State to its citizens for their
delivered a speech before the members of the PNP stressing individual protection against all threats of lawlessness and
the need for a nationwide gun ban in all public places to avert security.
the rising crime incidents. She directed the then PNP Chief,
respondent Ebdane, to suspend the issuance of Permits to As a rule, persons who are lawful holders of firearms (regular
Carry Firearms Outside of Residence (PTCFOR), thus: license, special permit, certificate of registration or MR) are
prohibited from carrying their firearms outside of residence.
"THERE IS ALSO NEED TO FOCUS ON THE HIGH However, the Chief, Philippine National Police may, in
PROFILE CRIMES THAT TEND TO DISTURB THE meritorious cases as determined by him and under conditions
PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY as he may impose, authorize such person or persons to carry
– THE LATEST BEING THE KILLING OF FORMER NPA firearms outside of residence.
LEADER ROLLY KINTANAR. I UNDERSTAND WE
ALREADY HAVE THE IDENTITY OF THE CULPRIT. 3. Purposes:
LET US BRING THEM TO THE BAR OF JUSTICE.
This Memorandum prescribes the guidelines in the
THE NPA WILL FIND IT MORE DIFFICULT TO CARRY implementation of the ban on the carrying of firearms outside
OUT THEIR PLOTS IF OUR LAW ENFORCEMENT of residence as provided for in the Implementing Rules and
AGENCIES CAN RID THEMSELVES OF RASCALS IN Regulations, Presidential Decree No. 1866, dated June 29,
UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN 1983 and as directed by PGMA. It also prescribes the
PUBLIC PLACES. conditions, requirements and procedures under which
exemption from the ban may be granted.
THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND
INDEFINITELY THE ISSUANCE OF PERMIT TO CARRY 4. Specific Instructions on the Ban on the Carrying of
FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF Firearms:
PERMITS WILL NOW BE LIMITED ONLY TO
a. All PTCFOR are hereby revoked. Authorized holders of
OWNERSHIP AND POSSESSION OF GUNS AND NOT TO
licensed firearms covered with valid PTCFOR may re-apply
CARRYING THEM IN PUBLIC PLACES. FROM NOW
for a new PTCFOR in accordance with the conditions
ON, ONLY THE UNIFORMED MEN IN THE MILITARY
hereinafter prescribed.
AND AUTHORIZED LAW ENFORCEMENT OFFICERS
CAN CARRY FIREARMS IN PUBLIC PLACES, AND b. All holders of licensed or government firearms are hereby
ONLY PURSUANT TO EXISTING LAW. CIVILIAN prohibited from carrying their firearms outside their residence
OWNERS MAY NO LONGER BRING THEIR FIREARMS except those covered with mission/letter orders and duty detail
orders issued by competent authority pursuant to Section 5, Upon approval of the application, OCPNP will issue PTCFOR
IRR, PD 1866, provided, that the said exception shall pertain valid for one (1) year from date of issue. d. Applications for
only to organic and regular employees. renewal of PTCFOR shall be processed in accordance with the
provisions of par. 6 above. e. Application for possession and
5. The following persons may be authorized to carry firearms carrying of firearms by diplomats in the Philippines shall be
outside of residence. processed in accordance with NHQ PNP Memo dated
a. All persons whose application for a new PTCFOR has been September 25, 2000, with Subj: Possession and Carrying of
approved, provided, that the persons and security of those so Firearms by Diplomats in the Philippines. 8. Restrictions in
authorized are under actual threat, or by the nature of their the Carrying of Firearms: a. The firearm must not be displayed
position, occupation and profession are under imminent or exposed to public view, except those authorized in uniform
danger. and in the performance of their official duties. b. The firearm
shall not be brought inside public drinking and amusement
b. All organic and regular employees with Mission/Letter places, and all other commercial or public establishments."
Orders granted by their respective agencies so authorized
pursuant to Section 5, IRR, PD 1866, provided, that such Petitioner Francisco I. Chavez, a licensed gun owner to whom
Mission/Letter Orders is valid only for the duration of the a PTCFOR has been issued, requested the Department of
official mission which in no case shall be more than ten (10) Interior and Local Government (DILG) to reconsider the
days. implementation of the assailed Guidelines. However, his
request was denied. Thus, he filed the present petition
c. All guards covered with Duty Detail Orders granted by their impleading public respondents Ebdane, as Chief of PNP;
respective security agencies so authorized pursuant to Section Alberto G. Romulo, as Executive Secretary; and Gerry L.
4, IRR, PD 1866, provided, that such DDO shall in no case Barias, as Chief of the PNP-Firearms and Explosives Division.
exceed 24-hour duration. d. Members of duly recognized Gun He anchored his petition on the following grounds:
Clubs issued Permit to Transport (PTT) by the PNP for
purposes of practice and competition, provided, that such "I
firearms while in transit must not be loaded with ammunition THE PRESIDENT HAS NO POWER OR AUTHORITY –
and secured in an appropriate box or case detached from the MUCH LESS BY A MERE SPEECH – TO ALTER,
person. e. Authorized members of the Diplomatic Corps. 6. MODIFY OR AMEND THE LAW ON FIREARMS BY
Requirements for issuance of new PTCFOR: a. Written IMPOSING A GUN BAN AND CANCELING EXISTING
request by the applicant addressed to Chief, PNP stating his PERMITS FOR GUNS TO BE CARRIED OUTSIDE
qualification to possess firearm and the reasons why he needs RESIDENCES.
to carry firearm outside of residence. b. Xerox copy of current
firearm license duly authenticated by Records Branch, FED; c. II
Proof of actual threat, the details of which should be issued by
the Chief of Police/Provincial or City Directors and duly OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE
validated by C, RIID; d. Copy of Drug Test Clearance, duly ON THE GUN BAN; THE PRESIDENTIAL SPEECH
authenticated by the Drug Testing Center, if photocopied; e. NEVER INVOKED POLICE POWER TO JUSTIFY THE
Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, GUN BAN; THE PRESIDENT’S VERBAL DECLARATION
if photocopied; f. Copy of Neuro-Psychiatric Clearance duly ON GUN BAN VIOLATED THE PEOPLE’S RIGHT TO
authenticated by NP Testing Center, if photocopied; g. Copy PROTECT LIFE AND THEIR PROPERTY RIGHT TO
of Certificate of Attendance to a Gun Safety Seminar, duly CARRY FIREARMS.
validated by Chief, Operations Branch, FED; h. NBI III
Clearance; i. Two (2) ID pictures (2" x 2") taken not earlier
than one (1) year from date of filing of application; and j. THE PNP CHIEF HAS NO POWER OR AUTHORITY TO
Proof of Payment ISSUE THE QUESTIONED GUIDELINES BECAUSE:

