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CASES IN CONSTITUTIONAL LAW II

INTRODUCTION

G.R. No. 128448 February 1, 2001

SPOUSES ALEJANDRO MlRASOL and LILIA E. MIRASOL, petitioners,


vs.
THE COURT OF APPEALS, PHILIPPINE NATIONAL and PHILIPPINE EXCHANGE CO.,
INC., respondent.

QUISUMBING, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals dated July 22,
1996, in CA-G.R. CY No. 38607, as well as of its resolution of January 23, 1997, denying
petitioners' motion for reconsideration. The challenged decision reversed the judgment of the
Regional Trial Court of Bacolod City, Branch 42 in Civil Case No. 14725.

The factual background of this case, as gleaned from the records, is as follows:

The Mirasols are sugarland owners and planters. In 1973-1974, they produced 70,501.08
piculs1 of sugar, 25,662.36 of which were assigned for export. The following crop year, their
acreage planted to the same crop was lower, yielding 65,100 piculs of sugar, with 23,696.40
piculs marked for export.

Private respondent Philippine National Bank (PNB) financed the Mirasols' sugar production
venture for crop years, 1973-1974 and 1974-1975 under a crop loan financing scheme. Under
said scheme, the Mirasols signed Credit Agreements, a Chattel Mortgage on Standing Crops,
and a Real Estate Mortgage in favor of PNB. The Chattel Mortgage empowered PNB as the
petitioners' attorney-in-fact to negotiate and to sell the latter's sugar in both domestic and export
markets and to apply the proceeds to the payment of their obligations to it.

Exercising his law-making powers under Martial Law, then President Ferdinand Marcos issued
Presidential Decree (P.D.) No. 5792 in November, 1974. The decree authorized private
respondent Philippine Exchange Co., Inc. (PHILEX) to purchase sugar allocated for export to
the United States and to other foreign markets. The price and quantity was determined by the
Sugar Quota Administration, PNB, the Department of Trade and Industry, and finally, by the
Office of the President. The decree further authorized PNB to finance PHILEX's purchases.
Finally, the decree directed that whatever profit PHILEX might realize from sales of sugar
abroad was to be remitted to a special fund of the national government, after commissions,
overhead expenses and liabilities had been deducted. The government offices and entities
tasked by existing laws and administrative regulations to oversee the sugar export pegged the
purchase price of export sugar in crop years 1973-1974 and 1974-1975 at P180.00 per picul.

PNB continued to finance the sugar production of the Mirasols for crop years 1975-1976 and
1976-1977. These crop loans and similar obligations were secured by real estate mortgages
over several properties of the Mirasols and chattel mortgages over standing crops. Believing
that the proceeds of their sugar sales to PNB, if properly accounted for, were more than enough
to pay their obligations, petitioners asked PNB for an accounting of the proceeds of the sale of
their export sugar. PNB ignored the request. Meanwhile, petitioners continued to avail of other
loans from PNB and to make unfunded withdrawals from their current accounts with said bank.
PNB then asked petitioners to settle their due and demandable accounts. As a result of these
demands for payment, petitioners on August 4, 1977, conveyed to PNB real properties valued at
P1,410,466.00 by way of dacion en pago, leaving an unpaid overdrawn account of
P1,513,347.78.

On August 10, 1982, the balance of outstanding sugar crop and other loans owed by petitioners
to PNB stood at P15,964,252.93. Despite demands, the Mirasols failed to settle said due anti
demandable accounts. PNB then proceeded to extrajudicially for close the mortgaged
properties. After applying the proceeds of the auction sale of the mortgaged realties, PNB still
had a deficiency claim of P12,551,252.93.

Petitioners continued to ask PNB to account for the proceeds of the sale of their export sugar for
crop years 1973-1974 and 1974-1975, insisting that said proceeds, if properly liquidated, could
offset their outstanding obligations with the batik. PNB remained adamant in its stance that
under P.D. No. 579, there was nothing to account since under said law, all earnings from the
export sales of sugar pertained to the National Government and were subject to the disposition
of the President of the Philippines for public purposes.1âwphi1.nêt

On August 9, 1979, the Mirasols filed a suit for accounting, specific performance, and damages
against PNB with the Regional Trial Court of Bacolod City, docketed as Civil Case No. 14725.

On June 16, 1987, the complaint was amended to implead PHILEX as party-defendant.

The parties agreed at pre-trial to limit the issues to the following:

"1. The constitutionality and/or legality of Presidential Decrees numbered 338, 579, and
1192;

"2. The determination of the total amount allegedly due the plaintiffs from the defendants
corresponding to the allege(d) unliquidated cost price of export sugar during crop years
1973-1974 and 1974-1975."3

After trial on the merits, the trial court decided as follows:

"WHEREFORE, the foregoing premises considered, judgment is hereby rendered in


favor of the plaintiffs and against the defendants Philippine National Bank (PNB) and
Philippine Exchange Co., Inc. (PHILEX):

(1) Declaring Presidential Decree 579 enacted on November 12, 1974 and all circulars,
as well as policies, orders and other issuances issued in furtherance thereof,
unconstitutional and therefore, NULL and VOID being in gross violation of the Bill of
Rights;

(2) Ordering defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the
whole amount corresponding to the residue of the unliquidated actual cost price of
25,662 piculs in export sugar for crop year 1973-1974 at an average price of P300.00
per picul, deducting therefrom however, the amount of P180.00 already paid in advance
plus the allowable deductions in service fees and other charges;

(3) And also, for the same defendants to pay, jointly and severally, same plaintiffs the
whole amount corresponding to the unpaid actual price of 14,596 piculs of export sugar
for crop year 1974-1975 at an average rate of P214.14 per picul minus however, the
sum of P180.00 per picul already paid by the defendants in advance and the allowable
deducting (sic) in service fees and other charges.

"The unliquidated amount of money due the plaintiffs but withheld by the defendants,
shall earn the legal rate of interest at 12% per annum computed from the date this action
was instituted until fully paid; and, finally -

(4) Directing the defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the
sum of P50,000.00 in moral damages and the amount of P50,000.00 as attorney's fees,
plus the costs of this litigation.

"SO ORDERED."4

The same was, however, modified by a Resolution of the trial court dated May 14, 1992, which
added the following paragraph:
"This however whatever benefits that may have accrued in favor of the plaintiffs with the
massage and approval of Republic Act. 7202 otherwise known as the 'Sugar Restitution
Law,' authorizing the restitution of losses suffered by the plaintiffs from Crop year 1974-
1975 to Crop year 1984-1985 occasioned by the actuations of government-owned and
controlled agencies. (Underscoring in the original).

"SO ORDERED."5

The Mirasols then filed an appeal with the respondent court, docketed as CA-G.R. CY No.
38607, faulting the trial court for not nullifying the dacion en pago and the mortgage contracts,
as well as the foreclosure of their mortgaged properties. Also faulted was the trial court's failure
to award them the full money claims and damages sought from both PNB and PHILEX.

On July 22, 1996, the Court of Appeals reversed the trial court as follows:

"WHEREFORE, this Court renders judgment REVERSING the appealed Decision and entering
the following verdict:

"1. Declaring the dacion en pago and the foreclosure of the mortgaged properties valid;

"2. Ordering the PNB to render an accounting of the sugar account of the Mirasol[s]
specifically stating the indebtedness of the latter to the former and the proceeds of
Mirasols' 1973-1974 and 1974-1975 sugar production sold pursuant to and in
accordance with P.D. 579 and the issuances therefrom;

"3. Ordering the PNB to recompute in accordance with RA 7202 Mirasols' indebtedness
to it crediting to the latter payments already made as well as the auction price of their
foreclosed real estate and stipulated value of their properties ceded to PNB in
the dacon (sic) en pago;

"4. Whatever the result of the recomputation of Mirasols' account, the outstanding
balance or the excess payment shall be governed by the pertinent provisions of RA
7202.

"SO ORDERED."6

On August 28, 1996, petitioners moved for reconsideration, which the appellate court denied on
January 23, 1997.

Hence, the instant petition, with petitioners submitting the following issues for our resolution:

"1. Whether the Trial Court has jurisdiction to declare a statute unconstitutional without
notice to the Solicitor General where the parties have agreed to submit such issue for
the resolution of the Trial Court.

"2. Whether PD 579 and subsequent issuances7 thereof are unconstitutional.

"3. Whether the Honorable Court of Appeals committed manifest error in not applying the
doctrine of piercing the corporate veil between respondents PNB and PHILEX.

"4. Whether the Honorable Court of Appeals committed manifest error in upholding the
validity of the foreclosure on petitioners property and in upholding the validity of
the dacion en pago in this case.

"5. Whether the Honorable Court of Appeals committed manifest error in not awarding
damages to petitioners grounds relied upon the allowance of the petition. (Underscored
in the original)"8

On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to
consider the constitutionality of a statute, presidential decree, or executive order.9 The
Constitution vests the power of judicial review or the power to declare a law, treaty, international
or executive agreement, presidential decree, order, instruction, ordinance, or regulation not.
only in this Court, but in all Regional Trial Courts.10 In J.M. Tuason and Co. v. Court of
Appeals, 3 SCRA 696 (1961) we held:

"Plainly, the Constitution contemplates that the inferior courts should have jurisdiction in
cases involving constitutionality of any treaty or law, for it speaks of appellate review of
final judgments of inferior courts in cases where such constitutionality happens to be in
issue."11

Furthermore, B.P. BIg. 129 grants Regional Trial Courts the authority to rule on the conformity
of laws or treaties with the Constitution, thus:

"SECTION 19. Jurisdiction in civil cases. - Regional Trial Courts shall exercise exclusive
original jurisdiction:

(1) In all civil actions in which the subject of the litigations is incapable of pecuniary
estimation;"

The pivotal issue, which we must address, is whether it was proper for the trial court to have
exercised judicial review.

Petitioners argue that the Court of Appeals erred in finding that it was improper for the trial court
to have declared P.D. No. 57912 unconstitutional, since petitioners had not complied with Rule
64, Section 3, of the Rules of Court. Petitioners contend that said Rule specifically refers only to
actions for declaratory relief and not to an ordinary action for accounting, specific performance,
and damages.

Petitioners' contentions are bereft of merit. Rule 64, Section 3 of the Rules of Court provides:

"SEC. 3. Notice to Solicitor General. - In any action which involves the validity of a
statute, or executive order or regulation, the Solicitor General shall be notified by the
party attacking the statute, executive order, or regulation, and shall be entitled to be
heard upon such question."

This should be read in relation to Section 1 [c] of P.D. No. 478,13 which states in part:

"SECTION 1. Functions and Organizations - (1) The Office of the Solicitor General
shall...have the following specific powers and functions:

xxx

"[c] Appear in any court in any action involving the validity of any treaty, law, executive
order or proclamation, rule or regulation when in his judgment his intervention is
necessary or when requested by the court."

It is basic legal construction that where words of command such as "shall," "must," or "ought"
are employed, they are generally and ordinarily regarded as mandatory. 14 Thus, where, as in
Rule 64, Section 3 of the Rules of Court, the word "shall" is used, a mandatory duty is imposed,
which the courts ought to enforce.

The purpose of the mandatory Notice in Rule 64, Section 3 is to enable the Solicitor General to
decide whether or not his intervention in the action assailing the validity of a law or treaty is
necessary. To deny the Solicitor General such notice would be tantamount to depriving him of
his day in court. We must stress that, contrary to petitioners' stand, the mandatory notice
requirement is not limited to actions involving declaratory relief and similar remedies. The rule
itself provides that such notice is required in "any action" and not just actions involving
declaratory relief. Where there is no ambiguity in the words used in the true, there is no room for
constnlction.15 In all actions assailing the validity of a statute, treaty, presidential decree, order,
or proclamation, notice to the Solicitor General is mandatory.
In this case, the Solicitor General was never notified about Civil Case No. 14725. Nor did the
trial court ever require him to appear in person or by a representative or to file any pleading or
memorandum on the constitutionality of the assailed decree. Hence, the Court of Appeals did
not err in holding that lack of the required notice made it improper for the trial court to pass upon
the constitutional validity of the questioned presidential decrees.

As regards the second issue, petitioners contend that P.D. No. 579 and its implementing
issuances are void for violating the due process clause and the prohibition against the taking of
private property without just compensation. Petitioners now ask this Court to exercise its power
of judicial review.

Jurisprudence has laid down the following requisites for the exercise of this power: First, there
must be before the Court an actual case calling for the exercise of judicial review. Second, the
question before the Court must be ripe for adjudication. Third, the person challenging the
validity of the act must have standing to challenge. Fourth, the question of constitutionality must
have been raised at the earliest opportunity, and lastly, the issue of constitutionality must be the
very lis mota of the case.16

As a rule, the courts will not resolve the constitutionality of a law, if the controversy can be
settled on other grounds.17 The policy of the courts is to avoid ruling on constitutional questions
and to presume that the acts of the political departments are valid, absent a clear and
unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the
doctrine of separation of powers. This means that the measure had first been carefully studied
by the legislative and executive departments and found to be in accord with the Constitution
before it was finally enacted and approved.18

The present case was instituted primarily for accounting and specific performance. The Court of
Appeals correctly ruled that PNB's obligation to render an accounting is an issue, which can be
determined, without having to rule on the constitutionality of P.D. No. 579. In fact there is
nothing in P.D. No. 579, which is applicable to PNB's intransigence in refusing to give an
accounting. The governing law should be the law on agency, it being undisputed that PNB acted
as petitioners' agent. In other words, the requisite that the constitutionality of the law in question
be the very lis mota of the case is absent. Thus we cannot rule on the constitutionality of P.D.
No. 579.

Petitioners further contend that the passage of R.A. No. 720219 rendered P.D. No. 579
unconstitutional, since R.A. No. 7202 affirms that under P.D. 579, the due process clause of the
Constitution and the right of the sugar planters not to be deprived of their property without just
compensation were violated.

A perusal of the text of R.A. No. 7202 shows that the repealing clause of said law merely reads:

"SEC. 10. All laws, acts, executive orders and circulars in conflict herewith are hereby
repealed or modified accordingly."

The settled rule of statutory construction is that repeals by implication are not favored.20 R.A.
No. 7202 cannot be deemed to have repealed P.D. No. 579. In addition, the power to declare a
law unconstitutional does not lie with the legislature, but with the
21
courts. Assuming arguendo that R.A. No. 7202 did indeed repeal P.D. No. 579, said repeal is
not a legislative declaration finding the earlier law unconstitutional.

To resolve the third issue, petitioners ask us to apply the doctrine of piercing the veil of
corporate fiction with respect to PNB and PHILEX. Petitioners submit that PHILEX was a wholly-
owned subsidiary of PNB prior to the latter's privatization.

We note, however, that the appellate court made the following finding of fact:

"1. PNB and PHILEX are separate juridical persons and there is no reason to pierce the
veil of corporate personality. Both existed by virtue of separate organic acts. They had
separate operations and different purposes and powers."22
Findings of fact by the Court of Appeals are conclusive and binding upon this Court unless said
findings are not supported by the evidence.23 Our jurisdiction in a petition for review under Rule
45 of the Rules of Court is limited only to reviewing questions of law and factual issues are not
within its province.24 In view of the aforequoted finding of fact, no manifest error is chargeable to
the respondent court for refusing to pierce the veil of corporate fiction.

On the fourth issue, the appellate court found that there were two sets of accounts between
petitioners and PNB, namely:

"1. The accounts relative to the loan financing scheme entered into by the Mirasols with
PNB (PNB's Brief, p. 16) On the question of haw much the PNB lent the Mirasols for
crop years 1973-1974 and 1974-1975, the evidence recited by the lower court in its
decision was deficient. We are offered (sic) PNB the amount of FIFTEEN MILLION NINE
HUNDRED SIXTY FOUR THOUSAND TWO HUNDRED FIFTY TWO PESOS and
NINETY THREE Centavos (Ps15,964,252.93) but this is the alleged balance the
Mirasols owe PNB covering the years 1975 to 1982.

"2. The account relative to the Mirasol's current account Numbers 5186 and 5177
involving the amount of THREE MILLION FOUR HUNDRED THOUSAND Pesos
(P3,400,000.00). PNB claims against the Mirasols. (PNB's Brief, p. 17)

"In regard to the first set of accounts, besides the proceeds from PNB's sale of sugar
(involving the defendant PHILEX in relation to the export portion of tile stock), the PNB
foreclosed the Mirasols' mortgaged properties realizing therefrom in 1981 THREE
MILLION FOUR HUNDRED THIRTEEN THOUSAND pesos (P3,413,000.00), the PNB
itself having acquired the properties as the highest bidder.

"As to the second set of accounts, PNB proposed, and the Mirasols accepted, a dacion
en pago scheme by which the Mirasols conveyed to PNB pieces of property valued at
ONE MILLION FOUR HUNDRED TEN THOUSAND FOUR HUNDRED SIXTY-SIX
Pesos (Ps1,410,466.00) (PNB's Brief, pp. 16-17)."25

Petitioners now claim that the dacion en pago and the foreclosure of their mortgaged properties
were void for want of consideration. Petitioners insist that the loans granted them by PNB from
1975 to 1982 had been fully paid by virtue of legal compensation. Hence, the foreclosure was
invalid and of no effect, since the mortgages were already fully discharged. It is also averred
that they agreed to the dacion only by virtue of a martial law Arrest, Search, and Seizure Order
(ASSO).

We find petitioners' arguments unpersuasive. Both the lower court and the appellate court found
that the Mirasols admitted that they were indebted to PNB in the sum stated in the latter's
counterclaim.26 Petitioners nonetheless insist that the same can be offset by the unliquidated
amounts owed them by PNB for crop years 1973-74 and 1974-75. Petitioners' argument has no
basis in law. For legal compensation to take place, the requirements set forth in Articles 1278
and 1279 of the Civil Code must be present. Said articles read as follows:

"Art. 1278. Compensation shall take place when two persons, in their own right, are
creditors and debtors of each other.

Art. 1279. In order that compensation may be proper, it is necessary:

(1) That each one of the obligors be bound principally, and that he be at the same time a
principal creditor of the other;

(2) That both debts consist in a sum of money, or if the things due are consumable, they
be of the same kind, and also of the same quality if the latter has been stated;

(3) That the two debts are due;

(4) That they be liquidated and demandable;


(5) That over neither of them there be any retention or controversy, commenced by third
persons and communicated in due time to the debtor."

In the present case, set-off or compensation cannot take place between the parties because:
First, neither of the parties are mutually creditors and debtors of each other. Under P.D. No.
579, neither PNB nor PHILEX could retain any difference claimed by the Mirasols in the price of
sugar sold by the two firms. P.D. No. 579 prescribed where the profits from the sales are to be
paid, to wit:

"SECTION 7. x x x After deducting its commission of two and one-half (2-1/2%) percent
of gross sales, the balance of the proceeds of sugar trading operations for every crop
year shall be set aside by the Philippine Exchange Company, Inc,. as profits which shall
be paid to a special fund of the National Government subject to the disposition of the
President for public purposes."

Thus, as correctly found by the Court of Appeals, "there was nothing with which PNB was
supposed to have off-set Mirasols' admitted indebtedness."27

Second, compensation cannot take place where one claim, as in the instant case, is still the
subject of litigation, as the same cannot be deemed liquidated.28

With respect to the duress allegedly employed by PNB, which impugned petitioners' consent to
the dacion en pago, both the trial court and the Court of Appeals found that there was no
evidence to support said claim. Factual findings of the trial court, affirmed by the appellate court,
are conclusive upon this Court.29

On the fifth issue, the trial court awarded petitioners P50,000.00 in moral damages and
P50,000.00 in attorney's fees. Petitioners now theorize that it was error for the Court of Appeals
to have deleted these awards, considering that the appellate court found PNB breached its duty
as an agent to render an accounting to petitioners.

An agent's failure to render an accounting to his principal is contrary to Article 1891 of the Civil
Code.30 The erring agent is liable for damages under Article 1170 of the Civil Code, which
states:

"Those who in the performance of their obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene the tenor thereof, are liable for
damages."

Article 1170 of the Civil Code, however, must be construed in relation to Article 2217 of said
Code which reads:

"Moral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar
injury .Though incapable of pecuniary computation, moral damages may be recovered if
they are the proximate result of the defendant's wrongful act or omission."

Moral damages are explicitly authorized in breaches of contract where the defendant acted
fraudulently or in bad faith.31 Good faith, however, is always presumed and any person who
seeks to be awarded damages due to the acts of another has the burden of proving that the
latter acted in bad faith, with malice, or with ill motive. In the instant case, petitioners have failed
to show malice or bad faith32 on the part of PNB in failing to render an accounting. Absent such
showing, moral damages cannot be awarded.

Nor can we restore the award of attorney's fees and costs of suit in favor of petitioners. Under
Article 2208 (5) of the Civil Code, attorney's fees are allowed in the absence of stipulation only if
"the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff s plainly
valid, just, and demandable claim." As earlier stated, petitioners have not proven bad faith on
the part of PNB and PHILEX. 1âwphi1.nêt
WHEREFORE, the instant petition is DENIED and the assailed decision of the respondent court
in CA-G.R. CY 38607 AFFIRMED. Costs against petitioners.

G.R. No. L-52245 January 22, 1980

PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,


vs.
COMMISSION ON ELECTIONS, respondent.

Raul M. Gonzales for petitioners

Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J:

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by
petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin
respondent Commission on Elections (COMELEC) from implementing certain provisions of
Batas Pambansa Big. 51, 52, and 53 for being unconstitutional.

The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya,
who has filed his certificate of candidacy for said position of Governor in the forthcoming
elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a
member of the Bar who, as such, has taken his oath to support the Constitution and obey the
laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a
resident of San Miguel, Iloilo.

Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa


Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of
the Constitution. Said Section 4 provides:

Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C


of the Constitution and disqualification mentioned in existing laws, which are
hereby declared as disqualification for any of the elective officials enumerated in
section 1 hereof.

Any retired elective provincial city or municipal official who has received payment
of the retirement benefits to which he is entitled under the law, and who shall
have been 6,5 years of age at the commencement of the term of office to which
he seeks to be elected shall not be qualified to run for the same elective local
office from which he has retired (Emphasis supplied)

Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and
that the classification provided therein is based on "purely arbitrary grounds and, therefore,
class legislation."

For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory
provisions:

Sec 7. Terms of Office — Unless sooner removed for cause, all local elective
officials hereinabove mentioned shall hold office for a term of six (6) years, which
shall commence on the first Monday of March 1980.

.... (Batas Pambansa Blg. 51) Sec. 4.

Sec. 4. ...
Any person who has committed any act of disloyalty to the State, including acts
amounting to subversion, insurrection, rebellion or other similar crimes, shall not
be qualified to be a candidate for any of the offices covered by this Act, or to
participate in any partisan political activity therein:

provided that a judgment of conviction for any of the aforementioned crimes shall
be conclusive evidence of such fact and

the filing of charges for the commission of such crimes before a civil court or
military tribunal after preliminary investigation shall be prima fascie evidence of
such fact.

... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).

Section 1. Election of certain Local Officials — ... The election shall be held on
January 30, 1980. (Batas Pambansa, Blg. 52)

Section 6. Election and Campaign Period — The election period shall be fixed by
the Commission on Elections in accordance with Section 6, Art. XII-C of the
Constitution. The period of campaign shall commence on December 29, 1979
and terminate on January 28, 1980. (ibid.)

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas
Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution,
which provides that a "bona fide candidate for any public office shall be it. from any form of
harassment and discrimination. "The question of accreditation will not be taken up in this case
but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been
squarely raised,

Petitioners then pray that the statutory provisions they have challenged be declared null and
void for being violative of the Constitution.

I . The procedural Aspect

At the outset, it should be stated that this Petition suffers from basic procedural infirmities,
hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties
and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan
Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint,
nor do the latter join Dumlao in his. The respectively contest completely different statutory
provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The
action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although
petitioners plead nine constraints as the reason of their joint Petition, it would have required only
a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and
Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure.

For another, there are standards that have to be followed inthe exercise of the function of
judicial review, namely (1) the existence of an appropriate case:, (2) an interest personal and
substantial by the party raising the constitutional question: (3) the plea that the function be
exercised at the earliest opportunity and (4) the necessity that the constiutional question be
passed upon in order to decide the case (People vs. Vera 65 Phil. 56 [1937]).

It may be conceded that the third requisite has been complied with, which is, that the parties
have raised the issue of constitutionality early enough in their pleadings.

This Petition, however, has fallen far short of the other three criteria.

A. Actual case and controversy.

It is basic that the power of judicial review is limited to the determination of actual cases and
controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas
Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed
by the Constitution, and seeks to prohibit respondent COMELEC from implementing said
provision. Yet, Dumlao has not been adversely affected by the application of that provision. No
petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no
ruling of that constitutional body on the matter, which this Court is being asked to review on
Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition
for an advisory opinion from this Court to be rendered without the benefit of a detailed factual
record Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion
of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent
COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of
which reads:

"Section 2. The Commission on Elections shall have the following power and functions:

1) xxx

2) Be the sole judge of all contests relating to the elections, returns


and qualifications of all members of the National Assembly and elective
provincial and city officials. (Emphasis supplied)

The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:

Section 11. Any decision, order, or ruling of the Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty days from his
receipt of a copy thereof.

B. Proper party.

The long-standing rule has been that "the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement" (People vs. Vera, supra).

In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their
Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that
neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified
from being candidates for local elective positions. Neither one of them has been calle ed to have
been adversely affected by the operation of the statutory provisions they assail as
unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest
at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial
redress.

It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and
that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The
Secretary of Public Works (110 Phil. 331 [1960], thus:

... it is well settled that the validity of a statute may be contested only by one who
will sustain a direct injury in consequence of its enforcement. Yet, there are many
decisions nullifying at the instance of taxpayers, laws providing for the
disbursement of public funds, upon the theory that "the expenditure of public
funds, by an officer of the State for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds," which may be
enjoined at the request of a taxpayer.

In the same vein, it has been held:

In the determination of the degree of interest essential to give the requisite


standing to attack the constitutionality of a statute, the general rule is that not
only persons individually affected, but also taxpayers have sufficient interest in
preventing the illegal expenditure of moneys raised by taxation and they may,
therefore, question the constitutionality of statutes requiring expenditure of public
moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als.,
15 SCRA 479 [1965]).

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and
sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While,
concededly, the elections to be held involve the expenditure of public moneys, nowhere in their
Petition do said petitioners allege that their tax money is "being extracted and spent in violation
of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392
U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see
Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain respondent from
wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine
Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citingPhilippine Constitution
Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per
se is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677
[1972]), speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained.

C. Unavoidability of constitutional question.

Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of
an act of the legislature will not be determined by the courts unless that question is properly
raised and presented in appropriate cases and is necessary to a determination of the case; i.e.,
the issue of constitutionality must be the very lis mota presented."

We have already stated that, by the standards set forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the necessity for resolving the issue of
constitutionality is absent, and procedural regularity would require that this suit be dismissed.

II. The substantive viewpoint.

We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not
being entirely without discretion in the matter. Thus, adherence to the strict procedural standard
was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and
in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases
having been penned by our present Chief Justice. The reasons which have impelled us are the
paramount public interest involved and the proximity of the elections which will be held only a
few days hence.

Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him


personally is belied by the fact that several petitions for the disqualification of other candidates
for local positions based on the challenged provision have already been filed with the
COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's
contention of intentional or purposeful discrimination.

The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is
neither well taken. The constitutional guarantee of equal protection of the laws is subject to
rational classification. If the groupings are based on reasonable and real differentiations, one
class can be treated and regulated differently from another class. For purposes of public
service, employees 65 years of age, have been validly classified differently from younger
employees. Employees attaining that age are subject to compulsory retirement, while those of
younger ages are not so compulsorily retirable.

In respect of election to provincial, city, or municipal positions, to require that candidates should
not be more than 65 years of age at the time they assume office, if applicable to everyone,
might or might not be a reasonable classification although, as the Solicitor General has
intimated, a good policy of the law would be to promote the emergence of younger blood in our
political elective echelons. On the other hand, it might be that persons more than 65 years old
may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service may or may not be a
reasonable disqualification for elective local officials. For one thing, there can also be retirees
from government service at ages, say below 65. It may neither be reasonable to disqualify
retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65,
who is not a retiree.

But, in the case of a 65-year old elective local official, who has retired from a provincial, city or
municipal office, there is reason to disqualify him from running for the same office from which he
had retired, as provided for in the challenged provision. The need for new blood assumes
relevance. The tiredness of the retiree for government work is present, and what is emphatically
significant is that the retired employee has already declared himself tired and unavailable for the
same government work, but, which, by virtue of a change of mind, he would like to assume
again. It is for this very reason that inequality will neither result from the application of the
challenged provision. Just as that provision does not deny equal protection neither does it
permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are
sinlilarly treated.

In fine, it bears reiteration that the equal protection clause does not forbid all legal classification.
What is proscribes is a classification which is arbitrary and unreasonable. That constitutional
guarantee is not violated by a reasonable classification based upon substantial distinctions,
where the classification is germane to the purpose of the law and applies to all Chose belonging
to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA
606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336
[1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to
allow the emergence of younger blood in local governments. The classification in question being
pursuant to that purpose, it cannot be considered invalid "even it at times, it may be susceptible
to the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The
Constitution of the Philippines, 1977 ed., p. 547).

There is an additional consideration. Absent herein is a showing of the clear invalidity of the
questioned provision. Well accepted is the rule that to justify the nullification of a law, there must
be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach.
Courts are practically unanimous in the pronouncement that laws shall not be declared invalid
unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs.
COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on
Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to
prescribe qualifications for one who desires to become a candidate for office provided they are
reasonable, as in this case.

In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section
4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in
two parts. The first provides:

a. judgment of conviction jor any of the aforementioned crimes shall be


conclusive evidence of such fact ...

The supremacy of the Constitution stands out as the cardinal principle. We are aware of the
presumption of validity that attaches to a challenged statute, of the well-settled principle that "all
reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set
aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra).
We are constrained to hold that this is one such clear case.

Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the
fundamental law, is not synonymous with guilt. The challenged proviso contravenes the
constitutional presumption of innocence, as a candidate is disqualified from running for public
office on the ground alone that charges have been filed against him before a civil or military
tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of
proof, no distinction is made between a person convicted of acts of dislotalty and one against
whom charges have been filed for such acts, as both of them would be ineligible to run for
public office. A person disqualified to run for public office on the ground that charges have been
filed against him is virtually placed in the same category as a person already convicted of a
crime with the penalty of arresto, which carries with it the accessory penalty of suspension of
the right to hold office during the term of the sentence (Art. 44, Revised Penal Code).

And although the filing of charges is considered as but prima facie evidence, and therefore, may
be rebutted, yet. there is "clear and present danger" that because of the proximity of the
elections, time constraints will prevent one charged with acts of disloyalty from offering contrary
proof to overcome the prima facie evidence against him.

Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts
rather than before an administrative body such as the COMELEC. A highly possible conflict of
findings between two government bodies, to the extreme detriment of a person charged, will
thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not
be allowed to be substituted for a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that
objectionable portion is mandated. It is separable from the first portion of the second paragraph
of section 4 of Batas Pambansa Big. 52 which can stand by itself.

WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby


declared valid. Said paragraph reads:

SEC. 4. Special disqualification. — In addition to violation of Section 10 of Article


XII(C) of the Constitution and disqualifications mentioned in existing laws which
are hereby declared as disqualification for any of the elective officials
enumerated in Section 1 hereof, any retired elective provincial, city or municipal
official, who has received payment of the retirement benefits to which he is
entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected, shall not be
qualified to run for the same elective local office from which he has retired.

2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang


52 providing that "... the filing of charges for the commission of such crimes
before a civil court or military tribunal after preliminary investigation shall
be prima facie evidence of such fact", is hereby declared null and void, for being
violative of the constitutional presumption of innocence guaranteed to an
accused.

SO ORDERED.

Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.

Fernando, C.J., concurs and submits a brief separate opinion.

De Castro, J., abstain as far as petitioner Dumlao is concerned.

Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art.
XI I is more expensive than the equal protection clause.

AQUINO, J, concurring:
concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power
of judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute
an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked. 3While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on
asserted constitutional deficiencies deserves to be heard. That goes without saying. For the
judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In that
sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in its
allegiance to the philosophy of judicial self-restraint. There are, however, limits to judicial
activism. It cannot be too strongly stressed that a petition of this character must ever remain an
orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a
pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial
power, the forms of litigation are but slight retaining walls. It is right and proper that the voice of
the Solicitor General should be heard in protest against such neglect of rudimentary precepts.
Necessarily then, whenever objections based on refusal to abide by the procedural principles
are presented, this Court must rule. It would suffice if thereby the petition is dismissed for non-
observance of the controlling doctrines. There are times, however, when the controversy is of
such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional
limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with
the opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness
of which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of
age. 4 Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in
character. The weakness of the petition is thus apparent. No decision of this Tribunal can be
cited in support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the reasons,
the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It
is not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive.
That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v.
United States: 5 "The decisions of this Court [Supreme Court of the United States] from the
beginning lend no support whatever to the assumption that the judiciary may restrain the
exercise of lawful power on the assumption that a wrongful purpose of motive has caused the
power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United States
v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a
hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit
to sound decision-making in this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are asked to void a
statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it
is unwise legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response.
As the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the
principle is that equal protection and security shall be given to every person under
circumstances, which if not Identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest. 10 It cannot be denied that
others similarly fall under the same ban. It was not directed at petitioner solely. The most that
can be said is that he falls within the-proscribed class. The point was likewise raised as to why
should national officials be excluded in the above provision. The answer is simple. There is
nothing to prevent the legislative body from following a system of priorities. This it did under the
challenged legislative provision. In its opinion, what called for such a measure is the propensity
of the local officials having reached the retirement age and having received retirement benefits
once again running for public office. Accordingly, the provision in question was enacted. A
portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was
confronted with a situation that caned for correction, and the legislation that was the result of its
deliberation sought to apply the necessary palliative. That it stopped short of possibly attaining
the cure of other analogous ills certainly does not stigmatize its effort as a denial of equal
protection. We have given our sanction to the principle underlying the exercise of police power
and taxation, but certainly not excluding eminent domain, that 'the legislature is not required by
the Constitution to adhere to the policy of all "or none." ' Thus, to reiterate, the invocation by
petitioner of the equal protection clause is futile and unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate
sense of justice." 13 As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate the
opportunity of an individual to present himself as a candidate. If, as has been invariably the
case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so many
complaints filed on his desk would give in to the all-too-human propensity to take the easy way
out and to file charges, then a candidate Would be hard put to destroy the presumption. A sense
of realism for me compels a declaration of nullity of a provision which on its face is patently
offensive to the Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory
and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of
governor of his home province of Nueva Vizcaya and would in effect bar the electors of his
province from electing him to said office in the January 30 elections, simply because he is a
retired provincial governor of said province "who has received payment of the retirement
benefits to which he is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected."

To specially and peculiarly ban a 65-year old previously retired elective local official from
running for the same elective office (of governor, in this case) previously held by him and from
which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are
not similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for
governor (because the disqualification is for the retiree of 65 to run for the same elective office
from which he retired) but petitioner is barred from doing so (although he may run for any other
lesser office). Both are 65 and are retirees, yet one is barred from running for the office of
governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner
who has cause to that "the aforesaid provision was concocted and designed precisely to
frustrate any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 —
(since no other case by a former governor similarly barred by virtue of said provision can never
be cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee
that equal protection and security shall be given under the law to every person, under
analogous if not Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would bar
65-year old retirees from running for the same elective local office) is not rational nor
reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood"
because such "old blood" retirees may continue in local governments since they are not
disqualified at all to run for any other local elective office such as from provincial governor, vice-
governor, city, municipal or district mayor and vice- mayor to member of the Sangguniang
Panlalawigan Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective
office from which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have
received payment of the retirement benefits to which they are entitled under the law (which
amount to very little, compared to retirement benefits of other executive officials and members
of the judiciary). If they have not received such retirement benefits, they are not disqualified.
Certainly, their disqualification or non-disqualification and consequent classification as "old
blood" or "new blood" cannot hinge on such an irrelevant question of whether or not they have
received their retirement benefits.
The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan
Pambansa and who has just this month completed 81 years of age and has been hailed by the
President himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al.
the most, a minimum age to hold public office has been required as a
qualification to insure a modicum of maturity 'now reduced to 21 years in the
present batas), but no maximum age has ever been imposed as a disqualification
for elect public office since the right and win of the people to elect the candidate
of their choice for any elective office, no matter his age has always been
recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand
and hostile discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application insofar as it would
disqualify petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for
consideration, there should be none as to the privileges conferred and the liabilities imposed.
There can be no undue favoritism or partiality on the one hand or hostility on the other. Arbitrary
selection and discrimination against persons in thus ruled out. For the principle is that equal
protection and security shall be given to every person under circumstances, which if not
Identical are analogous. If law be looked upon in terms of burden or charges, those that full
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of
subversion, insurrection, rebellion or other similar crimes before a civil court or military tribunal
after preliminary investigation prima facie evidence of the fact of commission of an act of
disloyalty to the State on the part of the candidate and disqualify him from his candidacy. Such a
provision could be the most insidious weapon to disqualify bona fide candidates who seem to be
headed for election and places in the hands of the military and civil prosecutors a dangerous
and devastating weapon of cutting off any candidate who may not be to their filing through the
filing of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to
the State and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election
Code. 5 Otherwise, the questioned provision would deny the bona fide candidate substantive
due process and would be grossly violative of his constitutional right of presumption of
innocence and of the above-quoted provision of the 1973 Constitution protecting candidates for
public office from any form of harassment and discrimination.
ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a
majority in favor of the declarations and pronouncements above referred to in the two preceding
paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as
of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated
by the view that the action to nullify such second paragraph of section 4 of the Batas in question
is premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as
dissents against the majority action.

Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art.
XI I is more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power
of judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute
an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked. 3While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on
asserted constitutional deficiencies deserves to be heard. That goes without saying. For the
judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In that
sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in its
allegiance to the philosophy of judicial self-restraint. There are, however, limits to judicial
activism. It cannot be too strongly stressed that a petition of this character must ever remain an
orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a
pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial
power, the forms of litigation are but slight retaining walls. It is right and proper that the voice of
the Solicitor General should be heard in protest against such neglect of rudimentary precepts.
Necessarily then, whenever objections based on refusal to abide by the procedural principles
are presented, this Court must rule. It would suffice if thereby the petition is dismissed for non-
observance of the controlling doctrines. There are times, however, when the controversy is of
such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional
limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with
the opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness
of which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of
age. 4 Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in
character. The weakness of the petition is thus apparent. No decision of this Tribunal can be
cited in support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the reasons,
the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It
is not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive.
That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v.
United States: 5 "The decisions of this Court [Supreme Court of the United States] from the
beginning lend no support whatever to the assumption that the judiciary may restrain the
exercise of lawful power on the assumption that a wrongful purpose of motive has caused the
power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United States
v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a
hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit
to sound decision-making in this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are asked to void a
statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it
is unwise legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response.
As the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the
principle is that equal protection and security shall be given to every person under
circumstances, which if not Identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest. 10 It cannot be denied that
others similarly fall under the same ban. It was not directed at petitioner solely. The most that
can be said is that he falls within the-proscribed class. The point was likewise raised as to why
should national officials be excluded in the above provision. The answer is simple. There is
nothing to prevent the legislative body from following a system of priorities. This it did under the
challenged legislative provision. In its opinion, what called for such a measure is the propensity
of the local officials having reached the retirement age and having received retirement benefits
once again running for public office. Accordingly, the provision in question was enacted. A
portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was
confronted with a situation that caned for correction, and the legislation that was the result of its
deliberation sought to apply the necessary palliative. That it stopped short of possibly attaining
the cure of other analogous ills certainly does not stigmatize its effort as a denial of equal
protection. We have given our sanction to the principle underlying the exercise of police power
and taxation, but certainly not excluding eminent domain, that 'the legislature is not required by
the Constitution to adhere to the policy of all "or none." ' Thus, to reiterate, the invocation by
petitioner of the equal protection clause is futile and unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate
sense of justice." 13 As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate the
opportunity of an individual to present himself as a candidate. If, as has been invariably the
case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so many
complaints filed on his desk would give in to the all-too-human propensity to take the easy way
out and to file charges, then a candidate Would be hard put to destroy the presumption. A sense
of realism for me compels a declaration of nullity of a provision which on its face is patently
offensive to the Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory
and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of
governor of his home province of Nueva Vizcaya and would in effect bar the electors of his
province from electing him to said office in the January 30 elections, simply because he is a
retired provincial governor of said province "who has received payment of the retirement
benefits to which he is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected."

To specially and peculiarly ban a 65-year old previously retired elective local official from
running for the same elective office (of governor, in this case) previously held by him and from
which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are
not similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for
governor (because the disqualification is for the retiree of 65 to run for the same elective office
from which he retired) but petitioner is barred from doing so (although he may run for any other
lesser office). Both are 65 and are retirees, yet one is barred from running for the office of
governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner
who has cause to that "the aforesaid provision was concocted and designed precisely to
frustrate any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 —
(since no other case by a former governor similarly barred by virtue of said provision can never
be cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee
that equal protection and security shall be given under the law to every person, under
analogous if not Identical circumstances?
Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would bar
65-year old retirees from running for the same elective local office) is not rational nor
reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood"
because such "old blood" retirees may continue in local governments since they are not
disqualified at all to run for any other local elective office such as from provincial governor, vice-
governor, city, municipal or district mayor and vice- mayor to member of the Sangguniang
Panlalawigan Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective
office from which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have
received payment of the retirement benefits to which they are entitled under the law (which
amount to very little, compared to retirement benefits of other executive officials and members
of the judiciary). If they have not received such retirement benefits, they are not disqualified.
Certainly, their disqualification or non-disqualification and consequent classification as "old
blood" or "new blood" cannot hinge on such an irrelevant question of whether or not they have
received their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan
Pambansa and who has just this month completed 81 years of age and has been hailed by the
President himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al.
the most, a minimum age to hold public office has been required as a
qualification to insure a modicum of maturity 'now reduced to 21 years in the
present batas), but no maximum age has ever been imposed as a disqualification
for elect public office since the right and win of the people to elect the candidate
of their choice for any elective office, no matter his age has always been
recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand
and hostile discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application insofar as it would
disqualify petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for
consideration, there should be none as to the privileges conferred and the liabilities imposed.
There can be no undue favoritism or partiality on the one hand or hostility on the other. Arbitrary
selection and discrimination against persons in thus ruled out. For the principle is that equal
protection and security shall be given to every person under circumstances, which if not
Identical are analogous. If law be looked upon in terms of burden or charges, those that full
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest." 4
Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of
subversion, insurrection, rebellion or other similar crimes before a civil court or military tribunal
after preliminary investigation prima facie evidence of the fact of commission of an act of
disloyalty to the State on the part of the candidate and disqualify him from his candidacy. Such a
provision could be the most insidious weapon to disqualify bona fide candidates who seem to be
headed for election and places in the hands of the military and civil prosecutors a dangerous
and devastating weapon of cutting off any candidate who may not be to their filing through the
filing of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to
the State and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election
Code. 5 Otherwise, the questioned provision would deny the bona fide candidate substantive
due process and would be grossly violative of his constitutional right of presumption of
innocence and of the above-quoted provision of the 1973 Constitution protecting candidates for
public office from any form of harassment and discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a
majority in favor of the declarations and pronouncements above referred to in the two preceding
paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as
of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated
by the view that the action to nullify such second paragraph of section 4 of the Batas in question
is premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as
dissents against the majority action.

Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art.
XI I is more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power
of judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute
an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked. 3While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on
asserted constitutional deficiencies deserves to be heard. That goes without saying. For the
judiciary must ever endeavor to vindicate rights safeguarded by the fundamental law. In that
sense, this Tribunal is not susceptible to the reproach that it has imprisoned itself in its
allegiance to the philosophy of judicial self-restraint. There are, however, limits to judicial
activism. It cannot be too strongly stressed that a petition of this character must ever remain an
orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a
pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial
power, the forms of litigation are but slight retaining walls. It is right and proper that the voice of
the Solicitor General should be heard in protest against such neglect of rudimentary precepts.
Necessarily then, whenever objections based on refusal to abide by the procedural principles
are presented, this Court must rule. It would suffice if thereby the petition is dismissed for non-
observance of the controlling doctrines. There are times, however, when the controversy is of
such a character that to resolve doubts, erase uncertainty, and assure respect for constitutional
limitations, this Tribunal must pass on the merits. This is one such case. I therefore concur with
the opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness
of which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of
age. 4 Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in
character. The weakness of the petition is thus apparent. No decision of this Tribunal can be
cited in support of such a proposition. It would be to extend unduly the concept of judicial review
if a court can roam far and wide and range at will over the variety and diversity of the reasons,
the promptings that may lead a legislator to cast his vote for or against a proposed legislation. It
is not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive.
That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v.
United States: 5 "The decisions of this Court [Supreme Court of the United States] from the
beginning lend no support whatever to the assumption that the judiciary may restrain the
exercise of lawful power on the assumption that a wrongful purpose of motive has caused the
power to be exerted. 6 The late Chief Justice Warren, who penned the opinion in United States
v. O' Brien 7 put the matter thus: "Inquiries into congressional motives or purposes are a
hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to
statements by legislators for guidance as to the purpose of the legislature, because the benefit
to sound decision-making in this circumstance is thought sufficient to risk the possibility of
misreading Congress' purpose. It is entirely a different matter when we are asked to void a
statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer
than a handful of Congressmen said about it. What motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of others to enact it, and the stakes are
sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it
is unwise legislation which Congress had the undoubted power to enact and which could be
reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." 8
2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response.
As the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the
principle is that equal protection and security shall be given to every person under
circumstances, which if not Identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest. 10 It cannot be denied that
others similarly fall under the same ban. It was not directed at petitioner solely. The most that
can be said is that he falls within the-proscribed class. The point was likewise raised as to why
should national officials be excluded in the above provision. The answer is simple. There is
nothing to prevent the legislative body from following a system of priorities. This it did under the
challenged legislative provision. In its opinion, what called for such a measure is the propensity
of the local officials having reached the retirement age and having received retirement benefits
once again running for public office. Accordingly, the provision in question was enacted. A
portion of the opinion in the aforesaid J.M. Tuason and Co., Inc. finds relevance: "It was
confronted with a situation that caned for correction, and the legislation that was the result of its
deliberation sought to apply the necessary palliative. That it stopped short of possibly attaining
the cure of other analogous ills certainly does not stigmatize its effort as a denial of equal
protection. We have given our sanction to the principle underlying the exercise of police power
and taxation, but certainly not excluding eminent domain, that 'the legislature is not required by
the Constitution to adhere to the policy of all "or none." ' Thus, to reiterate, the invocation by
petitioner of the equal protection clause is futile and unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate
sense of justice." 13 As rightfully stressed in the opinion of the Court, the time element may
invariably preclude a full hearing on the charge against him and thus effectively negate the
opportunity of an individual to present himself as a candidate. If, as has been invariably the
case, a prosecutor, whether in a civil court or in a military tribunal saddled as he is with so many
complaints filed on his desk would give in to the all-too-human propensity to take the easy way
out and to file charges, then a candidate Would be hard put to destroy the presumption. A sense
of realism for me compels a declaration of nullity of a provision which on its face is patently
offensive to the Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the
discriminatory and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which
would impose a special disqualification on petitioner Patricio Dumlao from
running for the elective local office of governor of his home province of Nueva
Vizcaya and would in effect bar the electors of his province from electing him to
said office in the January 30 elections, simply because he is a retired provincial
governor of said province "who has received payment of the retirement benefits
to which he is entitled under the law and who shall have been 65 years of age at
the commencement of the term of office to which he seeks to be elected.

To specially and peculiarly ban a 65-year old previously retired elective local official from
running for the same elective office (of governor, in this case) previously held by him and from
which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are
not similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for
governor (because the disqualification is for the retiree of 65 to run for the same elective office
from which he retired) but petitioner is barred from doing so (although he may run for any other
lesser office). Both are 65 and are retirees, yet one is barred from running for the office of
governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner
who has cause to that "the aforesaid provision was concocted and designed precisely to
frustrate any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 —
(since no other case by a former governor similarly barred by virtue of said provision can never
be cited 2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee
that equal protection and security shall be given under the law to every person, under
analogous if not Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would bar
65-year old retirees from running for the same elective local office) is not rational nor
reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood"
because such "old blood" retirees may continue in local governments since they are not
disqualified at all to run for any other local elective office such as from provincial governor, vice-
governor, city, municipal or district mayor and vice- mayor to member of the Sangguniang
Panlalawigan Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective
office from which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71
years of age, is running as the official KBL candidate for governor of his province. And even in
the case of 65-year old local elective officials, they are disqualified only when they have
received payment of the retirement benefits to which they are entitled under the law (which
amount to very little, compared to retirement benefits of other executive officials and members
of the judiciary). If they have not received such retirement benefits, they are not disqualified.
Certainly, their disqualification or non-disqualification and consequent classification as "old
blood" or "new blood" cannot hinge on such an irrelevant question of whether or not they have
received their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan
Pambansa and who has just this month completed 81 years of age and has been hailed by the
President himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al.
the most, a minimum age to hold public office has been required as a
qualification to insure a modicum of maturity 'now reduced to 21 years in the
present batas), but no maximum age has ever been imposed as a disqualification
for elect public office since the right and win of the people to elect the candidate
of their choice for any elective office, no matter his age has always been
recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause which
mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand
and hostile discrimination and the oppression of in quality on the other. The questioned
provision should therefore at the least be declared invalid in its application insofar as it would
disqualify petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for
consideration, there should be none as to the privileges conferred and the liabilities imposed.
There can be no undue favoritism or partiality on the one hand or hostility on the other. Arbitrary
selection and discrimination against persons in thus ruled out. For the principle is that equal
protection and security shall be given to every person under circumstances, which if not
Identical are analogous. If law be looked upon in terms of burden or charges, those that full
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of
subversion, insurrection, rebellion or other similar crimes before a civil court or military tribunal
after preliminary investigation prima facie evidence of the fact of commission of an act of
disloyalty to the State on the part of the candidate and disqualify him from his candidacy. Such a
provision could be the most insidious weapon to disqualify bona fide candidates who seem to be
headed for election and places in the hands of the military and civil prosecutors a dangerous
and devastating weapon of cutting off any candidate who may not be to their filing through the
filing of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a
judgment of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to
the State and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election
Code. 5 Otherwise, the questioned provision would deny the bona fide candidate substantive
due process and would be grossly violative of his constitutional right of presumption of
innocence and of the above-quoted provision of the 1973 Constitution protecting candidates for
public office from any form of harassment and discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a
majority in favor of the declarations and pronouncements above referred to in the two preceding
paragraphs, in view of the urgency of the matter and the evil sought to be avoided. However, as
of this writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated
by the view that the action to nullify such second paragraph of section 4 of the Batas in question
is premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as
dissents against the majority action.

G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,


vs.
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT.
REYNALDO BERROYA, respondents.
----------------------------------------

G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner,


vs.
ANGELO REYES, Secretary of National Defense, ET AL., respondents.

----------------------------------------

G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner,


vs.
SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR
LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,


vs.
THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED
FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents.

RESOLUTION

MELO, J.:

On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with
explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and
attempting to break into Malacañang, issued Proclamation No. 38 declaring that there was a
state of rebellion in the National Capital Region. She likewise issued General Order No. 1
directing the Armed Forces of the Philippines and the Philippine National Police to suppress the
rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and
promoters of the "rebellion" were thereafter effected.

Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which
allegedly gave a semblance of legality to the arrests, the following four related petitions were
filed before the Court –

(1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent
application for the issuance of temporary restraining order and/or writ of preliminary injunction)
filed by Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781
for mandamus and/or review of the factual basis for the suspension of the privilege of the writ
of habeas corpus, with prayer for the suspension of the privilege of the writ of habeas corpus,
with prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G. R. No.
147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or
restraining order filed by Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and
prohibition filed by the political party Laban ng Demokratikong Pilipino.

All the foregoing petitions assail the declaration of a state of rebellion by President Gloria
Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no
basis both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo
ordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the
instant petitions have been rendered moot and academic. As to petitioners' claim that the
proclamation of a "state of rebellion" is being used by the authorities to justify warrantless
arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific
persons in connection with the "rebellion." He states that what is extant are general instructions
to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as
stated in respondents' Joint Comments:

[I]t is already the declared intention of the Justice Department and police
authorities to obtain regular warrants of arrests from the courts for all acts
committed prior to and until May 1, 2001 which means that preliminary
investigations will henceforth be conducted.

(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p.
16; G.R. No. 147810, p. 24)

With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest.

In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of
persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if
the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based
on the declaration of a "state of rebellion."

Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-


Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being
arrested without warrant do not justify their resort to the extraordinary remedies
of mandamus and prohibition, since an individual subjected to warrantless arrest is not without
adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary
investigation under Rule 112 of the Rules of Court, where he may adduce evidence in his
defense, or he may submit himself to inquest proceedings to determine whether or not he
should remain under custody and correspondingly be charged in court. Further, a person
subject of a warrantless arrest must be delivered to the proper judicial authorities within the
periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could
be held liable for delay in the delivery of detained persons. Should the detention be without legal
ground, the person arrested can charge the arresting officer with arbitrary detention. All this is
without prejudice to his filing an action for damages against the arresting officer under Article 32
of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail
themselves of, thereby making the prayer for prohibition and mandamus improper at this time
(Section 2 and 3, Rule 65, Rules of Court).1âwphi1.nêt

Aside from the foregoing reasons, several considerations likewise inevitably call for the
dismissal of the petitions at bar.

G.R. No. 147780

In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and
mancao pray that the "appropriate court before whom the informations against petitioners are
filed be directed to desist from arraigning and proceeding with the trial of the case, until the
instant petition is finally resolved." This relief is clearly premature considering that as of this
date, no complaints or charges have been filed against any of the petitioners for any crime. And
in the event that the same are later filed, this Court cannot enjoin criminal prosecution
conducted in accordance with the Rules of Court, for by that time any arrest would have been in
pursuant of a duly issued warrant.

As regards petitioners' prayer that the hold departure orders issued against them be declared
null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of the
subject hold departure orders in their petition. They are not even expressing intention to leave
the country in the near future. The prayer to set aside the same must be made in proper
proceedings initiated for that purpose.

Anent petitioners' allegations ex abundante ad cautelam in support of their application for the
issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose
is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a
matter which remains speculative up to this very day.

G.R. No. 147781


The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is
basic in matters relating to petitions for mandamus that the legal right of the petitioner to the
performance of a particular act which is sought to be compelled must be clear and
complete. Mandamus will not issue unless the right to relief is clear at the time of the award
(Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has
not shown that she is in imminent danger of being arrested without a warrant. In point of fact,
the authorities have categorically stated that petitioner will not be arrested without a warrant.

G.R. No. 147799

Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part,
argues that the declaration of a "state of rebellion" is violative of the doctrine of separation of
powers, being an encroachment on the domain of the judiciary which has the constitutional
prerogative to "determine or interpret" what took place on May 1, 2001, and that the declaration
of a state of rebellion cannot be an exception to the general rule on the allocation of the
governmental powers.

We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he
President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever
it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion…" Thus, we held in Integrated Bar of the Philippines v. Hon.
Zamora, (G.R. No. 141284, August 15, 2000):

x x x The factual necessity of calling out the armed forces is not easily quantifiable and
cannot be objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts. Besides
the absence of textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the courts.
Certain pertinent information might be difficult to verify, or wholly unavailable to the
courts. In many instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not constituting technical
proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence


network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. x x x

(at pp.22-23)

The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of
this power. However, this is no longer feasible at this time, Proclamation No. 38 having been
lifted.

G.R. No. 147810

Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that
a party must show a personal stake in the outcome of the case or an injury to himself that can
be redressed by a favorable decision so as to warrant an invocation of the court's jurisdiction
and to justify the exercise of the court's remedial powers in his behalf (KMU Labor Center v.
Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself
which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus,
it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders,
members, and supporters are being threatened with warrantless arrest and detention for the
crime of rebellion. Every action must be brought in the name of the party whose legal right has
been invaded or infringed, or whose legal right is under imminent threat of invasion or
infringement.

At best, the instant petition may be considered as an action for declaratory relief, petitioner
claiming that its right to freedom of expression and freedom of assembly is affected by the
declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the
Constitution.

However, to consider the petition as one for declaratory relief affords little comfort to petitioner,
this Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article
VIII of the Constitution limits the original jurisdiction of the Court to cases affecting
ambassadors, other public ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.

WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R.
No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking
earlier adverted to, together with their agents, representatives, and all persons acting for and in
their behalf, are hereby enjoined from arresting petitioners therein without the required judicial
warrant for all acts committed in relation to or in connection with the may 1, 2001 siege of
Malacañang.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes, JJ., concur.

Vitug, separate opinion.

Kapunan, dissenting opinion.

Pardo, join the dissent of J. Kapunan.

Sandoval-Gutierrez, dissenting opinion.

Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.

G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,


vs.
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT.
REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner,


vs.
ANGELO REYES, Secretary of National Defense, ET AL., respondents.

SEPARATE OPINION

VITUG, J.:

I concur insofar as the resolution enjoins any continued warrantless arrests for acts
related to, or connected with, the May 1st incident but respectfully dissent from the order
of dismissal of the petitions for being said to be moot and academic. The petitions have
raised important constitutional issues that, in my view, must likewise be fully addressed.
G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,


vs.
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT.
REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner,


vs.
ANGELO REYES, Secretary of National Defense, ET AL., respondents.

----------------------------------------

G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner,


vs.
SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR
LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,


vs.
THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED
FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents.

DISSENTING OPINION

KAPUNAN, J.:

The right against unreasonable searches and seizure has been characterized as belonging "in
the catalog of indispensable freedoms."

Among deprivation of rights, none is so effective in cowing a population, crushing the


spirit of the individual and putting terror in every heart. Uncontrolled search and seizure
is one of the first and most effective weapons in the arsenal of every arbitrary
government. And one need only briefly to have dwelt and worked among a people know
that the human personality deteriorates and dignity and self-reliance disappear where
homes, persons and possessions are subject at any hour to unheralded search and
seizure by the police.1

Invoking the right against unreasonable searches and seizures, petitioners Panfilo Lacson,
Michael Ray Aquino and Cezar O. Mancao II now seek a temporary restraining order and/or
injunction from the Court against their impending warrantless arrests upon order of the
Secretary of Justice.2 Petitioner Laban ng Demokratikong Pilipino (LDP), likewise, seeks to
enjoin the arrests of its senatorial candidates, namely, Senator Juan Ponce-Enrile, Senator
Miriam Defensor-Santiago, Senator Gregorio B. Honasan and General Panfilo
Lacson.3 Separate petitioners were also filed by Senator Juan Ponce Enrile.4 Former
Ambassador Ernesto M. Maceda,5 Senator Miriam Defensor-Santiago,6Senator Gregorio B.
Honasan,7 and the Integrated Bar of the Philippines (IBP).8

Briefly, the order for the arrests of these political opposition leaders and police officers stems
from the following facts:

On April 25, 2001, former President Joseph Estrada was arrested upon the warrant issued by
the Sandiganbayan in connection with the criminal case for plunder filed against him. Several
hundreds of policemen were deployed to effect his arrest. At the time, a number of Mr. Estrada's
supporters, who were then holding camp outside his residence in Greenhills Subdivision, sought
to prevent his arrest. A skirmish ensued between them and the police. The police had to employ
batons and water hoses to control the rock-throwing pro-Estrada rallyists and allow the sheriffs
to serve the warrant. Mr. Estrada and his son and co-accused, Mayor Jinggoy Estrada, were
then brought to Camp Crame where, with full media coverage, their fingerprints were obtained
and their mug shots taken.

Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine to show its
support for the deposed President. Senators Enrile, Santiago, Honasan, opposition senatorial
candidates including petitioner Lacson, as well as other political personalities, spoke before the
crowd during these rallies.

In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the Veterans
memorial Medical Center for a medical check-up. It was announced that from there, they would
be transferred to Fort Sto. Domingo in Sta. Rosa, Laguna.

In the early morning of May 1, 2001, the crowd at EDSA decided to march to Malacañang
Palace. The Armed Forces of the Philippines (AFP) was called to reinforce the Philippine
National Police (PNP) to guard the premises of the presidential residence. The marchers were
able to penetrate the barricades put up by the police at various points leading to Mendiola and
were able to reach Gate 7 of Malacañan. As they were being dispersed with warning shots, tear
gas and water canons, the rallyists hurled stones at the police authorities. A melee erupted.
Scores of people, including some policemen, were hurt.

At noon of the same day, after the crowd in Mendiola had been dispersed, President Gloria
Macapagal-Arroyo issued Proclamation No. 38 declaring a "state of rebellion" in Metro Manila:

Presidential Proclamation No. 38

DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION

WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons, in great part coming from the mass
gathering at the EDSA Shrine, and other armed groups, having been agitated and
incited and, acting upon the instigation and under the command and direction of known
and unknown leaders, have and continue to assault and attempt to break into
Malacañang with the avowed purpose of overthrowing the duly constituted Government
and forcibly seize power, and have and continue to rise publicly, shown open hostility,
and take up arms against the duly constituted Government for the purpose of removing
from the allegiance to the Government certain bodies of the Armed Forces of the
Philippines and the Philippine National Police, and to deprive the President of the
Republic of the Philippines, wholly and partially, of her powers and prerogatives which
constitute the continuing crime of rebellion punishable under Article 134 of the Revised
Penal Code;

WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and
plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly
constituted Government and seize political power;
WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the
President as the Commander-in-Chief of all armed forces of the Philippines, may call out
such armed forces to suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers


vested in me by law hereby recognize and confirm the existence of an actual and on-
going rebellion compelling me to declare a state of rebellion;

In view of the foregoing, I am issuing General Order NO. 1 in accordance with Section
18, Article VII of the Constitution calling upon the Armed Forces of the Philippines and
the Philippine National police to suppress and quell the rebellion.

City of Manila, May 1, 2001.

The President likewise issued General Order No. 1 which reads:

GENERAL ORDER NO. 1

DIRECTING THE ARMED FORCES OF THE PHILIPPIENS AND THE PHILIPPINE


NATIONAL POLICE TO SUPPRESS THE REBELLION IN THE NATIONAL CAPITAL
REGION

WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons, in great part coming from the mass
gathering at the EDSA Shrine, and other armed groups, having been agitated and
incited and, acting upon the instigation and under the command and direction of known
and unknown leaders, have and continue to assault and attempt to break into
Malacañang with the avowed purpose of overthrowing the duly constituted Government
and forcibly seize political power, and have and continue to rise publicly, show open
hostility, and take up arms against the duly constituted Government certain bodies of the
Armed Forces of the Philippines and the Philippine National Police, and to deprive the
President of the Republic of the Philippines, wholly and partially, of her powers and
prerogatives which constitute the continuing crime of rebellion punishable under Article
134 of the Revised Penal Code;

WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and
plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly
constituted Government and seize political power;

WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the
President as the Commander-in-Chief of all armed forces of the Philippines, may call out
such armed forces to suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers


vested in me under the Constitution as President of the Republic of the Philippines and
Commander-in-Chief of all armed forces of the Philippines and pursuant to Proclamation
No. 38, dated May 1, 2001, do hereby call upon the Armed Forces of the Philippines and
the Philippine national police to suppress and quell the rebellion.

I hereby direct the Chief of Staff of the Armed Forces of the Philippines and the Chief of
the Philippine National Police and the officers and men of the Armed Forces of the
Philippines and the Philippine National Police to immediately carry out the necessary
and appropriate actions and measures to suppress and quell the rebellion with due
regard to constitutional rights.

City of Manila, May 1, 2001.

Pursuant to the proclamation, several key leaders of the opposition were ordered arrested.
Senator Enrile was arrested without warrant in his residence at around 4:00 in the afternoon.
Likewise arrested without warrant the following day was former Ambassador Ernesto Maceda.
Senator Honasan and Gen. Lacson were also ordered arrested but the authorities have so far
failed to apprehend them. Ambassador Maceda was temporarily released upon recognizance
while Senator Ponce Enrile was ordered released by the Court on cash bond.

The basic issue raised by the consolidated petitions is whether the arrest or impending arrest
without warrant, pursuant to a declaration of "state of rebellion" by the President of the above-
mentioned persons and unnamed other persons similarly situated suspected of having
committed rebellion is illegal, being unquestionably a deprivation of liberty and violative of the
Bill of Rights under the Constitution.

The declaration of a "state of rebellion" is supposedly based on Section 18, Article VII of the
Constitution which reads:

The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or the
suspension of the writ of habeas corpus, the President shall submit a report in person or
in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of
all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress if the invasion or rebellion
shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.

Section 18 grants the President, as Commander-in-Chief, the power to call out the armed forces
in cases of (1) lawless violence, (2) rebellion and (3) invasion.9 In the latter two cases, i.e.,
rebellion or invasion, the President may, when public safety requires, also (a) suspend the
privilege of the writ of habeas corpus, or (b) place the Philippines or any part thereof under
martial law. However, in the exercise of this calling out power as Commander-in-Chief of the
armed forces, the Constitution does not require the President to make a declaration of a "state
of rebellion" (or, for that matter, of lawless violence or invasion). The term "state of rebellion"
has no legal significance. It is vague and amorphous and does not give the President more
power than what the Constitution says, i. e, whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or rebellion. As Justice
Mendoza observed during the hearing of this case, such a declaration is "legal surplusage." But
whatever the term means, it cannot diminish or violate constitutionally-protected rights, such as
the right to due process,10 the rights to free speech and peaceful assembly to petition the
government for redress of grievances,11and the right against unreasonable searches and
seizures,12 among others.
In Integrated Bar of the Philippines vs. Zamora, et al.,13 the Court held that:

x x x [T]he distinction (between the calling out power, on one hand, and the power to
suspend the privilege of the write of habeas corpus and to declare martial law, on the
other hand) places the calling out power in a different category from the power to declare
martial law and the power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped together the three
powers and provided for their revocation and review without any qualification. Expressio
unius est exclusio alterius.

xxx

The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
"calling out" power because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitating affirmation by
Congress and, in appropriate cases, review by this Court.

On the other hand, if the motive behind the declaration of a "state of rebellion" is to arrest
persons without warrant and detain them without bail and, thus, skirt the Constitutional
safeguards for the citizens' civil liberties, the so-called "state of rebellion" partakes the nature of
martial law without declaring on its face, yet, if it is applied and administered by public authority
with an evil eye so as to practically make it unjust and oppressive, it is within the prohibition of
the Constitution.14 In an ironic sense, a "state of rebellion" declared as a subterfuge to effect
warrantless arrest and detention for an unbailable offense places a heavier burden on the
people's civil liberties than the suspension of the privilege of the writ of habeas corpus the
declaration of martial law because in the latter case, built-in safeguards are automatically set on
motion: (1) The period for martial law or suspension is limited to a period not exceeding sixty
day; (2) The President is mandated to submit a report to Congress within forty-eight hours from
the proclamation or suspension; (3) The proclamation or suspension is subject to review by
Congress, which may revoke such proclamation or suspension. If Congress is not in session, it
shall convene in 24 hours without need for call; and (4) The sufficiency of the factual basis
thereof or its extension is subject to review by the Supreme Court in an appropriate
proceeding.15

No right is more fundamental than the right to life and liberty. Without these rights, all other
individual rights may not exist. Thus, the very first section in our Constitution's Bill of Rights,
Article III, reads:

SECTION 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.

And to assure the fullest protection of the right, more especially against government impairment,
Section 2 thereof provides:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

Indeed, there is nothing in Section 18 which authorizes the President or any person acting
under her direction to make unwarranted arrests. The existence of "lawless violence, invasion or
rebellion" only authorizes the President to call out the "armed forces to prevent or suppress
lawless violence, invasion or rebellion."

Not even the suspension of the privilege of the writ of habeas corpus or the declaration of
martial law authorizes the President to order the arrest of any person. The only significant
consequence of the suspension of the writ of habeas corpus is to divest the courts of the power
to issue the writ whereby the detention of the person is put in issue. It does not by itself
authorize the President to order the arrest of a person. And even then, the Constitution in
Section 18, Article VII makes the following qualifications:

The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.

In the instant case, the President did not suspend the writ of habeas corpus. Nor did she
declare martial law. A declaration of a "state of rebellion," at most, only gives notice to the
nation that it exists, and that the armed forces may be called to prevent or suppress it, as in fact
she did. Such declaration does not justify any deviation from the Constitutional proscription
against unreasonable searches and seizures.

As a general rule, an arrest may be made only upon a warrant issued by a court. In very
circumscribed instances, however, the Rules of Court allow warrantless arrests. Section 5, Rule
113 provides:

SEC. 5. Arrest without warrant; when lawful. – A police officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and

xxx

In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.

It must be noted that the above are exceptions to the constitutional norm enshrined in the Bill of
Rights that a person may only be arrested on the strength of a warrant of arrest issued by a
"judge" after determining "personally" the existence of "probable cause" after examination under
oath or affirmation of the complainant and the witnesses he may produce. Its requirements
should, therefore, be scrupulously met:

The right of a person to be secure against any unreasonable seizure of his body and any
deprivation of his liberty is a most basic and fundamental one. The statute or rule which
allows exceptions to the requirement of warrants of arrests is strictly construed. Any
exception must clearly fall within the situations when securing a warrant would be absurd
or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the
rule on arrests without warrant or extend its application beyond the cases specifically
provided by law. To do so would infringe upon personal liberty and set back a basic right
so often violated and so deserving of full protection.16

A warrantless arrest may be justified only if the police officer had facts and circumstances
before him which, had they been before a judge, would constitute adequate basis for a finding of
probable cause of the commission of an offense and that the person arrested is probably guilty
of committing the offense. That is why the Rules of Criminal Procedure require that when
arrested, the person "arrested has committed, is actually committing, or is attempting to commit
an offense" in the presence of the arresting officer. Or if it be a case of an offense which had
"just been committed," that the police officer making the arrest "has personal knowledge of facts
or circumstances that the person to be arrested has committed it."
Petitioners were arrested or sought to be arrested without warrant for acts of rebellion ostensibly
under Section 5 of Rule 113. Respondents' theory is based on Umil vs. Ramos,17 where this
Court held:

The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and
crimes or offenses committed in furtherance thereof or in connection therewith constitute
direct assault against the State and are in the nature of continuing crimes.18

Following this theory, it is argued that under Section 5(a), a person who "has committed, is
actually committing, or is attempting to commit" rebellion and may be arrested without a warrant
at any time so long as the rebellion persists.

Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days
after the commission of the violent acts of petitioners therein, were upheld by the Court because
at the time of their respective arrests, they were members of organizations such as the
Communist Party of the Philippines, the New Peoples Army and the National United Front
Commission, then outlawed groups under the Anti-Subversion Act. Their mere membership in
said illegal organizations amounted to committing the offense of subversion19 which justified
their arrests without warrants.

In contrast, it has not been alleged that the persons to be arrested for their alleged participation
in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to
overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there
must be a showing that the persons arrested or to be arrested has committed, is actually
committing or is attempting to commit the offense of rebellion.20 In other words, there must be
an overt act constitutive of rebellion taking place in the presence of the arresting officer.
In United States vs. Samonte,21 the term" in his [the arresting officer's] presence" was defined
thus:

An offense is said to be committed in the presence or within the view of an arresting


officer or private citizen when such officer or person sees the offense, even though at a
distance, or hears the disturbance created thereby and proceeds at once to the scene
thereof; or the offense is continuing, or has not been consummated, at the time the
arrest is made.22

This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's
Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court
noted that the sworn statements of the policemen who purportedly arrested him were
hearsay.23 Senator Enrile was arrested two (2) days after he delivered allegedly seditious
speeches. Consequently, his arrest without warrant cannot be justified under Section 5(b) which
states that an arrest without a warrant is lawful when made after an offense has just been
committed and the arresting officer or private person has probable cause to believe based on
personal knowledge of facts and circumstances that the person arrested has committed the
offense.

At this point, it must be stressed that apart from being inapplicable to the cases at bar, Umil is
not without any strong dissents. It merely re-affirmed Garcia-Padilla vs. Enrile,24 a case decided
during the Marcos martial law regime.25 It cannot apply when the country is supposed to be
under the regime of freedom and democracy. The separate opinions of the following Justices in
the motion for reconsideration of said case26 are apropos:

FERNAN C.J., concurring and dissenting:

Secondly, warrantless arrests may not be allowed if the arresting officers are not sure
what particular provision of law had been violated by the person arrested. True it is that
law enforcement agents and even prosecutors are not all adept at the law. However,
erroneous perception, not to mention ineptitude among their ranks, especially if it would
result in the violation of any right of a person, may not be tolerated. That the arrested
person has the "right to insist during the pre-trial or trial on the merits" (Resolution, p. 18)
that he was exercising a right which the arresting officer considered as contrary to law, is
beside the point. No person should be subjected to the ordeal of a trial just because the
law enforcers wrongly perceived his action.27(Underscoring supplied)

GUTIERREZ, JR., J., concurring and dissenting opinion

Insofar as G.R. NO. 81567 is concerned, I joint the other dissenting Justices in their
observations regarding "continuing offenses." To base warrantless arrests on the
doctrine of continuing offense is to give a license for the illegal detention of persons on
pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line
between overt acts and simple advocacy or adherence to a belief is extremely thin. If a
court has convicted an accused of rebellion and he is found roaming around, he may be
arrested. But until a person is proved guilty, I fail to see how anybody can jump to a
personal conclusion that the suspect is indeed a rebel and must be picked up on sight
whenever seen. The grant of authority in the majority opinion is too broad. If warrantless
searches are to be validated, it should be Congress and not this Court which should
draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or
obnoxious will be indiscriminately lumped up with those actually taking up arms against
the Government.

The belief of law enforcement authorities, no matter how well-grounded on past events,
that the petitioner would probably shoot other policemen whom he may meet does not
validate warrantless arrests. I cannot understand why the authorities preferred to bide
their time, await the petitioner's surfacing from underground, and ounce on him with no
legal authority instead of securing warrants of arrest for his
apprehension.28(Underscoring supplied)

CRUZ, J., concurring and dissenting:

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the
illegal arrests made in the cases before us is a step back to that shameful past when
individual rights were wantonly and systematically violated by the Marcos dictatorship. It
seem some of us have short memories of that repressive regime, but I for one am not
one to forget so soon. As the ultimate defender of the Constitution, this Court should not
gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty
in the dubious name of national security. Whatever their ideology and even if it be hostile
to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no
less than any other person in this country. That is what democracy is all
about.29 (Underscoring supplied)

FELICIANO, J., concurring and dissenting:

12. My final submission, is that, the doctrine of "continuing crimes," which has its own
legitimate function to serve in our criminal law jurisprudence, cannot be invoked for
weakening and dissolving the constitutional guarantee against warrantless arrest. Where
no overt acts comprising all or some of the elements of the offense charged are shown
to have been committed by the person arrested without warrant, the "continuing crime"
doctrine should not be used to dress up the pretense that a crime, begun or committed
elsewhere, continued to be committed by the person arrested in the presence of the
arresting officer. The capacity for mischief of such a utilization of the "continuing crimes"
doctrine, is infinitely increased where the crime charged does not consist of
unambiguous criminal acts with a definite beginning and end in time and space (such as
the killing or wounding of a person or kidnapping and illegal detention or arson) but
rather or such problematic offenses as membership in or affiliation with or becoming a
member of, a subversive association or organization. For in such cases, the overt
constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts
a function of the aims or objectives of the organization involved. Note, for instance, the
following acts which constitute prima facie evidence of "membership in any subversive
association:"

a) Allowing himself to be listed as a member in any book or any of the lists, records,
correspondence, or any other document of the organization;
b) Subjecting himself to the discipline of such or association or organization in any form
whatsoever;

c) Giving financial contribution to such association or organization in dues, assessments,


loans or in any other forms;

xxx

f) Conferring with officers or other members of such association or organization in


furtherance of any plan or enterprise thereof;

xxx

g) Preparing documents, pamphlets, leaflets, books, or any other type of publication to


promote the objectives and purposes of such association or organization;

xxx

k) Participating in any way in the activities, planning action, objectives, or purposes of


such association or organization.

It may well be, as the majority implies, that the constitutional rule against warrantless
arrests and seizures makes the law enforcement work of police agencies more difficult to
carry out. It is not our Court's function, however, and the Bill of Rights was not designed,
to make life easy for police forces but rather to protect the liberties of private individuals.
Our police forces must simply learn to live with the requirements of the Bill of Rights, to
enforce the law by modalities which themselves comply with the fundamental law.
Otherwise they are very likely to destroy, whether through sheer ineptness or excess of
zeal, the very freedoms which make our policy worth protecting and
saving.30 (Underscoring supplied)

It is observed that a sufficient period has lapsed between the fateful day of May 1, 2001 up to
the present. If respondents have ample evidence against petitioners, then they should forthwith
file the necessary criminal complaints in order that the regular procedure can be followed and
the warrants of arrest issued by the courts in the normal course. When practicable, resort to the
warrant process is always to be preferred because "it interposes an orderly procedure involving
'judicial impartiality' whereby a neutral and detached magistrate can make informed and
deliberate determinations on the issue of probable cause."31

The neutrality, detachment and independence that judges are supposed to possess is precisely
the reason the framers of the 1987 Constitution have reposed upon them alone the power to
issue warrants of arrest. To vest the same to a branch of government, which is also charged
with prosecutorial powers, would make such branch the accused's adversary and accuser, his
judge and jury.32

A declaration of a state of rebellion does not relieve the State of its burden of proving probable
cause. The declaration does not constitute a substitute for proof. It does not in any way bind the
courts, which must still judge for itself the existence of probable cause. Under Section 18, Article
VII, the determination of the existence of a state of rebellion for purposes of proclaiming martial
law or the suspension of the privilege of the writ of habeas corpusrests for which the President
is granted ample, though not absolute, discretion. Under Section 2, Article III, the determination
of probable cause is a purely legal question of which courts are the final arbiters.

Justice Secretary Hernando Perez is reported to have announced that the lifting of the "state of
rebellion" on May 7, 2001 does not stop the police from making warrantless arrests. 33 If this is
so, the pernicious effects of the declaration on the people's civil liberties have not abated
despite the lifting thereof. No one exactly knows who are in the list or who prepared the list of
those to be arrested for alleged complicity in the "continuing" crime of "rebellion" defined as
such by executive fiat. The list of the perceived leaders, financiers and supporters of the
"rebellion" to be arrested and incarcerated could expand depending on the appreciation of the
police. The coverage and duration of effectivity of the orders of arrest are thus so open-ended
and limitless as to place in constant and continuing peril the people's Bill of Rights. It is of no
small significance that four of he petitioners are opposition candidates for the Senate. Their
campaign activities have been to a large extent immobilized. If the arrests and orders of arrest
against them are illegal, then their Constitutional right to seek public office, as well as the right
of he people to choose their officials, is violated.

In view of the transcendental importance and urgency of the issues raised in these cases
affecting as they do the basic liberties of the citizens enshrined in our Constitution, it behooves
us to rule thereon now, instead of relegating the cases to trial courts which unavoidably may
come up with conflicting dispositions, the same to reach this Court inevitably for final ruling. As
we aptly pronounced in Salonga vs. Cruz Paño:34

The Court also has the duty to formulate guiding and controlling constitutional principles,
precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on
the extent of protection given by constitutional guarantees.

Petitioners look up in urgent supplication to the Court, considered the last bulwark of
democracy, for relief. If we do not act promptly, justly and fearlessly, to whom will they turn to?

WHEREFORE, I vote as follows:

(1) Give DUE COURSE to and GRANT the petitions;

(2) Declare as NULL and VOID the orders of arrest issued against petitioners;

(3) Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all other
persons acting for and in their behalf from effecting warrantless arrests against
petitioners and all other persons similarly situated on the basis of Proclamation No. 38
and General Order No. 1 of the President.

G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,


vs.
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT.
REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner,


vs.
ANGELO REYES, Secretary of National Defense, ET AL., respondents.

----------------------------------------

G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner,


vs.
SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR
LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147810 May 10, 2001


THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,
vs.
THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED
FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents.

DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

The exercise of certain powers by the President in an atmosphere of civil unrest may sometimes
raise constitutional issues. If such powers are used arbitrarily and capriciously, they may
degenerate into the worst form of despotism.

It is on this premise that I express my dissent.

The chain of events which led to the present constitutional crisis are as follows:

On March 2, 2001, the Supreme Court rendered the landmark decision that would bar further
questions on the legitimacy of Gloria Macapagal-Arroyo's presidency.1 In a unanimous decision,
the Court declared that Joseph Ejercito Estrada had effectively resigned his post and that
Macapagal-Arroyo is the legitimate President of the Philippines. Estrada was stripped of all his
powers and presidential immunity from suit.

Knowing that a warrant of arrest may at any time be issued against Estrada, his loyalists rushed
to his residence in Polk Street, North Greenhills Subdivision, San Juan, Metro Manila. They
conducted vigil in the vicinity swearing that no one can take away their "president."

Then the dreadful day for the Estrada loyalists came.

On April 25, 2001, the Third Division of the Sandiganbayan issued warrants of arrest against
Estrada, his son Jinggoy, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte, Alma Alfaro,
Eleuterio Tan and Delia Rajas.2Emotions ran high as an estimated 10,000 Estrada loyalists,
ranging from tattooed teenagers of Tondo to well-heeled Chinese, gathered in Estrada's
neighborhood.3 Supporters turned hysterical. Newspapers captured pictures of raging men and
wailing women.4 When policemen came, riots erupted. Police had to use their batons as well as
water hoses to control the rock-throwing Estrada loyalists.5

It took the authorities about four hours to implement the warrant of arrest. At about 3:30 o'clock
in the afternoon of the same day, Philippine National Police (PNP) Chief, Director General
Leandro R. Mendoza, with the aid of PNP's Special Action Force and reinforcements from the
Philippine Army and Marines, implemented the warrant of arrest against Estrada. 6

Like a common criminal, Estrada was fingerprinted and had his mug shots taken at the
detention center of the former Presidential Anti-Organized Task Force at Camp Crame. The
shabby treatment, caught on live TV cameras nationwide, had sparked off a wave of protest all
over the country. Even international news agencies like CNN and BBC were appalled over the
manner of Estrada's arrest calling it "overkill." In a taped message aired over radio and
television, Estrada defended himself and said, "I followed the rule of law to the letter. I asked
our people now to tell the powers to respect our constitution and the rule of law."

Being loyal to the end, the supporters of Estrada followed him to Camp Crame. About 3,000 of
them massed up in front of the camp. They were shouting "Edsa Three! Edsa Three! They
vowed not to leave the place until Estrada is released. When asked how long they planned to
stay, the protesters said, "Kahit isang buwan, kahit isang taon.7

At about 6:00 o' clock in the afternoon, also of the same day, the PNP's anti-riot squads
dispersed them. Thus, they proceeded to the Edsa Shrine in Mandaluyong City where they
joined forces with hundreds more who came from North Greenhills. 8 Hordes of Estrada loyalists
began gathering at the historic shrine.
On April 27, 2001, the crowd at Edsa begun to swell in great magnitude. Estrada loyalists from
various sectors, most of them obviously belonging to the "masses," brought with them placards
and streamers denouncing the manner of arrest done to the former president. 9 In the afternoon,
buses loaded with loyalists from the nearby provinces arrived at the Edsa Shrine. One of their
leaders said that the Estrada supporters will stay at Edsa Shrine until the former president gets
justice from the present administration.10

An estimated 1,500 PNP personnel from the different parts of the metropolis were deployed to
secure the area.11On April 28, 2001, the PNP and the Armed Forces declared a "nationwide red
alert."12 Counter-intelligence agents checked on possible defectors from the military top officials.
Several senators were linked to an alleged junta plot.

During the rally, several Puwersa Ng Masa candidates delivered speeches before the crowd.
Among those who showed up at the rally were Senators Miriam Defensor-Santiago, Gregorio
Honasan, Juan Ponce Enrile, Edgardo Angara, Vicente Sotto and former PNP Director General
Panfilo Lacson and former Ambassador Ernesto Maceda.13

On April 30, 2001, the government started to prepare its forces. A 2,000-strong military force
backed up by helicopter gunships, Scorpion tanks and armored combat vehicles stood ready to
counter any attempt by Estrada loyalists to mount a coup. And to show that it meant business,
the task force parked two MG-520 attack helicopters armed to the teeth with rockets on the
parade ground at Camp Aguinaldo, Quezon City. Also deployed were two armored personnel
carriers and troops in camouflage uniforms.14 Over 2,500 soldiers from the army, navy, and air
force were formed into Task Force Libra to quell the indignant Estrada loyalists.15

On May 1, 2001, at about 1:30 o'clock in the morning, the huge crowd at Edsa started their
march to Malacañang.16Along the way, they overran the barricades set up by the members of
the PNP Crowd Dispersal Control Management.17

Shortly past 5:00 o'clock in the morning of the same day, the marchers were at the gates of
Malacañang chanting, dancing, singing and waving flags.18

At around 10:00 o'clock in the morning, the police, with the assistance of combat-ready soldiers,
conducted dispersal operations. Some members of the dispersal team were unceasingly firing
their high-powered firearms in the air, while the police, armed with truncheons and shields, were
slowly pushing the protesters away from the gates of Malacañang. Television footages showed
protesters hurling stones and rocks on the advancing policemen, shouting invectives against
them and attacking them with clubs. They burned police cars, a motorcycle, three pick-ups
owned by a television station, construction equipment and a traffic police outpost along
Mendiola Street.19 They also attacked Red Cross vans, destroyed traffic lights, and vandalized
standing structures. Policemen were seen clubbing protesters, hurling back stones, throwing
teargas under the fierce midday sun, and firing guns towards the sky. National Security Adviser
Roilo Golez said the Street had to be bleared of rioters at all costs because "this is like an
arrow, a dagger going all the way to (Malacañang) Gate 7."20

Before noontime of that same day, the Estrada loyalists were driven away.

The violent street clashes prompted President Macapagal-Arroyo to place Metro Manila under a
"state of rebellion."

Presidential Spokesperson Rigoberto Tiglao told reporters, "We are in a state of rebellion. This
is not an ordinary demonstration."21 After the declaration, there were threats of arrests against
those suspected of instigating the march to Malacañang.

At about 3:30 o'clock in the afternoon, Senator Juan Ponce Enrile was arrested in his house in
Dasmariñas Village, Makati City by a group led by Reynaldo Berroya, Chief of the Philippine
National Police Intelligence Group.22Thereafter, Berroya and his men proceeded to hunt re-
electionist Senator Gregorio Honasan, former PNP Chief Panfilo Lacson, former Ambassador
Ernesto Maceda, Brig. Gen. Jake Malajakan, Senior Superintendents Michael Ray Aquino and
Cesar Mancao II, Ronald Lumbao and Cesar Tanega of the People's Movement Against
Poverty (PMAP).23 Justice Secretary Hernando Perez said that he was "studying" the possibility
of placing Senator Miriam Defensor – Santiago "under the Witness protection program."

Director Victor Batac,24 former Chief of the PNP Directorate for Police Community Relations,
and Senior Superintendent Diosdado Valeroso, of the Philippine Center for Transnational
Crime, surrendered to Berroya. Both denied having plotted the siege.

On May 2, 2001, former Ambassador Ernesto Maceda was arrested.

The above scenario presents three crucial queries: First, is President Macapagal-Arroyo's
declaration of a "state of rebellion" constitutional? Second, was the implementation of the
warrantless arrests on the basis of the declaration of a "state of rebellion" constitutional? And
third, did the rallyists commit rebellion at the vicinity of Malacañang Palace on May 1, 2001?

The first and second queries involve constitutional issues, hence, the basic yardstick is the 1987
Constitution of the Philippines. The third query requires a factual analysis of the events which
culminated in the declaration of a state of rebellion, hence, an examination of Article 134 of the
Revised Penal Code is in order.

On May 7, 2001, President Macapagal-Arroyo issued Proclamation No. 39, "DECLARING THAT
THE STATE OF REBELLION IN THE NATIONAL CAPITAL REGION HAS CEASED TO
EXIST", which in effect, has lifted the previous Proclamation No. 38.

I beg to disagree with the majority opinion in ruling that the instant petitions have been rendered
moot and academic with the lifting by the President of the declaration of a "state of rebellion".

I believe that such lifting should not render moot and academic the very serious and
unprecedented constitutional issues at hand, considering their grave implications involving the
basic human rights and civil liberties of our people. A resolution of these issues becomes all the
more necessary since, as reported in the papers, there are saturation drives (sonas) being
conducted by the police wherein individuals in Metro Manila are picked up without warrants of
arrest.

Moreover, the acts sought to be declared illegal and unconstitutional are capable of being
repeated by the respondents. In Salva v. Makalintat (G.R. No. 132603, Sept. 18, 2000), this
Court held that "courts will decide a question otherwise moot and academic if it is 'capable of
repetition, yet evading review' …"

I & II – President Macapagal-Arroyo's declaration of a "state of rebellion" and the


implementation of the warrantless arrests premised on the said declaration are
unconstitutional.

Nowhere in the Constitution can be found a provision which grants upon the executive the
power to declare a "state of rebellion," much more, to exercise on the basis of such declaration
the prerogatives which a president may validly do under a state of martial law. President-
Macapagal-Arroyo committed a constitutional short cut. She disregarded the clear provisions of
the Constitution which provide:

"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released."25

Obviously, the power of the President in cases when she assumed the existence of rebellion is
properly laid down by the Constitution. I see no reason or justification for the President's
deviation from the concise and plain provisions. To accept the theory that the President could
disregard the applicable statutes, particularly that which concerns arrests, searches and
seizures, on the mere declaration of a "state of rebellion" is in effect to place the Philippines
under martial law without a declaration of the executive to that effect and without
observing the proper procedure. This should not be countenanced. In a society which
adheres to the rule of law, resort to extra-constitutional measures is unnecessary where the law
has provided everything for any emergency or contingency. For even if it may be proven
beneficial for a time, the precedent it sets is pernicious as the law may, in a little while, be
disregarded again on the same pretext but for evil purposes. Even in time of emergency,
government action may vary in breath and intensity from more normal times, yet it need
not be less constitutional.26

My fear is rooted in history. Our nation had seen the rise of a dictator into power. As a matter of
fact, the changes made by the 1986 Constitutional Commission on the martial law text of the
Constitution were to a large extent a reaction against the direction which the Supreme Court
took during the regime of President Marcos.27 Now, if this Court would take a liberal view, and
consider that the declaration of a "state of rebellion" carries with it the prerogatives given to the
President during a "state of martial law," then, I say, the Court is traversing a very dangerous
path. It will open the way to those who, in the end, would turn our democracy into a totalitarian
rule. History must not be allowed to repeat itself. Any act which gears towards possible
dictatorship must be severed at its inception.