7. Procedures: a. Applications may be filed directly to the 1) THERE IS NO LAW, STATUTE OR EXECUTIVE
Office of the PTCFOR Secretariat in Camp Crame. In the ORDER WHICH GRANTS THE PNP CHIEF THE
provinces, the applications may also be submitted to the Police AUTHORITY TO PROMULGATE THE PNP
Regional Offices (PROs) and Provincial/City Police Offices GUIDELINES.
(P/CPOs) for initial processing before they are forwarded to
2) THE IMPLEMENTING RULES AND REGULATIONS
the office of the PTCFOR Secretariat. The processors, after
OF PD 1866 CANNOT BE THE SUBJECT OF ANOTHER
ascertaining that the documentary requirements are in order,
SET OF IMPLEMENTING GUIDELINES.
shall issue the Order of Payment (OP) indicating the amount
of fees payable by the applicant, who in turn shall pay the fees 3) THE PRESIDENT’S SPEECH CANNOT BE A BASIS
to the Land Bank. b. Applications, which are duly processed FOR THE PROMULGATION OF IMPLEMENTNG
and prepared in accordance with existing rules and GUIDELINES ON THE GUN BAN.
regulations, shall be forwarded to the OCPNP for approval. c.
IV
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES THE PNP GUIDELINES VIOLATE THE EQUAL
IMPLEMENT PD 1866, AND THE AMENDMENTS PROTECTION CLAUSE OF THE CONSTITUTION
THERETO, THE PNP CHIEF STILL HAS NO POWER OR BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE
AUTHORITY TO ISSUE THE SAME BECAUSE – ONLY TO LAW-ABIDING GUN OWNERS WHILE
LEAVING OTHER GUN-OWNERS – THE
1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-
IRR SHALL BE PROMULGATED JOINTLY BY THE DOJ UPPERS, MNLF, MILF, ABU SAYYAF COLLECTIVELY,
AND THE DILG. AND NPA) – UNTOUCHED.
2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE IX
PROMULGATED BY THE CHIEF OF THE PHILIPPINE
CONSTABULARY. THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE
AND UNFAIR BECAUSE THEY WERE IMPLEMENTED
V LONG BEFORE THEY WERE PUBLISHED.
THE PNP GUIDELINES VIOLATE THE DUE PROCESS X
CLAUSE OF THE CONSTITUTION BECAUSE:
THE PNP GUIDELINES ARE EFFECTIVELY AN EX
1) THE RIGHT TO OWN AND CARRY A FIREARM IS POST FACTO LAW SINCE THEY APPLY
NECESSARILY INTERTWINED WITH THE PEOPLE’S RETROACTIVELY AND PUNISH ALL THOSE WHO
INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. WERE ALREADY GRANTED PERMITS TO CARRY
THUS, THE PNP GUIDELINES DEPRIVE PETITIONER OUTSIDE OF RESIDENCE LONG BEFORE THEIR
OF THIS RIGHT WITHOUT DUE PROCESS OF LAW PROMULGATION."
FOR:
Petitioner’s submissions may be synthesized into five (5)
A) THE PNP GUIDELINES DEPRIVE PETITIONER OF major issues:
HIS MOST POTENT, IF NOT HIS ONLY, MEANS TO
DEFEND HIMSELF. First, whether respondent Ebdane is authorized to issue the
assailed Guidelines;
B) THE QUESTIONED GUIDELINES STRIPPED
PETITIONER OF HIS MEANS OF PROTECTION Second, whether the citizens’ right to bear arms is a
AGAINST CRIME DESPITE THE FACT THAT THE constitutional right?;
STATE COULD NOT POSSIBLY PROTECT ITS
CITIZENS DUE TO THE INADEQUACY AND Third, whether the revocation of petitioner’s PTCFOR
INEFFICIENCY OF THE POLICE FORCE. pursuant to the assailed Guidelines is a violation of his right to
property?;
2) THE OWNESHIP AND CARRYING OF FIREARMS
ARE CONSTITUTIONALLY PROTECTED PROPERTY Fourth, whether the issuance of the assailed Guidelines is a
RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT valid exercise of police power?; and
DUE PROCESS OF LAW AND WITHOUT JUST CAUSE. Fifth, whether the assailed Guidelines constitute an ex post
VI facto law?