The implementation of warrantless arrests premised on the declaration of a "state of rebellion" is


unconstitutional and contrary to existing laws. The Constitution provides that "the right of the
people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizure of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized."28 If a state of martial law "does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over civilians, where civil
courts are able to function, nor automatically suspend the privilege of the writ,"28(a) then it is with
more reason, that a mere declaration of a state of rebellion could not bring about the
suspension of the operation of the Constitution or of the writ of habeas corpus.

Neither can we find the implementation of the warrantless arrests justified under the Revised
Rules on Criminal Procedure. Pertinent is Section 5, Rule 113, thus:
"Sec. 5. Arrest without warrant, when lawful. – A peace officer or a private person
may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts and circumstances that the person to be arrested
has committed it; and

x x x."

Petitioners cannot be considered "to have committed, is actually committing, or is attempting to


commit an offense" at the time they were hunted by Berroya for the implementation of the
warrantless arrests. None of them participated in the riot which took place in the vicinity of the
Malacañang Palace. Some of them were on their respective houses performing innocent acts
such as watching television, resting etc. The sure fact however is that they were not in the
presence of Berroya. Clearly, he did not see whether they had committed, were committing or
were attempting to commit the crime of rebellion. But of course, I cannot lose sight of the legal
implication of President Macapagal-Arroyo's declaration of a "state of rebellion." Rebellion is a
continuing offense and a suspected insurgent or rebel may be arrested anytime as he is
considered to be committing the crime. Nevertheless, assuming ex gratia argumenti that the
declaration of a state of rebellion is constitutional, it is imperative that the said declaration be
reconsidered. In view of the changing times, the dissenting opinion of the noted jurist, Justice
Isagani Cruz, in Umil v. Ramos,29 quoted below must be given a second look.

"I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla vs. Enrile that
subversion is a continuing offense, to justify the arrest without warrant of any person
at any time as long as the authorities say he has been placed under surveillance on
suspicion of the offense. That is a dangerous doctrine. A person may be arrested when
he is doing the most innocent acts, as when he is only washing his hands, or taking his
supper, or even when he is sleeping, on the ground that he is committing the 'continuing'
offense of subversion. Libertarians were appalled when that doctrine was imposed
during the Marcos regime. I am alarmed that even now this new Court is willing to
sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful
vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people
against unreasonable searches and seizures. We can do no less if we are really to reject
the past oppression and commit ourselves to the true freedom. Even if it be argued that
the military should be given every support in our fight against subversion, I maintain that
fight must be waged honorably, in accordance with the Bill of Rights. I do not believe that
in fighting the enemy we must adopt the ways of the enemy, which are precisely what
we are fighting against. I submit that our more important motivation should be what are
we fighting for."

I need not belabor that at the time some of the suspected instigators were arrested, (the others
are still at-large), a long interval of time already passed and hence, it cannot be legally said that
they had just committed an offense. Neither can it be said that Berroya or any of his men had
"personal knowledge of facts or circumstances that the persons to be arrested have committed
a crime." That would be far from reality.

III – The acts of the rallyists at the vicinity of Malacañang Palace on May 1, 2001 do not
constitute rebellion.

Article 134 of the Revised Penal Code reads:

"ART. 134. Rebellion or insurrection – How committed. – The crime of rebellion or


insurrection is committed by rising publicly and taking arms against the Government for
the purpose of removing from the allegiance to said Government or its laws, the territory
of the Republic of the Philippines or any part thereof, of any body of land, naval or other
armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of
any of their powers or prerogatives." (As amended by RA No. 6968, O.G. 52, p. 9864,
1990)

From the foregoing provisions, the elements o the crime of rebellion may be deduced,
thus: first, that there be (a) public uprising and (b) taking arms against the
government; second, that the purpose of the uprising or movement is either (a) to remove from
the allegiance to said government or its laws (1) the territory of the Philippines or any part
thereof; or (2) anybody of land, naval or other armed forces; or (b) to deprive the Chief
Executive or Congress, wholly or partially, of any of their powers or prerogatives. 30

Looking at the events on a magnified scale, I am convinced that the two elements of the crime
of rebellion are lacking.

First, there was no "taking of arms" against the government. To my mind, "taking arms"
connotes the multitude's deliberate and conscious resort to arms or weapons for the purpose of
aiding them in accomplishing any of the purposes of rebellion. Admittedly, the Estrada loyalists
pelted the policemen with rocks and stones and attacked them with sticks and clubs, but such
was merely a result of the heightening tension between opposite camps during the period of
dispersal. The stones, rocks, sticks, clubs and other improvised weapons were not deliberately
resorted to by the Estrada loyalists to further any of the purposes of rebellion. They availed of
them, at the precise moment of dispersal (this explains why their weapons were those which
could be easily gathered on the street) and only for the purpose of stopping the policemen from
dispersing them. In this age of modernity, one who intends to overthrow the government will not
only settle for stones, woods, rocks, sticks or clubs as means to disable the government. It will
be extremely pathetic and the result will only be in vain. Unlike a true rebellion which
is organized, what happened at the vicinity of Malacañang was merely a riot, a mob violence, or
a tumultuous uprising. At this juncture, it bears stressing that the crime of rebellion is a vast
movement of men and a complex net of intrigues and plots.31 It must be distinguished from riot
and offenses connected with mob violence. In rebellion/insurrection, there is an organized and
armed uprising against authority.32

Second, the purpose of the Estrada loyalists was neither (a) to remove from the allegiance to
the government or its laws (1) the territory of the Philippines or any part thereof; or (2) any part
of land, naval or other armed forces; nor (b) to deprive the Chief Executive or Congress, wholly
or partially, of any of their powers or prerogatives. I looked at the chronology of events, and one
thing surfaced – the Estrada loyalists mainly demanded that their beloved "president" should not
be incarcerated. The crowd at Edsa swelled in great magnitude on April 25, 2001, the day
Estrada was arrested. In fact, when they followed Erap at Camp Crame, they were shouting
"Edsa! Edsa! And they vowed not to leave until Estrada is released."33

One must not be swayed by the theory of respondents that the purpose of those people who
gathered in Edsa and marched to Malacañang was to commit rebellion. For sure, there were a
thousand and one reasons why they proceeded to Edsa. In determining their purpose, one must
trace the roots, - what prompted them to go to Edsa? They were the Estrada loyalists who
wanted him to be freed. If indeed there were minorities who advocated another cause, the same
should not be considered as the prevailing one in the determination of what crime was
committed. Facts should not be stretched just to build a case of rebellion. This runs counter to
the principle of due process.

As a final word, I subscribe to the principle that the rule of law implies the precept that similar
cases be treated similarly. Men can not regulate their actions by means of rule if this precept is
not followed. Edsa I, Edsa II and Edsa III are all public uprisings. Statements urging people to
overthrow the government were uttered in all these occasions. Injuries were sustained,
policemen were attacked, standing structures were vandalized… in all these scenarios, one
cannot be said to be extremely away from the other. The only difference is that the first two
succeeded, while the last failed. This should not result to an unbridled or unlimited exercise of
power by the duly constituted authorities. It is during these trying times that fealty to the
Constitution is strongly demanded from all, especially the authorities concerned.1âwphi1.nêt
WHEREFORE, I vote to give DUE COURSE to the petitions and GRANT the same and to
enjoin the respondents from arresting the petitioners in G.R. Nos. 147780, 147781, and 147799
without the corresponding warrants.

[G.R. No. 159085. February 3, 2004]

SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG MANGGAGAWA,


represented by REP. RENATO MAGTUBO petitioners, vs. EXECUTIVE
SECRETARY SECRETARY ANGELO REYES, GENERAL NARCISO ABAYA, DIR.
GEN. HERMOGENES EBDANE, respondents.

[G.R. No. 159103. February 3, 2004]

SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely, SAMSON S.


ALCANTARA, ED VINCENT S. ALBANO, RENE B. GOROSPE, EDWIN R.
SANDOVAL and RODOLFO D. MAPILE, petitioners, vs. HON. EXECUTIVE
SECRETARY ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE SIMEON
DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE ANGELO REYES,
and HON. SECRETARY JOSE LINA, JR., respondents.

[G.R. No. 159185. February 3, 2004]

REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L. LOBREGAT, REP.
HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J. TALINO-
SANTOS, and REP. GEORGILU R. YUMUL-HERMIDA, petitioners, vs. PRESIDENT
GLORIA MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY ALBERTO G.
ROMULO, respondents.

[G.R. No. 159196. February 3, 2004]

AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner, vs. SECRETARY


ALBERTO ROMULO, AS EXECUTIVE SECRETARY; SECRETARY ANGELO REYES,
AS SECRETARY OF NATIONAL DEFENSE; GENERAL NARCISO ABAYA, AS
CHIEF OF STAFF OF THE ARMED FORCES; SECRETARY JOSE LINA, et
al., respondents.

DECISION
TINGA, J.:

They came in the middle of the night. Armed with high-powered ammunitions and
explosives, some three hundred junior officers and enlisted men of the Armed Forces of the
Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in the wee
hours of July 27, 2003. Bewailing the corruption in the AFP, the soldiers demanded, among
other things, the resignation of the President, the Secretary of Defense and the Chief of the
Philippine National Police (PNP).[1]
In the wake of the Oakwood occupation, the President issued later in the day Proclamation
No. 427 and General Order No. 4, both declaring a state of rebellion and calling out the Armed
Forces to suppress the rebellion. Proclamation No. 427 reads in full:

PROCLAMATION NO. 427

DECLARING A STATE OF REBELLION

WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue
to rise publicly and show open hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the Philippines and the Philippine National
Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her
powers and prerogatives which constitute the crime of rebellion punishable under Article 134 of
the Revised Penal Code, as amended;

WHEREAS, these misguided elements of the Armed Forces of the Philippines are being
supported, abetted and aided by known and unknown leaders, conspirators and plotters in the
government service and outside the government;

WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of the Armed Forces of the Philippines,
may call out such Armed Forces to suppress the rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me


by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to
declare a state of rebellion.

In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article
VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine
National Police to immediately carry out the necessary actions and measures to suppress and
quell the rebellion with due regard to constitutional rights.

General Order No. 4 is similarly worded:

GENERAL ORDER NO. 4

DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL
POLICE TO SUPPRESS REBELLION

WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue
to rise publicly and show open hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the Philippines and the Philippine National
Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her
powers and prerogatives which constitute the crime of rebellion punishable under Article 134 et
seq. of the Revised Penal Code, as amended;

WHEREAS, these misguided elements of the Armed Forces of the Philippines are being
supported, abetted and aided by known and unknown leaders, conspirators and plotters in the
government service and outside the government;

WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes
necessary, the President, as the Commander-in-Chief of all Armed Forces of the Philippines,
may call out such Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
by the Constitution as President of the Republic of the Philippines and Commander-in-Chief of
all the armed forces of the Philippines and pursuant to Proclamation No. 427 dated July 27,
2003, do hereby call upon the Armed Forces of the Philippines and the Philippine National
Police to suppress and quell the rebellion.

I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the Philippine
National Police and the officers and men of the Armed Forces of the Philippines and the
Philippine National Police to immediately carry out the necessary and appropriate actions and
measures to suppress and quell the rebellion with due regard to constitutional rights.

By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long
negotiations, the soldiers agreed to return to barracks. The President, however, did not
immediately lift the declaration of a state of rebellion and did so only on August 1, 2003, through
Proclamation No. 435:

DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST

WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was
declared;

WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the
basis of Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18 of the
Constitution, the Armed Forces of the Philippines and the Philippine National Police were
directed to suppress and quell the rebellion;

WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have
effectively suppressed and quelled the rebellion.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue


of the powers vested in me by law, hereby declare that the state of rebellion has ceased to
exist.

In the interim, several petitions were filed before this Court challenging the validity of
Proclamation No. 427 and General Order No. 4.
In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),[2] party-list
organizations Sanlakas and Partido ng Manggagawa (PM), contend that Section 18, Article VII
of the Constitution does not require the declaration of a state of rebellion to call out the armed
forces.[3] They further submit that, because of the cessation of the Oakwood occupation, there
exists no sufficient factual basis for the proclamation by the President of a state of rebellion for
an indefinite period.[4]
Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive Secretary, et al.)
are officers/members of the Social Justice Society (SJS), Filipino citizens, taxpayers, law
professors and bar reviewers.[5] Like Sanlakas and PM, they claim that Section 18, Article VII of
the Constitution does not authorize the declaration of a state of rebellion. [6] They contend that
the declaration is a constitutional anomaly that confuses, confounds and misleads because
[o]verzealous public officers, acting pursuant to such proclamation or general order, are liable to
violate the constitutional right of private citizens.[7] Petitioners also submit that the proclamation
is a circumvention of the report requirement under the same Section 18, Article VII,
commanding the President to submit a report to Congress within 48 hours from the
proclamation of martial law.[8] Finally, they contend that the presidential issuances cannot be
construed as an exercise of emergency powers as Congress has not delegated any such power
to the President.[9]
In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive
Secretary Romulo), petitioners brought suit as citizens and as Members of the House of
Representatives whose rights, powers and functions were allegedly affected by the declaration
of a state of rebellion.[10] Petitioners do not challenge the power of the President to call out the
Armed Forces.[11] They argue, however, that the declaration of a state of rebellion is a
superfluity, and is actually an exercise of emergency powers.[12] Such exercise, it is contended,
amounts to a usurpation of the power of Congress granted by Section 23 (2), Article VI of the
Constitution.[13]
In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the subject
presidential issuances as an unwarranted, illegal and abusive exercise of a martial law power
that has no basis under the Constitution.[14] In the main, petitioner fears that the declaration of a
state of rebellion opens the door to the unconstitutional implementation of warrantless arrests
for the crime of rebellion.[15]
Required to comment, the Solicitor General argues that the petitions have been rendered
moot by the lifting of the declaration.[16] In addition, the Solicitor General questions the standing
of the petitioners to bring suit.[17]
The Court agrees with the Solicitor General that the issuance of Proclamation No. 435,
declaring that the state of rebellion has ceased to exist, has rendered the case moot. As a rule,
courts do not adjudicate moot cases, judicial power being limited to the determination
of actual controversies.[18] Nevertheless, courts will decide a question, otherwise moot, if it is
capable of repetition yet evading review.[19] The case at bar is one such case.
Once before, the President on May 1, 2001 declared a state of rebellion and called upon
the AFP and the PNP to suppress the rebellion through Proclamation No. 38 and General Order
No. 1. On that occasion, an angry and violent mob armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons assaulted and attempted to break into
Malacaang.[20] Petitions were filed before this Court assailing the validity of the Presidents
declaration. Five days after such declaration, however, the President lifted the same. The
mootness of the petitions in Lacson v. Perez and accompanying cases[21] precluded this Court
from addressing the constitutionality of the declaration.
To prevent similar questions from reemerging, we seize this opportunity to finally lay to rest
the validity of the declaration of a state of rebellion in the exercise of the Presidents calling out
power, the mootness of the petitions notwithstanding.
Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have
standing to challenge the subject issuances. In Philippine Constitution Association v.
Enriquez, [22] this Court recognized that:

To the extent the powers of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.

Petitioner Members of Congress claim that the declaration of a state of rebellion by the
President is tantamount to an exercise of Congress emergency powers, thus impairing the
lawmakers legislative powers. Petitioners also maintain that the declaration is a subterfuge to
avoid congressional scrutiny into the Presidents exercise of martial law powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing or locus
standi to bring suit. Legal standing or locus standi has been defined as a personal and
substantial interest in the case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged. The gist of the question of standing is
whether a party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions.[23]
Petitioners Sanlakas and PM assert that:

2. As a basic principle of the organizations and as an important plank in their programs,


petitioners are committed to assert, defend, protect, uphold, and promote the rights, interests,
and welfare of the people, especially the poor and marginalized classes and sectors of
Philippine society. Petitioners are committed to defend and assert human rights, including
political and civil rights, of the citizens.
3. Members of the petitioner organizations resort to mass actions and mobilizations in the
exercise of their Constitutional rights to peaceably assemble and their freedom of speech and of
expression under Section 4, Article III of the 1987 Constitution, as a vehicle to publicly
ventilate their grievances and legitimate demands and to mobilize public opinion to support the
same.[24] [Emphasis in the original.]

Petitioner party-list organizations claim no better right than the Laban ng Demokratikong
Pilipino, whose standing this Court rejected in Lacson v. Perez:

petitioner has not demonstrated any injury to itself which would justify the resort to the
Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened
by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being
threatened with warrantless arrest and detention for the crime of rebellion. Every action must be
brought in the name of the party whose legal rights has been invaded or infringed, or whose
legal right is under imminent threat of invasion or infringement.

At best, the instant petition may be considered as an action for declaratory relief, petitioner
claiming that it[]s right to freedom of expression and freedom of assembly is affected by the
declaration of a state of rebellion and that said proclamation is invalid for being contrary to the
Constitution.

However, to consider the petition as one for declaratory relief affords little comfort to petitioner,
this Court not having jurisdiction in the first instance over such a petition. Section 5 [1], Article
VIII of the Constitution limits the original jurisdiction of the court to cases affecting ambassadors,
other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.[25]

Even assuming that petitioners are peoples organizations, this status would not vest them
with the requisite personality to question the validity of the presidential issuances, as this Court
made clear in Kilosbayan v. Morato: [26]

The Constitution provides that the State shall respect the role of independent peoples
organizations to enable the people to pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful and lawful means, that their
right to effective and reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged. (Art. XIII, 15-16)

These provisions have not changed the traditional rule that only real parties in interest or those
with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court,
even in cases involving constitutional questions, is limited by the case and controversy
requirement of Art. VIII, 5. This requirement lies at the very heart of the judicial function. It is
what differentiates decisionmaking in the courts from decisionmaking in the political
departments of the government and bars the bringing of suits by just any party.[27]

That petitioner SJS officers/members are taxpayers and citizens does not necessarily
endow them with standing. A taxpayer may bring suit where the act complained of directly
involves the illegal disbursement of public funds derived from taxation.[28] No such illegal
disbursement is alleged.
On the other hand, a citizen will be allowed to raise a constitutional question only when he
can show that he has personally suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action;
and the injury is likely to be redressed by a favorable action.[29] Again, no such injury is alleged
in this case.
Even granting these petitioners have standing on the ground that the issues they raise are
of transcendental importance, the petitions must fail.
It is true that for the purpose of exercising the calling out power the Constitution does not
require the President to make a declaration of a state of rebellion. Section 18, Article VII
provides:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis for the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of the
jurisdiction on military courts and agencies over civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released. [Emphasis supplied.]

The above provision grants the President, as Commander-in-Chief, a sequence of


graduated power[s].[30] From the most to the least benign, these are: the calling out power, the
power to suspend the privilege of the writ of habeas corpus, and the power to declare martial
law. In the exercise of the latter two powers, the Constitution requires the concurrence of two
conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise
of such power.[31] However, as we observed in Integrated Bar of the Philippines v.
Zamora,[32] [t]hese conditions are not required in the exercise of the calling out power. The only
criterion is that whenever it becomes necessary, the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion.
Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the
President from declaring a state of rebellion. Note that the Constitution vests the President not
only with Commander-in-Chief powers but, first and foremost, with Executive powers.
Section 1, Article VII of the 1987 Philippine Constitution states: The executive power shall
be vested in the President. As if by exposition, Section 17 of the same Article provides: He shall
ensure that the laws be faithfully executed. The provisions trace their history to the Constitution
of the United States.
The specific provisions of the U.S. Constitution granting the U.S. President executive and
commander-in-chief powers have remained in their original simple form since the Philadelphia
Constitution of 1776, Article II of which states in part:

Section 1. 1. The Executive Power shall be vested in a President of the United States of
America . . . .

....

Section 2. 1. The President shall be Commander in Chief of the Army and Navy of the United
States. . . .
....

Section 3. he shall take care that the laws be faithfully executed. [Article II Executive Power]

Recalling in historical vignettes the use by the U.S. President of the above-quoted
provisions, as juxtaposed against the corresponding action of the U.S. Supreme Court, is
instructive. Clad with the prerogatives of the office and endowed with sovereign powers, which
are drawn chiefly from the Executive Power and Commander-in-Chief provisions, as well as the
presidential oath of office, the President serves as Chief of State or Chief of Government,
Commander-in-Chief, Chief of Foreign Relations and Chief of Public Opinion.[33]
First to find definitive new piers for the authority of the Chief of State, as the protector of the
people, was President Andrew Jackson. Coming to office by virtue of a political revolution,
Jackson, as President not only kept faith with the people by driving the patricians from
power. Old Hickory, as he was fondly called, was the first President to champion the
indissolubility of the Union by defeating South Carolinas nullification effort.[34]
The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the hotspurs
from South Carolina. Its State Legislature ordered an election for a convention, whose members
quickly passed an Ordinance of Nullification. The Ordinance declared the Tariff Acts
unconstitutional, prohibited South Carolina citizens from obeying them after a certain date in
1833, and threatened secession if the Federal Government sought to oppose the tariff laws. The
Legislature then implemented the Ordinance with bristling punitive laws aimed at any who
sought to pay or collect customs duties.[35]
Jackson bided his time. His task of enforcement would not be easy. Technically, the
President might send troops into a State only if the Governor called for help to suppress an
insurrection, which would not occur in the instance. The President could also send troops to see
to it that the laws enacted by Congress were faithfully executed. But these laws were aimed at
individual citizens, and provided no enforcement machinery against violation by a
State. Jackson prepared to ask Congress for a force bill.[36]
In a letter to a friend, the President gave the essence of his position. He wrote: . . . when a
faction in a State attempts to nullify a constitutional law of Congress, or to destroy the Union, the
balance of the people composing this Union have a perfect right to coerce them to
obedience. Then in a Proclamation he issued on December 10, 1832, he called upon South
Carolinians to realize that there could be no peaceable interference with the execution of the
laws, and dared them, disunion by armed force is treason. Are you ready to incur its guilt? [37]
The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon, State
Legislatures began to adopt resolutions of agreement, and the President announced that the
national voice from Maine on the north to Louisiana on the south had declared nullification and
accession confined to contempt and infamy.[38]
No other President entered office faced with problems so formidable, and enfeebled by
personal and political handicaps so daunting, as Abraham Lincoln.
Lincoln believed the Presidents power broad and that of Congress explicit and restricted,
and sought some source of executive power not failed by misuse or wrecked by sabotage. He
seized upon the Presidents designation by the Constitution as Commander-in-Chief, coupled it
to the executive power provision and joined them as the war power which authorized him to do
many things beyond the competence of Congress.[39]
Lincoln embraced the Jackson concept of the Presidents independent power and duty
under his oath directly to represent and protect the people. In his Message of July 4, 1861,
Lincoln declared that the Executive found the duty of employing the war power in defense of the
government forced upon him. He could not but perform the duty or surrender the existence of
the Government . . . . This concept began as a transition device, to be validated by Congress
when it assembled. In less than two-years, it grew into an independent power under which he
felt authorized to suspend the privilege of the writ of habeas corpus, issue the Emancipation
Proclamation, and restore reoccupied States.[40]
Lincolns Proclamation of April 15, 1861, called for 75,000 troops. Their first service,
according to the proclamation, would be to recapture forts, places and property, taking care to
avoid any devastation, any destruction of or interference with property, or any disturbance of
peaceful citizens.[41]
Early in 1863, the U.S. Supreme Court approved President Lincolns report to use the war
powers without the benefit of Congress. The decision was handed in the celebrated Prize
Cases[42] which involved suits attacking the Presidents right to legally institute a
blockade. Although his Proclamation was subsequently validated by Congress, the claimants
contended that under international law, a blockade could be instituted only as a measure of war
under the sovereign power of the State. Since under the Constitution only Congress is
exclusively empowered to declare war, it is only that body that could impose a blockade and all
prizes seized before the legislative declaration were illegal. By a 5 to 4 vote, the Supreme Court
upheld Lincolns right to act as he had.[43]
In the course of time, the U.S. Presidents power to call out armed forces and suspend the
privilege of the writ of habeas corpus without prior legislative approval, in case of invasion,
insurrection, or rebellion came to be recognized and accepted. The United States introduced the
expanded presidential powers in the Philippines through the Philippine Bill of 1902.[44] The use
of the power was put to judicial test and this Court held that the case raised a political question
and said that it is beyond its province to inquire into the exercise of the power.[45] Later, the grant
of the power was incorporated in the 1935 Constitution.[46]
Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it made
him the trustee of all the people. Guided by the maxim that Public office is a public trust, which
he practiced during his incumbency, Cleveland sent federal troops to Illinois to quell striking
railway workers who defied a court injunction. The injunction banned all picketing and
distribution of handbills. For leading the strikes and violating the injunction, Debs, who was the
union president, was convicted of contempt of court. Brought to the Supreme Court, the
principal issue was by what authority of the Constitution or statute had the President to send
troops without the request of the Governor of the State.[47]
In In Re: Eugene Debs, et al,[48] the Supreme Court upheld the contempt conviction. It ruled
that it is not the governments province to mix in merely individual present controversies. Still, so
it went on, whenever wrongs complained of are such as affect the public at large, and are in
respect of matters which by the Constitution are entrusted to the care of the Nation and
concerning which the Nation owes the duty to all citizens of securing to them their common
rights, then the mere fact that the Government has no pecuniary interest in the controversy is
not sufficient to exclude it from the Courts, or prevent it from taking measures therein to fully
discharge those constitutional duties.[49] Thus, Clevelands course had the Courts attest.
Taking off from President Cleveland, President Theodore Roosevelt launched what political
scientists dub the stewardship theory. Calling himself the steward of the people, he felt that the
executive power was limited only by the specific restrictions and prohibitions appearing in the
Constitution, or impleaded by Congress under its constitutional powers.[50]
The most far-reaching extension of presidential power T.R. ever undertook to employ was
his plan to occupy and operate Pennsylvanias coal mines under his authority as Commander-in-
Chief. In the issue, he found means other than force to end the 1902 hard-coal strike, but he
had made detailed plans to use his power as Commander-in-Chief to wrest the mines from the
stubborn operators, so that coal production would begin again.[51]
Eventually, the power of the State to intervene in and even take over the operation of vital
utilities in the public interest was accepted. In the Philippines, this led to the incorporation of
Section 6,[52] Article XIII of the 1935 Constitution, which was later carried over with modifications
in Section 7,[53] Article XIV of the 1973 Constitution, and thereafter in Section 18, [54] Article XII of
the 1987 Constitution.
The lesson to be learned from the U.S. constitutional history is that the Commander-in-
Chief powers are broad enough as it is and become more so when taken together with the
provision on executive power and the presidential oath of office. Thus, the plenitude of the
powers of the presidency equips the occupant with the means to address exigencies or threats
which undermine the very existence of government or the integrity of the State.
In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R.
Cortes, proposed that the Philippine President was vested with residual power and that this is
even greater than that of the U.S. President. She attributed this distinction to the unitary and
highly centralized nature of the Philippine government. She noted that, There is no counterpart
of the several states of the American union which have reserved powers under the United
States constitution. Elaborating on the constitutional basis for her argument, she wrote:
. The [1935] Philippine [C]onstitution establishes the three departments of the government in
this manner: The legislative power shall be vested in a Congress of the Philippines which shall
consist of a Senate and a House of Representatives. The executive power shall be vested in a
President of the Philippines. The judicial powers shall be vested in one Supreme Court and in
such inferior courts as may be provided by law. These provisions not only establish a separation
of powers by actual division but also confer plenary legislative, executive, and judicial
powers. For as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis, a
grant of legislative power means a grant of all the legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government. If
this is true of the legislative power which is exercised by two chambers with a combined
membership [at that time] of more than 120 and of the judicial power which is vested in a
hierarchy of courts, it can equally if not more appropriately apply to the executive power which is
vested in one official the president. He personifies the executive branch. There is a unity in the
executive branch absent from the two other branches of government. The president is not the
chief of many executives. He is the executive. His direction of the executive branch can be more
immediate and direct than the United States president because he is given by express provision
of the constitution control over all executive departments, bureaus and offices.[55]

The esteemed Justice conducted her study against the backdrop of the 1935 Constitution,
the framers of which, early on, arrived at a general opinion in favor of a strong Executive in the
Philippines.[56] Since then, reeling from the aftermath of martial law, our most recent Charter has
restricted the Presidents powers as Commander-in-Chief. The same, however, cannot be said
of the Presidents powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the Presidents power to forbid the
return of her exiled predecessor. The rationale for the majoritys ruling rested on the Presidents

unstated residual powers which are implied from the grant of executive power and which are
necessary for her to comply with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on the Executive Department and
in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the President as a
reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.[57] [Underscoring supplied. Italics in the
original.]

Thus, the Presidents authority to declare a state of rebellion springs in the main from her
powers as chief executive and, at the same time, draws strength from her Commander-in-Chief
powers. Indeed, as the Solicitor General accurately points out, statutory authority for such a
declaration may be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the
President) of the Revised Administrative Code of 1987, which states:

SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or
regulation is made to depend, shall be promulgated in proclamations which shall have the
force of an executive order. [Emphasis supplied.]

The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of a
state of rebellion is an utter superfluity.[58] At most, it only gives notice to the nation that such a
state exists and that the armed forces may be called to prevent or suppress it.[59] Perhaps the
declaration may wreak emotional effects upon the perceived enemies of the State, even on the
entire nation. But this Courts mandate is to probe only into the legal consequences of the
declaration. This Court finds that such a declaration is devoid of any legal significance. For all
legal intents, the declaration is deemed not written.
Should there be any confusion generated by the issuance of Proclamation No. 427 and
General Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere
declaration of a state of rebellion cannot diminish or violate constitutionally protected
rights.[60] Indeed, if a state of martial law does not suspend the operation of the Constitution or
automatically suspend the privilege of the writ of habeas corpus,[61] then it is with more reason
that a simple declaration of a state of rebellion could not bring about these conditions.[62] At any
rate, the presidential issuances themselves call for the suppression of the rebellion with due
regard to constitutional rights.
For the same reasons, apprehensions that the military and police authorities may resort to
warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra, majority of the Court
held that [i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless
arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of
Court,[63] if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus,
not based on the declaration of a state of rebellion.[64] In other words, a person may be
subjected to a warrantless arrest for the crime of rebellion whether or not the President has
declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present.
It is not disputed that the President has full discretionary power to call out the armed forces
and to determine the necessity for the exercise of such power. While the Court may examine
whether the power was exercised within constitutional limits or in a manner constituting grave
abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion
that the President acted without factual basis.[65]
The argument that the declaration of a state of rebellion amounts to a declaration of martial
law and, therefore, is a circumvention of the report requirement, is a leap of logic.There is no
indication that military tribunals have replaced civil courts in the theater of war or that military
authorities have taken over the functions of civil government. There is no allegation of
curtailment of civil or political rights. There is no indication that the President has exercised
judicial and legislative powers. In short, there is no illustration that the President has attempted
to exercise or has exercised martial law powers.
Nor by any stretch of the imagination can the declaration constitute an indirect exercise of
emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23
(2), Article VI of the Constitution:

Sec. 23. (1) .

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

The petitions do not cite a specific instance where the President has attempted to or has
exercised powers beyond her powers as Chief Executive or as Commander-in-Chief.The
President, in declaring a state of rebellion and in calling out the armed forces, was merely
exercising a wedding of her Chief Executive and Commander-in-Chief powers.These are purely
executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to
the delegated legislative powers contemplated by Section 23 (2), Article VI.
WHEREFORE, the petitions are hereby DISMISSED.

G.R. No. 96541 August 24, 1993

DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION REYNA, PROF.
RICARTE M. PURUGANAN, IRMA POTENCIANO, ADRIAN CRISTOBAL, INGRID
SANTAMARIA, CORAZON FIEL, AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R.
JACELA, JR., MAURO MALANG, FEDERICO AGUILAR ALCUAZ, LUCRECIA R. URTULA,
SUSANO GONZALES, STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS, ANG KIU
KOK, KERIMA POLOTAN, LUCRECIA KASILAG, LIGAYA DAVID PEREZ, VIRGILIO
ALMARIO, LIWAYWAY A. ARCEO, CHARITO PLANAS, HELENA BENITEZ, ANNA MARIA
L. HARPER, ROSALINDA OROSA, SUSAN CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ,
NELSON NAVARRO, MANDY NAVASERO, ROMEO SALVADOR, JOSEPHINE DARANG,
and PAZ VETO PLANAS, petitioners,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), CATALINO MACARAIG,
JR., in his official capacity, and/or the Executive Secretary, and CHAIRMAN MATEO A.T.
CAPARAS, respondents.
M.M. Lazaro & Associates for petitioners.

The Solicitor General for respondents.

BELLOSILLO, J.:

All thirty-five (35) petitioners in this Special Civil Action for Prohibition and Mandamus with
Prayer for Preliminary Injunction and/or Restraining Order seek to enjoin the Presidential
Commission on Good Government (PCGG) from proceeding with the auction sale scheduled on
11 January 1991 by Christie's of New York of the Old Masters Paintings and 18th and 19th
century silverware seized from Malacañang and the Metropolitan Museum of Manila and placed
in the custody of the Central Bank.

The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of PCGG, wrote then
President Corazon C. Aquino, requesting her for authority to sign the proposed Consignment
Agreement between the Republic of the Philippines through PCGG and Christie, Manson and
Woods International, Inc. (Christie's of New York, or CHRISTIE'S) concerning the scheduled
sale on 11 January 1991 of eighty-two (82) Old Masters Paintings and antique silverware seized
from Malacañang and the Metropolitan Museum of Manila alleged to be part of the ill-gotten
wealth of the late President Marcos, his relatives and cronies.

On 14 August 1990, then President Aquino, through former Executive Secretary Catalino
Macaraig, Jr., authorized Chairman Caparas to sign the Consignment Agreement allowing
Christie's of New York to auction off the subject art pieces for and in behalf of the Republic of
the Philippines.

On 15 August 1990, PCGG, through Chairman Caparas, representing the Government of the
Republic of the Philippines, signed the Consignment Agreement with Christie's of New York.
According to the agreement, PCGG shall consign to CHRISTIE'S for sale at public auction the
eighty-two (82) Old Masters Paintings then found at the Metropolitan Museum of Manila as well
as the silverware contained in seventy-one (71) cartons in the custody of the Central Bank of
the Philippines, and such other property as may subsequently be identified by PCGG and
accepted by CHRISTIE'S to be subject to the provisions of the agreement.1

On 26 October 1990, the Commission on Audit (COA) through then Chairman Eufemio C.
Domingo submitted to President Aquino the audit findings and observations of COA on the
Consignment Agreement of 15 August 1990 to the effect that: (a) the authority of former PCGG
Chairman Caparas to enter into the Consignment Agreement was of doubtful legality; (b) the
contract was highly disadvantageous to the government; (c) PCGG had a poor track record in
asset disposal by auction in the U.S.; and, (d) the assets subject of auction were historical relics
and had cultural significance, hence, their disposal was prohibited by law. 2

On 15 November 1990, PCGG through its new Chairman David M. Castro, wrote President
Aquino defending the Consignment Agreement and refuting the allegations of COA Chairman
Domingo.3 On the same date, Director of National Museum Gabriel S. Casal issued a
certification that the items subject of the Consignment Agreement did not fall within the
classification of protected cultural properties and did not specifically qualify as part of the Filipino
cultural heritage.4 Hence, this petition originally filed on 7 January 1991 by Dean Jose Joya,
Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M. Puruganan, Irma Potenciano,
Adrian Cristobal, Ingrid Santamaria, Corazon Fiel, Ambassador E. Aguilar Cruz, Florencio R.
Jacela, Jr., Mauro Malang, Federico Aguilar Alcuaz, Lucrecia R. Urtula, Susano Gonzales,
Steve Santos, Ephraim Samson, Soler Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia Kasilag,
Ligaya David Perez, Virgilio Almario and Liwayway A. Arceo.

After the oral arguments of the parties on 9 January 1991, we issued immediately our resolution
denying the application for preliminary injunction to restrain the scheduled sale of the artworks
on the ground that petitioners had not presented a clear legal right to a restraining order and
that proper parties had not been impleaded.
On 11 January 1991, the sale at public auction proceeded as scheduled and the proceeds of
$13,302,604.86 were turned over to the Bureau of Treasury.5

On 5 February 1991, on motion of petitioners, the following were joined as additional petitioners:
Charito Planas, Helena Benitez, Ana Maria L. Harper, Rosalinda Orosa, Susan Carlo Medina,
Patricia Ruiz, Bonnie Ruiz, Nelson Navarro, Mandy Navasero, Romeo Salvador, Josephine
Darang and Paz Veto Planas.

On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive Secretary, the
incumbent Executive Secretary, and Chairman Mateo A.T. Caparas were impleaded as
additional respondents.

Petitioners raise the following issues: (a) whether petitioners have legal standing to file the
instant petition; (b) whether the Old Masters Paintings and antique silverware are embraced in
the phrase "cultural treasure of the nation" which is under the protection of the state pursuant to
the 1987 Constitution and/or "cultural properties" contemplated under R.A. 4846, otherwise
known as "The Cultural Properties Preservation and Protection Act;" (c) whether the paintings
and silverware are properties of public dominion on which can be disposed of through the joint
concurrence of the President and Congress;
(d) whether respondent, PCGG has the jurisdiction and authority to enter into an agreement with
Christie's of New York for the sale of the artworks; (e) whether, PCGG has complied with the
due process clause and other statutory requirements for the exportation and sale of the subject
items; and, (f) whether the petition has become moot and academic, and if so, whether the
above issues warrant resolution from this Court.

The issues being interrelated, they will be discussed jointly hereunder. However, before
proceeding, we wish to emphasize that we admire and commend petitioners' zealous concern to
keep and preserve within the country great works of art by well-known old masters. Indeed, the
value of art cannot be gainsaid. For, by serving as a creative medium through which man can
express his innermost thoughts and unbridled emotions while, at the same time, reflecting his
deep-seated ideals, art has become a true expression of beauty, joy, and life itself. Such artistic
creations give us insights into the artists' cultural heritage — the historic past of the nation and
the era to which they belong — in their triumphant, glorious, as well as troubled and turbulent
years. It must be for this reason that the framers of the 1987 Constitution mandated in Art. XIV,
Sec. 14, that is the solemn duty of the state to "foster the preservation, enrichment, and
dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a
climate of free artistic and intellectual expression." And, in urging this Court to grant their
petition, petitioners invoke this policy of the state on the protection of the arts.

But, the altruistic and noble purpose of the petition notwithstanding, there is that basic legal
question which must first be resolved: whether the instant petition complies with the legal
requisites for this Court to exercise its power of judicial review over this case.

The rule is settled that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the court unless there is compliance with the
legal requisites for judicial inquiry, namely: that the question must be raised by the proper party;
that there must be an actual case or controversy; that the question must be raised at the earliest
possible opportunity; and, that the decision on the constitutional or legal question must be
necessary to the determination of the case itself.6 But the most important are the first two (2)
requisites.

On the first requisite, we have held that one having no right or interest to protect cannot invoke
the jurisdiction of the court as party-plaintiff in an
action.7 This is premised on Sec. 2, Rule 3, of the Rules of Court which provides that every
action must be prosecuted and defended in the name of the real party-in-interest, and that all
persons having interest in the subject of the action and in obtaining the relief demanded shall be
joined as plaintiffs. The Court will exercise its power of judicial review only if the case is brought
before it by a party who has the legal standing to raise the constitutional or legal question.
"Legal standing" means a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is being
challenged. The term "interest" is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.8 Moreover, the interest of the party plaintiff must be personal and not one based on a
desire to vindicate the constitutional right of some third and related party. 9

There are certain instances however when this Court has allowed exceptions to the rule on legal
standing, as when a citizen brings a case for mandamus to procure the enforcement of a public
duty for the fulfillment of a public right recognized by the Constitution, 10 and when a taxpayer
questions the validity of a governmental act authorizing the disbursement of public funds. 11

Petitioners claim that as Filipino citizens, taxpayers and artists deeply concerned with the
preservation and protection of the country's artistic wealth, they have the legal personality to
restrain respondents Executive Secretary and PCGG from acting contrary to their public duty to
conserve the artistic creations as mandated by the 1987 Constitution, particularly Art. XIV, Secs.
14 to 18, on Arts and Culture, and R.A. 4846 known as "The Cultural Properties Preservation
and Protection Act," governing the preservation and disposition of national and important
cultural properties. Petitioners also anchor their case on the premise that the paintings and
silverware are public properties collectively owned by them and by the people in general to view
and enjoy as great works of art. They allege that with the unauthorized act of PCGG in selling
the art pieces, petitioners have been deprived of their right to public property without due
process of law in violation of the Constitution. 12

Petitioners' arguments are devoid of merit. They lack basis in fact and in law. They themselves
allege that the paintings were donated by private persons from different parts of the world to the
Metropolitan Museum of Manila Foundation, which is a non-profit and non-stock corporations
established to promote non-Philippine arts. The foundation's chairman was former First Lady
Imelda R. Marcos, while its president was Bienvenido R. Tantoco. On this basis, the ownership
of these paintings legally belongs to the foundation or corporation or the members thereof,
although the public has been given the opportunity to view and appreciate these paintings when
they were placed on exhibit.

Similarly, as alleged in the petition, the pieces of antique silverware were given to the Marcos
couple as gifts from friends and dignitaries from foreign countries on their silver wedding and
anniversary, an occasion personal to them. When the Marcos administration was toppled by the
revolutionary government, these paintings and silverware were taken from Malacañang and the
Metropolitan Museum of Manila and transferred to the Central Bank Museum. The confiscation
of these properties by the Aquino administration however should not be understood to mean
that the ownership of these paintings has automatically passed on the government without
complying with constitutional and statutory requirements of due process and just compensation.
If these properties were already acquired by the government, any constitutional or statutory
defect in their acquisition and their subsequent disposition must be raised only by the proper
parties — the true owners thereof — whose authority to recover emanates from their proprietary
rights which are protected by statutes and the Constitution. Having failed to show that they are
the legal owners of the artworks or that the valued pieces have become publicly owned,
petitioners do not possess any clear legal right whatsoever to question their alleged
unauthorized disposition.

Further, although this action is also one of mandamus filed by concerned citizens, it does not
fulfill the criteria for a mandamus suit. In Legaspi v. Civil Service Commission, 13 this Court laid
down the rule that a writ of mandamus may be issued to a citizen only when the public right to
be enforced and the concomitant duty of the state are unequivocably set forth in the
Constitution. In the case at bar, petitioners are not after the fulfillment of a positive duty required
of respondent officials under the 1987 Constitution. What they seek is the enjoining of an official
act because it is constitutionally infirmed. Moreover, petitioners' claim for the continued
enjoyment and appreciation by the public of the artworks is at most a privilege and is
unenforceable as a constitutional right in this action for mandamus.

Neither can this petition be allowed as a taxpayer's suit. Not every action filed by a taxpayer can
qualify to challenge the legality of official acts done by the government. A taxpayer's suit can
prosper only if the governmental acts being questioned involve disbursement of public funds
upon the theory that the expenditure of public funds by an officer of the state for the purpose of
administering an unconstitutional act constitutes a misapplication of such funds, which may be
enjoined at the request of a taxpayer. 14 Obviously, petitioners are not challenging any
expenditure involving public funds but the disposition of what they allege to be public properties.
It is worthy to note that petitioners admit that the paintings and antique silverware were acquired
from private sources and not with public money.

Anent the second requisite of actual controversy, petitioners argue that this case should be
resolved by this Court as an exception to the rule on moot and academic cases; that although
the sale of the paintings and silver has long been consummated and the possibility of retrieving
the treasure trove is nil, yet the novelty and importance of the issues raised by the petition
deserve this Court's attention. They submit that the resolution by the Court of the issues in this
case will establish future guiding principles and doctrines on the preservation of the nation's
priceless artistic and cultural possessions for the benefit of the public as a whole. 15

For a court to exercise its power of adjudication, there must be an actual case of controversy —
one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of
judicial resolution; the case must not be moot or academic or based on extra-legal or other
similar considerations not cognizable by a court of justice. 16 A case becomes moot and
academic when its purpose has become stale, 17 such as the case before us. Since the purpose
of this petition for prohibition is to enjoin respondent public officials from holding the auction sale
of the artworks on a particular date — 11 January 1991 — which is long past, the issues raised
in the petition have become moot and academic.

At this point, however, we need to emphasize that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirements of an actual case or legal standing
when paramount public interest is involved. 18We find however that there is no such justification
in the petition at bar to warrant the relaxation of the rule.

Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy of the state to
preserve and protect the important cultural properties and national cultural treasures of the
nation and to safeguard their intrinsic value. As to what kind of artistic and cultural properties
are considered by the State as involving public interest which should therefore be protected, the
answer can be gleaned from reading of the reasons behind the enactment of R.A. 4846:

WHEREAS, the National Museum has the difficult task, under existing laws and
regulations, of preserving and protecting the cultural properties of the nation;

WHEREAS, inumerable sites all over the country have since been excavated
for cultural relics, which have passed on to private hands, representing priceless
cultural treasure that properly belongs to the Filipino people as their heritage;

WHEREAS, it is perhaps impossible now to find an area in the Philippines,


whether government or private property, which has not been disturbed by
commercially-minded diggers and collectors, literally destroying part of our
historic past;

WHEREAS, because of this the Philippines has been charged as incapable of


preserving and protecting her cultural legacies;

WHEREAS, the commercialization of Philippine relics from the contact period,


the Neolithic Age, and the Paleolithic Age, has reached a point perilously placing
beyond reach of savants the study and reconstruction of Philippine
prehistory; and

WHEREAS, it is believed that more stringent regulation on movement and a


limited form of registration of important cultural properties and of designated
national cultural treasures is necessary, and that regardless of the item, any
cultural property exported or sold locally must be registered with the National
Museum to control the deplorable situation regarding our national cultural
properties and to implement the Cultural Properties Law (emphasis supplied).
Clearly, the cultural properties of the nation which shall be under the protection of the state are
classified as the "important cultural properties" and the "national cultural treasures." "Important
cultural properties" are cultural properties which have been singled out from among the
innumerable cultural properties as having exceptional historical cultural significance to the
Philippines but are not sufficiently outstanding to merit the classification of national cultural
treasures. 19 On the other hand, a "national cultural treasures" is a unique object found locally,
possessing outstanding historical, cultural, artistic and/or scientific value which is highly
significant and important to this country and nation. 20 This Court takes note of the certification
issued by the Director of the Museum that the Italian paintings and silverware subject of this
petition do not constitute protected cultural properties and are not among those listed in the
Cultural Properties Register of the National Museum.

We agree with the certification of the Director of the Museum. Under the law, it is the Director of
the Museum who is authorized to undertake the inventory, registration, designation or
classification, with the aid of competent experts, of important cultural properties and national
cultural treasures. 21 Findings of administrative officials and agencies who have acquired
expertise because their jurisdiction is confined to specific matters are generally accorded not
only respect but at times even finality if such findings are supported by substantial evidence and
are controlling on the reviewing authorities because of their acknowledged expertise in the fields
of specialization to which they are assigned. 22

In view of the foregoing, this Court finds no compelling reason to grant the petition. Petitioners
have failed to show that respondents Executive Secretary and PCGG exercised their functions
with grave abuse of discretion or in excess of their jurisdiction.

WHEREFORE, for lack of merit, the petition for prohibition and mandamus is DISMISSED.

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors,
and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE
SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO,
AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by
her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA,
BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA
VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents
FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN
T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING,
minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and
THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents
BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA,
minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO,
JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents
MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT,
minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented
by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of
the Department of Environment and Natural Resources, and THE HONORABLE
ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful
ecology which the petitioners dramatically associate with the twin concepts of "inter-generational
responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether
the said petitioners have a cause of action to "prevent the misappropriation or impairment" of
Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66
(Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The
principal plaintiffs therein, now the principal petitioners, are all minors duly represented and
joined by their respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for
the purpose of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR).
His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners.1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource
treasure that is the country's virgin tropical forests." The same was filed for themselves and
others who are equally concerned about the preservation of said resource but are "so numerous
that it is impracticable to bring them all before the Court." The minors further asseverate that
they "represent their generation as well as generations yet unborn." 4 Consequently, it is prayed
for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in


his behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or


approving new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises."5

The complaint starts off with the general averments that the Philippine archipelago of 7,100
islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush
and verdant rainforests in which varied, rare and unique species of flora and fauna may be
found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable;
they are also the habitat of indigenous Philippine cultures which have existed, endured and
flourished since time immemorial; scientific evidence reveals that in order to maintain a
balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio
of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and disturbance of this balance
as a consequence of deforestation have resulted in a host of environmental tragedies, such as
(a) water shortages resulting from drying up of the water table, otherwise known as the
"aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result
of the intrusion therein of salt water, incontrovertible examples of which may be found in the
island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of
the entire island of Catanduanes, (d) the endangering and extinction of the country's unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities,
including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and
seabeds and consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is presently
experienced by the entire country, (h) increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the
absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of
multi-billion peso dams constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and (k) the reduction of the
earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic
climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be submitted
as a matter of judicial notice. This notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and film evidence in the course of the
trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million
hectares of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2
million hectares of said rainforests or four per cent (4.0%) of the country's land
area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature and uneconomical
secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of
3.89 million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto
attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or
25 hectares per hour — nighttime, Saturdays, Sundays and holidays included —
the Philippines will be bereft of forest resources after the end of this ensuing
decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and incontrovertible. As a matter of
fact, the environmental damages enumerated in paragraph 6 hereof are already
being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
— especially plaintiff minors and their successors — who may never see, use,
benefit from and enjoy this rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the
natural resource property he holds in trust for the benefit of plaintiff minors and
succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as the parens
patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served upon defendant a final demand to
cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex
"B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left with
a country that is desertified (sic), bare, barren and devoid of the wonderful flora,
fauna and indigenous cultures which the Philippines had been abundantly
blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary


to the public policy enunciated in the Philippine Environmental Policy which, in
pertinent part, states that it is the policy of the State —

(a) to create, develop, maintain and improve conditions under which man and
nature can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life


of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned


TLA's is contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of
the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16, Article
II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the
natural law — and violative of plaintiffs' right to self-preservation and
perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against
him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion,
the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action,
(2) the motion is dilatory and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss.7 In the said order, not only was the defendant's claim — that the complaint states no
cause of action against him and that it raises a political question — sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result in the impairment of
contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised
Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground
that the respondent Judge gravely abused his discretion in dismissing the action. Again, the
parents of the plaintiffs-minors not only represent their children, but have also joined the latter in
this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to
submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a
Comment in behalf of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on Articles
19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192
creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a
balanced and healthful ecology, the concept of generational genocide in Criminal Law and the
concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural
law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No.
192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than
what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not contracts.
They likewise submit that even if TLAs may be considered protected by the said clause, it is well
settled that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law.
They see nothing in the complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to the "protection by the state in
its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause
of action. They then reiterate the theory that the question of whether logging should be
permitted in the country is a political question which should be properly addressed to the
executive or legislative branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be
done by the State without due process of law. Once issued, a TLA remains effective for a
certain period of time — usually for twenty-five (25) years. During its effectivity, the same can
neither be revised nor cancelled unless the holder has been found, after due notice and hearing,
to have violated the terms of the agreement or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would
be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted
Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did
not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a
class suit. The subject matter of the complaint is of common and general interest not just to
several, but to all citizens of the Philippines. Consequently, since the parties are so numerous,
it, becomes impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative enough to ensure
the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class
suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil
case and in the instant petition, the latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they
represent their generation as well as generations yet unborn. We find no difficulty in ruling that
they can, for themselves, for others of their generation and for the succeeding generations, file a
class suit. Their personality to sue in behalf of the succeeding generations can only be based on
the concept of intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such
rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well as future
generations. 10Needless to say, every generation has a responsibility to the next to preserve
that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right for the generations
to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the
merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent Judge's challenged order for having
been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot
help but agree with the defendant. For although we believe that plaintiffs have
but the noblest of all intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed
with political color and involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the
complaint is replete with vague assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:

Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding
section of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and
instill health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated in the latter. Such a right belongs
to a different category of rights altogether for it concerns nothing less than self-preservation and
self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which
may even be said to predate all governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is
because of the well-founded fear of its framers that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all
else would be lost not only for the present generation, but also for those to come — generations
which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the
1986 Constitutional Commission, the following exchange transpired between Commissioner
Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against


all forms of pollution — air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment


necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of
the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby


disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to
health, as well as the other related provisions of the Constitution concerning the conservation,
development and utilization of the country's natural resources, 13 then President Corazon C.
Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates
that the Department of Environment and Natural Resources "shall be the primary government
agency responsible for the conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and grazing lands, mineral,
resources, including those in reservation and watershed areas, and lands of the public domain,
as well as the licensing and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present
and future generations of Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to


ensure the sustainable use, development, management, renewal, and
conservation of the country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to
the development and the use of the country's natural resources, not only for the
present generation but for future generations as well. It is also the policy of the
state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and
conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code
of 1987,15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment and the
objective of making the exploration, development and utilization of such natural
resources equitably accessible to the different segments of the present as well as
future generations.

(2) The State shall likewise recognize and apply a true value system that takes
into account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher authority. Said section
provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources


shall be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve
as the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of
the State (a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic
and other requirements of present and future generations of Filipinos, and (c) to insure the
attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As
its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to
the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance
the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect
or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the
TLAs, which they claim was done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs
should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of
said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint
fails to state a cause of action, 19 the question submitted to the court for resolution involves the
sufficiency of the facts alleged in the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid judgment in accordance with the prayer in
the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary
should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the
ground of the absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself
stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-heading
CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their
rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It
bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the
need to implead, as party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies
already formulated and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A.
Cruz, a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part
of the authority represents a broadening of judicial power to enable the courts of
justice to review what was before forbidden territory, to wit, the discretion of the
political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive
and the legislature and to declare their acts invalid for lack or excess of
jurisdiction because tainted with grave abuse of discretion. The catch, of course,
is the meaning of "grave abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he
would have acted with utmost infidelity to the Government by providing undue and unwarranted
benefits and advantages to the timber license holders because he would have forever bound
the Government to strictly respect the said licenses according to their terms and conditions
regardless of changes in policy and the demands of public interest and welfare. He was aware
that as correctly pointed out by the petitioners, into every timber license must be read Section
20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses or
any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is
not a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization


and disposition of forest resources to the end that public welfare is promoted. A
timber license is not a contract within the purview of the due process clause; it is
only a license or privilege, which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful,


and is not a contract between the authority, federal, state, or municipal, granting
it and the person to whom it is granted; neither is it property or a property right,
nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court
held that the granting of license does not create irrevocable rights, neither is it
property or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26

. . . Timber licenses, permits and license agreements are the principal


instruments by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the
particular concession area and the forest products therein. They may be validly
amended, modified, replaced or rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed contracts within the purview of
the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No.
705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October
27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:
27
Sec. 10. No law impairing, the obligation of contracts shall be passed.

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case
does not involve a law or even an executive issuance declaring the cancellation or modification
of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-impairment clause.
This is because by its very nature and purpose, such as law could have only been passed in the
exercise of the police power of the state for the purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler
28
Corp. this Court stated:

The freedom of contract, under our system of government, is not meant to be


absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the interest
of public health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine
American Life Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts
are normally matters of private and not of public concern. The general rule is that
both shall be free of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the citizen may at will
use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of
the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply
with respect to the prayer to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber licenses for, save in cases of renewal, no
contract would have as of yet existed in the other instances. Moreover, with respect to renewal,
the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their complaint to implead as defendants
the holders or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason,
JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few
years. The seminal principles laid down in this decision are likely to influence profoundly the
direction and course of the protection and management of the environment, which of course
embraces the utilization of all the natural resources in the territorial base of our polity. I have
therefore sought to clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the
bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to
refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of
the very broadness of the concept of "class" here involved — membership in this "class"
appears to embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of
action petitioners seek to require public respondents to take, is vested with the necessary locus
standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the
field of environmental protection, as against both the public administrative agency directly
concerned and the private persons or entities operating in the field or sector of activity involved.
Whether such beneficiaries' right of action may be found under any and all circumstances, or
whether some failure to act, in the first instance, on the part of the governmental agency
concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in
the decision and presumably is left for future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There
is no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I
suggest, with very great respect, that it cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult to fashion language more
comprehensive in scope and generalized in character than a right to "a balanced and healthful
ecology." The list of particular claims which can be subsumed under this rubic appears to be
entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage
into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole
communities; of dumping of organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-
and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the
use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss
of certain species of fauna and flora; and so on. The other statements pointed out by the Court:
Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to
health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon
the other hand, a compendious collection of more "specific environment management policies"
and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an
extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which
give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the
Philippine Environment Code identifies with notable care the particular government agency
charged with the formulation and implementation of guidelines and programs dealing with each
of the headings and sub-headings mentioned above. The Philippine Environment Code does
not, in other words, appear to contemplate action on the part of private persons who are
beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right


comprised in the constitutional statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be explored
in future cases; those implications are too large and far-reaching in nature even to be hinted at
here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal
right — a right cast in language of a significantly lower order of generality than Article II (15) of
the Constitution — that is or may be violated by the actions, or failures to act, imputed to the
public respondent by petitioners so that the trial court can validly render judgment granting all or
part of the relief prayed for. To my mind, the Court should be understood as simply saying that
such a more specific legal right or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the existence of the Philippine
Environment Code, and that the trial court should have given petitioners an effective opportunity
so to demonstrate, instead of aborting the proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of
action be a specific, operable legal right, rather than a constitutional or statutory policy, for at
least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to
defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.

The second is a broader-gauge consideration — where a specific violation of law or applicable


regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the
Constitution which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)

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

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded
in the proceedings below. It might be asked that, if petitioners' entitlement to the relief
demanded is not dependent upon proof of breach by the timber companies of one or more of
the specific terms and conditions of their concession agreements (and this, petitioners implicitly
assume), what will those companies litigate about? The answer I suggest is that they may seek
to dispute the existence of the specific legal right petitioners should allege, as well as the reality
of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful
acts or failures to act of public respondent administrative agency. They may also controvert the
appropriateness of the remedy or remedies demanded by petitioners, under all the
circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case
which, to my mind, is one of the most important cases decided by this Court in the last few
years. The seminal principles laid down in this decision are likely to influence profoundly the
direction and course of the protection and management of the environment, which of course
embraces the utilization of all the natural resources in the territorial base of our polity. I have
therefore sought to clarify, basically to myself, what the Court appears to be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the
bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to
refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of
the very broadness of the concept of "class" here involved — membership in this "class"
appears to embrace everyone living in the country whether now or in the
future — it appears to me that everyone who may be expected to benefit from the course of
action petitioners seek to require public respondents to take, is vested with the necessary locus
standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the
field of environmental protection, as against both the public administrative agency directly
concerned and the private persons or entities operating in the field or sector of activity involved.
Whether such beneficiaries' right of action may be found under any and all circumstances, or
whether some failure to act, in the first instance, on the part of the governmental agency
concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in
the decision and presumably is left for future determination in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There
is no question that "the right to a balanced and healthful ecology" is "fundamental" and that,
accordingly, it has been "constitutionalized." But although it is fundamental in character, I
suggest, with very great respect, that it cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult to fashion language more
comprehensive in scope and generalized in character than a right to "a balanced and healthful
ecology." The list of particular claims which can be subsumed under this rubic appears to be
entirely open-ended: prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage
into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole
communities; of dumping of organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-
and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the
use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss
of certain species of fauna and flora; and so on. The other statements pointed out by the Court:
Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be
formulations of policy, as general and abstract as the constitutional statements of basic policy in
Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to
health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon
the other hand, a compendious collection of more "specific environment management policies"
and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an
extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;


(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has
identified the particular provision or provisions (if any) of the Philippine Environment Code which
give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the
Philippine Environment Code identifies with notable care the particular government agency
charged with the formulation and implementation of guidelines and programs dealing with each
of the headings and sub-headings mentioned above. The Philippine Environment Code does
not, in other words, appear to contemplate action on the part of private persons who are
beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right


comprised in the constitutional statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be explored
in future cases; those implications are too large and far-reaching in nature even to be hinted at
here.

My suggestion is simply that petitioners must, before the trial court, show a more specific legal
right — a right cast in language of a significantly lower order of generality than Article II (15) of
the Constitution — that is or may be violated by the actions, or failures to act, imputed to the
public respondent by petitioners so that the trial court can validly render judgment granting all or
part of the relief prayed for. To my mind, the Court should be understood as simply saying that
such a more specific legal right or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the existence of the Philippine
Environment Code, and that the trial court should have given petitioners an effective opportunity
so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

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

The second is a broader-gauge consideration — where a specific violation of law or applicable


regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the
Constitution which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)

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

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession
agreements or TLA's petitioners demand public respondents should cancel, must be impleaded
in the proceedings below. It might be asked that, if petitioners' entitlement to the relief
demanded is not dependent upon proof of breach by the timber companies of one or more of
the specific terms and conditions of their concession agreements (and this, petitioners implicitly
assume), what will those companies litigate about? The answer I suggest is that they may seek
to dispute the existence of the specific legal right petitioners should allege, as well as the reality
of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful
acts or failures to act of public respondent administrative agency. They may also controvert the
appropriateness of the remedy or remedies demanded by petitioners, under all the
circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment, including the
forest cover of our territory, is of extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to closer examination.

G.R. No. 155001 May 5, 2003

DEMOSTHENES P. AGAN, JR., JOSEPH B. CATAHAN, JOSE MARI B. REUNILLA,


MANUEL ANTONIO B. BOÑE, MAMERTO S. CLARA, REUEL E. DIMALANTA, MORY V.
DOMALAON, CONRADO G. DIMAANO, LOLITA R. HIZON, REMEDIOS P. ADOLFO,
BIENVENIDO C. HILARIO, MIASCOR WORKERS UNION - NATIONAL LABOR UNION
(MWU-NLU), and PHILIPPINE AIRLINES EMPLOYEES ASSOCIATION (PALEA), petitioners,
vs.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL
AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS
and SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of
Transportation and Communications, respondents,
MIASCOR GROUNDHANDLING CORPORATION, DNATA-WINGS AVIATION SYSTEMS
CORPORATION, MACROASIA-EUREST SERVICES, INC., MACROASIA-MENZIES
AIRPORT SERVICES CORPORATION, MIASCOR CATERING SERVICES CORPORATION,
MIASCOR AIRCRAFT MAINTENANCE CORPORATION, and MIASCOR LOGISTICS
CORPORATION, petitioners-in-intervention,

x---------------------------------------------------------x

G.R. No. 155547 May 5, 2003

SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and CONSTANTINO G.


JARAULA, petitioners,
vs.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL
AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS,
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, SECRETARY LEANDRO M.
MENDOZA, in his capacity as Head of the Department of Transportation and
Communications, and SECRETARY SIMEON A. DATUMANONG, in his capacity as Head
of the Department of Public Works and Highways, respondents,
JACINTO V. PARAS, RAFAEL P. NANTES, EDUARDO C. ZIALCITA, WILLY BUYSON
VILLARAMA, PROSPERO C. NOGRALES, PROSPERO A. PICHAY, JR., HARLIN CAST
ABAYON, and BENASING O. MACARANBON, respondents-intervenors,

x---------------------------------------------------------x

G.R. No. 155661 May 5, 2003

CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B. VALENCIA, MA. TERESA V.


GAERLAN, LEONARDO DE LA ROSA, DINA C. DE LEON, VIRGIE CATAMIN RONALD
SCHLOBOM, ANGELITO SANTOS, MA. LUISA M. PALCON and SAMAHANG
MANGGAGAWA SA PALIPARAN NG PILIPINAS (SMPP), petitioners,
vs.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL
AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS,
SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of
Transportation and Communications, respondents.

PUNO, J.:

Petitioners and petitioners-in-intervention filed the instant petitions for prohibition under Rule 65
of the Revised Rules of Court seeking to prohibit the Manila International Airport Authority
(MIAA) and the Department of Transportation and Communications (DOTC) and its Secretary
from implementing the following agreements executed by the Philippine Government through
the DOTC and the MIAA and the Philippine International Air Terminals Co., Inc. (PIATCO): (1)
the Concession Agreement signed on July 12, 1997, (2) the Amended and Restated
Concession Agreement dated November 26, 1999, (3) the First Supplement to the Amended
and Restated Concession Agreement dated August 27, 1999, (4) the Second Supplement to the
Amended and Restated Concession Agreement dated September 4, 2000, and (5) the Third
Supplement to the Amended and Restated Concession Agreement dated June 22, 2001
(collectively, the PIATCO Contracts).

The facts are as follows:

In August 1989, the DOTC engaged the services of Aeroport de Paris (ADP) to conduct
a comprehensive study of the Ninoy Aquino International Airport (NAIA) and determine
whether the present airport can cope with the traffic development up to the year 2010.
The study consisted of two parts: first, traffic forecasts, capacity of existing facilities,
NAIA future requirements, proposed master plans and development plans; and second,
presentation of the preliminary design of the passenger terminal building. The ADP
submitted a Draft Final Report to the DOTC in December 1989.

Some time in 1993, six business leaders consisting of John Gokongwei, Andrew
Gotianun, Henry Sy, Sr., Lucio Tan, George Ty and Alfonso Yuchengco met with then
President Fidel V. Ramos to explore the possibility of investing in the construction and
operation of a new international airport terminal. To signify their commitment to pursue
the project, they formed the Asia's Emerging Dragon Corp. (AEDC) which was registered
with the Securities and Exchange Commission (SEC) on September 15, 1993.

On October 5, 1994, AEDC submitted an unsolicited proposal to the Government


through the DOTC/MIAA for the development of NAIA International Passenger Terminal
III (NAIA IPT III) under a build-operate-and-transfer arrangement pursuant to RA 6957
as amended by RA 7718 (BOT Law).1

On December 2, 1994, the DOTC issued Dept. Order No. 94-832 constituting the
Prequalification Bids and Awards Committee (PBAC) for the implementation of the NAIA IPT III
project.

On March 27, 1995, then DOTC Secretary Jose Garcia endorsed the proposal of AEDC to the
National Economic and Development Authority (NEDA). A revised proposal, however, was
forwarded by the DOTC to NEDA on December 13, 1995. On January 5, 1996, the NEDA
Investment Coordinating Council (NEDA ICC) – Technical Board favorably endorsed the project
to the ICC – Cabinet Committee which approved the same, subject to certain conditions, on
January 19, 1996. On February 13, 1996, the NEDA passed Board Resolution No. 2 which
approved the NAIA IPT III project.

On June 7, 14, and 21, 1996, DOTC/MIAA caused the publication in two daily newspapers of an
invitation for competitive or comparative proposals on AEDC's unsolicited proposal, in
accordance with Sec. 4-A of RA 6957, as amended. The alternative bidders were required to
submit three (3) sealed envelopes on or before 5:00 p.m. of September 20, 1996. The first
envelope should contain the Prequalification Documents, the second envelope the Technical
Proposal, and the third envelope the Financial Proposal of the proponent.
On June 20, 1996, PBAC Bulletin No. 1 was issued, postponing the availment of the Bid
Documents and the submission of the comparative bid proposals. Interested firms were
permitted to obtain the Request for Proposal Documents beginning June 28, 1996, upon
submission of a written application and payment of a non-refundable fee of P50,000.00
(US$2,000).

The Bid Documents issued by the PBAC provided among others that the proponent must have
adequate capability to sustain the financing requirement for the detailed engineering, design,
construction, operation, and maintenance phases of the project. The proponent would be
evaluated based on its ability to provide a minimum amount of equity to the project, and its
capacity to secure external financing for the project.

On July 23, 1996, the PBAC issued PBAC Bulletin No. 2 inviting all bidders to a pre-bid
conference on July 29, 1996.

On August 16, 1996, the PBAC issued PBAC Bulletin No. 3 amending the Bid Documents. The
following amendments were made on the Bid Documents:

a. Aside from the fixed Annual Guaranteed Payment, the proponent shall include in its
financial proposal an additional percentage of gross revenue share of the Government,
as follows:

i. First 5 years 5.0%


ii. Next 10 years 7.5%
iii. Next 10 years 10.0%

b. The amount of the fixed Annual Guaranteed Payment shall be subject of the price
challenge. Proponent may offer an Annual Guaranteed Payment which need not be of
equal amount, but payment of which shall start upon site possession.

c. The project proponent must have adequate capability to sustain the financing
requirement for the detailed engineering, design, construction, and/or operation and
maintenance phases of the project as the case may be. For purposes of pre-
qualification, this capability shall be measured in terms of:

i. Proof of the availability of the project proponent and/or the consortium to


provide the minimum amount of equity for the project; and

ii. a letter testimonial from reputable banks attesting that the project proponent
and/or the members of the consortium are banking with them, that the project
proponent and/or the members are of good financial standing, and have
adequate resources.

d. The basis for the prequalification shall be the proponent's compliance with the
minimum technical and financial requirements provided in the Bid Documents and the
IRR of the BOT Law. The minimum amount of equity shall be 30% of the Project Cost.

e. Amendments to the draft Concession Agreement shall be issued from time to time.
Said amendments shall only cover items that would not materially affect the preparation
of the proponent's proposal.

On August 29, 1996, the Second Pre-Bid Conference was held where certain clarifications were
made. Upon the request of prospective bidder People's Air Cargo & Warehousing Co., Inc
(Paircargo), the PBAC warranted that based on Sec. 11.6, Rule 11 of the Implementing Rules
and Regulations of the BOT Law, only the proposed Annual Guaranteed Payment submitted by
the challengers would be revealed to AEDC, and that the challengers' technical and financial
proposals would remain confidential. The PBAC also clarified that the list of revenue sources
contained in Annex 4.2a of the Bid Documents was merely indicative and that other revenue
sources may be included by the proponent, subject to approval by DOTC/MIAA. Furthermore,
the PBAC clarified that only those fees and charges denominated as Public Utility Fees would
be subject to regulation, and those charges which would be actually deemed Public Utility Fees
could still be revised, depending on the outcome of PBAC's query on the matter with the
Department of Justice.

In September 1996, the PBAC issued Bid Bulletin No. 5, entitled "Answers to the Queries of
PAIRCARGO as Per Letter Dated September 3 and 10, 1996." Paircargo's queries and the
PBAC's responses were as follows:

1. It is difficult for Paircargo and Associates to meet the required minimum equity
requirement as prescribed in Section 8.3.4 of the Bid Documents considering that the
capitalization of each member company is so structured to meet the requirements and
needs of their current respective business undertaking/activities. In order to comply with
this equity requirement, Paircargo is requesting PBAC to just allow each member of (sic)
corporation of the Joint Venture to just execute an agreement that embodies a
commitment to infuse the required capital in case the project is awarded to the Joint
Venture instead of increasing each corporation's current authorized capital stock just for
prequalification purposes.

In prequalification, the agency is interested in one's financial capability at the time of


prequalification, not future or potential capability.

A commitment to put up equity once awarded the project is not enough to establish that
"present" financial capability. However, total financial capability of all member companies
of the Consortium, to be established by submitting the respective companies' audited
financial statements, shall be acceptable.

2. At present, Paircargo is negotiating with banks and other institutions for the extension
of a Performance Security to the joint venture in the event that the Concessions
Agreement (sic) is awarded to them. However, Paircargo is being required to submit a
copy of the draft concession as one of the documentary requirements. Therefore,
Paircargo is requesting that they'd (sic) be furnished copy of the approved negotiated
agreement between the PBAC and the AEDC at the soonest possible time.

A copy of the draft Concession Agreement is included in the Bid Documents. Any
material changes would be made known to prospective challengers through bid bulletins.
However, a final version will be issued before the award of contract.

The PBAC also stated that it would require AEDC to sign Supplement C of the Bid Documents
(Acceptance of Criteria and Waiver of Rights to Enjoin Project) and to submit the same with the
required Bid Security.

On September 20, 1996, the consortium composed of People's Air Cargo and Warehousing
Co., Inc. (Paircargo), Phil. Air and Grounds Services, Inc. (PAGS) and Security Bank Corp.
(Security Bank) (collectively, Paircargo Consortium) submitted their competitive proposal to the
PBAC. On September 23, 1996, the PBAC opened the first envelope containing the
prequalification documents of the Paircargo Consortium. On the following day, September 24,
1996, the PBAC prequalified the Paircargo Consortium.

On September 26, 1996, AEDC informed the PBAC in writing of its reservations as regards the
Paircargo Consortium, which include:

a. The lack of corporate approvals and financial capability of PAIRCARGO;

b. The lack of corporate approvals and financial capability of PAGS;

c. The prohibition imposed by RA 337, as amended (the General Banking Act) on the
amount that Security Bank could legally invest in the project;

d. The inclusion of Siemens as a contractor of the PAIRCARGO Joint Venture, for


prequalification purposes; and
e. The appointment of Lufthansa as the facility operator, in view of the Philippine
requirement in the operation of a public utility.

The PBAC gave its reply on October 2, 1996, informing AEDC that it had considered the issues
raised by the latter, and that based on the documents submitted by Paircargo and the
established prequalification criteria, the PBAC had found that the challenger, Paircargo, had
prequalified to undertake the project. The Secretary of the DOTC approved the finding of the
PBAC.

The PBAC then proceeded with the opening of the second envelope of the Paircargo
Consortium which contained its Technical Proposal.

On October 3, 1996, AEDC reiterated its objections, particularly with respect to Paircargo's
financial capability, in view of the restrictions imposed by Section 21-B of the General Banking
Act and Sections 1380 and 1381 of the Manual Regulations for Banks and Other Financial
Intermediaries. On October 7, 1996, AEDC again manifested its objections and requested that it
be furnished with excerpts of the PBAC meeting and the accompanying technical evaluation
report where each of the issues they raised were addressed.

On October 16, 1996, the PBAC opened the third envelope submitted by AEDC and the
Paircargo Consortium containing their respective financial proposals. Both proponents offered to
build the NAIA Passenger Terminal III for at least $350 million at no cost to the government and
to pay the government: 5% share in gross revenues for the first five years of operation, 7.5%
share in gross revenues for the next ten years of operation, and 10% share in gross revenues
for the last ten years of operation, in accordance with the Bid Documents. However, in addition
to the foregoing, AEDC offered to pay the government a total of P135 million as guaranteed
payment for 27 years while Paircargo Consortium offered to pay the government a total of
P17.75 billion for the same period.

Thus, the PBAC formally informed AEDC that it had accepted the price proposal submitted by
the Paircargo Consortium, and gave AEDC 30 working days or until November 28, 1996 within
which to match the said bid, otherwise, the project would be awarded to Paircargo.

As AEDC failed to match the proposal within the 30-day period, then DOTC Secretary Amado
Lagdameo, on December 11, 1996, issued a notice to Paircargo Consortium regarding AEDC's
failure to match the proposal.

On February 27, 1997, Paircargo Consortium incorporated into Philippine International Airport
Terminals Co., Inc. (PIATCO).

AEDC subsequently protested the alleged undue preference given to PIATCO and reiterated its
objections as regards the prequalification of PIATCO.

On April 11, 1997, the DOTC submitted the concession agreement for the second-pass
approval of the NEDA-ICC.

On April 16, 1997, AEDC filed with the Regional Trial Court of Pasig a Petition for Declaration of
Nullity of the Proceedings, Mandamus and Injunction against the Secretary of the DOTC, the
Chairman of the PBAC, the voting members of the PBAC and Pantaleon D. Alvarez, in his
capacity as Chairman of the PBAC Technical Committee.

On April 17, 1997, the NEDA-ICC conducted an ad referendum to facilitate the approval, on a
no-objection basis, of the BOT agreement between the DOTC and PIATCO. As the ad
referendum gathered only four (4) of the required six (6) signatures, the NEDA merely noted the
agreement.

On July 9, 1997, the DOTC issued the notice of award for the project to PIATCO.

On July 12, 1997, the Government, through then DOTC Secretary Arturo T. Enrile, and
PIATCO, through its President, Henry T. Go, signed the "Concession Agreement for the Build-
Operate-and-Transfer Arrangement of the Ninoy Aquino International Airport Passenger
Terminal III" (1997 Concession Agreement). The Government granted PIATCO the franchise to
operate and maintain the said terminal during the concession period and to collect the fees,
rentals and other charges in accordance with the rates or schedules stipulated in the 1997
Concession Agreement. The Agreement provided that the concession period shall be for
twenty-five (25) years commencing from the in-service date, and may be renewed at the option
of the Government for a period not exceeding twenty-five (25) years. At the end of the
concession period, PIATCO shall transfer the development facility to MIAA.

On November 26, 1998, the Government and PIATCO signed an Amended and Restated
Concession Agreement (ARCA). Among the provisions of the 1997 Concession Agreement that
were amended by the ARCA were: Sec. 1.11 pertaining to the definition of "certificate of
completion"; Sec. 2.05 pertaining to the Special Obligations of GRP; Sec. 3.02 (a) dealing with
the exclusivity of the franchise given to the Concessionaire; Sec. 4.04 concerning the
assignment by Concessionaire of its interest in the Development Facility; Sec. 5.08 (c) dealing
with the proceeds of Concessionaire's insurance; Sec. 5.10 with respect to the temporary take-
over of operations by GRP; Sec. 5.16 pertaining to the taxes, duties and other imposts that may
be levied on the Concessionaire; Sec. 6.03 as regards the periodic adjustment of public utility
fees and charges; the entire Article VIII concerning the provisions on the termination of the
contract; and Sec. 10.02 providing for the venue of the arbitration proceedings in case a dispute
or controversy arises between the parties to the agreement.

Subsequently, the Government and PIATCO signed three Supplements to the ARCA. The First
Supplement was signed on August 27, 1999; the Second Supplement on September 4, 2000;
and the Third Supplement on June 22, 2001 (collectively, Supplements).

The First Supplement to the ARCA amended Sec. 1.36 of the ARCA defining "Revenues" or
"Gross Revenues"; Sec. 2.05 (d) of the ARCA referring to the obligation of MIAA to provide
sufficient funds for the upkeep, maintenance, repair and/or replacement of all airport facilities
and equipment which are owned or operated by MIAA; and further providing additional special
obligations on the part of GRP aside from those already enumerated in Sec. 2.05 of the ARCA.
The First Supplement also provided a stipulation as regards the construction of a surface road
to connect NAIA Terminal II and Terminal III in lieu of the proposed access tunnel crossing
Runway 13/31; the swapping of obligations between GRP and PIATCO regarding the
improvement of Sales Road; and the changes in the timetable. It also amended Sec. 6.01 (c) of
the ARCA pertaining to the Disposition of Terminal Fees; Sec. 6.02 of the ARCA by inserting an
introductory paragraph; and Sec. 6.02 (a) (iii) of the ARCA referring to the Payments of
Percentage Share in Gross Revenues.

The Second Supplement to the ARCA contained provisions concerning the clearing, removal,
demolition or disposal of subterranean structures uncovered or discovered at the site of the
construction of the terminal by the Concessionaire. It defined the scope of works; it provided for
the procedure for the demolition of the said structures and the consideration for the same which
the GRP shall pay PIATCO; it provided for time extensions, incremental and consequential
costs and losses consequent to the existence of such structures; and it provided for some
additional obligations on the part of PIATCO as regards the said structures.

Finally, the Third Supplement provided for the obligations of the Concessionaire as regards the
construction of the surface road connecting Terminals II and III.

Meanwhile, the MIAA which is charged with the maintenance and operation of the NAIA
Terminals I and II, had existing concession contracts with various service providers to offer
international airline airport services, such as in-flight catering, passenger handling, ramp and
ground support, aircraft maintenance and provisions, cargo handling and warehousing, and
other services, to several international airlines at the NAIA. Some of these service providers are
the Miascor Group, DNATA-Wings Aviation Systems Corp., and the MacroAsia Group. Miascor,
DNATA and MacroAsia, together with Philippine Airlines (PAL), are the dominant players in the
industry with an aggregate market share of 70%.

On September 17, 2002, the workers of the international airline service providers, claiming that
they stand to lose their employment upon the implementation of the questioned agreements,
filed before this Court a petition for prohibition to enjoin the enforcement of said agreements.2
On October 15, 2002, the service providers, joining the cause of the petitioning workers, filed a
motion for intervention and a petition-in-intervention.

On October 24, 2002, Congressmen Salacnib Baterina, Clavel Martinez and Constantino
Jaraula filed a similar petition with this Court.3

On November 6, 2002, several employees of the MIAA likewise filed a petition assailing the
legality of the various agreements.4

On December 11, 2002. another group of Congressmen, Hon. Jacinto V. Paras, Rafael P.
Nantes, Eduardo C. Zialcita, Willie B. Villarama, Prospero C. Nograles, Prospero A. Pichay, Jr.,
Harlin Cast Abayon and Benasing O. Macaranbon, moved to intervene in the case as
Respondents-Intervenors. They filed their Comment-In-Intervention defending the validity of the
assailed agreements and praying for the dismissal of the petitions.

During the pendency of the case before this Court, President Gloria Macapagal Arroyo, on
November 29, 2002, in her speech at the 2002 Golden Shell Export Awards at Malacañang
Palace, stated that she will not "honor (PIATCO) contracts which the Executive Branch's legal
offices have concluded (as) null and void."5

Respondent PIATCO filed its Comments to the present petitions on November 7 and 27, 2002.
The Office of the Solicitor General and the Office of the Government Corporate Counsel filed
their respective Comments in behalf of the public respondents.

On December 10, 2002, the Court heard the case on oral argument. After the oral argument, the
Court then resolved in open court to require the parties to file simultaneously their respective
Memoranda in amplification of the issues heard in the oral arguments within 30 days and to
explore the possibility of arbitration or mediation as provided in the challenged contracts.

In their consolidated Memorandum, the Office of the Solicitor General and the Office of the
Government Corporate Counsel prayed that the present petitions be given due course and that
judgment be rendered declaring the 1997 Concession Agreement, the ARCA and the
Supplements thereto void for being contrary to the Constitution, the BOT Law and its
Implementing Rules and Regulations.

On March 6, 2003, respondent PIATCO informed the Court that on March 4, 2003 PIATCO
commenced arbitration proceedings before the International Chamber of Commerce,
International Court of Arbitration (ICC) by filing a Request for Arbitration with the Secretariat of
the ICC against the Government of the Republic of the Philippines acting through the DOTC and
MIAA.

In the present cases, the Court is again faced with the task of resolving complicated issues
made difficult by their intersecting legal and economic implications. The Court is aware of the far
reaching fall out effects of the ruling which it makes today. For more than a century and
whenever the exigencies of the times demand it, this Court has never shirked from its solemn
duty to dispense justice and resolve "actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction."6 To be sure, this Court will not begin to do
otherwise today.

We shall first dispose of the procedural issues raised by respondent PIATCO which they
allege will bar the resolution of the instant controversy.

Petitioners' Legal Standing to File

the present Petitions

a. G.R. Nos. 155001 and 155661

In G.R. No. 155001 individual petitioners are employees of various service providers7 having
separate concession contracts with MIAA and continuing service agreements with various
international airlines to provide in-flight catering, passenger handling, ramp and ground support,
aircraft maintenance and provisions, cargo handling and warehousing and other services. Also
included as petitioners are labor unions MIASCOR Workers Union-National Labor Union and
Philippine Airlines Employees Association. These petitioners filed the instant action for
prohibition as taxpayers and as parties whose rights and interests stand to be violated by the
implementation of the PIATCO Contracts.

Petitioners-Intervenors in the same case are all corporations organized and existing under
Philippine laws engaged in the business of providing in-flight catering, passenger handling,
ramp and ground support, aircraft maintenance and provisions, cargo handling and
warehousing and other services to several international airlines at the Ninoy Aquino
International Airport. Petitioners-Intervenors allege that as tax-paying international airline and
airport-related service operators, each one of them stands to be irreparably injured by the
implementation of the PIATCO Contracts. Each of the petitioners-intervenors have separate and
subsisting concession agreements with MIAA and with various international airlines which they
allege are being interfered with and violated by respondent PIATCO.

In G.R. No. 155661, petitioners constitute employees of MIAA and Samahang Manggagawa sa
Paliparan ng Pilipinas - a legitimate labor union and accredited as the sole and exclusive
bargaining agent of all the employees in MIAA. Petitioners anchor their petition for prohibition on
the nullity of the contracts entered into by the Government and PIATCO regarding the build-
operate-and-transfer of the NAIA IPT III. They filed the petition as taxpayers and persons who
have a legitimate interest to protect in the implementation of the PIATCO Contracts.

Petitioners in both cases raise the argument that the PIATCO Contracts contain stipulations
which directly contravene numerous provisions of the Constitution, specific provisions of the
BOT Law and its Implementing Rules and Regulations, and public policy. Petitioners contend
that the DOTC and the MIAA, by entering into said contracts, have committed grave abuse of
discretion amounting to lack or excess of jurisdiction which can be remedied only by a writ of
prohibition, there being no plain, speedy or adequate remedy in the ordinary course of law.

In particular, petitioners assail the provisions in the 1997 Concession Agreement and the ARCA
which grant PIATCO the exclusive right to operate a commercial international passenger
terminal within the Island of Luzon, except those international airports already existing at the
time of the execution of the agreement. The contracts further provide that upon the
commencement of operations at the NAIA IPT III, the Government shall cause the closure of
Ninoy Aquino International Airport Passenger Terminals I and II as international passenger
terminals. With respect to existing concession agreements between MIAA and international
airport service providers regarding certain services or operations, the 1997 Concession
Agreement and the ARCA uniformly provide that such services or operations will not be carried
over to the NAIA IPT III and PIATCO is under no obligation to permit such carry over except
through a separate agreement duly entered into with PIATCO.8

With respect to the petitioning service providers and their employees, upon the commencement
of operations of the NAIA IPT III, they allege that they will be effectively barred from providing
international airline airport services at the NAIA Terminals I and II as all international airlines
and passengers will be diverted to the NAIA IPT III. The petitioning service providers will thus be
compelled to contract with PIATCO alone for such services, with no assurance that subsisting
contracts with MIAA and other international airlines will be respected. Petitioning service
providers stress that despite the very competitive market, the substantial capital investments
required and the high rate of fees, they entered into their respective contracts with the MIAA
with the understanding that the said contracts will be in force for the stipulated period, and
thereafter, renewed so as to allow each of the petitioning service providers to recoup their
investments and obtain a reasonable return thereon.

Petitioning employees of various service providers at the NAIA Terminals I and II and of MIAA
on the other hand allege that with the closure of the NAIA Terminals I and II as international
passenger terminals under the PIATCO Contracts, they stand to lose employment.

The question on legal standing is whether such parties have "alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."9 Accordingly, it has been held that the interest of a person assailing
the constitutionality of a statute must be direct and personal. He must be able to show, not only
that the law or any government act is invalid, but also that he sustained or is in imminent danger
of sustaining some direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person 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 be
subjected to some burdens or penalties by reason of the statute or act complained of.10

We hold that petitioners have the requisite standing. In the above-mentioned cases, petitioners
have a direct and substantial interest to protect by reason of the implementation of the PIATCO
Contracts. They stand to lose their source of livelihood, a property right which is zealously
protected by the Constitution. Moreover, subsisting concession agreements between MIAA and
petitioners-intervenors and service contracts between international airlines and petitioners-
intervenors stand to be nullified or terminated by the operation of the NAIA IPT III under the
PIATCO Contracts. The financial prejudice brought about by the PIATCO Contracts on
petitioners and petitioners-intervenors in these cases are legitimate interests sufficient to confer
on them the requisite standing to file the instant petitions.

b. G.R. No. 155547

In G.R. No. 155547, petitioners filed the petition for prohibition as members of the House of
Representatives, citizens and taxpayers. They allege that as members of the House of
Representatives, they are especially interested in the PIATCO Contracts, because the contracts
compel the Government and/or the House of Representatives to appropriate funds necessary to
comply with the provisions therein.11 They cite provisions of the PIATCO Contracts which
require disbursement of unappropriated amounts in compliance with the contractual obligations
of the Government. They allege that the Government obligations in the PIATCO Contracts
which compel government expenditure without appropriation is a curtailment of their
prerogatives as legislators, contrary to the mandate of the Constitution that "[n]o money shall be
paid out of the treasury except in pursuance of an appropriation made by law."12

Standing is a peculiar concept in constitutional law because in some cases, suits are not
brought by parties who have been personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or voters who actually sue in the public
interest. Although we are not unmindful of the cases of Imus Electric Co. v. Municipality of
Imus13 and Gonzales v. Raquiza14 wherein this Court held that appropriation must be made
only on amounts immediately demandable, public interest demands that we take a more
liberal view in determining whether the petitioners suing as legislators, taxpayers and
citizens have locus standi to file the instant petition. In Kilosbayan, Inc. v.
Guingona,15 this Court held "[i]n line with the liberal policy of this Court on locus standi, ordinary
taxpayers, members of Congress, and even association of planters, and non-profit civic
organizations were allowed to initiate and prosecute actions before this Court to question the
constitutionality or validity of laws, acts, decisions, rulings, or orders of various government
agencies or instrumentalities."16 Further, "insofar as taxpayers' suits are concerned . . . (this
Court) is not devoid of discretion as to whether or not it should be entertained."17 As such ". . .
even if, strictly speaking, they [the petitioners] are not covered by the definition, it is still within
the wide discretion of the Court to waive the requirement and so remove the impediment to its
addressing and resolving the serious constitutional questions raised."18 In view of the serious
legal questions involved and their impact on public interest, we resolve to grant standing to the
petitioners.

Other Procedural Matters

Respondent PIATCO further alleges that this Court is without jurisdiction to review the instant
cases as factual issues are involved which this Court is ill-equipped to resolve. Moreover,
PIATCO alleges that submission of this controversy to this Court at the first instance is a
violation of the rule on hierarchy of courts. They contend that trial courts have concurrent
jurisdiction with this Court with respect to a special civil action for prohibition and hence,
following the rule on hierarchy of courts, resort must first be had before the trial courts.
After a thorough study and careful evaluation of the issues involved, this Court is of the view
that the crux of the instant controversy involves significant legal questions. The facts
necessary to resolve these legal questions are well established and, hence, need not be
determined by a trial court.

The rule on hierarchy of courts will not also prevent this Court from assuming jurisdiction over
the cases at bar. The said rule may be relaxed when the redress desired cannot be obtained in
the appropriate courts or where exceptional and compelling circumstances justify availment of a
remedy within and calling for the exercise of this Court's primary jurisdiction.19

It is easy to discern that exceptional circumstances exist in the cases at bar that call for the
relaxation of the rule. Both petitioners and respondents agree that these cases are
of transcendental importance as they involve the construction and operation of the country's
premier international airport. Moreover, the crucial issues submitted for resolution are of first
impression and they entail the proper legal interpretation of key provisions of the Constitution,
the BOT Law and its Implementing Rules and Regulations. Thus, considering the nature of the
controversy before the Court, procedural bars may be lowered to give way for the speedy
disposition of the instant cases.

Legal Effect of the Commencement

of Arbitration Proceedings by

PIATCO

There is one more procedural obstacle which must be overcome. The Court is aware that
arbitration proceedings pursuant to Section 10.02 of the ARCA have been filed at the instance
of respondent PIATCO. Again, we hold that the arbitration step taken by PIATCO will not oust
this Court of its jurisdiction over the cases at bar.

In Del Monte Corporation-USA v. Court of Appeals,20 even after finding that the arbitration
clause in the Distributorship Agreement in question is valid and the dispute between the parties
is arbitrable, this Court affirmed the trial court's decision denying petitioner's Motion to Suspend
Proceedings pursuant to the arbitration clause under the contract. In so ruling, this Court held
that as contracts produce legal effect between the parties, their assigns and heirs, only the
parties to the Distributorship Agreement are bound by its terms, including the arbitration clause
stipulated therein. This Court ruled that arbitration proceedings could be called for but only with
respect to the parties to the contract in question. Considering that there are parties to the case
who are neither parties to the Distributorship Agreement nor heirs or assigns of the parties
thereto, this Court, citing its previous ruling in Salas, Jr. v. Laperal Realty Corporation, 21 held
that to tolerate the splitting of proceedings by allowing arbitration as to some of the parties on
the one hand and trial for the others on the other hand would, in effect, result in multiplicity of
suits, duplicitous procedure and unnecessary delay.22 Thus, we ruled that the interest of
justice would best be served if the trial court hears and adjudicates the case in a single and
complete proceeding.

It is established that petitioners in the present cases who have presented legitimate interests
in the resolution of the controversy are not parties to the PIATCO Contracts. Accordingly,
they cannot be bound by the arbitration clause provided for in the ARCA and hence, cannot be
compelled to submit to arbitration proceedings. A speedy and decisive resolution of all the
critical issues in the present controversy, including those raised by petitioners, cannot
be made before an arbitral tribunal. The object of arbitration is precisely to allow an
expeditious determination of a dispute. This objective would not be met if this Court were to
allow the parties to settle the cases by arbitration as there are certain issues involving non-
parties to the PIATCO Contracts which the arbitral tribunal will not be equipped to resolve.

Now, to the merits of the instant controversy.

Is PIATCO a qualified bidder?


Public respondents argue that the Paircargo Consortium, PIATCO's predecessor, was not a
duly pre-qualified bidder on the unsolicited proposal submitted by AEDC as the Paircargo
Consortium failed to meet the financial capability required under the BOT Law and the Bid
Documents. They allege that in computing the ability of the Paircargo Consortium to meet the
minimum equity requirements for the project, the entire net worth of Security Bank, a
member of the consortium, should not be considered.

PIATCO relies, on the other hand, on the strength of the Memorandum dated October 14, 1996
issued by the DOTC Undersecretary Primitivo C. Cal stating that the Paircargo Consortium is
found to have a combined net worth of P3,900,000,000.00, sufficient to meet the equity
requirements of the project. The said Memorandum was in response to a letter from Mr. Antonio
Henson of AEDC to President Fidel V. Ramos questioning the financial capability of the
Paircargo Consortium on the ground that it does not have the financial resources to put up the
required minimum equity of P2,700,000,000.00. This contention is based on the restriction
under R.A. No. 337, as amended or the General Banking Act that a commercial bank cannot
invest in any single enterprise in an amount more than 15% of its net worth. In the said
Memorandum, Undersecretary Cal opined:

The Bid Documents, as clarified through Bid Bulletin Nos. 3 and 5, require that financial
capability will be evaluated based on total financial capability of all the member
companies of the [Paircargo] Consortium. In this connection, the Challenger was found
to have a combined net worth of P3,926,421,242.00 that could support a project costing
approximately P13 Billion.

It is not a requirement that the net worth must be "unrestricted." To impose that as a
requirement now will be nothing less than unfair.

The financial statement or the net worth is not the sole basis in establishing financial
capability. As stated in Bid Bulletin No. 3, financial capability may also be established by
testimonial letters issued by reputable banks. The Challenger has complied with this
requirement.

To recap, net worth reflected in the Financial Statement should not be taken as the
amount of the money to be used to answer the required thirty percent (30%) equity of
the challenger but rather to be used in establishing if there is enough basis to believe
that the challenger can comply with the required 30% equity. In fact, proof of sufficient
equity is required as one of the conditions for award of contract (Section 12.1 IRR of the
BOT Law) but not for pre-qualification (Section 5.4 of the same document).23

Under the BOT Law, in case of a build-operate-and-transfer arrangement, the contract


shall be awarded to the bidder "who, having satisfied the minimum financial, technical,
organizational and legal standards" required by the law, has submitted the lowest bid
and most favorable terms of the project.24 Further, the 1994 Implementing Rules and
Regulations of the BOT Law provide:

Section 5.4 Pre-qualification Requirements.

xxx xxx xxx

c. Financial Capability: The project proponent must have adequate capability to sustain
the financing requirements for the detailed engineering design, construction and/or
operation and maintenance phases of the project, as the case may be. For purposes of
pre-qualification, this capability shall be measured in terms of (i) proof of the ability of
the project proponent and/or the consortium to provide a minimum amount of
equity to the project, and (ii) a letter testimonial from reputable banks attesting
that the project proponent and/or members of the consortium are banking with
them, that they are in good financial standing, and that they have adequate
resources. The government agency/LGU concerned shall determine on a project-to-
project basis and before pre-qualification, the minimum amount of equity needed.
(emphasis supplied)
Pursuant to this provision, the PBAC issued PBAC Bulletin No. 3 dated August 16, 1996
amending the financial capability requirements for pre-qualification of the project proponent as
follows:

6. Basis of Pre-qualification

The basis for the pre-qualification shall be on the compliance of the proponent to the
minimum technical and financial requirements provided in the Bid Documents and in the
IRR of the BOT Law, R.A. No. 6957, as amended by R.A. 7718.

The minimum amount of equity to which the proponent's financial capability will be based
shall be thirty percent (30%) of the project cost instead of the twenty percent (20%)
specified in Section 3.6.4 of the Bid Documents. This is to correlate with the required
debt-to-equity ratio of 70:30 in Section 2.01a of the draft concession agreement. The
debt portion of the project financing should not exceed 70% of the actual project cost.

Accordingly, based on the above provisions of law, the Paircargo Consortium or any challenger
to the unsolicited proposal of AEDC has to show that it possesses the requisite financial
capability to undertake the project in the minimum amount of 30% of the project
cost through (i) proof of the ability to provide a minimum amount of equity to the project, and (ii)
a letter testimonial from reputable banks attesting that the project proponent or members of the
consortium are banking with them, that they are in good financial standing, and that they have
adequate resources.

As the minimum project cost was estimated to be US$350,000,000.00 or roughly


P9,183,650,000.00,25 the Paircargo Consortium had to show to the satisfaction of the PBAC that
it had the ability to provide the minimum equity for the project in the amount of at
least P2,755,095,000.00.

Paircargo's Audited Financial Statements as of 1993 and 1994 indicated that it had a net worth
of P2,783,592.00 and P3,123,515.00 respectively.26 PAGS' Audited Financial Statements as of
1995 indicate that it has approximately P26,735,700.00 to invest as its equity for the
project.27 Security Bank's Audited Financial Statements as of 1995 show that it has a net worth
equivalent to its capital funds in the amount of P3,523,504,377.00.28

We agree with public respondents that with respect to Security Bank, the entire amount of its
net worth could not be invested in a single undertaking or enterprise, whether allied or non-allied
in accordance with the provisions of R.A. No. 337, as amended or the General Banking Act:

Sec. 21-B. The provisions in this or in any other Act to the contrary notwithstanding, the
Monetary Board, whenever it shall deem appropriate and necessary to further national
development objectives or support national priority projects, may authorize a
commercial bank, a bank authorized to provide commercial banking services, as
well as a government-owned and controlled bank, to operate under an expanded
commercial banking authority and by virtue thereof exercise, in addition to
powers authorized for commercial banks, the powers of an Investment House as
provided in Presidential Decree No. 129, invest in the equity of a non-allied
undertaking, or own a majority or all of the equity in a financial intermediary other than
a commercial bank or a bank authorized to provide commercial banking
services: Provided, That (a) the total investment in equities shall not exceed fifty
percent (50%) of the net worth of the bank; (b) the equity investment in any one
enterprise whether allied or non-allied shall not exceed fifteen percent (15%) of the
net worth of the bank; (c) the equity investment of the bank, or of its wholly or majority-
owned subsidiary, in a single non-allied undertaking shall not exceed thirty-five percent
(35%) of the total equity in the enterprise nor shall it exceed thirty-five percent (35%) of
the voting stock in that enterprise; and (d) the equity investment in other banks shall be
deducted from the investing bank's net worth for purposes of computing the prescribed
ratio of net worth to risk assets.

xxx xxx xxx


Further, the 1993 Manual of Regulations for Banks provides:

SECTION X383. Other Limitations and Restrictions. — The following limitations and
restrictions shall also apply regarding equity investments of banks.

a. In any single enterprise. — The equity investments of banks in any single enterprise
shall not exceed at any time fifteen percent (15%) of the net worth of the investing bank
as defined in Sec. X106 and Subsec. X121.5.

Thus, the maximum amount that Security Bank could validly invest in the Paircargo Consortium
is only P528,525,656.55, representing 15% of its entire net worth. The total net worth therefore
of the Paircargo Consortium, after considering the maximum amounts that may be validly
invested by each of its members is P558,384,871.55 or only 6.08% of the project cost,29 an
amount substantially less than the prescribed minimum equity investment required for the
project in the amount of P2,755,095,000.00 or 30% of the project cost.

The purpose of pre-qualification in any public bidding is to determine, at the earliest opportunity,
the ability of the bidder to undertake the project. Thus, with respect to the bidder's financial
capacity at the pre-qualification stage, the law requires the government agency to examine and
determine the ability of the bidder to fund the entire cost of the project by considering the
maximum amounts that each bidder may invest in the project at the time of pre-
qualification.

The PBAC has determined that any prospective bidder for the construction, operation and
maintenance of the NAIA IPT III project should prove that it has the ability to provide equity in
the minimum amount of 30% of the project cost, in accordance with the 70:30 debt-to-equity
ratio prescribed in the Bid Documents. Thus, in the case of Paircargo Consortium, the PBAC
should determine the maximum amounts that each member of the consortium may commit for
the construction, operation and maintenance of the NAIA IPT III project at the time of pre-
qualification. With respect to Security Bank, the maximum amount which may be invested by
it would only be 15% of its net worth in view of the restrictions imposed by the General Banking
Act. Disregarding the investment ceilings provided by applicable law would not result in a proper
evaluation of whether or not a bidder is pre-qualified to undertake the project as for all intents
and purposes, such ceiling or legal restriction determines the true maximum amount which a
bidder may invest in the project.

Further, the determination of whether or not a bidder is pre-qualified to undertake the project
requires an evaluation of the financial capacity of the said bidder at the time the bid is
submitted based on the required documents presented by the bidder. The PBAC should not be
allowed to speculate on the future financial ability of the bidder to undertake the project on the
basis of documents submitted. This would open doors to abuse and defeat the very purpose of
a public bidding. This is especially true in the case at bar which involves the investment of
billions of pesos by the project proponent. The relevant government authority is duty-bound to
ensure that the awardee of the contract possesses the minimum required financial capability to
complete the project. To allow the PBAC to estimate the bidder's future financial capability
would not secure the viability and integrity of the project. A restrictive and conservative
application of the rules and procedures of public bidding is necessary not only to protect the
impartiality and regularity of the proceedings but also to ensure the financial and technical
reliability of the project. It has been held that:

The basic rule in public bidding is that bids should be evaluated based on the required
documents submitted before and not after the opening of bids. Otherwise, the foundation
of a fair and competitive public bidding would be defeated. Strict observance of the
rules, regulations, and guidelines of the bidding process is the only safeguard to a
fair, honest and competitive public bidding.30

Thus, if the maximum amount of equity that a bidder may invest in the project at the time the
bids are submittedfalls short of the minimum amounts required to be put up by the bidder, said
bidder should be properly disqualified. Considering that at the pre-qualification stage, the
maximum amounts which the Paircargo Consortium may invest in the project fell short of the
minimum amounts prescribed by the PBAC, we hold that Paircargo Consortium was not a
qualified bidder. Thus the award of the contract by the PBAC to the Paircargo Consortium, a
disqualified bidder, is null and void.

While it would be proper at this juncture to end the resolution of the instant controversy, as the
legal effects of the disqualification of respondent PIATCO's predecessor would come into play
and necessarily result in the nullity of all the subsequent contracts entered by it in pursuance of
the project, the Court feels that it is necessary to discuss in full the pressing issues of the
present controversy for a complete resolution thereof.

II

Is the 1997 Concession Agreement valid?

Petitioners and public respondents contend that the 1997 Concession Agreement is invalid as it
contains provisions that substantially depart from the draft Concession Agreement included in
the Bid Documents. They maintain that a substantial departure from the draft Concession
Agreement is a violation of public policy and renders the 1997 Concession Agreement null and
void.

PIATCO maintains, however, that the Concession Agreement attached to the Bid Documents is
intended to be a draft, i.e., subject to change, alteration or modification, and that this intention
was clear to all participants, including AEDC, and DOTC/MIAA. It argued further that said
intention is expressed in Part C (6) of Bid Bulletin No. 3 issued by the PBAC which states:

6. Amendments to the Draft Concessions Agreement

Amendments to the Draft Concessions Agreement shall be issued from time to time.
Said amendments shall only cover items that would not materially affect the preparation
of the proponent's proposal.

By its very nature, public bidding aims to protect the public interest by giving the public the best
possible advantages through open competition. Thus:

Competition must be legitimate, fair and honest. In the field of government contract law,
competition requires, not only `bidding upon a common standard, a common basis, upon
the same thing, the same subject matter, the same undertaking,' but also that it be
legitimate, fair and honest; and not designed to injure or defraud the
government.31

An essential element of a publicly bidded contract is that all bidders must be on equal footing.
Not simply in terms of application of the procedural rules and regulations imposed by the
relevant government agency, but more importantly, on the contract bidded upon. Each bidder
must be able to bid on the same thing. The rationale is obvious. If the winning bidder is allowed
to later include or modify certain provisions in the contract awarded such that the contract is
altered in any material respect, then the essence of fair competition in the public bidding is
destroyed. A public bidding would indeed be a farce if after the contract is awarded, the winning
bidder may modify the contract and include provisions which are favorable to it that were not
previously made available to the other bidders. Thus:

It is inherent in public biddings that there shall be a fair competition among the bidders.
The specifications in such biddings provide the common ground or basis for the bidders.
The specifications should, accordingly, operate equally or indiscriminately upon all
bidders.32

The same rule was restated by Chief Justice Stuart of the Supreme Court of Minnesota:

The law is well settled that where, as in this case, municipal authorities can only let a
contract for public work to the lowest responsible bidder, the proposals and
specifications therefore must be so framed as to permit free and full competition. Nor
can they enter into a contract with the best bidder containing substantial
provisions beneficial to him, not included or contemplated in the terms and
specifications upon which the bids were invited.33

In fact, in the PBAC Bid Bulletin No. 3 cited by PIATCO to support its argument that the draft
concession agreement is subject to amendment, the pertinent portion of which was quoted
above, the PBAC also clarified that "[s]aid amendments shall only cover items that would
not materially affect the preparation of the proponent's proposal."

While we concede that a winning bidder is not precluded from modifying or amending certain
provisions of the contract bidded upon, such changes must not constitute substantial or
material amendments that would alter the basic parameters of the contract and would
constitute a denial to the other bidders of the opportunity to bid on the same terms.
Hence, the determination of whether or not a modification or amendment of a contract bidded
out constitutes a substantial amendment rests on whether the contract, when taken as a whole,
would contain substantially different terms and conditions that would have the effect of altering
the technical and/or financial proposals previously submitted by other bidders. The alterations
and modifications in the contract executed between the government and the winning bidder
must be such as to render such executed contract to be an entirely different contract from
the one that was bidded upon.

In the case of Caltex (Philippines), Inc. v. Delgado Brothers, Inc.,34 this Court quoted with
approval the ruling of the trial court that an amendment to a contract awarded through public
bidding, when such subsequent amendment was made without a new public bidding, is null and
void:

The Court agrees with the contention of counsel for the plaintiffs that the due execution
of a contract after public bidding is a limitation upon the right of the contracting parties to
alter or amend it without another public bidding, for otherwise what would a public
bidding be good for if after the execution of a contract after public bidding, the
contracting parties may alter or amend the contract, or even cancel it, at their
will?Public biddings are held for the protection of the public, and to give the public the
best possible advantages by means of open competition between the bidders. He who
bids or offers the best terms is awarded the contract subject of the bid, and it is obvious
that such protection and best possible advantages to the public will disappear if the
parties to a contract executed after public bidding may alter or amend it without another
previous public bidding.35

Hence, the question that comes to fore is this: is the 1997 Concession Agreement the same
agreement that was offered for public bidding, i.e., the draft Concession Agreement attached to
the Bid Documents? A close comparison of the draft Concession Agreement attached to the Bid
Documents and the 1997 Concession Agreement reveals that the documents differ in at least
two material respects:

a. Modification on the Public

Utility Revenues and Non-Public

Utility Revenues that may be

collected by PIATCO

The fees that may be imposed and collected by PIATCO under the draft Concession Agreement
and the 1997 Concession Agreement may be classified into three distinct categories: (1) fees
which are subject to periodic adjustment of once every two years in accordance with a
prescribed parametric formula and adjustments are made effective only upon written approval
by MIAA; (2) fees other than those included in the first category which maybe adjusted by
PIATCO whenever it deems necessary without need for consent of DOTC/MIAA; and (3) new
fees and charges that may be imposed by PIATCO which have not been previously imposed or
collected at the Ninoy Aquino International Airport Passenger Terminal I, pursuant to
Administrative Order No. 1, Series of 1993, as amended. The glaring distinctions between the
draft Concession Agreement and the 1997 Concession Agreement lie in the types of fees
included in each category and the extent of the supervision and regulation which MIAA is
allowed to exercise in relation thereto.

For fees under the first category, i.e., those which are subject to periodic adjustment in
accordance with a prescribed parametric formula and effective only upon written approval by
MIAA, the draft Concession Agreementincludes the following:36

(1) aircraft parking fees;

(2) aircraft tacking fees;

(3) groundhandling fees;

(4) rentals and airline offices;

(5) check-in counter rentals; and

(6) porterage fees.

Under the 1997 Concession Agreement, fees which are subject to adjustment and effective
upon MIAA approval are classified as "Public Utility Revenues" and include:37

(1) aircraft parking fees;

(2) aircraft tacking fees;

(3) check-in counter fees; and

(4) Terminal Fees.

The implication of the reduced number of fees that are subject to MIAA approval is best
appreciated in relation to fees included in the second category identified above. Under
the 1997 Concession Agreement, fees which PIATCO may adjust whenever it deems
necessary without need for consent of DOTC/MIAA are "Non-Public Utility Revenues" and is
defined as "all other income not classified as Public Utility Revenues derived from operations of
the Terminal and the Terminal Complex."38 Thus, under the 1997 Concession Agreement,
ground handling fees, rentals from airline offices and porterage fees are no longer subject to
MIAA regulation.

Further, under Section 6.03 of the draft Concession Agreement, MIAA reserves the right to
regulate (1) lobby and vehicular parking fees and (2) other new fees and charges that may be
imposed by PIATCO. Such regulation may be made by periodic adjustment and is effective only
upon written approval of MIAA. The full text of said provision is quoted below:

Section 6.03. Periodic Adjustment in Fees and Charges. Adjustments in the aircraft
parking fees, aircraft tacking fees, groundhandling fees, rentals and airline offices,
check-in-counter rentals and porterage fees shall be allowed only once every two years
and in accordance with the Parametric Formula attached hereto as Annex F. Provided
that adjustments shall be made effective only after the written express approval of the
MIAA. Provided, further, that such approval of the MIAA, shall be contingent only on the
conformity of the adjustments with the above said parametric formula. The first
adjustment shall be made prior to the In-Service Date of the Terminal.

The MIAA reserves the right to regulate under the foregoing terms and conditions
the lobby and vehicular parking fees and other new fees and charges as
contemplated in paragraph 2 of Section 6.01 if in its judgment the users of the
airport shall be deprived of a free option for the services they cover.39

On the other hand, the equivalent provision under the 1997 Concession Agreement reads:
Section 6.03 Periodic Adjustment in Fees and Charges.

xxx xxx xxx

(c) Concessionaire shall at all times be judicious in fixing fees and charges constituting
Non-Public Utility Revenues in order to ensure that End Users are not unreasonably
deprived of services. While the vehicular parking fee, porterage fee and greeter/well
wisher fee constitute Non-Public Utility Revenues of Concessionaire, GRP may
intervene and require Concessionaire to explain and justify the fee it may set from
time to time, if in the reasonable opinion of GRP the said fees have become exorbitant
resulting in the unreasonable deprivation of End Users of such services.40

Thus, under the 1997 Concession Agreement, with respect to (1) vehicular parking fee, (2)
porterage fee and (3) greeter/well wisher fee, all that MIAA can do is to require PIATCO
to explain and justify the fees set by PIATCO. In the draft Concession Agreement, vehicular
parking fee is subject to MIAA regulation and approval under the second paragraph of Section
6.03 thereof while porterage fee is covered by the first paragraph of the same provision. There
is an obvious relaxation of the extent of control and regulation by MIAA with respect to the
particular fees that may be charged by PIATCO.

Moreover, with respect to the third category of fees that may be imposed and collected by
PIATCO, i.e., new fees and charges that may be imposed by PIATCO which have not been
previously imposed or collected at the Ninoy Aquino International Airport Passenger Terminal I,
under Section 6.03 of the draft Concession Agreement MIAA has reserved the right to
regulate the same under the same conditions that MIAA may regulate fees under the first
category, i.e., periodic adjustment of once every two years in accordance with a prescribed
parametric formula and effective only upon written approval by MIAA. However, under the 1997
Concession Agreement, adjustment of fees under the third category is not subject to MIAA
regulation.

With respect to terminal fees that may be charged by PIATCO, 41 as shown earlier, this was
included within the category of "Public Utility Revenues" under the 1997 Concession
Agreement. This classification is significant because under the 1997 Concession
Agreement, "Public Utility Revenues" are subject to an "Interim Adjustment" of fees upon the
occurrence of certain extraordinary events specified in the agreement. 42 However, under
the draft Concession Agreement, terminal fees are not included in the types of fees that may
be subject to "Interim Adjustment."43

Finally, under the 1997 Concession Agreement, "Public Utility Revenues," except terminal
fees, are denominated in US Dollars44 while payments to the Government are in Philippine
Pesos. In the draft Concession Agreement,no such stipulation was included. By stipulating
that "Public Utility Revenues" will be paid to PIATCO in US Dollars while payments by PIATCO
to the Government are in Philippine currency under the 1997 Concession Agreement, PIATCO
is able to enjoy the benefits of depreciations of the Philippine Peso, while being effectively
insulated from the detrimental effects of exchange rate fluctuations.

When taken as a whole, the changes under the 1997 Concession Agreement with respect to
reduction in the types of fees that are subject to MIAA regulation and the relaxation of such
regulation with respect to other fees are significant amendments that substantially distinguish
the draft Concession Agreement from the 1997 Concession Agreement. The 1997 Concession
Agreement, in this respect, clearly gives PIATCO more favorable terms than what was
available to other bidders at the time the contract was bidded out. It is not very difficult to
see that the changes in the 1997 Concession Agreement translate to direct and concrete
financial advantages for PIATCO which were not available at the time the contract was
offered for bidding. It cannot be denied that under the 1997 Concession Agreement only "Public
Utility Revenues" are subject to MIAA regulation. Adjustments of all other fees imposed and
collected by PIATCO are entirely within its control. Moreover, with respect to terminal fees,
under the 1997 Concession Agreement, the same is further subject to "Interim Adjustments" not
previously stipulated in the draft Concession Agreement. Finally, the change in the currency
stipulated for "Public Utility Revenues" under the 1997 Concession Agreement, except terminal
fees, gives PIATCO an added benefit which was not available at the time of bidding.
b. Assumption by the

Government of the liabilities of

PIATCO in the event of the latter's

default thereof

Under the draft Concession Agreement, default by PIATCO of any of its obligations to
creditors who have provided, loaned or advanced funds for the NAIA IPT III project does not
result in the assumption by the Government of these liabilities. In fact, nowhere in the said
contract does default of PIATCO's loans figure in the agreement. Such default does not directly
result in any concomitant right or obligation in favor of the Government.

However, the 1997 Concession Agreement provides:

Section 4.04 Assignment.

xxx xxx xxx

(b) In the event Concessionaire should default in the payment of an Attendant Liability,
and the default has resulted in the acceleration of the payment due date of the Attendant
Liability prior to its stated date of maturity, the Unpaid Creditors and Concessionaire
shall immediately inform GRP in writing of such default. GRP shall, within one hundred
eighty (180) Days from receipt of the joint written notice of the Unpaid Creditors and
Concessionaire, either (i) take over the Development Facility and assume the Attendant
Liabilities, or (ii) allow the Unpaid Creditors, if qualified, to be substituted as
concessionaire and operator of the Development Facility in accordance with the terms
and conditions hereof, or designate a qualified operator acceptable to GRP to operate
the Development Facility, likewise under the terms and conditions of this Agreement;
Provided that if at the end of the 180-day period GRP shall not have served the Unpaid
Creditors and Concessionaire written notice of its choice, GRP shall be deemed to have
elected to take over the Development Facility with the concomitant assumption of
Attendant Liabilities.

(c) If GRP should, by written notice, allow the Unpaid Creditors to be substituted as
concessionaire, the latter shall form and organize a concession company qualified to
take over the operation of the Development Facility. If the concession company should
elect to designate an operator for the Development Facility, the concession company
shall in good faith identify and designate a qualified operator acceptable to GRP within
one hundred eighty (180) days from receipt of GRP's written notice. If the concession
company, acting in good faith and with due diligence, is unable to designate a qualified
operator within the aforesaid period, then GRP shall at the end of the 180-day period
take over the Development Facility and assume Attendant Liabilities.

The term "Attendant Liabilities" under the 1997 Concession Agreement is defined as:

Attendant Liabilities refer to all amounts recorded and from time to time outstanding in
the books of the Concessionaire as owing to Unpaid Creditors who have provided,
loaned or advanced funds actually used for the Project, including all interests,
penalties, associated fees, charges, surcharges, indemnities, reimbursements and other
related expenses, and further including amounts owed by Concessionaire to its
suppliers, contractors and sub-contractors.

Under the above quoted portions of Section 4.04 in relation to the definition of "Attendant
Liabilities," default by PIATCO of its loans used to finance the NAIA IPT III project triggers
the occurrence of certain events that leads to the assumption by the Government of the
liability for the loans. Only in one instance may the Government escape the assumption of
PIATCO's liabilities, i.e., when the Government so elects and allows a qualified operator to take
over as Concessionaire. However, this circumstance is dependent on the existence and
availability of a qualified operator who is willing to take over the rights and obligations of
PIATCO under the contract, a circumstance that is not entirely within the control of the
Government.

Without going into the validity of this provision at this juncture, suffice it to state that Section
4.04 of the 1997 Concession Agreement may be considered a form of security for the loans
PIATCO has obtained to finance the project, an option that was not made available in the draft
Concession Agreement. Section 4.04 is an important amendment to the 1997 Concession
Agreement because it grants PIATCO a financial advantage or benefit which was not
previously made available during the bidding process. This financial advantage is a
significant modification that translates to better terms and conditions for PIATCO.

PIATCO, however, argues that the parties to the bidding procedure acknowledge that the draft
Concession Agreement is subject to amendment because the Bid Documents permit financing
or borrowing. They claim that it was the lenders who proposed the amendments to the draft
Concession Agreement which resulted in the 1997 Concession Agreement.

We agree that it is not inconsistent with the rationale and purpose of the BOT Law to allow the
project proponent or the winning bidder to obtain financing for the project, especially in this case
which involves the construction, operation and maintenance of the NAIA IPT III. Expectedly,
compliance by the project proponent of its undertakings therein would involve a substantial
amount of investment. It is therefore inevitable for the awardee of the contract to seek alternate
sources of funds to support the project. Be that as it may, this Court maintains that amendments
to the contract bidded upon should always conform to the general policy on public bidding if
such procedure is to be faithful to its real nature and purpose. By its very nature and
characteristic, competitive public bidding aims to protect the public interest by giving the public
the best possible advantages through open competition.45 It has been held that the three
principles in public bidding are (1) the offer to the public; (2) opportunity for competition; and (3)
a basis for the exact comparison of bids. A regulation of the matter which excludes any of these
factors destroys the distinctive character of the system and thwarts the purpose of its
adoption.46 These are the basic parameters which every awardee of a contract bidded out must
conform to, requirements of financing and borrowing notwithstanding. Thus, upon a concrete
showing that, as in this case, the contract signed by the government and the contract-awardee
is an entirely different contract from the contract bidded, courts should not hesitate to strike
down said contract in its entirety for violation of public policy on public bidding. A strict
adherence on the principles, rules and regulations on public bidding must be sustained if only to
preserve the integrity and the faith of the general public on the procedure.

Public bidding is a standard practice for procuring government contracts for public service and
for furnishing supplies and other materials. It aims to secure for the government the lowest
possible price under the most favorable terms and conditions, to curtail favoritism in the award
of government contracts and avoid suspicion of anomalies and it places all bidders in equal
footing.47 Any government action which permits any substantial variance between the
conditions under which the bids are invited and the contract executed after the award
thereof is a grave abuse of discretion amounting to lack or excess of jurisdiction which
warrants proper judicial action.

In view of the above discussion, the fact that the foregoing substantial amendments were made
on the 1997 Concession Agreement renders the same null and void for being contrary to
public policy. These amendments convert the 1997 Concession Agreement to an entirely
different agreement from the contract bidded out or the draft Concession Agreement. It is not
difficult to see that the amendments on (1) the types of fees or charges that are subject to MIAA
regulation or control and the extent thereof and (2) the assumption by the Government, under
certain conditions, of the liabilities of PIATCO directly translates concrete financial
advantages to PIATCO that were previously not available during the bidding process.
These amendments cannot be taken as merely supplements to or implementing provisions of
those already existing in the draft Concession Agreement. The amendments discussed above
present new terms and conditions which provide financial benefit to PIATCO which may have
altered the technical and financial parameters of other bidders had they known that such terms
were available.

III
Direct Government Guarantee

Article IV, Section 4.04(b) and (c), in relation to Article 1.06, of the 1997 Concession Agreement
provides:

Section 4.04 Assignment

xxx xxx xxx

(b) In the event Concessionaire should default in the payment of an Attendant


Liability, and the default resulted in the acceleration of the payment due date of the
Attendant Liability prior to its stated date of maturity, the Unpaid Creditors and
Concessionaire shall immediately inform GRP in writing of such default. GRP shall within
one hundred eighty (180) days from receipt of the joint written notice of the Unpaid
Creditors and Concessionaire, either (i) take over the Development Facility and assume
the Attendant Liabilities, or (ii) allow the Unpaid Creditors, if qualified to be substituted
as concessionaire and operator of the Development facility in accordance with the terms
and conditions hereof, or designate a qualified operator acceptable to GRP to operate
the Development Facility, likewise under the terms and conditions of this Agreement;
Provided, that if at the end of the 180-day period GRP shall not have served the Unpaid
Creditors and Concessionaire written notice of its choice, GRP shall be deemed to
have elected to take over the Development Facility with the concomitant
assumption of Attendant Liabilities.

(c) If GRP, by written notice, allow the Unpaid Creditors to be substituted as


concessionaire, the latter shall form and organize a concession company qualified to
takeover the operation of the Development Facility. If the concession company should
elect to designate an operator for the Development Facility, the concession company
shall in good faith identify and designate a qualified operator acceptable to GRP within
one hundred eighty (180) days from receipt of GRP's written notice. If the concession
company, acting in good faith and with due diligence, is unable to designate a qualified
operator within the aforesaid period, then GRP shall at the end of the 180-day
period take over the Development Facility and assume Attendant Liabilities.

….

Section 1.06. Attendant Liabilities

Attendant Liabilities refer to all amounts recorded and from time to time outstanding
in the books of the Concessionaire as owing to Unpaid Creditors who have
provided, loaned or advanced funds actually used for the Project, including all interests,
penalties, associated fees, charges, surcharges, indemnities, reimbursements and other
related expenses, and further including amounts owed by Concessionaire to its
suppliers, contractors and sub-contractors.48

It is clear from the above-quoted provisions that Government, in the event that PIATCO
defaults in its loan obligations, is obligated to pay "all amounts recorded and from time to
time outstanding from the books" of PIATCO which the latter owes to its creditors. 49 These
amounts include "all interests, penalties, associated fees, charges, surcharges, indemnities,
reimbursements and other related expenses."50 This obligation of the Government to pay
PIATCO's creditors upon PIATCO's default would arise if the Government opts to take over
NAIA IPT III. It should be noted, however, that even if the Government chooses the second
option, which is to allow PIATCO's unpaid creditors operate NAIA IPT III, the Government is still
at a risk of being liable to PIATCO's creditors should the latter be unable to designate a qualified
operator within the prescribed period.51 In effect, whatever option the Government chooses
to take in the event of PIATCO's failure to fulfill its loan obligations, the Government is
still at a risk of assuming PIATCO's outstanding loans. This is due to the fact that the
Government would only be free from assuming PIATCO's debts if the unpaid creditors would be
able to designate a qualified operator within the period provided for in the contract. Thus, the
Government's assumption of liability is virtually out of its control. The Government under
the circumstances provided for in the 1997 Concession Agreement is at the mercy of the
existence, availability and willingness of a qualified operator. The above contractual provisions
constitute a direct government guarantee which is prohibited by law.

One of the main impetus for the enactment of the BOT Law is the lack of government funds to
construct the infrastructure and development projects necessary for economic growth and
development. This is why private sector resources are being tapped in order to finance these
projects. The BOT law allows the private sector to participate, and is in fact encouraged to do so
by way of incentives, such as minimizing the unstable flow of returns, 52 provided that the
government would not have to unnecessarily expend scarcely available funds for the project
itself. As such, direct guarantee, subsidy and equity by the government in these projects are
strictly prohibited.53 This is but logical for if the government would in the end still be at a
risk of paying the debts incurred by the private entity in the BOT projects, then the
purpose of the law is subverted.

Section 2(n) of the BOT Law defines direct guarantee as follows:

(n) Direct government guarantee — An agreement whereby the government or any of its
agencies or local government units assume responsibility for the repayment of debt
directly incurred by the project proponent in implementing the project in case of a
loan default.

Clearly by providing that the Government "assumes" the attendant liabilities, which consists of
PIATCO's unpaid debts, the 1997 Concession Agreement provided for a direct government
guarantee for the debts incurred by PIATCO in the implementation of the NAIA IPT III project. It
is of no moment that the relevant sections are subsumed under the title of "assignment". The
provisions providing for direct government guarantee which is prohibited by law is clear from the
terms thereof.

The fact that the ARCA superseded the 1997 Concession Agreement did not cure this fatal
defect. Article IV, Section 4.04(c), in relation to Article I, Section 1.06, of the ARCA provides:

Section 4.04 Security

xxx xxx xxx

(c) GRP agrees with Concessionaire (PIATCO) that it shall negotiate in good faith
and enter into direct agreement with the Senior Lenders, or with an agent of such
Senior Lenders (which agreement shall be subject to the approval of the Bangko Sentral
ng Pilipinas), in such form as may be reasonably acceptable to both GRP and Senior
Lenders, with regard, inter alia, to the following parameters:

xxx xxx xxx

(iv) If the Concessionaire [PIATCO] is in default under a payment obligation


owed to the Senior Lenders, and as a result thereof the Senior Lenders have
become entitled to accelerate the Senior Loans, the Senior Lenders shall have
the right to notify GRP of the same, and without prejudice to any other rights of
the Senior Lenders or any Senior Lenders' agent may have (including without
limitation under security interests granted in favor of the Senior Lenders), to
either in good faith identify and designate a nominee which is qualified under
sub-clause (viii)(y) below to operate the Development Facility [NAIA Terminal 3]
or transfer the Concessionaire's [PIATCO] rights and obligations under this
Agreement to a transferee which is qualified under sub-clause (viii) below;

xxx xxx xxx

(vi) if the Senior Lenders, acting in good faith and using reasonable efforts, are
unable to designate a nominee or effect a transfer in terms and conditions
satisfactory to the Senior Lenders within one hundred eighty (180) days after
giving GRP notice as referred to respectively in (iv) or (v) above, then GRP and
the Senior Lenders shall endeavor in good faith to enter into any other
arrangement relating to the Development Facility [NAIA Terminal 3] (other than a
turnover of the Development Facility [NAIA Terminal 3] to GRP) within the
following one hundred eighty (180) days. If no agreement relating to the
Development Facility [NAIA Terminal 3] is arrived at by GRP and the Senior
Lenders within the said 180-day period, then at the end thereof
the Development Facility [NAIA Terminal 3] shall be transferred by the
Concessionaire [PIATCO] to GRP or its designee and GRP shall make a
termination payment to Concessionaire [PIATCO] equal to the Appraised
Value (as hereinafter defined) of the Development Facility [NAIA Terminal 3]
or the sum of the Attendant Liabilities, if greater. Notwithstanding Section
8.01(c) hereof, this Agreement shall be deemed terminated upon the transfer of
the Development Facility [NAIA Terminal 3] to GRP pursuant hereto;

xxx xxx xxx

Section 1.06. Attendant Liabilities

Attendant Liabilities refer to all amounts in each case supported by verifiable


evidence from time to time owed or which may become owing by Concessionaire
[PIATCO] to Senior Lenders or any other persons or entities who have provided,
loaned, or advanced funds or provided financial facilities to Concessionaire
[PIATCO] for the Project [NAIA Terminal 3], including, without limitation, all
principal, interest, associated fees, charges, reimbursements, and other related
expenses (including the fees, charges and expenses of any agents or trustees of such
persons or entities), whether payable at maturity, by acceleration or otherwise, and
further including amounts owed by Concessionaire [PIATCO] to its professional
consultants and advisers, suppliers, contractors and sub-contractors.54

It is clear from the foregoing contractual provisions that in the event that PIATCO fails to fulfill its
loan obligations to its Senior Lenders, the Government is obligated to directly negotiate and
enter into an agreement relating to NAIA IPT III with the Senior Lenders, should the latter fail to
appoint a qualified nominee or transferee who will take the place of PIATCO. If the Senior
Lenders and the Government are unable to enter into an agreement after the prescribed period,
the Government must then pay PIATCO, upon transfer of NAIA IPT III to the Government,
termination payment equal to the appraised value of the project or the value of the attendant
liabilities whichever is greater. Attendant liabilities as defined in the ARCA includes all
amounts owed or thereafter may be owed by PIATCO not only to the Senior Lenders with whom
PIATCO has defaulted in its loan obligations but to all other persons who may have loaned,
advanced funds or provided any other type of financial facilities to PIATCO for NAIA IPT III. The
amount of PIATCO's debt that the Government would have to pay as a result of PIATCO's
default in its loan obligations -- in case no qualified nominee or transferee is appointed by the
Senior Lenders and no other agreement relating to NAIA IPT III has been reached between the
Government and the Senior Lenders -- includes, but is not limited to, "all principal, interest,
associated fees, charges, reimbursements, and other related expenses . . . whether payable at
maturity, by acceleration or otherwise."55

It is clear from the foregoing that the ARCA provides for a direct guarantee by the
government to pay PIATCO's loans not only to its Senior Lenders but all other entities
who provided PIATCO funds or services upon PIATCO's default in its loan obligation with
its Senior Lenders. The fact that the Government's obligation to pay PIATCO's lenders for the
latter's obligation would only arise after the Senior Lenders fail to appoint a qualified nominee or
transferee does not detract from the fact that, should the conditions as stated in the contract
occur, the ARCA still obligates the Government to pay any and all amounts owed by PIATCO to
its lenders in connection with NAIA IPT III. Worse, the conditions that would make the
Government liable for PIATCO's debts is triggered by PIATCO's own default of its loan
obligations to its Senior Lenders to which loan contracts the Government was never a party to.
The Government was not even given an option as to what course of action it should take in case
PIATCO defaulted in the payment of its senior loans. The Government, upon PIATCO's default,
would be merely notified by the Senior Lenders of the same and it is the Senior Lenders who
are authorized to appoint a qualified nominee or transferee. Should the Senior Lenders fail to
make such an appointment, the Government is then automatically obligated to "directly deal and
negotiate" with the Senior Lenders regarding NAIA IPT III. The only way the Government would
not be liable for PIATCO's debt is for a qualified nominee or transferee to be appointed in place
of PIATCO to continue the construction, operation and maintenance of NAIA IPT III. This "pre-
condition", however, will not take the contract out of the ambit of a direct guarantee by the
government as the existence, availability and willingness of a qualified nominee or transferee is
totally out of the government's control. As such the Government is virtually at the mercy of
PIATCO (that it would not default on its loan obligations to its Senior Lenders), the Senior
Lenders (that they would appoint a qualified nominee or transferee or agree to some other
arrangement with the Government) and the existence of a qualified nominee or transferee who
is able and willing to take the place of PIATCO in NAIA IPT III.

The proscription against government guarantee in any form is one of the policy
considerations behind the BOT Law. Clearly, in the present case, the ARCA obligates the
Government to pay for all loans, advances and obligations arising out of financial facilities
extended to PIATCO for the implementation of the NAIA IPT III project should PIATCO default
in its loan obligations to its Senior Lenders and the latter fails to appoint a qualified nominee or
transferee. This in effect would make the Government liable for PIATCO's loans should the
conditions as set forth in the ARCA arise. This is a form of direct government guarantee.

The BOT Law and its implementing rules provide that in order for an unsolicited proposal for a
BOT project may be accepted, the following conditions must first be met: (1) the project involves
a new concept in technology and/or is not part of the list of priority projects, (2) no direct
government guarantee, subsidy or equity is required, and (3) the government agency or
local government unit has invited by publication other interested parties to a public bidding and
conducted the same.56 The failure to meet any of the above conditions will result in the denial of
the proposal. It is further provided that the presence of direct government guarantee, subsidy or
equity will "necessarily disqualify a proposal from being treated and accepted as an unsolicited
proposal."57 The BOT Law clearly and strictly prohibits direct government guarantee, subsidy
and equity in unsolicited proposals that the mere inclusion of a provision to that effect is fatal
and is sufficient to deny the proposal. It stands to reason therefore that if a proposal can be
denied by reason of the existence of direct government guarantee, then its inclusion in the
contract executed after the said proposal has been accepted is likewise sufficient to invalidate
the contract itself. A prohibited provision, the inclusion of which would result in the denial of a
proposal cannot, and should not, be allowed to later on be inserted in the contract resulting from
the said proposal. The basic rules of justice and fair play alone militate against such an
occurrence and must not, therefore, be countenanced particularly in this instance where the
government is exposed to the risk of shouldering hundreds of million of dollars in debt.

This Court has long and consistently adhered to the legal maxim that those that cannot be done
directly cannot be done indirectly.58 To declare the PIATCO contracts valid despite the clear
statutory prohibition against a direct government guarantee would not only make a
mockery of what the BOT Law seeks to prevent -- which is to expose the government to
the risk of incurring a monetary obligation resulting from a contract of loan between the
project proponent and its lenders and to which the Government is not a party to -- but
would also render the BOT Law useless for what it seeks to achieve –- to make use of the
resources of the private sector in the "financing, operation and maintenance of
infrastructure and development projects"59which are necessary for national growth and
development but which the government, unfortunately, could ill-afford to finance at this
point in time.

IV

Temporary takeover of business affected with public interest

Article XII, Section 17 of the 1987 Constitution provides:

Section 17. In times of national emergency, when the public interest so requires, the
State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest.
The above provision pertains to the right of the State in times of national emergency, and in the
exercise of its police power, to temporarily take over the operation of any business affected with
public interest. In the 1986 Constitutional Commission, the term "national emergency" was
defined to include threat from external aggression, calamities or national disasters, but not
strikes "unless it is of such proportion that would paralyze government service." 60 The duration
of the emergency itself is the determining factor as to how long the temporary takeover by the
government would last.61 The temporary takeover by the government extends only to the
operation of the business and not to the ownership thereof. As such the government is not
required to compensate the private entity-owner of the said business as there is no
transfer of ownership, whether permanent or temporary. The private entity-owner affected by
the temporary takeover cannot, likewise, claim just compensation for the use of the said
business and its properties as the temporary takeover by the government is in exercise of
its police power and not of its power of eminent domain.

Article V, Section 5.10 (c) of the 1997 Concession Agreement provides:

Section 5.10 Temporary Take-over of operations by GRP.

….