ASSUMING ARGUENDO, THAT THE PNP GUIDELINES The Solicitor General seeks the dismissal of the petition
WERE ISSUED IN THE EXERCISE OF POLICE POWER, pursuant to the doctrine of hierarchy of courts. Nonetheless, in
THE SAME IS AN INVALID EXERCISE THEREOF SINCE refutation of petitioner’s arguments, he contends that: (1) the
THE MEANS USED THEREFOR ARE UNREASONABLE PNP Chief is authorized to issue the assailed Guidelines; (2)
AND UNNCESSARY FOR THE ACCOMPLISHMENT OF petitioner does not have a constitutional right to own and carry
ITS PURPOSE – TO DETER AND PREVENT CRIME – firearms; (3) the assailed Guidelines do not violate the due
THEREBY BECOMING UNDULY OPPRESSIVE TO process clause of the Constitution; and (4) the assailed
LAW-ABIDING GUN-OWNERS. Guidelines do not constitute an ex post facto law.

VII Initially, we must resolve the procedural barrier.

THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE On the alleged breach of the doctrine of hierarchy of courts,
AND CONFISCATORY SINCE IT REVOKED ALL suffice it to say that the doctrine is not an iron-clad dictum. In
EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, several instances where this Court was confronted with cases
REFUNDING THE PAYMENT THE PNP RECEIVED of national interest and of serious implications, it never
FROM THOSE WHO ALREADY PAID THEREFOR. hesitated to set aside the rule and proceed with the judicial
determination of the cases.3 The case at bar is of similar
VIII import as it involves the citizens’ right to bear arms.