(c) In the event the development Facility or any part thereof and/or the operations of
Concessionaire or any part thereof, become the subject matter of or be included in any
notice, notification, or declaration concerning or relating to acquisition, seizure or
appropriation by GRP in times of war or national emergency, GRP shall, by written
notice to Concessionaire, immediately take over the operations of the Terminal and/or
the Terminal Complex. During such take over by GRP, the Concession Period shall be
suspended; provided, that upon termination of war, hostilities or national emergency, the
operations shall be returned to Concessionaire, at which time, the Concession period
shall commence to run again. Concessionaire shall be entitled to reasonable
compensation for the duration of the temporary take over by GRP, which
compensation shall take into account the reasonable cost for the use of the
Terminal and/or Terminal Complex, (which is in the amount at least equal to the
debt service requirements of Concessionaire, if the temporary take over should occur
at the time when Concessionaire is still servicing debts owed to project lenders), any
loss or damage to the Development Facility, and other consequential damages. If the
parties cannot agree on the reasonable compensation of Concessionaire, or on the
liability of GRP as aforesaid, the matter shall be resolved in accordance with Section
10.01 [Arbitration]. Any amount determined to be payable by GRP to Concessionaire
shall be offset from the amount next payable by Concessionaire to GRP.62

PIATCO cannot, by mere contractual stipulation, contravene the Constitutional provision


on temporary government takeover and obligate the government to pay "reasonable cost
for the use of the Terminal and/or Terminal Complex."63 Article XII, section 17 of the 1987
Constitution envisions a situation wherein the exigencies of the times necessitate the
government to "temporarily take over or direct the operation of any privately owned public utility
or business affected with public interest." It is the welfare and interest of the public which is the
paramount consideration in determining whether or not to temporarily take over a particular
business. Clearly, the State in effecting the temporary takeover is exercising its police power.
Police power is the "most essential, insistent, and illimitable of powers."64 Its exercise therefore
must not be unreasonably hampered nor its exercise be a source of obligation by the
government in the absence of damage due to arbitrariness of its exercise.65 Thus, requiring the
government to pay reasonable compensation for the reasonable use of the property pursuant to
the operation of the business contravenes the Constitution.

Regulation of Monopolies

A monopoly is "a privilege or peculiar advantage vested in one or more persons or companies,
consisting in the exclusive right (or power) to carry on a particular business or trade,
manufacture a particular article, or control the sale of a particular commodity." 66 The
1987 Constitution strictly regulates monopolies, whether private or public, and even
provides for their prohibition if public interest so requires. Article XII, Section 19 of the 1987
Constitution states:

Sec. 19. The state shall regulate or prohibit monopolies when the public interest so
requires. No combinations in restraint of trade or unfair competition shall be allowed.

Clearly, monopolies are not per se prohibited by the Constitution but may be permitted to exist
to aid the government in carrying on an enterprise or to aid in the performance of various
services and functions in the interest of the public.67 Nonetheless, a determination must first
be made as to whether public interest requires a monopoly. As monopolies are subject to
abuses that can inflict severe prejudice to the public, they are subject to a higher level of State
regulation than an ordinary business undertaking.

In the cases at bar, PIATCO, under the 1997 Concession Agreement and the ARCA, is granted
the "exclusive rightto operate a commercial international passenger terminal within the Island
of Luzon" at the NAIA IPT III.68 This is with the exception of already existing international
airports in Luzon such as those located in the Subic Bay Freeport Special Economic Zone
("SBFSEZ"), Clark Special Economic Zone ("CSEZ") and in Laoag City.69 As such, upon
commencement of PIATCO's operation of NAIA IPT III, Terminals 1 and 2 of NAIA would cease
to function as international passenger terminals. This, however, does not prevent MIAA to use
Terminals 1 and 2 as domestic passenger terminals or in any other manner as it may deem
appropriate except those activities that would compete with NAIA IPT III in the latter's operation
as an international passenger terminal.70 The right granted to PIATCO to exclusively operate
NAIA IPT III would be for a period of twenty-five (25) years from the In-Service Date71 and
renewable for another twenty-five (25) years at the option of the government.72 Both the 1997
Concession Agreement and the ARCA further provide that, in view of the exclusive right
granted to PIATCO, the concession contracts of the service providers currently servicing
Terminals 1 and 2 would no longer be renewed and those concession contracts whose
expiration are subsequent to the In-Service Date would cease to be effective on the said
date.73

The operation of an international passenger airport terminal is no doubt an undertaking imbued


with public interest. In entering into a Build–Operate-and-Transfer contract for the construction,
operation and maintenance of NAIA IPT III, the government has determined that public interest
would be served better if private sector resources were used in its construction and an exclusive
right to operate be granted to the private entity undertaking the said project, in this case
PIATCO. Nonetheless, the privilege given to PIATCO is subject to reasonable regulation and
supervision by the Government through the MIAA, which is the government agency authorized
to operate the NAIA complex, as well as DOTC, the department to which MIAA is attached.74

This is in accord with the Constitutional mandate that a monopoly which is not prohibited must
be regulated.75 While it is the declared policy of the BOT Law to encourage private sector
participation by "providing a climate of minimum government regulations,"76 the same does not
mean that Government must completely surrender its sovereign power to protect public interest
in the operation of a public utility as a monopoly. The operation of said public utility can not be
done in an arbitrary manner to the detriment of the public which it seeks to serve. The right
granted to the public utility may be exclusive but the exercise of the right cannot run riot. Thus,
while PIATCO may be authorized to exclusively operate NAIA IPT III as an international
passenger terminal, the Government, through the MIAA, has the right and the duty to ensure
that it is done in accord with public interest. PIATCO's right to operate NAIA IPT III cannot also
violate the rights of third parties.

Section 3.01(e) of the 1997 Concession Agreement and the ARCA provide:

3.01 Concession Period

xxx xxx xxx

(e) GRP confirms that certain concession agreements relative to certain services
and operations currently being undertaken at the Ninoy Aquino International Airport
passenger Terminal I have a validity period extending beyond the In-Service Date.
GRP through DOTC/MIAA, confirms that these services and operations shall not be
carried over to the Terminal and the Concessionaire is under no legal obligation to
permit such carry-over except through a separate agreement duly entered into with
Concessionaire. In the event Concessionaire becomes involved in any litigation initiated
by any such concessionaire or operator, GRP undertakes and hereby holds
Concessionaire free and harmless on full indemnity basis from and against any loss
and/or any liability resulting from any such litigation, including the cost of litigation and
the reasonable fees paid or payable to Concessionaire's counsel of choice, all such
amounts shall be fully deductible by way of an offset from any amount which the
Concessionaire is bound to pay GRP under this Agreement.

During the oral arguments on December 10, 2002, the counsel for the petitioners-in-
intervention for G.R. No. 155001 stated that there are two service providers whose
contracts are still existing and whose validity extends beyond the In-Service Date. One
contract remains valid until 2008 and the other until 2010.77

We hold that while the service providers presently operating at NAIA Terminal 1 do not have an
absolute right for the renewal or the extension of their respective contracts, those contracts
whose duration extends beyond NAIA IPT III's In-Service-Date should not be unduly prejudiced.
These contracts must be respected not just by the parties thereto but also by third parties.
PIATCO cannot, by law and certainly not by contract, render a valid and binding contract
nugatory. PIATCO, by the mere expedient of claiming an exclusive right to operate, cannot
require the Government to break its contractual obligations to the service providers. In contrast
to the arrastre and stevedoring service providers in the case of Anglo-Fil Trading Corporation
v. Lazaro78 whose contracts consist of temporary hold-over permits, the affected service
providers in the cases at bar, have a valid and binding contract with the Government, through
MIAA, whose period of effectivity, as well as the other terms and conditions thereof, cannot be
violated.

In fine, the efficient functioning of NAIA IPT III is imbued with public interest. The provisions of
the 1997 Concession Agreement and the ARCA did not strip government, thru the MIAA, of its
right to supervise the operation of the whole NAIA complex, including NAIA IPT III. As the
primary government agency tasked with the job,79 it is MIAA's responsibility to ensure that
whoever by contract is given the right to operate NAIA IPT III will do so within the bounds of the
law and with due regard to the rights of third parties and above all, the interest of the public.

VI

CONCLUSION

In sum, this Court rules that in view of the absence of the requisite financial capacity of the
Paircargo Consortium, predecessor of respondent PIATCO, the award by the PBAC of the
contract for the construction, operation and maintenance of the NAIA IPT III is null and void.
Further, considering that the 1997 Concession Agreement contains material and substantial
amendments, which amendments had the effect of converting the 1997 Concession Agreement
into an entirely different agreement from the contract bidded upon, the 1997 Concession
Agreement is similarly null and void for being contrary to public policy. The provisions under
Sections 4.04(b) and (c) in relation to Section 1.06 of the 1997 Concession Agreement and
Section 4.04(c) in relation to Section 1.06 of the ARCA, which constitute a direct government
guarantee expressly prohibited by, among others, the BOT Law and its Implementing Rules and
Regulations are also null and void. The Supplements, being accessory contracts to the ARCA,
are likewise null and void.

WHEREFORE, the 1997 Concession Agreement, the Amended and Restated Concession
Agreement and the Supplements thereto are set aside for being null and void.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona,


and Carpio-Morales, JJ., concur.
Vitug, J., see separate (dissenting) opinion.
Panganiban, J., please see separate opinion.
Quisumbing, J., no jurisdiction, please see separate opinion of J. Vitug in which he concurs.
Carpio, J., no part.
Callejo, Sr., J., also concur in the separate opinion of J. Panganiban.
Azcuna, J., joins the separate opinion of J. Vitug.

SEPARATE OPINIONS

VITUG, J.:

This Court is bereft of jurisdiction to hear the petitions at bar. The Constitution provides that the
Supreme Court shall exercise original jurisdiction over, among other actual controversies,
petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.1 The cases in
question, although denominated to be petitions for prohibition, actually pray for the nullification
of the PIATCO contracts and to restrain respondents from implementing said agreements for
being illegal and unconstitutional.

Section 2, Rule 65 of the Rules of Court states:

"When the proceedings of any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or
his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and justice may
require."

The rule is explicit. A petition for prohibition may be filed against a tribunal, corporation, board,
officer or person, exercising judicial, quasi-judicial or ministerial functions. What the petitions
seek from respondents do not involve judicial, quasi-judicial or ministerial functions. In
prohibition, only legal issues affecting the jurisdiction of the tribunal, board or officer involved
may be resolved on the basis of undisputed facts.2 The parties allege, respectively, contentious
evidentiary facts. It would be difficult, if not anomalous, to decide the jurisdictional issue on the
basis of the contradictory factual submissions made by the parties.3 As the Court has so often
exhorted, it is not a trier of facts.

The petitions, in effect, are in the nature of actions for declaratory relief under Rule 63 of the
Rules of Court. The Rules provide that any person interested under a contract may, before
breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine
any question of construction or validity arising, and for a declaration of his rights or duties
thereunder.4 The Supreme Court assumes no jurisdiction over petitions for declaratory relief
which are cognizable by regional trial courts.5

As I have so expressed in Tolentino vs. Secretary of Finance,6 reiterated in Santiago vs.


Guingona, Jr.7 , the Supreme Court should not be thought of as having been tasked with the
awesome responsibility of overseeing the entire bureaucracy. Pervasive and limitless, such as it
may seem to be under the 1987 Constitution, judicial power still succumbs to the paramount
doctrine of separation of powers. The Court may not at good liberty intrude, in the guise of
sovereign imprimatur, into every affair of government. What significance can still then remain of
the time-honored and widely acclaimed principle of separation of powers if, at every turn, the
Court allows itself to pass upon at will the disposition of a co-equal, independent and coordinate
branch in our system of government. I dread to think of the so varied uncertainties that such an
undue interference can lead to.

Accordingly, I vote for the dismissal of the petition.


Quisumbing, and Azcuna, JJ., concur.

PANGANIBAN, J.:

The five contracts for the construction and the operation of Ninoy Aquino International Airport
(NAIA) Terminal III, the subject of the consolidated Petitions before the Court, are replete with
outright violations of law, public policy and the Constitution. The only proper thing to do is
declare them all null and void ab initio and let the chips fall where they may. Fiat iustitia ruat
coelum.

The facts leading to this controversy are already well presented in the ponencia. I shall not
burden the readers with a retelling thereof. Instead, I will cut to the chase and directly address
the two sets of gut issues:

1. The first issue is procedural: Does the Supreme Court have original jurisdiction to hear and
decide the Petitions? Corollarily, do petitioners have locus standi and should this Court decide
the cases without any mandatory referral to arbitration?

2. The second one is substantive in character: Did the subject contracts violate the Constitution,
the laws, and public policy to such an extent as to render all of them void and inexistent?

My answer to all the above questions is a firm "Yes."

The Procedural Issue:


Jurisdiction, Standing and Arbitration

Definitely and surely, the issues involved in these Petitions are clearly of transcendental
importance and of national interest. The subject contracts pertain to the construction and the
operation of the country's premiere international airport terminal - an ultramodern world-class
public utility that will play a major role in the country's economic development and serve to
project a positive image of our country abroad. The five build-operate-&-transfer (BOT)
contracts, while entailing the investment of billions of pesos in capital and the availment of
several hundred millions of dollars in loans, contain provisions that tend to establish a
monopoly, require the disbursements of public funds sans appropriations, and provide
government guarantees in violation of statutory prohibitions, as well as other provisions equally
offensive to law, public policy and the Constitution. Public interest will inevitably be affected
thereby.

Thus, objections to these Petitions, grounded upon (a) the hierarchy of courts, (b) the need for
arbitration prior to court action, and (c) the alleged lack of sufficient personality, standing or
interest, being in the main procedural matters, must now be set aside, as they have been in past
cases. This Court must be permitted to perform its constitutional duty of determining whether
the other agencies of government have acted within the limits of the Constitution and the laws,
or if they have gravely abused the discretion entrusted to them.1

Hierarchy of Courts

The Court has, in the past, held that questions relating to gargantuan government contracts
ought to be settled without delay.2 This holding applies with greater force to the instant cases.
Respondent Piatco is partly correct in averring that petitioners can obtain relief from the regional
trial courts via an action to annul the contracts.

Nevertheless, the unavoidable consequence of having to await the rendition and the finality of
any such judgment would be a prolonged state of uncertainty that would be prejudicial to the
nation, the parties and the general public. And, in light of the feared loss of jobs of the
petitioning workers, consequent to the inevitable pretermination of contracts of the petitioning
service providers that will follow upon the heels of the impending opening of NAIA Terminal III,
the need for relief is patently urgent, and therefore, direct resort to this Court through the special
civil action of prohibition is thus justified.3

Contrary to Piatco's argument that the resolution of the issues raised in the Petitions will require
delving into factual questions,4 I submit that their disposition ultimately turns on questions of
law.5 Further, many of the significant and relevant factual questions can be easily addressed by
an examination of the documents submitted by the parties. In any event, the Petitions raise
some novel questions involving the application of the amended BOT Law, which this Court has
seen fit to tackle.

Arbitration

Should the dispute be referred to arbitration prior to judicial recourse? Respondent Piatco
claims that Section 10.02 of the Amended and Restated Concession Agreement (ARCA)
provides for arbitration under the auspices of the International Chamber of Commerce to settle
any dispute or controversy or claim arising in connection with the Concession Agreement, its
amendments and supplements. The government disagrees, however, insisting that there can be
no arbitration based on Section 10.02 of the ARCA, since all the Piatco contracts are void ab
initio. Therefore, all contractual provisions, including Section 10.02 of the ARCA, are likewise
void, inexistent and inoperative. To support its stand, the government cites Chavez v.
Presidential Commission on Good Government:6"The void agreement will not be rendered
operative by the parties' alleged performance (partial or full) of their respective prestations. A
contract that violates the Constitution and the law is null and void ab initio and vests no rights
and creates no obligations. It produces no legal effect at all."

As will be discussed at length later, the Piatco contracts are indeed void in their entirety; thus, a
resort to the aforesaid provision on arbitration is unavailing. Besides, petitioners and petitioners-
in-intervention have pointed out that, even granting arguendo that the arbitration clause
remained a valid provision, it still cannot bind them inasmuch as they are not parties to the
Piatco contracts. And in the final analysis, it is unarguable that the arbitration process provided
for under Section 10.02 of the ARCA, to be undertaken by a panel of three (3) arbitrators
appointed in accordance with the Rules of Arbitration of the International Chamber of
Commerce, will not be able to address, determine and definitively resolve the constitutional and
legal questions that have been raised in the Petitions before us.

Locus Standi

Given this Court's previous decisions in cases of similar import, no one will seriously doubt that,
being taxpayers and members of the House of Representatives, Petitioners Baterina et al.
have locus standi to bring the Petition in GR No. 155547. In Albano v. Reyes,7 this Court held
that the petitioner therein, suing as a citizen, taxpayer and member of the House of
Representatives, was sufficiently clothed with standing to bring the suit questioning the validity
of the assailed contract. The Court cited the fact that public interest was involved, in view of the
important role of the Manila International Container Terminal (MICT) in the country's economic
development and the magnitude of the financial consideration. This, notwithstanding the fact
that expenditure of public funds was not required under the assailed contract.

In the cases presently under consideration, petitioners' personal and substantial interest in the
controversy is shown by the fact that certain provisions in the Piatco contracts create obligations
on the part of government (through the DOTC and the MIAA) to disburse public funds without
prior congressional appropriations.

Petitioners thus correctly assert that the injury to them has a twofold aspect: (1) they are
adversely affected as taxpayers on account of the illegal disbursement of public funds; and (2)
they are prejudiced qua legislators, since the contractual provisions requiring the government to
incur expenditures without appropriations also operate as limitations upon the exclusive power
and prerogative of Congress over the public purse. As members of the House of
Representatives, they are actually deprived of discretion insofar as the inclusion of those items
of expenditure in the budget is concerned. To prevent such encroachment upon the legislative
privilege and obviate injury to the institution of which they are members, petitioners-legislators
have locus standi to bring suit.
Messrs. Agan et al. and Lopez et al., are likewise taxpayers and thus possessed of standing to
challenge the illegal disbursement of public funds. Messrs. Agan et al., in particular, are
employees (or representatives of employees) of various service providers that have (1) existing
concession agreements with the MIAA to provide airport services necessary to the operation of
the NAIA and (2) service agreements to furnish essential support services to the international
airlines operating at the NAIA.

On the other hand, Messrs. Lopez et al. are employees of the MIAA. These petitioners (Messrs.
Agan et al. and Messrs. Lopez et al.) are confronted with the prospect of being laid off from their
jobs and losing their means of livelihood when their employer-companies are forced to shut
down or otherwise retrench and cut back on manpower. Such development would result from
the imminent implementation of certain provisions in the contracts that tend toward the creation
of a monopoly in favor of Piatco, its subsidiaries and related companies.

Petitioners-in-intervention are service providers in the business of furnishing airport-related


services to international airlines and passengers in the NAIA and are therefore competitors of
Piatco as far as that line of business is concerned. On account of provisions in the Piatco
contracts, petitioners-in-intervention have to enter into a written contract with Piatco so as not to
be shut out of NAIA Terminal III and barred from doing business there. Since there is no
provision to ensure or safeguard free and fair competition, they are literally at its mercy. They
claim injury on account of their deprivation of property (business) and of the liberty to contract,
without due process of law.

And even if petitioners and petitioners-in-intervention were not sufficiently clothed with legal
standing, I have at the outset already established that, given its impact on the public and on
national interest, this controversy is laden with transcendental importance and constitutional
significance. Hence, I do not hesitate to adopt the same position as was enunciated
in Kilosbayan v. Guingona Jr.8 that "in cases of transcendental importance, the Court may relax
the standing requirements and allow a suit to prosper even when there is no direct injury to the
party claiming the right of judicial review."9

The Substantive Issue:


Violations of the Constitution and the Laws

From the Outset, the Bidding Process Was Flawed and Tainted

After studying the documents submitted and arguments advanced by the parties, I have no
doubt that, right at the outset, Piatco was not qualified to participate in the bidding process for
the Terminal III project, but was nevertheless permitted to do so. It even won the bidding and
was helped along by what appears to be a series of collusive and corrosive acts.

The build-operate-and-transfer (BOT) project for the NAIA Passenger Terminal III comes under
the category of an "unsolicited proposal," which is the subject of Section 4-A of the BOT
Law.10 The unsolicited proposal was originally submitted by the Asia's Emerging Dragon
Corporation (AEDC) to the Department of Transportation and Communications (DOTC) and the
Manila International Airport Authority (MIAA), which reviewed and approved the proposal.

The draft of the concession agreement as negotiated between AEDC and DOTC/MIAA was
endorsed to the National Economic Development Authority (NEDA-ICC), which in turn reviewed
it on the basis of its scope, economic viability, financial indicators and risks; and thereafter
approved it for bidding.

The DOTC/MIAA then prepared the Bid Documents, incorporating therein the negotiated Draft
Concession Agreement, and published invitations for public bidding, i.e., for the submission of
comparative or competitive proposals. Piatco's predecessor-in-interest, the Paircargo
Consortium, was the only company that submitted a competitive bid or price challenge.

At this point, I must emphasize that the law requires the award of a BOT project to the bidder
that has satisfied the minimum requirements; and met the technical, financial, organizational
and legal standards provided in the BOT Law. Section 5 of this statute states:
"Sec. 5. Public bidding of projects. - . . .

"In the case of a build-operate-and-transfer arrangement, the contract shall be awarded


to the bidder who, having satisfied the minimum financial, technical, organizational
and legal standards required by this Act, has submitted the lowest bid and most
favorable terms for the project, based on the present value of its proposed tolls, fees,
rentals and charges over a fixed term for the facility to be constructed, rehabilitated,
operated and maintained according to the prescribed minimum design and performance
standards, plans and specifications. . . ." (Emphasis supplied.)

The same provision requires that the price challenge via public bidding "must be conducted
under a two-envelope/two-stage system: the first envelope to contain the technical proposal and
the second envelope to contain the financial proposal." Moreover, the 1994 Implementing Rules
and Regulations (IRR) provide that only those bidders that have passed the prequalification
stage are permitted to have their two envelopes reviewed.

In other words, prospective bidders must prequalify by submitting their prequalification


documents for evaluation; and only the pre-qualified bidders would be entitled to have their bids
opened, evaluated and appreciated. On the other hand, disqualified bidders are to be informed
of the reason for their disqualification. This procedure was confirmed and reiterated in the Bid
Documents, which I quote thus: "Prequalified proponents will be considered eligible to move to
second stage technical proposal evaluation. The second and third envelopes of pre-disqualified
proponents will be returned."11

Aside from complying with the legal and technical requirements (track record or experience of
the firm and its key personnel), a project proponent desiring to prequalify must also demonstrate
its financial capacity to undertake the project. To establish such capability, a proponent must
prove that it is able to raise the minimum amount of equity required for the project and to
procure the loans or financing needed for it. Section 5.4(c) of the 1994 IRR provides:

"Sec. 5.4. Prequalification Requirements. - To pre-qualify, a project proponent must


comply with the following requirements:

xxx xxx xxx

"c. Financial Capability. The project proponent must have adequate capability to sustain
the financing requirements for the detailed engineering design, construction, and/or
operation and maintenance phases of the project, as the case may be. For purposes of
prequalification, this capability shall be measured in terms of: (i) proof of the ability of the
project proponent and/or the consortium to provide a minimum amount of equity to the
project, and (ii) a letter testimonial from reputable banks attesting that the project
proponent and/or members of the consortium are banking with them, that they are in
good financial standing, and that they have adequate resources. The government
Agency/LGU concerned shall determine on a project-to-project basis, and before
prequalification, the minimum amount of equity needed. . . . ." (Italics supplied)

Since the minimum amount of equity for the project was set at 30 percent 12 of the minimum
project cost of US$350 million, the minimum amount of equity required of any proponent stood
at US$105 million. Converted to pesos at the exchange rate then of P26.239 to US$1.00 (as
quoted by the Bangko Sentral ng Pilipinas), the peso equivalent of the minimum equity was
P2,755,095,000.

However, the combined equity or net worth of the Paircargo consortium stood at only
P558,384,871.55.13 This amount was only slightly over 6 percent of the minimum project cost
and very much short of the required minimum equity, which was equivalent to 30 percent of the
project cost. Such deficiency should have immediately caused the disqualification of the
Paircargo consortium. This matter was brought to the attention of the Prequalification and
Bidding Committee (PBAC).

Notwithstanding the glaring deficiency, DOTC Undersecretary Primitivo C. Cal, concurrent chair
of the PBAC, declared in a Memorandum dated 14 October 1996 that "the Challenger
(Paircargo consortium) was found to have a combined net worth of P3,926,421,242.00 that
could support a project costing approximately P13 billion." To justify his conclusion, he asserted:
"It is not a requirement that the networth must be `unrestricted'. To impose this as a requirement
now will be nothing less than unfair."

He further opined, "(T)he networth reflected in the Financial Statement should not be taken as
the amount of money to be used to answer the required thirty (30%) percent equity of the
challenger but rather to be used in establishing if there is enough basis to believe that the
challenger can comply with the required 30% equity. In fact, proof of sufficient equity is required
as one of the conditions for award of contract (Sec. 12.1 of IRR of the BOT Law) but not for
prequalification (Sec. 5.4 of same document)."

On the basis of the foregoing dubious declaration, the Paircargo consortium was deemed
prequalified and thus permitted to proceed to the other stages of the bidding process.

By virtue of the prequalified status conferred upon the Paircargo, Undersecretary Cal's findings
in effect relieved the consortium of the need to comply with the financial capability requirement
imposed by the BOT Law and IRR. This position is unmistakably and squarely at odds with the
Supreme Court's consistent doctrine emphasizing the strict application of pertinent rules,
regulations and guidelines for the public bidding process, in order to place each bidder - actual
or potential - on the same footing. Thus, it is unarguably irregular and contrary to the very
concept of public bidding to permit a variance between the conditions under which bids are
invited and those under which proposals are submitted and approved.

Republic v. Capulong,14 teaches that if one bidder is relieved from having to conform to the
conditions that impose some duty upon it, that bidder is not contracting in fair competition with
those bidders that propose to be bound by all conditions. The essence of public bidding is, after
all, an opportunity for fair competition and a basis for the precise comparison of bids. 15 Thus,
each bidder must bid under the same conditions; and be subject to the same guidelines,
requirements and limitations. The desired result is to be able to determine the best offer or
lowest bid, all things being equal.

Inasmuch as the Paircargo consortium did not possess the minimum equity equivalent to 30
percent of the minimum project cost, it should not have been prequalified or allowed to
participate further in the bidding. The Prequalification and Bidding Committee (PBAC) should
therefore not have opened the two envelopes of the consortium containing its technical and
financial proposals; required AEDC to match the consortium's bid; 16 or awarded the
Concession Agreement to the consortium's successor-in-interest, Piatco.

As there was effectively no public bidding to speak of, the entire bidding process having been
flawed and tainted from the very outset, therefore, the award of the concession to Paircargo's
successor Piatco was void, and the Concession Agreement executed with the latter was
likewise void ab initio. For this reason, Piatco cannot and should not be allowed to benefit from
that Agreement.17

AEDC Was Deprived of the Right to Match PIATCO's Price Challenge

In DOTC PBAC Bid Bulletin No. 4 (par. 3), Undersecretary Cal declared that, for purposes of
matching the price challenge of Piatco, AEDC as originator of the unsolicited proposal would be
permitted access only to the schedule of proposed Annual Guaranteed Payments submitted by
Piatco, and not to the latter's financial and technical proposals that constituted the basis for the
price challenge in the first place. This was supposedly in keeping with Section 11.6 of the 1994
IRR, which provides that proprietary information is to be respected, protected and treated with
utmost confidentiality, and is therefore not to form part of the bidding/tender and related
documents.

This pronouncement, I believe, was a grievous misapplication of the mentioned provision. The
"proprietary information" referred to in Section 11.6 of the IRR pertains only to the proprietary
information of the originator of an unsolicited proposal, and not to those belonging to
a challenger. The reason for the protection accorded proprietary information at all is the fact
that, according to Section 4-A of the BOT Law as amended, a proposal qualifies as an
"unsolicited proposal" when it pertains to a project that involves "a new concept or technology",
and/or a project that is not on the government's list of priority projects.

To be considered as utilizing a new concept or technology, a project must involve the


possession of exclusive rights (worldwide or regional) over a process; or possession of
intellectual property rights over a design, methodology or engineering concept. 18 Patently, the
intent of the BOT Law is to encourage individuals and groups to come up with creative
innovations, fresh ideas and new technology. Hence, the significance and necessity of
protecting proprietary information in connection with unsolicited proposals. And to make the
encouragement real, the law also extends to such individuals and groups what amounts to a
"right of first refusal" to undertake the project they conceptualized, involving the use of new
technology or concepts, through the mechanism of matching a price challenge.

A competing bid is never just any figure conjured from out of the blue; it is arrived at after
studying economic, financial, technical and other, factors; it is likewise based on certain
assumptions as to the nature of the business, the market potentials, the probable demand for
the product or service, the future behavior of cost items, political and other risks, and so on. It is
thus self-evident that in order to be able to intelligently match a bid or price challenge, a bidder
must be given access to the assumptions and the calculations that went into crafting the
competing bid.

In this instance, the financial and technical proposals of Piatco would have provided AEDC with
the necessary information to enable it to make a reasonably informed matching bid. To put it
more simply, a bidder unable to access the competitor's assumptions will never figure out how
the competing bid came about; requiring him to "counter-propose" is like having him shoot at a
target in the dark while blindfolded.

By withholding from AEDC the challenger's financial and technical proposals containing the
critical information it needed, Undersecretary Cal actually and effectively deprived AEDC of the
ability to match the price challenge. One could say that AEDC did not have the benefit of a
"level playing field." It seems to me, though, that AEDC was actually shut out of the game
altogether.

At the end of the day, the bottom line is that the validity and the propriety of the award to Piatco
had been irreparably impaired.

Delayed Issuance of the Notice of Award Violated the BOT Law and the IRR

Section 9.5 of the IRR requires that the Notice of Award must indicate the time frame within
which the winner of the bidding (and therefore the prospective awardee) shall submit the
prescribed performance security, proof of commitment of equity contributions, and indications of
sources of financing (loans); and, in the case of joint ventures, an agreement showing that the
members are jointly and severally responsible for the obligations of the project proponent under
the contract.

The purpose of having a definite and firm timetable for the submission of the aforementioned
requirements is not only to prevent delays in the project implementation, but also to expose and
weed out unqualified proponents, who might have unceremoniously slipped through the earlier
prequalification process, by compelling them to put their money where their mouths are, so to
speak.

Nevertheless, this provision can be easily circumvented by merely postponing the actual
issuance of the Notice of Award, in order to give the favored proponent sufficient time to comply
with the requirements. Hence, to avert or minimize the manipulation of the post-bidding process,
the IRR not only set out the precise sequence of events occurring between the completion of
the evaluation of the technical bids and the issuance of the Notice of Award, but also specified
the timetables for each such event. Definite allowable extensions of time were provided for, as
were the consequences of a failure to meet a particular deadline.

In particular, Section 9.1 of the 1994 IRR prescribed that within 30 calendar days from the time
the second-stage evaluation shall have been completed, the Committee must come to a
decision whether or not to award the contract and, within 7 days therefrom, the Notice of Award
must be approved by the head of agency or local government unit (LGU) concerned, and its
issuance must follow within another 7 days thereafter.

Section 9.2 of the IRR set the procedure applicable to projects involving substantial government
undertakings as follows: Within 7 days after the decision to award is made, the draft contract
shall be submitted to the ICC for clearance on a no-objection basis. If the draft contract includes
government undertakings already previously approved, then the submission shall be for
information only.

However, should there be additional or new provisions different from the original government
undertakings, the draft shall have to be reviewed and approved. The ICC has 15 working days
to act thereon, and unless otherwise specified, its failure to act on the contract within the
specified time frame signifies that the agency or LGU may proceed with the award. The head of
agency or LGU shall approve the Notice of Award within seven days of the clearance by the ICC
on a no-objection basis, and the Notice itself has to be issued within seven days thereafter.

The highly regulated time-frames within which the agents of government were to act evinced the
intent to impose upon them the duty to act expeditiously throughout the process, to the end that
the project be prosecuted and implemented without delay. This regulated scenario was likewise
intended to discourage collusion and substantially reduce the opportunity for agents of
government to abuse their discretion in the course of the award process.

Despite the clear timetables set out in the IRR, several lengthy and still-unexplained delays
occurred in the award process, as can be observed from the presentation made by the counsel
for public respondents,19 quoted hereinbelow:

"11 Dec. 1996 - The Paircargo Joint Venture was informed by the PBAC that AEDC
failed to match and that negotiations preparatory to Notice of Award should be
commenced. This was the decision to award that should have commenced the running
of the 7-day period to approve the Notice of Award, as per Section 9.1 of the IRR, or to
submit the draft contract to the ICC for approval conformably with Section 9.2.

"01 April 1997 - The PBAC resolved that a copy of the final draft of the Concession
Agreement be submitted to the NEDA for clearance on a no-objection basis. This
resolution came more than 3 months too late as it should have been made on the 20th of
December 1996 at the latest.

"16 April 1997 - The PBAC resolved that the period of signing the Concession
Agreement be extended by 15 days.

"18 April 1997 - NEDA approved the Concession Agreement. Again this is more than 3
months too late as the NEDA's decision should have been released on the 16th of
January 1997 or fifteen days after it should have been submitted to it for review.

"09 July 1997 - The Notice of Award was issued to PIATCO. Following the provisions of
the IRR, the Notice of Award should have been issued fourteen days after NEDA's
approval, or the 28th of January 1997. In any case, even if it were to be assumed that
the release of NEDA's approval on the 18th of April was timely, the Notice of Award
should have been issued on the 9th of May 1997. In both cases, therefore, the release of
the Notice of Award occurred in a decidedly less than timely fashion."

This chronology of events bespeaks an unmistakable disregard, if not disdain, by the persons in
charge of the award process for the time limitations prescribed by the IRR. Their attitude flies in
the face of this Court's solemn pronouncement in Republic v. Capulong,20 that "strict
observance of the rules, regulations and guidelines of the bidding process is the only safeguard
to a fair, honest and competitive public bidding."

From the foregoing, the only conclusion that can possibly be drawn is that the BOT law and its
IRR were repeatedly violated with unmitigated impunity - and by agents of government, no less!
On account of such violation, the award of the contract to Piatco, which undoubtedly gained
time and benefited from the delays, must be deemed null and void from the beginning.

Further Amendments Resulted in a Substantially Different Contract, Awarded Without


Public Bidding

But the violations and desecrations did not stop there. After the PBAC made its decision on
December 11, 1996 to award the contract to Piatco, the latter negotiated changes to the
Contract bidded out and ended up with what amounts to a substantially new contract without
any public bidding. This Contract was subsequently further amended four more times through
negotiation and without any bidding. Thus, the contract actually executed between Piatco and
DOTC/MIAA on July 12, 1997 (the Concession Agreement or "CA") differed from the contract
bidded out (the draft concession agreement or "DCA") in the following very significant respects:

1. The CA inserted stipulations creating a monopoly in favor of Piatco in the business of


providing airport-related services for international airlines and passengers.21

2. The CA provided that government is to answer for Piatco's unpaid loans and debts
(lumped under the term Attendant Liabilities) in the event Piatco fails to pay its senior
lenders.22

3. The CA provided that in case of termination of the contract due to the fault of
government, government shall pay all expenses that Piatco incurred for the project plus
the appraised value of the Terminal.23

4. The CA imposed new and special obligations on government, including delivery of


clean possession of the site for the terminal; acquisition of additional land at the
government's expense for construction of road networks required by Piatco's approved
plans and specifications; and assistance to Piatco in securing site utilities, as well as all
necessary permits, licenses and authorizations.24

5. Where Section 3.02 of the DCA requires government to refrain from competing with
the contractor with respect to the operation of NAIA Terminal III, Section 3.02(b) of the
CA excludes and prohibits everyone, including government, from directly or indirectly
competing with Piatco, with respect to the operation of, as well as operations in, NAIA
Terminal III. Operations in is sufficiently broad to encompass all retail and other
commercial business enterprises operating within Terminal III, inclusive of the
businesses of providing various airport-related services to international airlines, within
the scope of the prohibition.

6. Under Section 6.01 of the DCA, the following fees are subject to the written approval
of MIAA: lease/rental charges, concession privilege fees for passenger services, food
services, transportation utility concessions, groundhandling, catering and miscellaneous
concession fees, porterage fees, greeter/well-wisher fees, carpark fees, advertising fees,
VIP facilities fees and others. Moreover, adjustments to the groundhandling fees, rentals
and porterage fees are permitted only once every two years and in accordance with a
parametric formula, per DCA Section 6.03. However, the CA as executed with Piatco
provides in Section 6.06 that all the aforesaid fees, rentals and charges may be adjusted
without MIAA's approval or intervention. Neither are the adjustments to these fees and
charges subject to or limited by any parametric formula.25

7. Section 1.29 of the DCA provides that the terminal fees, aircraft tacking fees, aircraft
parking fees, check-in counter fees and other fees are to be quoted and paid in
Philippine pesos. But per Section 1.33 of the CA, all the aforesaid fees save the terminal
fee are denominated in US Dollars.

8. Under Section 8.07 of the DCA, the term attendant liabilities refers to liabilities
pertinent to NAIA Terminal III, such as payment of lease rentals and performance of
other obligations under the Land Lease Agreement; the obligations under the Tenant
Agreements; and payment of all taxes, fees, charges and assessments of whatever kind
that may be imposed on NAIA Terminal III or parts thereof. But in Section 1.06 of the
CA, Attendant Liabilities refers to unpaid debts of Piatco: "All amounts recorded and
from time to time outstanding in the books of (Piatco) as owing to Unpaid Creditors who
have provided, loaned or advanced funds actually used for the Project, including all
interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements
and other related expenses, and further including amounts owed by [Piatco] to its
suppliers, contractors and subcontractors."

9. Per Sections 8.04 and 8.06 of the DCA, government may, on account of the
contractors breach, rescind the contract and select one of four options: (a) take over the
terminal and assume all its attendant liabilities; (b) allow the contractor's creditors to
assign the Project to another entity acceptable to DOTC/MIAA; (c) pay the contractor
rent for the facilities and equipment the DOTC may utilize; or (d) purchase the terminal
at a price established by independent appraisers. Depending on the option selected,
government may take immediate possession and control of the terminal and its
operations. Government will be obligated to compensate the contractor for the
"equivalent or proportionate contract costs actually disbursed," but only where
government is the one in breach of the contract. But under Section 8.06(a) of the CA,
whether on account of Piatco's breach of contract or its inability to pay its creditors,
government is obliged to either (a) take over Terminal III and assume all of Piatco's
debts or (b) permit the qualified unpaid creditors to be substituted in place of Piatco or to
designate a new operator. And in the event of government's breach of contract, Piatco
may compel it to purchase the terminal at fair market value, per Section 8.06(b) of the
CA.

10. Under the DCA, any delay by Piatco in the payment of the amounts due the
government constitutes breach of contract. However, under the CA, such delay does not
necessarily constitute breach of contract, since Piatco is permitted to suspend payments
to the government in order to first satisfy the claims of its secured creditors, per Section
8.04(d) of the CA.

It goes without saying that the amendment of the Contract bidded out (the DCA or draft
concession agreement) - in such substantial manner, without any public bidding, and after the
bidding process had been concluded on December 11, 1996 - is violative of public policy on
public biddings, as well as the spirit and intent of the BOT Law. The whole point of going
through the public bidding exercise was completely lost. Its very rationale was totally subverted
by permitting Piatco to amend the contract for which public bidding had already been concluded.
Competitive bidding aims to obtain the best deal possible by fostering transparency and
preventing favoritism, collusion and fraud in the awarding of contracts. That is the reason why
procedural rules pertaining to public bidding demand strict observance.26

In a relatively early case, Caltex v. Delgado Brothers,27 this Court made it clear that substantive
amendments to a contract for which a public bidding has already been finished should only be
awarded after another public bidding:

"The due execution of a contract after public bidding is a limitation upon the right of the
contracting parties to alter or amend it without another public bidding, for otherwise what
would a public bidding be good for if after the execution of a contract after public bidding,
the contracting parties may alter or amend the contract, or even cancel it, at their will?
Public biddings are held for the protection of the public, and to give the public the best
possible advantages by means of open competition between the bidders. He who bids or
offers the best terms is awarded the contract subject of the bid, and it is obvious that
such protection and best possible advantages to the public will disappear if the parties to
a contract executed after public bidding may alter or amend it without another previous
public bidding."28

The aforementioned case dealt with the unauthorized amendment of a contract executed after
public bidding; in the situation before us, the amendments were made also after the bidding, but
prior to execution. Be that as it may, the same rationale underlying Caltex applies to the present
situation with equal force. Allowing the winning bidder to renegotiate the contract for which the
bidding process has ended is tantamount to permitting it to put in anything it wants. Here, the
winning bidder (Piatco) did not even bother to wait until after actual execution of the contract
before rushing to amend it. Perhaps it believed that if the changes were made to a contract
already won through bidding (DCA) instead of waiting until it is executed, the amendments
would not be noticed or discovered by the public.

In a later case, Mata v. San Diego,29 this Court reiterated its ruling as follows:

"It is true that modification of government contracts, after the same had been awarded
after a public bidding, is not allowed because such modification serves to nullify the
effects of the bidding and whatever advantages the Government had secured thereby
and may also result in manifest injustice to the other bidders. This prohibition, however,
refers to a change in vital and essential particulars of the agreement which results in a
substantially new contract."

Piatco's counter-argument may be summed up thus: There was nothing in the 1994 IRR that
prohibited further negotiations and eventual amendments to the DCA even after the bidding had
been concluded. In fact, PBAC Bid Bulletin No. 3 states: "[A]mendments to the Draft
Concession Agreement shall be issued from time to time. Said amendments will only cover
items that would not materially affect the preparation of the proponent's proposal."

I submit that accepting such warped argument will result in perverting the policy underlying
public bidding. The BOT Law cannot be said to allow the negotiation of contractual stipulations
resulting in a substantially new contract after the bidding process and price challenge had been
concluded. In fact, the BOT Law, in recognition of the time, money and effort invested in an
unsolicited proposal, accords its originator the privilege of matching the challenger's bid.

Section 4-A of the BOT Law specifically refers to a "lower price proposal" by a competing
bidder; and to the right of the original proponent "to match the price" of the challenger. Thus,
only the price proposals are in play. The terms, conditions and stipulations in the contract for
which public bidding has been concluded are understood to remain intact and not be subject to
further negotiation. Otherwise, the very essence of public bidding will be destroyed - there will
be no basis for an exact comparison between bids.

Moreover, Piatco misinterpreted the meaning behind PBAC Bid Bulletin No. 3. The
phrase amendments . . . from time to time refers only to those amendments to the draft
concession agreement issued by the PBAC prior to the submission of the price challenge; it
certainly does not include or permit amendments negotiated for and introduced after the bidding
process, has been terminated.

Piatco's Concession Agreement Was Further Amended, (ARCA) Again Without Public
Bidding

Not satisfied with the Concession Agreement, Piatco - once more without bothering with public
bidding - negotiated with government for still more substantial changes. The result was the
Amended and Restated Concession Agreement (ARCA) executed on November 26, 1998. The
following changes were introduced:

1. The definition of Attendant Liabilities was further amended with the result that the
unpaid loans of Piatco, for which government may be required to answer, are no longer
limited to only those loans recorded in Piatco's books or loans whose proceeds were
actually used in the Terminal III project.30

2. Although the contract may be terminated due to breach by Piatco, it will not be liable
to pay the government any Liquidated Damages if a new operator is designated to take
over the operation of the terminal.31

3. The Liquidated Damages which government becomes liable for in case of its breach
of contract were substantially increased.32

4. Government's right to appoint a comptroller for Piatco in case the latter encounters
liquidity problems was deleted.33
5. Government is made liable for Incremental and Consequential Costs and Losses in
case it fails to comply or cause any third party under its direct or indirect control to
comply with the special obligations imposed on government.34

6. The insurance policies obtained by Piatco covering the terminal are now required to
be assigned to the Senior Lenders as security for the loans; previously, their proceeds
were to be used to repair and rehabilitate the facility in case of damage.35

7. Government bound itself to set the initial rate of the terminal fee, to be charged when
Terminal III begins operations, at an amount higher than US$20.36

8. Government waived its defense of the illegality of the contract and even agreed to be
liable to pay damages to Piatco in the event the contract was declared illegal.37

9. Even though government may be entitled to terminate the ARCA on account of breach
by Piatco, government is still liable to pay Piatco the appraised value of Terminal III or
the Attendant Liabilities, if the termination occurs before the In-Service Date.38 This
condition contravenes the BOT Law provision on termination compensation.

10. Government is obligated to take the administrative action required for Piatco's
imposition, collection and application of all Public Utility Revenues.39 No such obligation
existed previously.

11. Government is now also obligated to perform and cause other persons and entities
under its direct or indirect control to perform all acts necessary to perfect the security
interests to be created in favor of Piatco's Senior Lenders.40 No such obligation existed
previously.

12. DOTC/MIAA's right of intervention in instances where Piatco's Non-Public Utility


Revenues become exorbitant or excessive has been removed.41

13. The illegality and unenforceability of the ARCA or any of its material provisions was
made an event of default on the part of government only, thus constituting a ground for
Piatco to terminate the ARCA.42

14. Amounts due from and payable by government under the contract were made
payable on demand - net of taxes, levies, imposts, duties, charges or fees of any kind
except as required by law.43

15. The Parametric Formula in the contract, which is utilized to compute for
adjustments/increases to the public utility revenues (i.e., aircraft parking and tacking
fees, check-in counter fee and terminal fee), was revised to permit Piatco to input its
more costly short-term borrowing rates instead of the longer-terms rates in the
computations for adjustments, with the end result that the changes will redound to its
greater financial benefit.