I
Authority of the PNP Chief of the Constabulary, not only the authority to approve or
disapprove applications for personal, special and hunting
Relying on the principle of separation of powers, petitioner license, but also the authority to revoke the same. With the
argues that only Congress can withhold his right to bear arms. foregoing developments, it is accurate to say that the Chief of
In revoking all existing PTCFOR, President Arroyo and the Constabulary had exercised the authority for a long time.
respondent Ebdane transgressed the settled principle and In fact, subsequent issuances such as Sections 2 and 3 of the
arrogated upon themselves a power they do not possess – the Implementing Rules and Regulations of Presidential Decree
legislative power. No. 186616 perpetuate such authority of the Chief of the
We are not persuaded. Constabulary. Section 2 specifically provides that any person
or entity desiring to possess any firearm "shall first secure the
It is true that under our constitutional system, the powers of necessary permit/license/authority from the Chief of the
government are distributed among three coordinate and Constabulary." With regard to the issuance of PTCFOR,
substantially independent departments: the legislative, the Section 3 imparts: "The Chief of Constabulary may, in
executive and the judiciary. Each has exclusive cognizance of meritorious cases as determined by him and under such
the matters within its jurisdiction and is supreme within its conditions as he may impose, authorize lawful holders of
own sphere.4 firearms to carry them outside of residence." These provisions
are issued pursuant to the general power granted by P.D. No.
Pertinently, the power to make laws – the legislative power –
1866 empowering him to promulgate rules and regulations for
is vested in Congress.5 Congress may not escape its duties and
the effective implementation of the decree.17 At this juncture,
responsibilities by delegating that power to any other body or
it bears emphasis that P.D. No. 1866 is the chief law
authority. Any attempt to abdicate the power is
governing possession of firearms in the Philippines and that it
unconstitutional and void, on the principle that "delegata
was issued by President Ferdinand E. Marcos in the exercise
potestas non potest delegari" – "delegated power may not be
of his legislative power.18 In an attempt to evade the
delegated."6
application of the above-mentioned laws and regulations,
The rule which forbids the delegation of legislative power, petitioner argues that the "Chief of the PNP" is not the same as
however, is not absolute and inflexible. It admits of the "Chief of the Constabulary," the PC being a mere unit or
exceptions. An exception sanctioned by immemorial practice component of the newly established PNP. He contends further
permits the legislative body to delegate its licensing power to that Republic Act No. 829419 amended P.D. No. 1866 such
certain persons, municipal corporations, towns, boards, that the authority to issue rules and regulations regarding
councils, commissions, commissioners, auditors, bureaus and firearms is now jointly vested in the Department of Justice and
directors.7 Such licensing power includes the power to the DILG, not the Chief of the Constabulary.20
promulgate necessary rules and regulations.8
Petitioner’s submission is bereft of merit.
The evolution of our laws on firearms shows that since the
By virtue of Republic Act No. 6975,21 the Philippine National
early days of our Republic, the legislature’s tendency was
Police (PNP) absorbed the Philippine Constabulary (PC).
always towards the delegation of power. Act No.
Consequently, the PNP Chief succeeded the Chief of the
1780,9 delegated upon the Governor-General (now the
Constabulary and, therefore, assumed the latter’s licensing
President) the authority (1) to approve or disapprove
authority. Section 24 thereof specifies, as one of PNP’s
applications of any person for a license to deal in firearms or
powers, the issuance of licenses for the possession of firearms
to possess the same for personal protection, hunting and other
and explosives in accordance with law.22 This is in
lawful purposes; and (2) to revoke such license any
conjunction with the PNP Chief’s "power to issue detailed
time.10 Further, it authorized him to issue regulations which
implementing policies and instructions" on such "matters as
he may deem necessary for the proper enforcement of the
may be necessary to effectively carry out the functions,
Act.11 With the enactment of Act No. 2711, the "Revised
powers and duties" of the PNP.23
Administrative Code of 1917," the laws on firearms were
integrated.12 The Act retained the authority of the Governor Contrary to petitioner’s contention, R.A. No. 8294 does not
General provided in Act No. 1780. Subsequently, the growing divest the Chief of the Constabulary (now the PNP Chief) of
complexity in the Office of the Governor-General resulted in his authority to promulgate rules and regulations for the
the delegation of his authority to the Chief of the effective implementation of P.D. No. 1866. For one, R.A. No.
Constabulary. On January 21, 1919, Acting Governor-General 8294 did not repeal entirely P.D. No. 1866. It merely provides
Charles E. Yeater issued Executive Order No. 813 authorizing for the reduction of penalties for illegal possession of firearms.
and directing the Chief of Constabulary to act on his behalf in Thus, the provision of P.D. No. 1866 granting to the Chief of
approving and disapproving applications for personal, special the Constabulary the authority to issue rules and regulations
and hunting licenses. This was followed by Executive Order regarding firearms remains effective. Correspondingly, the
No. 6114 designating the Philippine Constabulary (PC) as the Implementing Rules and Regulations dated September 15,
government custodian of all firearms, ammunitions and 1997 jointly issued by the Department of Justice and the DILG
explosives. Executive Order No. 215,15 issued by President pursuant to Section 6 of R.A. No. 8294 deal only with the
Diosdado Macapagal on December 3, 1965, granted the Chief automatic review, by the Director of the Bureau of Corrections
or the Warden of a provincial or city jail, of the records of "individual right" to own and possess arms. The setting under
convicts for violations of P.D. No. 1866. The Rules seek to which the right was contemplated has a profound connection
give effect to the beneficent provisions of R.A. No. 8294, with the keeping and maintenance of a militia or an armed
thereby ensuring the early release and reintegration of the citizenry. That this is how the right was construed is evident in
convicts into the community. early American cases.

Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the The first case involving the interpretation of the Second
PNP Chief to issue the assailed guidelines. Amendment that reached the United States Supreme Court
is United States vs. Miller.26 Here, the indictment charged the
Corollarily, petitioner disputes President Arroyo’s declaration defendants with transporting an unregistered "Stevens
of a nationwide gun ban, arguing that "she has no authority to shotgun" without the required stamped written order, contrary
alter, modify, or amend the law on firearms through a mere to the National Firearms Act. The defendants filed a demurrer
speech." challenging the facial validity of the indictment on the ground
First, it must be emphasized that President Arroyo’s speech that the National Firearms Act offends the inhibition of the
was just an expression of her policy and a directive to her Second Amendment. The District Court sustained the
subordinate. It cannot, therefore, be argued that President demurrer and quashed the indictment. On appeal, the Supreme
Arroyo enacted a law through a mere speech. Court interpreted the right to bear arms under the Second
Amendment as referring to the collective right of those
Second, at the apex of the entire executive officialdom is the comprising the Militia – a body of citizens enrolled for
President. Section 17, Article VII of the Constitution specifies military discipline. It does not pertain to the individual right of
his power as Chief Executive, thus: "The President shall have citizen to bear arm. Miller expresses its holding as follows:
control of all the executive departments, bureaus and offices.
He shall ensure that the laws be faithfully executed." As Chief "In the absence of any evidence tending to show that
Executive, President Arroyo holds the steering wheel that possession or use of a ‘shotgun having a barrel of less than
controls the course of her government. She lays down policies eighteen inches in length’ at this time has some reasonable
in the execution of her plans and programs. Whatever policy relationship to the preservation or efficiency of a well
she chooses, she has her subordinates to implement them. In regulated militia, we cannot say that the Second Amendment
short, she has the power of control. Whenever a specific guarantees the right to keep and bear such an instrument.
function is entrusted by law or regulation to her subordinate, Certainly it is not within judicial notice that this weapon is any
she may act directly or merely direct the performance of a part of the ordinary military equipment or that its use could
duty.24 Thus, when President Arroyo directed respondent contribute to the common defense.
Ebdane to suspend the issuance of PTCFOR, she was just The same doctrine was re-echoed in Cases vs. United
directing a subordinate to perform an assigned duty. Such act States.27 Here, the Circuit Court of Appeals held that
is well within the prerogative of her office. the Federal Firearms Act, as applied to appellant, does not
II conflict with the Second Amendment. It ruled that:

Right to bear arms: Constitutional or Statutory? "While [appellant’s] weapon may be capable of military use,
or while at least familiarity with it might be regarded as of
Petitioner earnestly contends that his right to bear arms is a value in training a person to use a comparable weapon of
constitutionally-protected right. This, he mainly anchors on military type and caliber, still there is no evidence that the
various American authorities. We therefore find it imperative appellant was or ever had been a member of any military
to determine the nature of the right in light of American organization or that his use of the weapon under the
jurisprudence. circumstances disclosed was in preparation for a military
career. In fact, the only inference possible is that the appellant
The bearing of arms is a tradition deeply rooted in the English
at the time charged in the indictment was in possession of,
and American society. It antedates not only the American
transporting, and using the firearm and ammunition purely and
Constitution but also the discovery of firearms.25
simply on a frolic of his own and without any thought or
A provision commonly invoked by the American people to intention of contributing to the efficiency of the well regulated
justify their possession of firearms is the Second Amendment militia which the Second amendment was designed to foster as
of the Constitution of the United States of America, which necessary to the security of a free state."
reads:
With the foregoing jurisprudence, it is erroneous to assume
"A well regulated militia, being necessary for the security of that the US Constitution grants upon the American people the
free state, the right of the people to keep and bear Arms, shall right to bear arms. In a more explicit language, the United
not be infringed." States vs. Cruikshank28 decreed: "The right of the people to
keep and bear arms is not a right granted by the Constitution.
An examination of the historical background of the foregoing Neither is it in any way dependent upon that instrument."
provision shows that it pertains to the citizens’ "collective Likewise, in People vs. Persce,29 the Court of Appeals said:
right" to take arms in defense of the State, not to the citizens’
"Neither is there any constitutional provision securing the person in accordance with existing law shall continue to be
right to bear arms which prohibits legislation with reference to security for the safekeeping of such arms."
such weapons as are specifically before us for
consideration. The provision in the Constitution of the United The foregoing provision was restated in Section 88731 of Act
States that the right of the people to keep and bear arms shall No. 2711 that integrated the firearm laws. Thereafter,
not be infringed is not designed to control legislation by the President Ferdinand E. Marcos issued P.D. No. 1866. It
state." codified the laws on illegal possession, manufacture, dealing
in, acquisition of firearms, ammunitions or explosives and
With more reason, the right to bear arms cannot be classified imposed stiffer penalties for their violation. R.A. No. 8294
as fundamental under the 1987 Philippine Constitution. Our amended some of the provisions of P.D. No. 1866 by reducing
Constitution contains no provision similar to the Second the imposable penalties. Being a mere statutory creation, the
Amendment, as we aptly observed in the early case of United right to bear arms cannot be considered an inalienable or
States vs. Villareal:30 absolute right.

"The only contention of counsel which would appear to III


necessitate comment is the claim that the statute penalizing the
carrying of concealed weapons and prohibiting the keeping Vested Property Right
and the use of firearms without a license, is in violation of the Section 1, Article III of the Constitution provides that "no
provisions of section 5 of the Philippine Bill of Rights. person shall be deprived of life, liberty or property without
Counsel does not expressly rely upon the prohibition in the due process of law." Petitioner invokes this provision,
United States Constitution against the infringement of the asserting that the revocation of his PTCFOR pursuant to the
right of the people of the United States to keep and bear arms assailed Guidelines deprived him of his "vested property right"
(U. S. Constitution, amendment 2), which is not included in without due process of law and in violation of the equal
the Philippine Bill. But it may be well, in passing, to point out protection of law.
that in no event could this constitutional guaranty have any Petitioner cannot find solace to the above-quoted
bearing on the case at bar, not only because it has not been Constitutional provision.
expressly extended to the Philippine Islands, but also because
it has been uniformly held that both this and similar provisions In evaluating a due process claim, the first and foremost
in State constitutions apply only to arms used in civilized consideration must be whether life, liberty or property interest
warfare (see cases cited in 40 Cyc., 853, note 18); x x x." exists.32 The bulk of jurisprudence is that a license
authorizing a person to enjoy a certain privilege is neither a
Evidently, possession of firearms by the citizens in the property nor property right. In Tan vs. The Director of
Philippines is the exception, not the rule. The right to bear Forestry,33 we ruled that "a license is merely a permit or
arms is a mere statutory privilege, not a constitutional right. It privilege to do what otherwise would be unlawful, and is not a
is a mere statutory creation. What then are the laws that grant contract between the authority granting it and the person to
such right to the Filipinos? The first real firearm law is Act whom it is granted; neither is it property or a property right,
No. 1780 enacted by the Philippine Commission on October nor does it create a vested right." In a more emphatic
12, 1907. It was passed to regulate the importation, pronouncement, we held in Oposa vs. Factoran, Jr.34 that:
acquisition, possession, use and transfer of firearms. Section 9
thereof provides: "Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract, property or
"SECTION 9. Any person desiring to possess one or more a property right protected by the due process clause of the
firearms for personal protection, or for use in hunting or other Constitution."
lawful purposes only, and ammunition therefor, shall make
application for a license to possess such firearm or firearms or Petitioner, in arguing that his PTCFOR is a constitutionally
ammunition as hereinafter provided. Upon making such protected property right, relied heavily on Bell vs.
application, and before receiving the license, the applicant Burson35 wherein the U.S. Supreme Court ruled that "once a
shall make a cash deposit in the postal savings bank in the sum license is issued, continued possession may become essential
of one hundred pesos for each firearm for which the license is in the pursuit of livelihood. Suspension of issued licenses thus
to be issued, or in lieu thereof he may give a bond in such involves state action that adjudicates important interest of the
form as the Governor-General may prescribe, payable to the licensees."
Government of the Philippine Islands, in the sum of two
Petitioner’s reliance on Bell is misplaced. This case involves a
hundred pesos for each such firearm: PROVIDED,
driver’s license, not a license to bear arms. The catena of
HOWEVER, That persons who are actually members of gun
American jurisprudence involving license to bear arms is
clubs, duly formed and organized at the time of the passage of
perfectly in accord with our ruling that a PTCFOR is neither a
this Act, who at such time have a license to possess firearms,
property nor a property right. In Erdelyi vs. O’Brien,36 the
shall not be required to make the deposit or give the bond
plaintiff who was denied a license to carry a firearm brought
prescribed by this section, and the bond duly executed by such
suit against the defendant who was the Chief of Police of the
City of Manhattan Beach, on the ground that the denial The foregoing jurisprudence has been resonating in the
violated her constitutional rights to due process and equal Philippines as early as 1908. Thus, in The Government of the
protection of the laws. The United States Court of Appeals Philippine Islands vs. Amechazurra44 we ruled:
Ninth Circuit ruled that Erdelyi did not have a property
interest in obtaining a license to carry a firearm, ratiocinating "x x x no private person is bound to keep arms. Whether he
as follows: does or not is entirely optional with himself, but if, for his own
convenience or pleasure, he desires to possess arms, he must
"Property interests protected by the Due Process Clause of the do so upon such terms as the Government sees fit to impose,
Fourteenth Amendment do not arise whenever a person has for the right to keep and bear arms is not secured to him by
only ‘an abstract need or desire for’, or ‘unilateral expectation law. The Government can impose upon him such terms as it
of a benefit. x x x Rather, they arise from ‘legitimate claims of pleases. If he is not satisfied with the terms imposed, he
entitlement… defined by existing rules or understanding that should decline to accept them, but, if for the purpose of
stem from an independent source, such as state law. x x x securing possession of the arms he does agree to such
Concealed weapons are closely regulated by the State of conditions, he must fulfill them."
California. x x x Whether the statute creates a property interest
in concealed weapons licenses depends ‘largely upon the IV
extent to which the statute contains mandatory language that Police Power
restricts the discretion of the [issuing authority] to deny
licenses to applicants who claim to meet the minimum At any rate, assuming that petitioner’s PTCFOR constitutes a
eligibility requirements. x x x Where state law gives the property right protected by the Constitution, the same cannot
issuing authority broad discretion to grant or deny license be considered as absolute as to be placed beyond the reach of
application in a closely regulated field, initial applicants do the State’s police power. All property in the state is held
not have a property right in such licenses protected by the subject to its general regulations, necessary to the common
Fourteenth Amendment. See Jacobson, supra, 627 F.2d at 180 good and general welfare.
(gaming license under Nevada law);"
In a number of cases, we laid down the test to determine the
Similar doctrine was announced in Potts vs. City of validity of a police measure, thus:
Philadelphia,37 Conway vs. King,38 Nichols vs. County of
(1) The interests of the public generally, as distinguished from
Sta. Clara,39 and Gross vs. Norton.40 These cases enunciated
those of a particular class, require the exercise of the police
that the test whether the statute creates a property right or
power; and
interest depends largely on the extent of discretion granted to
the issuing authority. (2) The means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive
In our jurisdiction, the PNP Chief is granted broad discretion
upon individuals.
in the issuance of PTCFOR. This is evident from the tenor of
the Implementing Rules and Regulations of P.D. No. 1866 Deeper reflection will reveal that the test merely reiterates the
which state that "the Chief of Constabulary may, in essence of the constitutional guarantees of substantive due
meritorious cases as determined by him and under such process, equal protection, and non-impairment of property
conditions as he may impose, authorize lawful holders of rights.
firearms to carry them outside of residence." Following the
American doctrine, it is indeed logical to say that a PTCFOR It is apparent from the assailed Guidelines that the basis for its
does not constitute a property right protected under our issuance was the need for peace and order in the society.
Constitution. Owing to the proliferation of crimes, particularly those
committed by the New People’s Army (NPA), which tends to
Consequently, a PTCFOR, just like ordinary licenses in other disturb the peace of the community, President Arroyo deemed
regulated fields, may be revoked any time. It does not confer it best to impose a nationwide gun ban. Undeniably, the
an absolute right, but only a personal privilege to be exercised motivating factor in the issuance of the assailed Guidelines is
under existing restrictions, and such as may thereafter be the interest of the public in general.
reasonably imposed.41 A licensee takes his license subject to
such conditions as the Legislature sees fit to impose, and one The only question that can then arise is whether the means
of the statutory conditions of this license is that it might be employed are appropriate and reasonably necessary for the
revoked by the selectmen at their pleasure. Such a license is accomplishment of the purpose and are not unduly oppressive.
not a contract, and a revocation of it does not deprive the In the instant case, the assailed Guidelines do not entirely
defendant of any property, immunity, or privilege within the prohibit possession of firearms. What they proscribe is merely
meaning of these words in the Declaration of Rights.42 The the carrying of firearms outside of residence. However, those
US Supreme Court, in Doyle vs. Continental Ins. Co,43 held: who wish to carry their firearms outside of their residences
"The correlative power to revoke or recall a permission is a may re-apply for a new PTCFOR. This we believe is a
necessary consequence of the main power. A mere license by reasonable regulation. If the carrying of firearms is regulated,
the State is always revocable." necessarily, crime incidents will be curtailed. Criminals carry
their weapon to hunt for their victims; they do not wait in the
comfort of their homes. With the revocation of all PTCFOR, it
would be difficult for criminals to roam around with their
guns. On the other hand, it would be easier for the PNP to
apprehend them.