16. The Certificate of Completion simply deleted the successful performance-testing of


the terminal facility in accordance with defined performance standards as a pre-condition
for government's acceptance of the terminal facility.44

In sum, the foregoing revisions and amendments as embodied in the ARCA constitute very
material alterations of the terms and conditions of the CA, and give further manifestly undue
advantage to Piatco at the expense of government. Piatco claims that the changes to the CA
were necessitated by the demands of its foreign lenders. However, no proof whatsoever has
been adduced to buttress this claim.

In any event, it is quite patent that the sum total of the aforementioned changes resulted
in drastically weakening the position of government to a degree that seems quite excessive,
even from the standpoint of a businessperson who regularly transacts with banks and foreign
lenders, is familiar with their mind-set, and understands what motivates them. On the other
hand, whatever it was that impelled government officials concerned to accede to those grossly
disadvantageous changes, I can only hazard a guess.

There is no question in my mind that the ARCA was unauthorized and illegal for lack of public
bidding and for being patently disadvantageous to government.

The Three Supplements Imposed New Obligations on Government, Also Without Prior
Public Bidding

After Piatco had managed to breach the protective rampart of public bidding, it recklessly went
on a rampage of further assaults on the ARCA.

The First Supplement Is as Void as the ARCA

In the First Supplement ("FS") executed on August 27, 1999, the following changes were made
to the ARCA:

1. The amounts payable by Piatco to government were reduced by allowing additional


exceptions to the Gross Revenues in which government is supposed to participate.45

2. Made part of the properties which government is obliged to construct and/or maintain
and keep in good repair are (a) the access road connecting Terminals II and III - the
construction of this access road is the obligation of Piatco, in lieu of its obligation to
construct an Access Tunnel connecting Terminals II and III; and (b) the taxilane and
taxiway - these are likewise part of Piatco's obligations, since they are part and parcel of
the project as described in Clause 1.3 of the Bid Documents .46

3. The MIAA is obligated to provide funding for the maintenance and repair of the
airports and facilities owned or operated by it and by third persons under its control. It
will also be liable to Piatco for the latter's losses, expenses and damages as well as
liability to third persons, in case MIAA fails to perform such obligations. In addition, MIAA
will also be liable for the incremental and consequential costs of the remedial work done
by Piatco on account of the former's default.47

4. The FS also imposed on government ten (10) "Additional Special Obligations,"


including the following:

(a) Working for the removal of the general aviation traffic from the NAIA airport
complex48

(b) Providing through MIAA the land required by Piatco for the taxilane and one
taxiway at no cost to Piatco49

(c) Implementing the government's existing storm drainage master plan50

(d) Coordinating with DPWH the financing, the implementation and the
completion of the following works before the In-Service Date: three left-turning
overpasses (EDSA to Tramo St., Tramo to Andrews Ave., and Manlunas Road to
Sales Ave.);51 and a road upgrade and improvement program involving widening,
repair and resurfacing of Sales Road, Andrews Avenue and Manlunas Road;
improvement of Nichols Interchange; and removal of squatters along Andrews
Avenue.52

(e) Dealing directly with BCDA and the Phil. Air Force in acquiring additional land
or right of way for the road upgrade and improvement program. 53

5. Government is required to work for the immediate reversion to MIAA of the Nayong
Pilipino National Park.54
6. Government's share in the terminal fees collected was revised from a flat rate of P180
to 36 percent thereof; together with government's percentage share in the gross
revenues of Piatco, the amount will be remitted to government in pesos instead of US
dollars.55 This amendment enables Piatco to benefit from the further erosion of the peso-
dollar exchange rate, while preventing government from building up its foreign exchange
reserves.

7. All payments from Piatco to government are now to be invoiced to MIAA, and
payments are to accrue to the latter's exclusive benefit.56 This move appears to be in
support of the funds MIAA advanced to DPWH.

I must emphasize that the First Supplement is void in two respects. First, it is merely an
amendment to the ARCA, upon which it is wholly dependent; therefore, since the ARCA is void,
inexistent and not capable of being ratified or amended, it follows that the FS too is void,
inexistent and inoperative. Second, even assuming arguendo that the ARCA is somehow
remotely valid, nonetheless the FS, in imposing significant new obligations upon government,
altered the fundamental terms and stipulations of the ARCA, thus necessitating a public bidding
all over again. That the FS was entered into sans public bidding renders it utterly void and
inoperative.

The Second Supplement Is Similarly Void and Inexistent

The Second Supplement ("SS") was executed between the government and Piatco on
September 4, 2000. It calls for Piatco, acting not as concessionaire of NAIA Terminal III but as a
public works contractor, to undertake - in the government's stead - the clearing, removal,
demolition and disposal of improvements, subterranean obstructions and waste materials at the
project site.57

The scope of the works, the procedures involved, and the obligations of the contractor are
provided for in Parts II and III of the SS. Section 4.1 sets out the compensation to be paid, listing
specific rates per cubic meter of materials for each phase of the work - excavation, leveling,
removal and disposal, backfilling and dewatering. The amounts collectible by Piatco are to be
offset against the Annual Guaranteed Payments it must pay government.

Though denominated as Second Supplement, it was nothing less than an entirely new public
works contract. Yet it, too, did not undergo any public bidding, for which reason it is also void
and inoperative.

Not surprisingly, Piatco had to subcontract the works to a certain Wintrack Builders, a firm
reputedly owned by a former high-ranking DOTC official. But that is another story altogether.

The Third Supplement Is Likewise Void and Inexistent

The Third Supplement ("TS"), executed between the government and Piatco on June 22, 2001,
passed on to the government certain obligations of Piatco as Terminal III concessionaire, with
respect to the surface road connecting Terminals II and III.

By way of background, at the inception of and forming part of the NAIA Terminal III project was
the proposed construction of an access tunnel crossing Runway 13/31, which. would connect
Terminal III to Terminal II. The Bid Documents in Section 4.1.2.3[B][i] declared that the said
access tunnel was subject to further negotiation; but for purposes of the bidding, the proponent
should submit a bid for it as well. Therefore, the tunnel was supposed to be part and parcel of
the Terminal III project.

However, in Section 5 of the First Supplement, the parties declared that the access tunnel was
not economically viable at that time. In lieu thereof, the parties agreed that a surface access
road (now called the T2-T3 Road) was to be constructed by Piatco to connect the two terminals.
Since it was plainly in substitution of the tunnel, the surface road construction should likewise be
considered part and parcel of the same project, and therefore part of Piatco's obligation as well.
While the access tunnel was estimated to cost about P800 million, the surface road would have
a price tag in the vicinity of about P100 million, thus producing significant savings for Piatco.
Yet, the Third Supplement, while confirming that Piatco would construct the T2-T3 Road,
nevertheless shifted to government some of the obligations pertaining to the former, as follows:

1. Government is now obliged to remove at its own expense all tenants, squatters,
improvements and/or waste materials on the site where the T2-T3 road is to be
constructed.58 There was no similar obligation on the part of government insofar as the
access tunnel was concerned.

2. Should government fail to carry out its obligation as above described, Piatco may
undertake it on government's behalf, subject to the terms and conditions (including
compensation payments) contained in the Second Supplement.59

3. MIAA will answer for the operation, maintenance and repair of the T2-T3 Road.60

The TS depends upon and is intended to supplement the ARCA as well as the First
Supplement, both of which are void and inexistent and not capable of being ratified or amended.
It follows that the TS is likewise void, inexistent and inoperative. And even if, hypothetically
speaking, both ARCA and FS are valid, still, the Third Supplement - imposing as it does
significant new obligations upon government - would in effect alter the terms and stipulations of
the ARCA in material respects, thus necessitating another public bidding. Since the TS was not
subjected to public bidding, it is consequently utterly void as well. At any rate, the TS created
new monetary obligations on the part of government, for which there were no prior
appropriations. Hence it follows that the same is void ab initio.

In patiently tracing the progress of the Piatco contracts from their inception up to the present, I
noted that the whole process was riddled with significant lapses, if not outright irregularity and
wholesale violations of law and public policy. The rationale of beginning at the beginning, so to
speak, will become evident when the question of what to do with the five Piatco contracts is
discussed later on.

In the meantime, I shall take up specific, provisions or changes in the contracts and highlight the
more prominent objectionable features.

Government Directly Guarantees Piatco Debts

Certainly the most discussed provision in the parties' arguments is the one creating an
unauthorized, direct government guarantee of Piatco's obligations in favor of the lenders.

Section 4-A of the BOT Law as amended states that unsolicited proposals, such as the NAIA
Terminal III Project, may be accepted by government provided inter alia that no
direct government guarantee, subsidy or equity is required. In short, such guarantee is
prohibited in unsolicited proposals. Section 2(n) of the same legislation defines direct
government guarantee as "an agreement whereby the government or any of its agencies or
local government units (will) assume responsibility for the repayment of debt directly incurred by
the project proponent in implementing the project in case of a loan default."

Both the CA and the ARCA have provisions that undeniably create such prohibited government
guarantee. Section 4.04 (c)(iv) to (vi) of the ARCA, which is similar to Section 4.04 of the CA,
provides thus:

"(iv) that if Concessionaire is in default under a payment obligation owed to the Senior
Lenders, and as a result thereof the Senior Lenders have become entitled to accelerate
the Senior Loans, the Senior Lenders shall have the right to notify GRP of the same . . .;

(v) . . . the Senior Lenders may after written notification to GRP, transfer the
Concessionaire's rights and obligations to a transferee . . .;

(vi) if the Senior Lenders . . . are unable to . . . effect a transfer . . ., then GRP and the
Senior Lenders shall endeavor . . . to enter into any other arrangement relating to the
Development Facility . . . If no agreement relating to the Development Facility is arrived
at by GRP and the Senior Lenders within the said 180-day period, then at the end
thereof the Development Facility shall be transferred by the Concessionaire to GRP or
its designee and GRP shall make a termination payment to Concessionaire equal to the
Appraised Value (as hereinafter defined) of the Development Facility or the sum of the
Attendant Liabilities, if greater. . . ."

In turn, the term Attendant Liabilities is defined in Section 1.06 of the ARCA as follows:

"Attendant Liabilities refer to all amounts in each case supported by verifiable evidence
from time to time owed or which may become, owing by Concessionaire to Senior
Lenders or any other persons or entities who have provided, loaned or advanced funds
or provided financial facilities to Concessionaire for the Project, including, without
limitation, all principal, interest, associated fees, charges, reimbursements, and other
related expenses (including the fees, charges and expenses of any agents or trustees of
such persons or entities), whether payable at maturity, by acceleration or otherwise, and
further including amounts owed by Concessionaire to its professional consultants and
advisers, suppliers, contractors and sub-contractors."

Government's agreement to pay becomes effective in the event of a default by Piatco on any of
its loan obligations to the Senior Lenders, and the amount to be paid by government is the
greater of either the Appraised Value of Terminal III or the aggregate amount of the moneys
owed by Piatco - whether to the Senior Lenders or to other entities, including its suppliers,
contractors and subcontractors. In effect, therefore, this agreement already constitutes the
prohibited assumption by government of responsibility for repayment of Piatco's debts in case of
a loan default. In fine, a direct government guarantee.

It matters not that there is a roundabout procedure prescribed by Section 4.04(c)(iv), (v) and (vi)
that would require, first, an attempt (albeit unsuccessful) by the Senior Lenders to transfer
Piatco's rights to a transferee of their choice; and, second, an effort (equally unsuccessful) to
"enter into any other arrangement" with the government regarding the Terminal III facility, before
government is required to make good on its guarantee. What is abundantly clear is the fact that,
in the devious labyrinthine process detailed in the aforesaid section, it is entirely within the
Senior Lenders' power, prerogative and control - exercisable via a mere refusal or inability to
agree upon "a transferee" or "any other arrangement" regarding the terminal facility - to push
the process forward to the ultimate contractual cul-de-sac, wherein government will be
compelled to abjectly surrender and make good on its guarantee of payment.

Piatco also argues that there is no proviso requiring government to pay the Senior Lenders in
the event of Piatco's default. This is literally true, in the sense that Section 4.04(c)(vi) of ARCA
speaks of government making the termination payment to Piatco, not to the lenders. However, it
is almost a certainty that the Senior Lenders will already have made Piatco sign over to them,
ahead of time, its right to receive such payments from government; and/or they may already
have had themselves appointed its attorneys-in-fact for the purpose of collecting and receiving
such payments.

Nevertheless, as petitioners-in-intervention pointed out in their Memorandum,61 the termination


payment is to be made to Piatco, not to the lenders; and there is no provision anywhere in the
contract documents to prevent it from diverting the proceeds to its own benefit and/or to ensure
that it will necessarily use the same to pay off the Senior Lenders and other creditors, in order to
avert the foreclosure of the mortgage and other liens on the terminal facility. Such deficiency
puts the interests of government at great risk. Indeed, if the unthinkable were to happen,
government would be paying several hundreds of millions of dollars, but the mortgage liens on
the facility may still be foreclosed by the Senior Lenders just the same.

Consequently, the Piatco contracts are also objectionable for grievously failing to adequately
protect government's interests. More accurately, the contracts would consistently weaken and
do away with protection of government interests. As such, they are therefore grossly lopsided in
favor of Piatco and/or its Senior Lenders.

While on this subject, it is well to recall the earlier discussion regarding a particularly noticeable
alteration of the concept of "Attendant Liabilities." In Section 1.06 of the CA defining the term,
the Piatco debts to be assumed/paid by government were qualified by the phrases recorded and
from time to time outstanding in the books of the Concessionaire and actually used for the
project. These phrases were eliminated from the ARCA's definition of Attendant Liabilities.

Since no explanation has been forthcoming from Piatco as to the possible justification for such a
drastic change, the only conclusion, possible is that it intends to have all of its debts covered by
the guarantee, regardless of whether or not they are disclosed in its books. This has particular
reference to those borrowings which were obtained in violation of the loan covenants requiring
Piatco to maintain a minimum 70:30 debt-to-equity ratio, and even if the loan proceeds were not
actually used for the project itself.

This point brings us back to the guarantee itself. In Section 4.04(c)(vi) of ARCA, the amount
which government has guaranteed to pay as termination payment is the greater of either (i) the
Appraised Value of the terminal facility or (ii) the aggregate of the Attendant Liabilities. Given
that the Attendant Liabilities may include practically any Piatco debt under the sun, it is highly
conceivable that their sum may greatly exceed the appraised value of the facility, and
government may end up paying very much more than the real worth of Terminal III. (So why did
government have to bother with public bidding anyway?)

In the final analysis, Section 4.04(c)(iv) to (vi) of the ARCA is diametrically at odds with the spirit
and the intent of the BOT Law. The law meant to mobilize private resources (the private sector)
to take on the burden and the risks of financing the construction, operation and maintenance of
relevant infrastructure and development projects for the simple reason that government is not in
a position to do so. By the same token, government guarantee was prohibited, since it would
merely defeat the purpose and raison d'être of a build-operate-and-transfer project to be
undertaken by the private sector.

To the extent that the project proponent is able to obtain loans to fund the project, those risks
are shared between the project proponent on the one hand, and its banks and other lenders on
the other. But where the proponent or its lenders manage to cajol or coerce the government into
extending a guarantee of payment of the loan obligations, the risks assumed by the lenders are
passed right back to government. I cannot understand why, in the instant case, government
cheerfully assented to re-assuming the risks of the project when it gave the prohibited
guarantee and thus simply negated the very purpose of the BOT Law and the protection it gives
the government.

Contract Termination Provisions in the Piatco Contracts Are Void

The BOT Law as amended provides for contract termination as follows:

"Sec. 7. Contract Termination. - In the event that a project is revoked, cancelled or


terminated by the government through no fault of the project proponent or by mutual
agreement, the Government shall compensate the said project proponent for its actual
expenses incurred in the project plus a reasonable rate of return thereon not exceeding
that stated in the contract as of the date of such revocation, cancellation or
termination: Provided, That the interest of the Government in this instances [sic] shall be
duly insured with the Government Service Insurance System or any other insurance
entity duly accredited by the Office of the Insurance Commissioner: Provided, finally,
That the cost of the insurance coverage shall be included in the terms and conditions of
the bidding referred to above.

"In the event that the government defaults on certain major obligations in the contract
and such failure is not remediable or if remediable shall remain unremedied for an
unreasonable length of time, the project proponent/contractor may, by prior notice to the
concerned national government agency or local government unit specifying the turn-over
date, terminate the contract. The project proponent/contractor shall be reasonably
compensated by the Government for equivalent or proportionate contract cost as defined
in the contract."

The foregoing statutory provision in effect provides for the following limited instances when
termination compensation may be allowed:
1. Termination by the government through no fault of the project proponent

2. Termination upon the parties' mutual agreement

3. Termination by the proponent due to government's default on certain major


contractual obligations

To emphasize, the law does not permit compensation for the project proponent when contract
termination is due to the proponent's own fault or breach of contract.

This principle was clearly violated in the Piatco Contracts. The ARCA stipulates that government
is to pay termination compensation to Piatco even when termination is initiated by government
for the following causes:

"(i) Failure of Concessionaire to finish the Works in all material respects in accordance
with the Tender Design and the Timetable;

(ii) Commission by Concessionaire of a material breach of this Agreement . . .;

(iii) . . . a change in control of Concessionaire arising from the sale, assignment, transfer
or other disposition of capital stock which results in an ownership structure violative of
statutory or constitutional limitations;

(iv) A pattern of continuing or repeated non-compliance, willful violation, or non-


performance of other terms and conditions hereof which is hereby deemed a material
breach of this Agreement . . ."62

As if that were not bad enough, the ARCA also inserted into Section 8.01 the phrase "Subject to
Section 4.04." The effect of this insertion is that in those instances where government may
terminate the contract on account of Piatco's breach, and it is nevertheless required under the
ARCA to make termination compensation to Piatco even though unauthorized by law, such
compensation is to be equivalent to the payment amount guaranteed by government - either a)
the Appraised Value of the terminal facility or (b) the aggregate of the Attendant Liabilities,
whichever amount is greater!

Clearly, this condition is not in line with Section 7 of the BOT Law. That provision permits a
project proponent to recover the actual expenses it incurred in the prosecution of the project
plus a reasonable rate of return not in excess of that provided in the contract; or to be
compensated for the equivalent or proportionate contract cost as defined in the contract, in case
the government is in default on certain major contractual obligations.

Furthermore, in those instances where such termination compensation is authorized by the


BOT Law, it is indispensable that the interest of government be duly insured. Section 5.08 the
ARCA mandates insurance coverage for the terminal facility; but all insurance policies are to be
assigned, and all proceeds are payable, to the Senior Lenders. In brief, the interest being
secured by such coverage is that of the Senior Lenders, not that of government. This can hardly
be considered compliance with law.

In essence, the ARCA provisions on termination compensation result in another unauthorized


government guarantee, this time in favor of Piatco.

A Prohibited Direct Government Subsidy, Which at the Same Time Is an Assault on the
National Honor

Still another contractual provision offensive to law and public policy is Section 8.01(d) of the
ARCA, which is a "bolder and badder" version of Section 8.04(d) of the CA.

It will be recalled that Section 4-A of the BOT Law as amended prohibits not only direct
government guarantees, but likewise a direct government subsidy for unsolicited proposals.
Section 13.2. b. iii. of the 1999 IRR defines a direct government subsidy as encompassing "an
agreement whereby the Government . . . will . . . postpone any payments due from the
proponent."

Despite the statutory ban, Section 8.01 (d) of the ARCA provides thus:

"(d) The provisions of Section 8.01(a) notwithstanding, and for the purpose of preventing
a disruption of the operations in the Terminal and/or Terminal Complex, in the event that
at any time Concessionaire is of the reasonable opinion that it shall be unable to meet a
payment obligation owed to the Senior Lenders, Concessionaire shall give prompt notice
to GRP, through DOTC/MIAA and to the Senior Lenders. In such circumstances, the
Senior Lenders (or the Senior Lenders' Representative) may ensure that after making
provision for administrative expenses and depreciation, the cash resources of
Concessionaire shall first be used and applied to meet all payment obligations owed to
the Senior Lenders. Any excess cash, after meeting such payment obligations, shall be
earmarked for the payment of all sums payable by Concessionaire to GRP under this
Agreement. If by reason of the foregoing GRP should be unable to collect in full all
payments due to GRP under this Agreement, then the unpaid balance shall be payable
within a 90-day grace period counted from the relevant due date, with interest per
annum at the rate equal to the average 91-day Treasury Bill Rate as of the auction date
immediately preceding the relevant due date. If payment is not effected by
Concessionaire within the grace period, then a spread of five (5%) percent over the
applicable 91-day Treasury Bill Rate shall be added on the unpaid amount commencing
on the expiry of the grace period up to the day of full payment. When the temporary
illiquidity of Concessionaire shall have been corrected and the cash position of
Concessionaire should indicate its ability to meet its maturing obligations, then the
provisions set forth under this Section 8.01(d) shall cease to apply. The foregoing
remedial measures shall be applicable only while there remains unpaid and outstanding
amounts owed to the Senior Lenders." (Emphasis supplied)

By any manner of interpretation or application, Section 8.01(d) of the ARCA clearly mandates
the indefinitepostponement of payment of all of Piatco's obligations to the government, in order
to ensure that Piatco's obligations to the Senior Lenders are paid in full first. That is nothing
more or less than the direct government subsidy prohibited by the BOT Law and the IRR. The
fact that Piatco will pay interest on the unpaid amounts owed to government does not change
the situation or render the prohibited subsidy any less unacceptable.

But beyond the clear violations of law, there are larger issues involved in the ARCA. Earlier, I
mentioned that Section 8.01(d) of the ARCA completely eliminated the proviso in Section
8.04(d) of the CA which gave government the right to appoint a financial controller to manage
the cash position of Piatco during situations of financial distress. Not only has government been
deprived of any means of monitoring and managing the situation; worse, as can be seen from
Section 8.01(d) above-quoted, the Senior Lenders have effectively locked in on the right to
exercise financial controllership over Piatco and to allocate its cash resources to the payment of
all amounts owed to the Senior Lenders before allowing any payment to be made to
government.

In brief, this particular provision of the ARCA has placed in the hands of foreign lenders the
power and the authority to determine how much (if at all) and when the Philippine government
(as grantor of the franchise) may be allowed to receive from Piatco. In that situation,
government will be at the mercy of the foreign lenders. This is a situation completely contrary to
the rationale of the BOT Law and to public policy.

The aforesaid provision rouses mixed emotions - shame and disgust at the parties'
(especially the government officials') docile submission and abject servitude and
surrender to the imperious and excessive demands of the foreign lenders, on the one
hand; and vehement outrage at the affront to the sovereignty of the Republic and to the
national honor, on the other. It is indeed time to put an end to such an unbearable,
dishonorable situation.

The Piatco Contracts Unarguably Violate Constitutional Injunctions


I will now discuss the manner in which the Piatco Contracts offended the Constitution.

The Exclusive Right Granted to Piatco to Operate a Public Utility Is Prohibited by the
Constitution

While Section 2.02 of the ARCA spoke of granting to Piatco "a franchise to operate and
maintain the Terminal Complex," Section 3.02(a) of the same ARCA granted to Piatco, for the
entire term of the concession agreement, "the exclusive right to operate a commercial
international passenger terminal within the Island of Luzon" with the exception of those three
terminals already existing63 at the time of execution of the ARCA.

Section 11 of Article XII of the Constitution prohibits the grant of a "franchise, certificate, or any
other form of authorization for the operation of a public utility" that is "exclusive in character."

In its Opinion No. 078, Series of 1995, the Department of justice held that "the NAIA Terminal III
which . . . is a 'terminal for public use' is a public utility." Consequently, the constitutional
prohibition against the exclusivity of a franchise applies to the franchise for the operation of
NAIA Terminal III as well.

What was granted to Piatco was not merely a franchise, but an "exclusive right" to operate an
international passenger terminal within the "Island of Luzon." What this grant effectively means
is that the government is now estopped from exercising its inherent power to award any other
person another franchise or a right to operate such a public utility, in the event public interest in
Luzon requires it. This restriction is highly detrimental to government and to the public interest.
Former Secretary of Justice Hernando B. Perez expressed this point well in his Memorandum
for the President dated 21 May 2002:

"Section 3.02 on 'Exclusivity'

"This provision gives to PIATCO (the Concessionaire) the exclusive right to operate a
commercial international airport within the Island of Luzon with the exception of those
already existing at the time of the execution of the Agreement, such as the airports at
Subic, Clark and Laoag City. In the case of the Clark International Airport, however, the
provision restricts its operation beyond its design capacity of 850,000 passengers per
annum and the operation of new terminal facilities therein until after the new NAIA
Terminal III shall have consistently reached or exceeded its design capacity of ten (10)
million passenger capacity per year for three (3) consecutive years during the
concession period.

"This is an onerous and disadvantageous provision. It effectively grants PIATCO


a monopoly in Luzon and ties the hands of government in the matter of developing new
airports which may be found expedient and necessary in carrying out any future plan for
an inter-modal transportation system in Luzon.

"Additionally, it imposes an unreasonable restriction on the operation of the Clark


International Airport which could adversely affect the operation and development of the
Clark Special Economic Zone to the economic prejudice of the local constituencies that
are being benefited by its operation." (Emphasis supplied)

While it cannot be gainsaid that an enterprise that is a public utility may happen to constitute a
monopoly on account of the very nature of its business and the absence of competition, such a
situation does not however constitute justification to violate the constitutional prohibition and
grant an exclusive franchise or exclusive right to operate a public utility.

Piatco's contention that the Constitution does not actually prohibit monopolies is beside the
point. As correctly argued,64 the existence of a monopoly by a public utility is a situation created
by circumstances that do not encourage competition. This situation is different from the grant of
a franchise to operate a public utility, a privilege granted by government. Of course, the grant of
a franchise may result in a monopoly. But making such franchise exclusive is what is expressly
proscribed by the Constitution.
Actually, the aforementioned Section 3.02 of the ARCA more than just guaranteed exclusivity; it
also guaranteed that the government will not improve or expand the facilities at Clark - and in
fact is required to put a cap on the latter's operations - until after Terminal III shall have been
operated at or beyond its peak capacity for three consecutive years.65 As counsel for public
respondents pointed out, in the real world where the rate of influx of international passengers
can fluctuate substantially from year to year, it may take many years before Terminal III sees
three consecutive years' operations at peak capacity. The Diosdado Macapagal International
Airport may thus end up stagnating for a long time. Indeed, in order to ensure greater profits for
Piatco, the economic progress of a region has had to be sacrificed.

The Piatco Contracts Violate the Time Limitation on Franchises

Section 11 of Article XII of the Constitution also provides that "no franchise, certificate or any
other form of authorization for the operation of a public utility shall be . . . for a longer period
than fifty years." After all, a franchise held for an unreasonably long time would likely give rise to
the same evils as a monopoly.

The Piatco Contracts have come up with an innovative way to circumvent the prohibition and
obtain an extension. This fact can be gleaned from Section 8.03(b) of the ARCA, which I quote
thus:

"Sec. 8.03. Termination Procedure and Consequences of Termination. -

a) x x x xxx xxx

b) In the event the Agreement is terminated pursuant to Section 8.01 (b) hereof,
Concessionaire shall be entitled to collect the Liquidated Damages specified in
Annex 'G'. The full payment by GRP to Concessionaire of the Liquidated
Damages shall be a condition precedent to the transfer by Concessionaire to
GRP of the Development Facility. Prior to the full payment of the Liquidated
Damages, Concessionaire shall to the extent practicable continue to operate the
Terminal and the Terminal Complex and shall be entitled to retain and withhold
all payments to GRP for the purpose of offsetting the same against the
Liquidated Damages. Upon full payment of the Liquidated Damages,
Concessionaire shall immediately transfer the Development Facility to GRP on
'as-is-where-is' basis."

The aforesaid easy payment scheme is less beneficial than it first appears. Although it enables
government to avoid having to make outright payment of an obligation that will likely run into
billions of pesos, this easy payment plan will nevertheless cost government considerable loss of
income, which it would earn if it were to operate Terminal III by itself. Inasmuch as payments to
the concessionaire (Piatco) will be on "installment basis," interest charges on the remaining
unpaid balance would undoubtedly cause the total outstanding balance to swell. Piatco would
thus be entitled to remain in the driver's seat and keep operating the terminal for an indefinite
length of time.

The Contracts Create Two Monopolies for Piatco

By way of background, two monopolies were actually created by the Piatco contracts. The first
and more obvious one refers to the business of operating an international passenger terminal in
Luzon, the business end of which involves providing international airlines with parking space for
their aircraft, and airline passengers with the use of departure and arrival areas, check-in
counters, information systems, conveyor systems, security equipment and paraphernalia,
immigrations and customs processing areas; and amenities such as comfort rooms, restaurants
and shops.

In furtherance of the first monopoly, the Piatco Contracts stipulate that the NAIA Terminal III will
be the only facility to be operated as an international passenger terminal; 66 that NAIA Terminals
I and II will no longer be operated as such;67 and that no one (including the government) will be
allowed to compete with Piatco in the operation of an international passenger terminal in the
NAIA Complex.68 Given that, at this time, the government and Piatco are the only ones engaged
in the business of operating an international passenger terminal, I am not acutely concerned
with this particular monopolistic situation.

There was however another monopoly within the NAIA created by the subject contracts for
Piatco - in the business of providing international airlines with the following: groundhandling, in-
flight catering, cargo handling, and aircraft repair and maintenance services. These are lines of
business activity in which are engaged many service providers (including the petitioners-in-
intervention), who will be adversely affected upon full implementation of the Piatco Contracts,
particularly Sections 3.01(d)69 and (e)70 of both the ARCA and the CA.

On the one hand, Section 3.02(a) of the ARCA makes Terminal III the only international
passenger terminal at the NAIA, and therefore the only place within the NAIA Complex where
the business of providing airport-related services to international airlines may be conducted. On
the other hand, Section 3.01(d) of the ARCA requires government, through the MIAA, not to
allow service providers with expired MIAA contracts to renew or extend their contracts to render
airport-related services to airlines. Meanwhile, Section 3.01(e) of the ARCA requires
government, through the DOTC and MIAA, not to allow service providers - those with subsisting
concession agreements for services and operations being conducted at Terminal I - to carry
over their concession agreements, services and operations to Terminal III, unless they first
enter into a separate agreement with Piatco.

The aforementioned provisions vest in Piatco effective and exclusive control over which service
provider may and may not operate at Terminal III and render the airport-related services needed
by international airlines. It thereby possesses the power to exclude competition. By necessary
implication, it also has effective control over the fees and charges that will be imposed and
collected by these service providers.

This intention is exceedingly clear in the declaration by Piatco that it is "completely within its
rights to exclude any party that it has not contracted with from NAIA Terminal III."71

Worse, there is nothing whatsoever in the Piatco Contracts that can serve to restrict, control or
regulate the concessionaire's discretion and power to reject any service provider and/or impose
any term or condition it may see fit in any contract it enters into with a service provider. In brief,
there is no safeguard whatsoever to ensure free and fair competition in the service-provider
sector.

In the meantime, and not surprisingly, Piatco is first in line, ready to exploit the unique business
opportunity. It announced72 that it has accredited three groundhandlers for Terminal III. Aside
from the Philippine Airlines, the other accredited entities are the Philippine Airport and Ground
Services Globeground, Inc. ("PAGSGlobeground") and the Orbit Air Systems, Inc. ("Orbit").
PAGSGlobeground is a wholly-owned subsidiary of the Philippine Airport and Ground Services,
Inc. or PAGS,73 while Orbit is a wholly-owned subsidiary of Friendship Holdings, Inc.,74 which is
in turn owned 80 percent by PAGS.75 PAGS is a service provider owned 60 percent by the
Cheng Family;76 it is a stockholder of 35 percent of Piatco77 and is the latter's designated
contractor-operator for NAIA Terminal III.78

Such entry into and domination of the airport-related services sector appear to be very much in
line with the following provisions contained in the First Addendum to the Piatco Shareholders
Agreement,79 executed on July 6, 1999, which appear to constitute a sort of master plan to
create a monopoly and combinations in restraint of trade:

"11. The Shareholders shall ensure:

a. x x x xxx x x x.;

b. That (Phil. Airport and Ground Services, Inc.) PAGS and/or its designated Affiliates
shall, at all times during the Concession Period, be exclusively authorized by (PIATCO)
to engage in the provision of ground-handling, catering and fueling services within the
Terminal Complex.
c. That PAIRCARGO and/or its designated Affiliate shall, during the Concession Period,
be the only entities authorized to construct and operate a warehouse for all cargo
handling and related services within the Site."

Precisely, proscribed by our Constitution are the monopoly and the restraint of trade being
fostered by the Piatco Contracts through the erection of barriers to the entry of other service
providers into Terminal III. In Tatad v. Secretary of the Department of Energy,80 the Court ruled:

". . . [S]ection 19 of Article XII of the Constitution . . . mandates: 'The State shall regulate
or prohibit monopolies when the public interest so requires. No combinations in restraint
of trade or unfair competition shall be allowed.'

"A monopoly is a privilege or peculiar advantage vested in one or more persons or


companies, consisting in the exclusive right or power to carry on a particular business or
trade, manufacture a particular article, or control the sale or the whole supply of a
particular commodity. It is a form of market structure in which one or only a few firms
dominate the total sales of a product or service. On the other hand, a combination in
restraint of trade is an agreement or understanding between two or more persons, in the
form of a contract, trust, pool, holding company, or other form of association, for the
purpose of unduly restricting competition, monopolizing trade and commerce in a certain
commodity, controlling its production, distribution and price, or otherwise interfering with
freedom of trade without statutory authority. Combination in restraint of trade refers to
the means while monopoly refers to the end.

"x x x xxx xxx

"Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It espouses
competition. The desirability of competition is the reason for the prohibition against
restraint of trade, the reason for the interdiction of unfair competition, and the reason for
regulation of unmitigated monopolies. Competition is thus the underlying principle of
[S]ection 19, Article XII of our Constitution, . . ."81

Gokongwei Jr. v. Securities and Exchange Commission82 elucidates the criteria to be employed:
"A 'monopoly' embraces any combination the tendency of which is to prevent competition in the
broad and general sense, or to control prices to the detriment of the public. In short, it is the
concentration of business in the hands of a few. The material consideration in determining its
existence is not that prices are raised and competition actually excluded, but that power exists
to raise prices or exclude competition when desired."83 (Emphasis supplied)

The Contracts Encourage Monopolistic Pricing, Too

Aside from creating a monopoly, the Piatco contracts also give the concessionaire virtually
limitless power over the charging of fees, rentals and so forth. What little "oversight function" the
government might be able and minded to exercise is less than sufficient to protect the public
interest, as can be gleaned from the following provisions:

"Sec. 6.06. Adjustment of Non-Public Utility Fees and Charges

"For fees, rentals and charges constituting Non-Public Utility Revenues, Concessionaire
may make any adjustments it deems appropriate without need for the consent of GRP or
any government agency subject to Sec. 6.03(c)."

Section 6.03(c) in turn provides:

"(c) Concessionaire shall at all times be judicious in fixing fees and charges constituting
Non-Public Utility Revenues in order to ensure that End Users are not unreasonably
deprived of services. While the vehicular parking fee, porterage fee and
greeter/wellwisher fee constitute Non-Public Utility Revenues of Concessionaire, GRP
may require Concessionaire to explain and justify the fee it may set from time to time, if
in the reasonable opinion of GRP the said fees have become exorbitant resulting in the
unreasonable deprivation of End Users of such services."
It will be noted that the above-quoted provision has no teeth, so the concessionaire can defy the
government without fear of any sanction. Moreover, Section 6.06 - taken together with Section
6.03(c) of the ARCA - falls short of the standard set by the BOT Law as amended, which
expressly requires in Section 2(b) that the project proponent is "allowed to charge facility users
appropriate tolls, fees, rentals and charges not exceeding those proposed in its bid or as
negotiated and incorporated in the contract x x x."

The Piatco Contracts Violate Constitutional Prohibitions Against


Impairment of Contracts and Deprivation of Property Without Due Process

Earlier, I discussed how Section 3.01(e)84 of both the CA and the ARCA requires government,
through DOTC/MIAA, not to permit the carry-over to Terminal III of the services and operations
of certain service providers currently operating at Terminal I with subsisting contracts.

By the In-Service Date, Terminal III shall be the only facility to be operated as an international
passenger terminal at the NAIA;85 thus, Terminals I and II shall no longer operate as such,86 and
no one shall be allowed to compete with Piatco in the operation of an international passenger
terminal in the NAIA.87 The bottom line is that, as of the In-Service Date, Terminal III will be the
only terminal where the business of providing airport-related services to international airlines
and passengers may be conducted at all.

Consequently, government through the DOTC/MIAA will be compelled to cease honoring


existing contracts with service providers after the In-Service Date, as they cannot be allowed to
operate in Terminal III.

In short, the CA and the ARCA obligate and constrain government to break its existing contracts
with these service providers.

Notably, government is not in a position to require Piatco to accommodate the displaced service
providers, and it would be unrealistic to think that these service providers can perform their
service contracts in some other international airport outside Luzon. Obviously, then, these
displaced service providers are - to borrow a quaint expression - up the river without a paddle.
In plainer terms, they will have lost their businesses entirely, in the blink of an eye.

What we have here is a set of contractual provisions that impair the obligation of contracts and
contravene the constitutional prohibition against deprivation of property without due process of
law.88

Moreover, since the displaced service providers, being unable to operate, will be forced to close
shop, their respective employees - among them Messrs. Agan and Lopez et al. - have very
grave cause for concern, as they will find themselves out of employment and bereft of their
means of livelihood. This situation comprises still another violation of the constitution prohibition
against deprivation of property without due process.

True, doing business at the NAIA may be viewed more as a privilege than as a right.
Nonetheless, where that privilege has been availed of by the petitioners-in-intervention service
providers for years on end, a situation arises, similar to that in American Inter-fashion v.
GTEB.89 We held therein that a privilege enjoyed for seven years "evolved into some form of
property right which should not be removed x x x arbitrarily and without due process." Said
pronouncement is particularly relevant and applicable to the situation at bar because the
livelihood of the employees of petitioners-intervenors are at stake.

The Piatco Contracts Violate Constitutional Prohibition


Against Deprivation of Liberty Without Due Process

The Piatco Contracts by locking out existing service providers from entry into Terminal III and
restricting entry of future service providers, thereby infringed upon the freedom - guaranteed to
and heretofore enjoyed by international airlines - to contract with local service providers of their
choice, and vice versa.
Both the service providers and their client airlines will be deprived of the right to liberty, which
includes the right to enter into all contracts,90 and/or the right to make a contract in relation to
one's business.91

By Creating New Financial Obligations for Government,


Supplements to the ARCA Violate the Constitutional
Ban on Disbursement of Public Funds Without Valid Appropriation

Clearly prohibited by the Constitution is the disbursement of public funds out of the treasury,
except in pursuance of an appropriation made by law.92 The immediate effect of this
constitutional ban is that all the various agencies of government are constrained to limit their
expenditures to the amounts appropriated by law for each fiscal year; and to carefully count
their cash before taking on contractual commitments. Giving flesh and form to the injunction of
the fundamental law, Sections 46 and 47 of Executive Order 292, otherwise known as the
Administrative Code of 1987, provide as follows:

"Sec. 46. Appropriation Before Entering into Contract. - (1) No contract involving the
expenditure of public funds shall be entered into unless there is an appropriation
therefor, the unexpended balance of which, free of other obligations, is sufficient to cover
the proposed expenditure; and . .

"Sec. 47. Certificate Showing Appropriation to Meet Contract. - Except in the case of a
contract for personal service, for supplies for current consumption or to be carried in
stock not exceeding the estimated consumption for three (3) months, or banking
transactions of government-owned or controlled banks, no contract involving the
expenditure of public funds by any government agency shall be entered into or
authorized unless the proper accounting official of the agency concerned shall have
certified to the officer entering into the obligation that funds have been duly appropriated
for the purpose and that the amount necessary to cover the proposed contract for the
current calendar year is available for expenditure on account thereof, subject to
verification by the auditor concerned. The certificate signed by the proper accounting
official and the auditor who verified it, shall be attached to and become an integral part of
the proposed contract, and the sum so certified shall not thereafter be available for
expenditure for any other purpose until the obligation of the government agency
concerned under the contract is fully extinguished."

Referring to the aforequoted provisions, this Court has held that "(I)t is quite evident from the
tenor of the language of the law that the existence of appropriations and the availability of funds
are indispensable pre-requisites to or conditions sine qua non for the execution of government
contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of
the proposed contract."93

Notwithstanding the constitutional ban, statutory mandates and Jurisprudential precedents, the
three Supplements to the ARCA, which were not approved by NEDA, imposed on government
the additional burden of spending public moneys without prior appropriation.

In the First Supplement ("FS") dated August 27, 1999, the following requirements were imposed
on the government:

• To construct, maintain and keep in good repair and operating condition all airport
support services, facilities, equipment and infrastructure owned and/or operated by
MIAA, which are not part of the Project or which are located outside the Site, even
though constructed by Concessionaire - including the access road connecting Terminals
II and III and the taxilane, taxiways and runways

• To obligate the MIAA to provide funding for the upkeep, maintenance and repair of the
airports and facilities owned or operated by it and by third persons under its control in
order to ensure compliance with international standards; and holding MIAA liable to
Piatco for the latter's losses, expenses and damages as well as for the latter's liability to
third persons, in case MIAA fails to perform such obligations; in addition, MIAA will also
be liable for the incremental and consequential costs of the remedial work done by
Piatco on account of the former's default.

• Section 4 of the FS imposed on government ten (10) "Additional Special Obligations,"


including the following:

o Providing thru MIAA the land required by Piatco for the taxilane and one taxiway,
at no cost to Piatco
o Implementing the government's existing storm drainage master plan
o Coordinating with DPWH the financing, implementation and completion of the
following works before the In-Service Date: three left-turning overpasses (Edsa to
Tramo St., Tramo to Andrews Ave., and Manlunas Road to Sales Ave.) and a
road upgrade and improvement program involving widening, repair and
resurfacing of Sales Road, Andrews Avenue and Manlunas Road; improvement
of Nichols Interchange; and removal of squatters along Andrews Avenue
o Dealing directly with BCDA and the Philippine Air Force in acquiring additional
land or right of way for the road upgrade and improvement program
o Requiring government to work for the immediate reversion to MIAA of the
Nayong Pilipino National Park, in order to permit the building of the second west
parallel taxiway

• Section 5 of the FS also provides that in lieu of the access tunnel, a surface access
road (T2-T3) will be constructed. This provision requires government to expend funds to
purchase additional land from Nayong Pilipino and to clear the same in order to be able
to deliver clean possession of the site to Piatco, as required in Section 5(c) of the FS.

On the other hand, the Third Supplement ("TS") obligates the government to deliver, within 120
days from date thereof, clean possession of the land on which the T2-T3 Road is to be
constructed.

The foregoing contractual stipulations undeniably impose on government the expenditures of


public funds not included in any congressional appropriation or authorized by any other statute.
Piatco however attempts to take these stipulations out of the ambit of Sections 46 and 47 of the
Administrative Code by characterizing them as stipulations for compliance on a "best-efforts
basis" only.

To determine whether the additional obligations under the Supplements may really be
undertaken on a best-efforts basis only, the nature of each of these obligations must be
examined in the context of its relevance and significance to the Terminal III Project, as well as of
any adverse impact that may result if such obligation is not performed or undertaken on time. In
short, the criteria for determining whether the best-efforts basis will apply is whether the
obligations are critical to the success of the Project and, accordingly, whether failure to perform
them (or to perform them on time) could result in a material breach of the contract.

Viewed in this light, the "Additional Special Obligations" set out in Section 4 of the FS take on a
different aspect. In particular, each of the following may all be deemed to play a major role in the
successful and timely prosecution of the Terminal III Project: the obtention of land required by
PIATCO for the taxilane and taxiway; the implementation of government's existing storm
drainage master plan; and coordination with DPWH for the completion of the three left-turning
overpasses before the In-Service Date, as well as acquisition and delivery of additional land for
the construction of the T2-T3 access road.

Conversely, failure to deliver on any of these obligations may conceivably result in substantial
prejudice to the concessionaire, to such an extent as to constitute a material breach of the
Piatco Contracts. Whereupon, the concessionaire may outrightly terminate the Contracts
pursuant to Section 8.01(b)(i) and (ii) of the ARCA and seek payment of Liquidated Damages in
accordance with Section 8.02(a) of the ARCA; or the concessionaire may instead require
government to pay the Incremental and Consequential Losses under Section 1.23 of the
ARCA.94The logical conclusion then is that the obligations in the Supplements are not to be
performed on a best-efforts basis only, but are unarguably mandatory in character.
Regarding MIAA's obligation to coordinate with the DPWH for the complete implementation of
the road upgrading and improvement program for Sales, Andrews and Manlunas Roads (which
provide access to the Terminal III site) prior to the In-Service Date, it is essential to take note of
the fact that there was a pressing need to complete the program before the opening of Terminal
III.95 For that reason, the MIAA was compelled to enter into a memorandum of agreement with
the DPWH in order to ensure the timely completion of the road widening and improvement
program. MIAA agreed to advance the total amount of P410.11 million to DPWH for the works,
while the latter was committed to do the following:

"2.2.8. Reimburse all advance payments to MIAA including but not limited to interest,
fees, plus other costs of money within the periods CY2004 and CY2006 with payment of
no less than One Hundred Million Pesos (PhP100M) every year.