Notably, laws regulating the acquisition or possession of guns


have frequently been upheld as reasonable exercise of the
police power.45 In State vs. Reams,46 it was held that the
legislature may regulate the right to bear arms in a manner
conducive to the public peace. With the promotion of public
peace as its objective and the revocation of all PTCFOR as the
means, we are convinced that the issuance of the assailed
Guidelines constitutes a reasonable exercise of police power.
The ruling in United States vs. Villareal,47 is relevant, thus:

"We think there can be no question as to the reasonableness of


a statutory regulation prohibiting the carrying of concealed
weapons as a police measure well calculated to restrict the too
frequent resort to such weapons in moments of anger and
excitement. We do not doubt that the strict enforcement of
such a regulation would tend to increase the security of life
and limb, and to suppress crime and lawlessness, in any
community wherein the practice of carrying concealed
weapons prevails, and this without being unduly oppressive
upon the individual owners of these weapons. It follows that
its enactment by the legislature is a proper and legitimate
exercise of the police power of the state."

Ex post facto law

In Mekin vs. Wolfe,48 an ex post facto law has been defined


as one – (a) which makes an action done before the passing of
the law and which was innocent when done criminal, and
punishes such action; or (b) which aggravates a crime or
makes it greater than it was when committed; or (c) which
changes the punishment and inflicts a greater punishment than
the law annexed to the crime when it was committed; or (d)
which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the
commission of the offense in order to convict the defendant.

We see no reason to devote much discussion on the matter. Ex


post facto law prohibits retrospectivity of penal laws.49 The
assailed Guidelines cannot be considered as an ex post facto
law because it is prospective in its application. Contrary to
petitioner’s argument, it would not result in the punishment of
acts previously committed.

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.
G.R. No. 205728 January 21, 2015 helped in the passage of the RH Law but were not candidates
for that election.
THE DIOCESE OF BACOLOD, REPRESENTED BY THE
MOST REV. BISHOP VICENTE M. NAVARRA and THE On February 22, 2013, respondent Atty. Mavil V. Majarucon,
BISHOP HIMSELF IN HIS PERSONAL in her capacity as Election Officer of Bacolod City, issued a
CAPACITY, Petitioners, Notice to Remove Campaign Materials8 addressed to
vs. petitioner Most Rev. Bishop Vicente M. Navarra. The election
COMMISSION ON ELECTIONS AND THE ELECTION officer ordered the tarpaulin’s removal within three (3) days
OFFICER OF BACOLOD CITY, ATTY. MAVIL V. from receipt for being oversized. COMELEC Resolution No.
MAJARUCON, Respondents. 9615 provides for the size requirement of two feet (2’) by
three feet (3’).9
DECISION
On February 25, 2013, petitioners replied10 requesting,
LEONEN, J.: among others, that (1) petitioner Bishop be given a definite
"The Philippines is a democratic and republican State. ruling by COMELEC Law Department regarding the
Sovereignty resides in the people and all government authority tarpaulin; and (2) pending this opinion and the availment of
emanates from them." – Article II, Section 1, Constitution legal remedies, the tarpaulin be allowed to remain.11

All governmental authority emanates from our people. No On February 27, 2013, COMELEC Law Department issued a
unreasonable restrictions of the fundamental and preferred letter12 ordering the immediate removal of the tarpaulin;
right to expression of the electorate during political contests otherwise, it will be constrained to file an election offense
no matter how seemingly benign will be tolerated. against petitioners. The letter of COMELEC Law Department
was silenton the remedies available to petitioners. The letter
This case defines the extent that our people may shape the provides as follows:
debates during elections. It is significant and of first
impression. We are asked to decide whether the Commission Dear Bishop Navarra:
on Elections (COMELEC) has the competence to limit It has reached this Office that our Election Officer for this
expressions made by the citizens — who are not candidates — City, Atty. Mavil Majarucon, had already given you notice on
during elections. February 22, 2013 as regards the election propaganda material
Before us is a special civil action for certiorari and prohibition posted on the church vicinity promoting for or against the
with application for preliminary injunction and temporary candidates and party-list groups with the following names and
restraining order1 under Rule 65 of the Rules of Court seeking messages, particularly described as follows:
to nullify COMELEC’s Notice to Remove Campaign Material size : six feet (6’) by ten feet (10’)
Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013. Description : FULL COLOR TARPAULIN

The facts are not disputed. Image of : SEE ATTACHED PICTURES

On February 21, 2013, petitioners posted two (2) tarpaulins Message : CONSCIENCE VOTE (ANTI RH) TEAM
within a private compound housing the San Sebastian
Cathedral of Bacolod. Each tarpaulin was approximately six BUHAY; (PRO RH) TEAM PATAY
feet (6') by ten feet (10') in size. They were posted on the front Location : POSTED ON THE CHURCH VICINITY
walls of the cathedral within public view. The first tarpaulin OF THE DIOCESE OF BACOLOD CITY
contains the message "IBASURA RH Law" referring to the
Reproductive Health Law of 2012 or Republic Act No. 10354. The three (3) – day notice expired on February 25, 2013.
The second tarpaulin is the subject of the present case.4 This
Considering that the above-mentioned material is found to be
tarpaulin contains the heading "Conscience Vote" and lists
in violation of Comelec Resolution No. 9615 promulgated on
candidates as either "(Anti-RH) Team Buhay" with a check
January 15, 2013 particularly on the size (even with the
mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The
subsequent division of the said tarpaulin into two), as the
electoral candidates were classified according to their vote on
lawful size for election propaganda material is only two feet
the adoption of Republic Act No. 10354, otherwise known as
(2’) by three feet (3’), please order/cause the immediate
the RH Law.6Those who voted for the passing of the law were
removal of said election propaganda material, otherwise, we
classified by petitioners as comprising "Team Patay," while
shall be constrained to file an election offense case against
those who voted against it form "Team Buhay":7
you.
During oral arguments, respondents conceded that the
We pray that the Catholic Church will be the first institution to
tarpaulin was neither sponsored nor paid for by any candidate.
help the Commission on Elections inensuring the conduct of
Petitioners also conceded that the tarpaulin contains names
peaceful, orderly, honest and credible elections.
ofcandidates for the 2