"2.2.9. Perform all acts necessary to include in its CY2004 to CY2006 budget allocation
the repayments for the advances made by MIAA, to ensure that the advances are fully
repaid by CY2006. For this purpose, DPWH shall include the amounts to be
appropriated for reimbursement to MIAA in the "Not Needing Clearance" column of their
Agency Budget Matrix (ABM) submitted to the Department of Budget and Management."

It can be easily inferred, then, that DPWH did not set aside enough funds to be able to complete
the upgrading program for the crucially situated access roads prior to the targeted opening date
of Terminal III; and that, had MIAA not agreed to lend the P410 Million, DPWH would not have
been able to complete the program on time. As a consequence, government would have been
in breach of a material obligation. Hence, this particular undertaking of government may likewise
not be construed as being for best-efforts compliance only.

They also Infringe on the Legislative Prerogative and Power Over the Public Purse

But the particularly sad thing about this transaction between MIAA and DPWH is the fact that
both agencies were maneuvered into (or allowed themselves to be maneuvered into) an
agreement that would ensure delivery of upgraded roads for Piatco's benefit, using funds not
allocated for that purpose. The agreement would then be presented to Congress as a done
deal. Congress would thus be obliged to uphold the agreement and support it with the
necessary allocations and appropriations for three years, in order to enable DPWH to deliver on
its committed repayments to MIAA. The net result is an infringement on the legislative power
over the public purse and a diminution of Congress' control over expenditures of public funds - a
development that would not have come about, were it not for the Supplements. Very clever but
very illegal!

EPILOGUE
What Do We Do Now?

In the final analysis, there remains but one ultimate question, which I raised during the Oral
Argument on December 10, 2002: What do we do with the Piatco Contracts and Terminal
III?96 (Feeding directly into the resolution of the decisive question is the other nagging issue:
Why should we bother with determining the legality and validity of these contracts, when the
Terminal itself has already been built and is practically complete?)

Prescinding from all the foregoing disquisition, I find that all the Piatco contracts, without
exception, are void ab initio, and therefore inoperative. Even the very process by which the
contracts came into being - the bidding and the award - has been riddled with irregularities
galore and blatant violations of law and public policy, far too many to ignore. There is thus no
conceivable way, as proposed by some, of saving one (the original Concession Agreement)
while junking all the rest.

Neither is it possible to argue for the retention of the Draft Concession Agreement (referred to in
the various pleadings as the Contract Bidded Out) as the contract that should be kept in force
and effect to govern the situation, inasmuch as it was never executed by the parties. What
Piatco and the government executed was the Concession Agreement which is entirely different
from the Draft Concession Agreement.
Ultimately, though, it would be tantamount to an outrageous, grievous and unforgivable
mutilation of public policy and an insult to ourselves if we opt to keep in place a contract - any
contract - for to do so would assume that we agree to having Piatco continue as the
concessionaire for Terminal III.

Despite all the insidious contraventions of the Constitution, law and public policy Piatco
perpetrated, keeping Piatco on as concessionaire and even rewarding it by allowing it to operate
and profit from Terminal III - instead of imposing upon it the stiffest sanctions permissible under
the laws - is unconscionable.

It is no exaggeration to say that Piatco may not really mind which contract we decide to keep in
place. For all it may care, we can do just as well without one, if we only let it continue and
operate the facility. After all, the real money will come not from building the Terminal, but
from actually operating it for fifty or more years and charging whatever it feels like, without any
competition at all. This scenario must not be allowed to happen.

If the Piatco contracts are junked altogether as I think they should be, should not AEDC
automatically be considered the winning bidder and therefore allowed to operate the facility? My
answer is a stone-cold 'No'. AEDC never won the bidding, never signed any contract, and never
built any facility. Why should it be allowed to automatically step in and benefit from the greed of
another?

Should government pay at all for reasonable expenses incurred in the construction of the
Terminal? Indeed it should, otherwise it will be unjustly enriching itself at the expense of Piatco
and, in particular, its funders, contractors and investors - both local and foreign. After all, there is
no question that the State needs and will make use of Terminal III, it being part and parcel of the
critical infrastructure and transportation-related programs of government.

In Melchor v. Commission on Audit,97 this Court held that even if the contract therein was void,
the principle of payment by quantum meruit was found applicable, and the contractor was
allowed to recover the reasonable value of the thing or services rendered (regardless of any
agreement as to the supposed value), in order to avoid unjust enrichment on the part of
government. The principle of quantum meruit was likewise applied in Eslao v. Commission on
Audit,98 because to deny payment for a building almost completed and already occupied would
be to permit government to unjustly enrich itself at the expense of the contractor. The same
principle was applied in Republic v. Court of Appeals.99

One possible practical solution would be for government - in view of the nullity of the Piatco
contracts and of the fact that Terminal III has already been built and is almost finished - to bid
out the operation of the facility under the same or analogous principles as build-operate-and-
transfer projects. To be imposed, however, is the condition that the winning bidder must pay the
builder of the facility a price fixed by government based on quantum meruit; on the real,
reasonable - not inflated - value of the built facility.

How the payment or series of payments to the builder, funders, investors and contractors will be
staggered and scheduled, will have to be built into the bids, along with the annual guaranteed
payments to government. In this manner, this whole sordid mess could result in something truly
beneficial for all, especially for the Filipino people.

WHEREFORE, I vote to grant the Petitions and to declare the subject


contracts NULL and VOID.

Footnotes
1
An Act Authorizing the Financing, Construction, Operation and Maintenance of
Infrastructure Projects by the Private Sector.
2
G.R. No. 155001.
3
G.R. No. 155547.
4
G.R. No. 155661.
5
An international airport is any nation's gateway to the world, the first contact of
foreigners with the Philippine Republic, especially those foreigners who have not been in
contact with the wonderful exports of the Philippine economy, those foreigners who have
not had the benefit of enjoying Philippine export products. Because for them, when they
see your products, that is the face of the Philippines they see. But if they are not
exposed to your products, then it's the airport that's the first face of the Philippines they
see. Therefore, it's not only a matter of opening yet, but making sure that it is a world
class airport that operates without any hitches at all and without the slightest risk to
travelers. But it's also emerging as a test case of my administration's commitment to
fight corruption to rid our state from the hold of any vested interest, the Solicitor
General, and the Justice Department have determined that all five agreements
covering the NAIA Terminal 3, most of which were contracted in the previous
administration, are null and void. I cannot honor contracts which the Executive
Branch's legal offices have concluded (as) null and void.

I am, therefore, ordering the Department of Justice and the Presidential


Anti-Graft Commission to investigate any anomalies and prosecute all
those found culpable in connection with the NAIA contract. But despite all
of the problems involving the PIATCO contracts, I am assuring our people,
our travelers, our exporters, my administration will open the terminal even
if it requires invoking the whole powers of the Presidency under the
Constitution and we will open a safe, secure and smoothly functioning
airport, a world class airport, as world class as the exporters we are
honoring today. (Speech of President Arroyo, emphasis supplied)

G.R. No. 131124 March 29, 1999

OSMUNDO G. UMALI, petitioner,


vs.
EXECUTIVE SECRETARY TEOFISTO T. GUINGONA JR., CHAIRMAN, PRESIDENTIAL
COMMISSION AGAINST GRAFT AND CORRUPTION, THE SECRETARY OF FINANCE,
AND THE COMMISSIONER OF INTERNAL REVENUE, respondents.

RESOLUTION

PURISIMA, J.:

At bar is a petition for review under Rule 45 of the Revised Rules of Court assailing the decision
of the Court of Appeals dated April 8, 1997, which set aside the Amended Decision dated
December 13, 1995 of the Regional Trial Court of Makati in Civil Case No. 94-3078, and
dismissed the petition for Certiorari, Prohibition and Injunction brought by petitioner against the
respondents.

The antecedent facts leading to the filing of the present are as follows:

On October 27, 1993, petitioner Osmundo Umali was appointed Regional Director of the Bureau
of Internal Revenue by the then President Fidel V. Ramos. He was assigned in Manila, from
November 29, 1993 to March 15, 1994, and in Makati, from March 16, 1994 to August 4, 1994.

On August 1, 1994, President Ramos received a confidential memorandum against the


petitioner for alleged violations of internal revenue laws, rules and regulations during his
incumbency as Regional Director, more particularly the following malfeasance, misfeasance and
nonfeasance, to wit:
A. Issuance of Letters of Authority (LA's) to investigate taxpayers
despite the ban on investigations as ordered in Revenue
Memorandum Order No. 31-93. In numerous cases, revenue
officers whose names appeared in the LA's as investigating
officers were unaware that such LA's were issued to them. He
issued LA's to favored revenue examiners such as his Secretary,
Natividad Feliciano;

B. Termination of tax cases without the submission of the required


investigation reports, thus exempting the same from examination
and review;

C. Terminated cases with reports were submitted directly to and


approved by respondent Umali without being reviewed by the
Assistant Division, thus eliminating the check and balance
mechanism designed to guard against abuses or errors;

D. Unlawful issuance of LA's to taxpayers who were thereafter


convinced to avail of the BIR's compromise and abatement
program under RMO's 45093 and 54-93, for which the taxpayers
were made, for a monetary consideration, to pay smaller amounts
in lieu of being investigated;

E. Despite the devolution of the authority to issue LA's from


Regional Directors to the Revenue District Officers under RMO
26-94, dated April 14, 1994, respondent Umali continued to issue
antedated LA's in absolute defiance of the aforesaid issuance,
using old LA's requisitioned by him when still Regional Director of
San Pablo Region. In one instance, he issued a termination letter
bearing the San Pablo Region letterhead even when he was
already Makati Regional Director; and

F. In his attempt to cover up his tracks and to muddle the real


issue of his violations of the ban in the issuance of LA's and basic
revenue rules and regulations, respondent enlisted the support of
other regional directors for the purposes of questioning particularly
the devolution/centralization of the functions of the Bureau.1

On August 2, 1994, upon receipt of the said confidential memorandum, former President Ramos
authorized the issuance of an Order for the preventive suspension of Umali and immediately
referred the Complaint against the latter to the Presidential Commission on Anti-Graft and
Corruption (PCAGC), for investigation.

Petitioner was duly informed of the charges against him. In its Order, dated August 9, 1994, the
PCAGC directed him to send in his answer, copies of his Statement of Assets, and Liabilities for
the past three years (3), and Personal Data Sheet. Initial hearing was set on August 25, 1994,
at 2:00 p.m., at the PCAGC Office. On August 23, the petitioner filed his required Answer.

On August 25, 1994, petitioner appeared with his lawyer. Atty. Bienvenido Santiago before the
PCAGC. Counsel for the Commissioner of Internal Revenue submitted a Progress Report,
dated August 24, 1994, on the audit conducted on the petitioner. As prayed for, petitioner and
his lawyer were granted five (5) days to file a supplemental answer.

The hearing was reset to August 30, 1994, during which the parties were given a chance to ask
clarificatory questions. Petitioner and his counsel did not ask any question on the genuineness
and authenticity of the documents attached as annexes to the Complaint. Thereafter, the parties
agreed to submit the case for resolution upon the presentation of their respective memoranda.

Petitioner filed his Memorandum on September 6, 1994 while the BIR sent in its Memorandum
on the following day.
After evaluating the evidence on record, the PCAGC issued its Resolution of September 23,
1994, finding a prima facie evidence to support six (6) of the twelve (12) charges against
petitioner, to wit:

1. On the First Charge — Respondent issued 176 Letters of


Authority in gross disobedience to and in violation of RMOs 31-93
and 27-94.

xxx xxx xxx

3. On the Third Charge — There is sufficient evidence of a prima


facie case of falsification of official documents as defined in Art.
171, par. 2 and 4 of the Revised Penal Code, against the
respondent for the issuance of 9 LA's and who did not investigate
the tax cases, each LA being a separate offense.

xxx xxx xxx

7. On the Seventh Charge — There is sufficient evidence of


a prima facie case of falsification of official documents against
respondent for antedating the four LA's cited in the charge, each
LA constituting a separate offense, under Art. 171 (4) of the
Revised Penal Code.

8. On the Ninth (sic) Charge — There is sufficient evidence to


support a prima facie case of falsification of an official document
under Art. 171 (4) of the Revised Penal Code against the
respondent in the tax case of Richfield International Corp., Inc. for
indicating a false date on the letter of termination he issued to the
company. There is, however, insufficient evidence against
respondent in the other tax case of Jayson Auto Supply Co.

9. On the Ninth Charge — There is sufficient evidence of a prima


facie case of falsification of official documents in each of the two
cases cited in his charge, under the provisions of Art. 171 (4) of
the Revised Penal Code, as the dates of Termination Letters were
false.

10. On the Tenth Charge — Respondent, by his own admission,


violated RMO 36-87 requiring turn over of all properties and forms
to his successor upon transfer as head of office, and RMO 27-94
requiring the surrender of all unused old forms of Letters of
Authority. The Commission noted the defiant attitude of
respondent, as expressed in his admission, towards valid and
legal orders of the BIR, and his propensity to defy and ignore such
orders and regulations. 2

xxx xxx xxx

On October 6, 1994, acting upon the recommendation of the PCAGC, then President Ramos
issued Administrative Order No. 152 dismissing petitioner from the service, with forfeiture of
retirement and all benefits under the law.

On October 24, 1994, the petitioner moved for reconsideration of his dismissal but the Office of
the President denied the motion for reconsideration on November 28, 1994.

On December 1, 1994, petitioner brought a Petition for Certiorari, Prohibition and Injunction,
docketed as Civil Case No. 94-3079 before the Regional Trial Court of Makati, alleging, among
others:
I. That the petitioner was suspended and dismissed from the
service in violation of his constitutional right to due process of law;
and

II. That the constitutional right of the petitioner to security of tenure


was violated by the respondents.

The case was raffled off to Branch 133 of the Regional Trial Court in Makati, which issued on
December 2, 1994, a Temporary Restraining Order, enjoining the respondents and/or their
representatives from enforcing Administrative Order No. 152, and directing the parties to
observe the status quo until further orders from the said Court.

On December 23, 1994, the said Regional Trial Court dismissed the petition. On January 10,
1995, the petitioner presented a motion for reconsideration, this time, theorizing that the
Presidential Commission on Anti-Graft and Corruption is an unconstitutional office without
jurisdiction to conduct the investigation against him.

Respondents submitted their Opposition/Comment to the Motion for Reconsideration. Then, the
petitioner filed a Motion to Inhibit Judge Inoturan on the ground that the latter was formerly a
Solicitor in the Office of the Solicitor General and could not be expected to decide the case with
utmost impartiality.

The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr. who, on December 13, 1995, handed
down an Amended Decision, granting the petition and practically reversing the original Decision.

Not satisfied with the Amended Decision of Judge Guadiz, Jr., the respondents appealed
therefrom to the Court of Appeals.

On April 8, 1997, the Ninth Division of the Court of Appeals 3 promulgated its decision, reversing
the Amended Decision of the trial court of origin, and dismissing Civil Case No. 94-3079.
Petitioner's motion for reconsideration met the same fate. It was denied on October 28, 1997.

Undaunted, petitioner found his way to this Court via the petition under scrutiny.

In the interim that the administrative and civil cases against the petitioner were pending, the
criminal aspect of such cases was referred to the Office of the Ombudsman for investigation.

On July 25, 1995, after conducting the investigation, Ombudsman Investigators Merba Waga
and Arnulfo Pelagio issued a Resolution finding a probable cause and recommending the
institution in the courts of proper jurisdiction criminal cases for Falsification of Public Documents
(13 counts) and Open Disobedience (2 counts) against the petitioner.

However, acting upon petitioner's motion for reconsideration Special Prosecution Officer II
Lemuel M. De Guzman set aside the said Resolution of July 25, 1995, and in lieu thereof,
dismissed the charges against petitioner, in the Order dated November 5, 1996, which was
approved by Ombudsman Aniano Desierto. Accordingly, all the Informations against the
petitioner previously sent to the Office of the City Prosecutor, were recalled.

On August 10, 1998, Commissioner Beethoven L. Rualo of the Bureau of Internal Revenue sent
a letter to the Solicitor General informing the latter that "the Bureau of Internal Revenue is no
longer interested in pursuing the case against Atty. Osmundo Umali" on the basis of the
comment and recommendation submitted by the Legal Department of the BIR. 4

Petitioner raised the issues:

1. WHETHER ADMINISTRATIVE ORDER NO. 152 VIOLATED


PETITIONER'S RIGHT TO SECURITY OF TENURE;

2. WHETHER PETITIONER WAS DENIED DUE PROCESS IN


THE ISSUANCE OF ADMINISTRATIVE ORDER NO. 152;
3. WHETHER THE PCAGC IS A VALIDLY CONSTITUTED
GOVERNMENT AGENCY AND WHETHER PETITIONER CAN
RAISE THE ISSUE OF ITS CONSTITUTIONALITY BELATEDLY
IN ITS MOTION FOR RECONSIDERATION OF THE TRIAL
COURT'S DECISION; AND

5. WHETHER IN THE LIGHT OF THE OMBUDSMAN


RESOLUTION DISMISSING THE CHARGES AGAINST
PETITIONER, THERE IS STILL BASIS FOR PETITIONER'S
DISMISSAL WITH FORFEITURE OF BENEFITS AS RULED IN
ADMINISTRATIVE ORDER NO. 152.

Petitioner contends that as Regional Director of the Bureau of Internal Revenue he belongs to
the Career Executive Service. Although a Presidential appointee under the direct authority of
the President to discipline, he is a career executive service officer (CESO) with tenurial
protection, who can only be removed for cause. In support of this theory, petitioner cited the
case of Larin vs. Executive Secretary 5 where the Court held:

. . . petitioner is a presidential appointee who belongs to the career service of the


Civil Service. Being a presidential appointee, he comes under the direct
disciplining authority of the President. This is in line with the settled principle that
the "power to remove is inherent in the power to appoint" conferred to the
President by Section 16, Article VII of the Constitution. . . . This power of
removal, however, is not an absolute one which accepts no reservation. It must
be pointed out that petitioner is a career service officer. . . . Specifically, Section
36 of P.D. No. 807, as amended, otherwise known as Civil Service Decree of the
Philippines, is emphatic that career service officers and employees who enjoy
security of tenure may be removed only for any of the causes enumerated in said
law. In other words, the fact that petitioner is a presidential appointee does not
give the appointing authority the license to remove him at will or at his pleasure
for it is an admitted fact that he is likewise a career service officer who under the
law is the recipient of tenurial protection, thus, may only removed for cause and
in accordance with procedural due process.

Petitioner maintains that as a career executive service officer, he can only be removed for
cause and under the Administrative Code of 1987,6 loss of confidence is not one of the legal
causes or grounds for removal. Consequently, his dismissal from office on the ground of loss
confidence violated his right to security of tenure, petitioner theorized.

After a careful study, we are of the irresistible conclusion that the Court of Appeals ruled
correctly on the first three issues. To be sure, petitioner was not denied the right to due process
before the PCAGC. Records show that the petitioner filed his answer and other pleadings with
respect to his alleged violation of internal revenue laws and regulations, and he attended the
hearings before the investigatory body. It is thus decisively clear that his protestation of non-
observance of due process is devoid of any factual or legal basis.

Neither can it be said that there was a violation of what petitioner asserts as his security of
tenure. According to petitioner, as a Regional Director of Bureau of Internal Revenue, he is
CESO eligible entitled to security of tenure. However, petitioner's claim of CESO eligibility is
anemic of evidentiary support. It was incumbent upon him to prove that he is a CESO eligible
but unfortunately, he failed to adduce sufficient evidence on the matter. His failure to do so is
fatal.

As regards the issue of constitutionality of the PCAGC, it was only posed by petitioner in his
motion for reconsideration before the Regional Trial Court of Makati. It was certainly too late to
raise for the first time at such late stage of the proceedings below.

How about the fourth issue, whether in view of the Resolution of the Ombudsman dismissing the
charges against petitioner, there still remains a basis for the latter's dismissal with forfeiture of
benefits, as directed in Administrative Order No. 152?
It is worthy to note that in the case under consideration, the administrative action against the
petitioner was taken prior to the institution of the criminal case. The charges included in
Administrative Order No. 152 were based on the results of investigation conducted by the
PCAGC and not on the criminal charges before the Ombudsman.

In sum, the petition is dismissable on the ground that the issues posited by the petitioner do not
constitute a valid legal basis for overturning the finding and conclusion arrived at by the Court of
Appeals. However, taking into account the antecedent facts and circumstances aforementioned,
the Court, in the exercise of its equity powers, has decided to consider the dismissal of the
charges against petitioner before the Ombudsman, the succinct and unmistakable manifestation
by the Commissioner of the Bureau of Internal Revenue that his office is no longer interested in
pursuing the case, and the position taken by the Solicitor General,7 that there is no more basis
for Administrative Order No. 152, as effective and substantive supervening events that cannot
be overlooked.

WHEREFORE, in light of the foregoing effective and substantive supervening events, and in the
exercise of its equity powers, the Court hereby GRANTS the petition. Accordingly,
Administrative Order No. 152 is considered LIFTED, and petitioner can be allowed to retire with
full benefits. No pronouncement as to costs.

SO ORDERED.

Resolution March 18, 1954

In the Matter of the Petitions for Admission to the Bar of Unsuccessful Candidates of
1946 to 1953;
ALBINO CUNANAN, ET AL., petitioners.

Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile Inton for petitioners.
Office of the Solicitor General Juan R. Liwag for respondent.

DIOKNO, J.:

In recent years few controversial issues have aroused so much public interest and concern as
Republic Act No. 972, popularly known as the "Bar Flunkers' Act of 1953." Under the Rules of
Court governing admission to the bar, "in order that a candidate (for admission to the Bar) may
be deemed to have passed his examinations successfully, he must have obtained a general
average of 75 per cent in all subjects, without falling below 50 per cent in any subject." (Rule
127, sec. 14, Rules of Court). Nevertheless, considering the varying difficulties of the different
bar examinations held since 1946 and the varying degree of strictness with which the
examination papers were graded, this court passed and admitted to the bar those candidates
who had obtained an average of only 72 per cent in 1946, 69 per cent in 1947, 70 per cent in
1948, and 74 per cent in 1949. In 1950 to 1953, the 74 per cent was raised to 75 per cent.

Believing themselves as fully qualified to practice law as those reconsidered and passed by this
court, and feeling conscious of having been discriminated against (See Explanatory Note to
R.A. No. 972), unsuccessful candidates who obtained averages of a few percentage lower than
those admitted to the Bar agitated in Congress for, and secured in 1951 the passage of Senate
Bill No. 12 which, among others, reduced the passing general average in bar examinations to
70 per cent effective since 1946. The President requested the views of this court on the bill.
Complying with that request, seven members of the court subscribed to and submitted written
comments adverse thereto, and shortly thereafter the President vetoed it. Congress did not
override the veto. Instead, it approved Senate Bill No. 371, embodying substantially the
provisions of the vetoed bill. Although the members of this court reiterated their unfavorable
views on the matter, the President allowed the bill to become a law on June 21, 1953 without his
signature. The law, which incidentally was enacted in an election year, reads in full as follows:

REPUBLIC ACT NO. 972


AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM
NINETEEN HUNDRED AND FORTY-SIX UP TO AND INCLUDING NINETEEN
HUNDRED AND FIFTY-FIVE.

Be it enacted by the Senate and House of Representatives of the Philippines in


Congress assembled:

SECTION 1. Notwithstanding the provisions of section fourteen, Rule numbered one


hundred twenty-seven of the Rules of Court, any bar candidate who obtained a general
average of seventy per cent in any bar examinations after July fourth, nineteen hundred
and forty-six up to the August nineteen hundred and fifty-one bar examinations; seventy-
one per cent in the nineteen hundred and fifty-two bar examinations; seventy-two per
cent in the in the nineteen hundred and fifty-three bar examinations; seventy-three per
cent in the nineteen hundred and fifty-four bar examinations; seventy-four per cent in the
nineteen hundred and fifty-five bar examinations without a candidate obtaining a grade
below fifty per cent in any subject, shall be allowed to take and subscribe the
corresponding oath of office as member of the Philippine Bar: Provided, however, That
for the purpose of this Act, any exact one-half or more of a fraction, shall be considered
as one and included as part of the next whole number.

SEC. 2. Any bar candidate who obtained a grade of seventy-five per cent in any subject
in any bar examination after July fourth, nineteen hundred and forty-six shall be deemed
to have passed in such subject or subjects and such grade or grades shall be included in
computing the passing general average that said candidate may obtain in any
subsequent examinations that he may take.

SEC. 3. This Act shall take effect upon its approval.

Enacted on June 21, 1953, without the Executive approval.

After its approval, many of the unsuccessful postwar candidates filed petitions for admission to
the bar invoking its provisions, while others whose motions for the revision of their examination
papers were still pending also invoked the aforesaid law as an additional ground for admission.
There are also others who have sought simply the reconsideration of their grades without,
however, invoking the law in question. To avoid injustice to individual petitioners, the court first
reviewed the motions for reconsideration, irrespective of whether or not they had invoked
Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If
they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if
declared valid, should be applied equally to all concerned whether they have filed petitions or
not. A complete list of the petitioners, properly classified, affected by this decision, as well as a
more detailed account of the history of Republic Act No. 972, are appended to this decision as
Annexes I and II. And to realize more readily the effects of the law, the following statistical data
are set forth:

(1) The unsuccessful bar candidates who are to be benefited by section 1 of Republic Act No.
972 total 1,168, classified as follows:

1946 (August) 206 121 18


1946 (November) 477 228 43
1947 749 340 0
1948 899 409 11
1949 1,218 532 164
1950 1,316 893 26
1951 2,068 879 196
1952 2,738 1,033 426
1953 2,555
968 284
TOTAL 12,230 5,421 1,168
Of the total 1,168 candidates, 92 have passed in subsequent examination, and only 586 have
filed either motions for admission to the bar pursuant to said Republic Act, or mere motions for
reconsideration.

(2) In addition, some other 10 unsuccessful candidates are to be benefited by section 2 of said
Republic Act. These candidates had each taken from two to five different examinations, but
failed to obtain a passing average in any of them. Consolidating, however, their highest grades
in different subjects in previous examinations, with their latest marks, they would be sufficient to
reach the passing average as provided for by Republic Act No. 972.

(3) The total number of candidates to be benefited by this Republic Acts is therefore 1,094, of
which only 604 have filed petitions. Of these 604 petitioners, 33 who failed in 1946 to 1951 had
individually presented motions for reconsideration which were denied, while 125 unsuccessful
candidates of 1952, and 56 of 1953, had presented similar motions, which are still pending
because they could be favorably affected by Republic Act No. 972, — although as has been
already stated, this tribunal finds no sufficient reasons to reconsider their grades

UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972

Having been called upon to enforce a law of far-reaching effects on the practice of the legal
profession and the administration of justice, and because some doubts have been expressed as
to its validity, the court set the hearing of the afore-mentioned petitions for admission on the sole
question of whether or not Republic Act No. 972 is constitutional.

We have been enlightened in the study of this question by the brilliant assistance of the
members of the bar who have amply argued, orally an in writing, on the various aspects in
which the question may be gleaned. The valuable studies of Messrs. E. Voltaire Garcia, Vicente
J. Francisco, Vicente Pelaez and Buenaventura Evangelista, in favor of the validity of the law,
and of the U.P. Women's Lawyers' Circle, the Solicitor General, Messrs. Arturo A. Alafriz,
Enrique M. Fernando, Vicente Abad Santos, Carlos A. Barrios, Vicente del Rosario, Juan de
Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta against it, aside from the memoranda of
counsel for petitioners, Messrs. Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio
Enrile Inton, and of petitioners Cabrera, Macasaet and Galema themselves, has greatly helped
us in this task. The legal researchers of the court have exhausted almost all Philippine and
American jurisprudence on the matter. The question has been the object of intense deliberation
for a long time by the Tribunal, and finally, after the voting, the preparation of the majority
opinion was assigned to a new member in order to place it as humanly as possible above all
suspicion of prejudice or partiality.

Republic Act No. 972 has for its object, according to its author, to admit to the Bar, those
candidates who suffered from insufficiency of reading materials and inadequate preparation.
Quoting a portion of the Explanatory Note of the proposed bill, its author Honorable Senator
Pablo Angeles David stated:

The reason for relaxing the standard 75 per cent passing grade is the tremendous
handicap which students during the years immediately after the Japanese occupation
has to overcome such as the insufficiency of reading materials and the inadequacy of
the preparation of students who took up law soon after the liberation.

Of the 9,675 candidates who took the examinations from 1946 to 1952, 5,236 passed. And now
it is claimed that in addition 604 candidates be admitted (which in reality total 1,094), because
they suffered from "insufficiency of reading materials" and of "inadequacy of preparation."

By its declared objective, the law is contrary to public interest because it qualifies 1,094 law
graduates who confessedly had inadequate preparation for the practice of the profession, as
was exactly found by this Tribunal in the aforesaid examinations. The public interest demands of
legal profession adequate preparation and efficiency, precisely more so as legal problem
evolved by the times become more difficult. An adequate legal preparation is one of the vital
requisites for the practice of law that should be developed constantly and maintained firmly. To
the legal profession is entrusted the protection of property, life, honor and civil liberties. To
approve officially of those inadequately prepared individuals to dedicate themselves to such a
delicate mission is to create a serious social danger. Moreover, the statement that there was an
insufficiency of legal reading materials is grossly exaggerated. There were abundant materials.
Decisions of this court alone in mimeographed copies were made available to the public during
those years and private enterprises had also published them in monthly magazines and annual
digests. The Official Gazette had been published continuously. Books and magazines published
abroad have entered without restriction since 1945. Many law books, some even with revised
and enlarged editions have been printed locally during those periods. A new set of Philippine
Reports began to be published since 1946, which continued to be supplemented by the addition
of new volumes. Those are facts of public knowledge.

Notwithstanding all these, if the law in question is valid, it has to be enforced.

The question is not new in its fundamental aspect or from the point of view of applicable
principles, but the resolution of the question would have been easier had an identical case of
similar background been picked out from the jurisprudence we daily consult. Is there any
precedent in the long Anglo-Saxon legal history, from which has been directly derived the
judicial system established here with its lofty ideals by the Congress of the United States, and
which we have preserved and attempted to improve, or in our contemporaneous judicial history
of more than half a century? From the citations of those defending the law, we can not find a
case in which the validity of a similar law had been sustained, while those against its validity
cite, among others, the cases of Day (In re Day, 54 NE 646), of Cannon (State vs. Cannon, 240
NW, 441), the opinion of the Supreme Court of Massachusetts in 1932 (81 ALR 1061), of
Guariña (24 Phil., 37), aside from the opinion of the President which is expressed in his vote of
the original bill and which the postponement of the contested law respects.

This law has no precedent in its favor. When similar laws in other countries had been
promulgated, the judiciary immediately declared them without force or effect. It is not within our
power to offer a precedent to uphold the disputed law.

To be exact, we ought to state here that we have examined carefully the case that has been
cited to us as a favorable precedent of the law — that of Cooper (22 NY, 81), where the Court of
Appeals of New York revoked the decision of the Supreme court of that State, denying the
petition of Cooper to be admitted to the practice of law under the provisions of a statute
concerning the school of law of Columbia College promulgated on April 7, 1860, which was
declared by the Court of Appeals to be consistent with the Constitution of the state of New York.

It appears that the Constitution of New York at that time provided:

They (i.e., the judges) shall not hold any other office of public trust. All votes for either of
them for any elective office except that of the Court of Appeals, given by the Legislature
or the people, shall be void. They shall not exercise any power of appointment to public
office. Any male citizen of the age of twenty-one years, of good moral character, and
who possesses the requisite qualifications of learning and ability, shall be entitled to
admission to practice in all the courts of this State. (p. 93).

According to the Court of Appeals, the object of the constitutional precept is as follows:

Attorneys, solicitors, etc., were public officers; the power of appointing them had
previously rested with the judges, and this was the principal appointing power which they
possessed. The convention was evidently dissatisfied with the manner in which this
power had been exercised, and with the restrictions which the judges had imposed upon
admission to practice before them. The prohibitory clause in the section quoted was
aimed directly at this power, and the insertion of the provision" expecting the admission
of attorneys, in this particular section of the Constitution, evidently arose from its
connection with the object of this prohibitory clause. There is nothing indicative of
confidence in the courts or of a disposition to preserve any portion of their power over
this subject, unless the Supreme Court is right in the inference it draws from the use of
the word `admission' in the action referred to. It is urged that the admission spoken of
must be by the court; that to admit means to grant leave, and that the power of granting
necessarily implies the power of refusing, and of course the right of determining whether
the applicant possesses the requisite qualifications to entitle him to admission.
These positions may all be conceded, without affecting the validity of the act. (p. 93.)

Now, with respect to the law of April 7, 1860, the decision seems to indicate that it provided that
the possession of a diploma of the school of law of Columbia College conferring the degree of
Bachelor of Laws was evidence of the legal qualifications that the constitution required of
applicants for admission to the Bar. The decision does not however quote the text of the law,
which we cannot find in any public or accessible private library in the country.

In the case of Cooper, supra, to make the law consistent with the Constitution of New York, the
Court of Appeals said of the object of the law:

The motive for passing the act in question is apparent. Columbia College being an
institution of established reputation, and having a law department under the charge of
able professors, the students in which department were not only subjected to a formal
examination by the law committee of the institution, but to a certain definite period of
study before being entitled to a diploma of being graduates, the Legislature evidently,
and no doubt justly, considered this examination, together with the preliminary study
required by the act, as fully equivalent as a test of legal requirements, to the ordinary
examination by the court; and as rendering the latter examination, to which no definite
period of preliminary study was essential, unnecessary and burdensome.

The act was obviously passed with reference to the learning and ability of the applicant,
and for the mere purpose of substituting the examination by the law committee of the
college for that of the court. It could have had no other object, and hence no greater
scope should be given to its provisions. We cannot suppose that the Legislature
designed entirely to dispense with the plain and explicit requirements of the Constitution;
and the act contains nothing whatever to indicate an intention that the authorities of the
college should inquire as to the age, citizenship, etc., of the students before granting a
diploma. The only rational interpretation of which the act admits is, that it was intended
to make the college diploma competent evidence as to the legal attainments of the
applicant, and nothing else. To this extent alone it operates as a modification of pre-
existing statutes, and it is to be read in connection with these statutes and with the
Constitution itself in order to determine the present condition of the law on the subject.
(p.89)

xxx xxx xxx

The Legislature has not taken from the court its jurisdiction over the question of
admission, that has simply prescribed what shall be competent evidence in certain cases
upon that question. (p.93)

From the foregoing, the complete inapplicability of the case of Cooper with that at bar may be
clearly seen. Please note only the following distinctions:

(1) The law of New York does not require that any candidate of Columbia College who failed in
the bar examinations be admitted to the practice of law.

(2) The law of New York according to the very decision of Cooper, has not taken from the court
its jurisdiction over the question of admission of attorney at law; in effect, it does not decree the
admission of any lawyer.

(3) The Constitution of New York at that time and that of the Philippines are entirely different on
the matter of admission of the practice of law.

In the judicial system from which ours has been evolved, the admission, suspension,
disbarment and reinstatement of attorneys at law in the practice of the profession and their
supervision have been disputably a judicial function and responsibility. Because of this attribute,
its continuous and zealous possession and exercise by the judicial power have been
demonstrated during more than six centuries, which certainly "constitutes the most solid of
titles." Even considering the power granted to Congress by our Constitution to repeal, alter
supplement the rules promulgated by this Court regarding the admission to the practice of law,
to our judgment and proposition that the admission, suspension, disbarment and reinstatement
of the attorneys at law is a legislative function, properly belonging to Congress, is unacceptable.
The function requires (1) previously established rules and principles, (2) concrete facts, whether
past or present, affecting determinate individuals. and (3) decision as to whether these facts are
governed by the rules and principles; in effect, a judicial function of the highest degree. And it
becomes more undisputably judicial, and not legislative, if previous judicial resolutions on the
petitions of these same individuals are attempted to be revoked or modified.

We have said that in the judicial system from which ours has been derived, the act of admitting,
suspending, disbarring and reinstating attorneys at law in the practice of the profession is
concededly judicial. A comprehensive and conscientious study of this matter had been
undertaken in the case of State vs. Cannon (1932) 240 NW 441, in which the validity of a
legislative enactment providing that Cannon be permitted to practice before the courts was
discussed. From the text of this decision we quote the following paragraphs:

This statute presents an assertion of legislative power without parallel in the history of
the English speaking people so far as we have been able to ascertain. There has been
much uncertainty as to the extent of the power of the Legislature to prescribe the
ultimate qualifications of attorney at law has been expressly committed to the courts, and
the act of admission has always been regarded as a judicial function. This act purports
to constitute Mr. Cannon an attorney at law, and in this respect it stands alone as an
assertion of legislative power. (p. 444)

Under the Constitution all legislative power is vested in a Senate and Assembly. (Section
1, art. 4.) In so far as the prescribing of qualifications for admission to the bar are
legislative in character, the Legislature is acting within its constitutional authority when it
sets up and prescribes such qualifications. (p. 444)

But when the Legislature has prescribed those qualifications which in its judgment will
serve the purpose of legitimate legislative solicitude, is the power of the court to impose
other and further exactions and qualifications foreclosed or exhausted? (p. 444)

Under our Constitution the judicial and legislative departments are distinct, independent,
and coordinate branches of the government. Neither branch enjoys all the powers of
sovereignty which properly belongs to its department. Neither department should so act
as to embarrass the other in the discharge of its respective functions. That was the
scheme and thought of the people setting upon the form of government under which we
exist. State vs. Hastings, 10 Wis., 525; Attorney General ex rel. Bashford vs. Barstow, 4
Wis., 567. (p. 445)

The judicial department of government is responsible for the plane upon which the
administration of justice is maintained. Its responsibility in this respect is exclusive. By
committing a portion of the powers of sovereignty to the judicial department of our state
government, under 42a scheme which it was supposed rendered it immune from
embarrassment or interference by any other department of government, the courts
cannot escape responsibility fir the manner in which the powers of sovereignty thus
committed to the judicial department are exercised. (p. 445)

The relation at the bar to the courts is a peculiar and intimate relationship. The bar is an
attache of the courts. The quality of justice dispense by the courts depends in no small
degree upon the integrity of its bar. An unfaithful bar may easily bring scandal and
reproach to the administration of justice and bring the courts themselves into disrepute.
(p.445)

Through all time courts have exercised a direct and severe supervision over their bars,
at least in the English speaking countries. (p. 445)

After explaining the history of the case, the Court ends thus:

Our conclusion may be epitomized as follows: For more than six centuries prior to the
adoption of our Constitution, the courts of England, concededly subordinate to
Parliament since the Revolution of 1688, had exercise the right of determining who
should be admitted to the practice of law, which, as was said in Matter of the Sergeant's
at Law, 6 Bingham's New Cases 235, "constitutes the most solid of all titles." If the
courts and judicial power be regarded as an entity, the power to determine who should
be admitted to practice law is a constituent element of that entity. It may be difficult to
isolate that element and say with assurance that it is either a part of the inherent power
of the court, or an essential element of the judicial power exercised by the court, but that
it is a power belonging to the judicial entity and made of not only a sovereign institution,
but made of it a separate independent, and coordinate branch of the government. They
took this institution along with the power traditionally exercise to determine who should
constitute its attorney at law. There is no express provision in the Constitution which
indicates an intent that this traditional power of the judicial department should in any
manner be subject to legislative control. Perhaps the dominant thought of the framers of
our constitution was to make the three great departments of government separate and
independent of one another. The idea that the Legislature might embarrass the judicial
department by prescribing inadequate qualifications for attorneys at law is inconsistent
with the dominant purpose of making the judicial independent of the legislative
department, and such a purpose should not be inferred in the absence of express
constitutional provisions. While the legislature may legislate with respect to the
qualifications of attorneys, but is incidental merely to its general and unquestioned power
to protect the public interest. When it does legislate a fixing a standard of qualifications
required of attorneys at law in order that public interests may be protected, such
qualifications do not constitute only a minimum standard and limit the class from which
the court must make its selection. Such legislative qualifications do not constitute the
ultimate qualifications beyond which the court cannot go in fixing additional qualifications
deemed necessary by the course of the proper administration of judicial functions. There
is no legislative power to compel courts to admit to their bars persons deemed by them
unfit to exercise the prerogatives of an attorney at law. (p. 450)

Furthermore, it is an unlawful attempt to exercise the power of appointment. It is quite


likely true that the legislature may exercise the power of appointment when it is in
pursuance of a legislative functions. However, the authorities are well-nigh unanimous
that the power to admit attorneys to the practice of law is a judicial function. In all of the
states, except New Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our
investigation reveals, attorneys receive their formal license to practice law by their
admission as members of the bar of the court so admitting. Cor. Jur. 572; Ex
parte Secombre, 19 How. 9,15 L. Ed. 565; Ex parteGarland, 4 Wall. 333, 18 L. Ed. 366;
Randall vs. Brigham, 7 Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843, 115 P.
646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W. 1021, 130 Am. St. Rep.
1030, 20 Ann. Cas. 413.

The power of admitting an attorney to practice having been perpetually exercised by the
courts, it having been so generally held that the act of the court in admitting an attorney
to practice is the judgment of the court, and an attempt as this on the part of the
Legislature to confer such right upon any one being most exceedingly uncommon, it
seems clear that the licensing of an attorney is and always has been a purely judicial
function, no matter where the power to determine the qualifications may reside. (p. 451)

In that same year of 1932, the Supreme Court of Massachusetts, in answering a consultation of
the Senate of that State, 180 NE 725, said:

It is indispensible to the administration of justice and to interpretation of the laws that


there be members of the bar of sufficient ability, adequate learning and sound moral
character. This arises from the need of enlightened assistance to the honest, and
restraining authority over the knavish, litigant. It is highly important, also that the public
be protected from incompetent and vicious practitioners, whose opportunity for doing
mischief is wide. It was said by Cardoz, C.L., in People ex rel. Karlin vs. Culkin, 242 N.Y.
456, 470, 471, 162 N.E. 487, 489, 60 A.L.R. 851: "Membership in the bar is a privilege
burden with conditions." One is admitted to the bar "for something more than private
gain." He becomes an "officer of the court", and ,like the court itself, an instrument or
agency to advance the end of justice. His cooperation with the court is due "whenever
justice would be imperiled if cooperation was withheld." Without such attorneys at law
the judicial department of government would be hampered in the performance of its
duties. That has been the history of attorneys under the common law, both in this
country and England. Admission to practice as an attorney at law is almost without
exception conceded to be a judicial function. Petition to that end is filed in courts, as are
other proceedings invoking judicial action. Admission to the bar is accomplish and made
open and notorious by a decision of the court entered upon its records. The
establishment by the Constitution of the judicial department conferred authority
necessary to the exercise of its powers as a coordinate department of government. It is
an inherent power of such a department of government ultimately to determine the
qualifications of those to be admitted to practice in its courts, for assisting in its work,
and to protect itself in this respect from the unfit, those lacking in sufficient learning, and
those not possessing good moral character. Chief Justice Taney stated succinctly and
with finality in Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, "It has been well settled,
by the rules and practice of common-law courts, that it rests exclusively with the court to
determine who is qualified to become one of its officers, as an attorney and counselor,
and for what cause he ought to be removed." (p.727)

In the case of Day and others who collectively filed a petition to secure license to practice the
legal profession by virtue of a law of state (In re Day, 54 NE 646), the court said in part:

In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the court, holding the test
oath for attorneys to be unconstitutional, explained the nature of the attorney's office as
follows: "They are officers of the court, admitted as such by its order, upon evidence of
their possessing sufficient legal learning and fair private character. It has always been
the general practice in this country to obtain this evidence by an examination of the
parties. In this court the fact of the admission of such officers in the highest court of the
states to which they, respectively, belong for, three years preceding their application, is
regarded as sufficient evidence of the possession of the requisite legal learning, and the
statement of counsel moving their admission sufficient evidence that their private and
professional character is fair. The order of admission is the judgment of the court that the
parties possess the requisite qualifications as attorneys and counselors, and are entitled
to appear as such and conduct causes therein. From its entry the parties become
officers of the court, and are responsible to it for professional misconduct. They hold
their office during good behavior, and can only be deprived of it for misconduct
ascertained and declared by the judgment of the court after opportunity to be heard has
been afforded. Ex parte Hoyfron, admission or their exclusion is not the exercise of a
mere ministerial power. It is the exercise of judicial power, and has been so held in
numerous cases. It was so held by the court of appeals of New York in the matter of the
application of Cooper for admission. Re Cooper 22 N. Y. 81. "Attorneys and
Counselors", said that court, "are not only officers of the court, but officers whose duties
relate almost exclusively to proceedings of a judicial nature; and hence their
appointment may, with propriety, be entrusted to the court, and the latter, in performing
his duty, may very justly considered as engaged in the exercise of their appropriate
judicial functions." (pp. 650-651).

We quote from other cases, the following pertinent portions:

Admission to practice of law is almost without exception conceded everywhere to be the


exercise of a judicial function, and this opinion need not be burdened with citations in
this point. Admission to practice have also been held to be the exercise of one of the
inherent powers of the court. — Re Bruen, 102 Wash. 472, 172 Pac. 906.

Admission to the practice of law is the exercise of a judicial function, and is an inherent
power of the court. — A.C. Brydonjack, vs. State Bar of California, 281 Pac. 1018; See
Annotation on Power of Legislature respecting admission to bar, 65, A.L. R. 1512.

On this matter there is certainly a clear distinction between the functions of the judicial and
legislative departments of the government.

The distinction between the functions of the legislative and the judicial departments is
that it is the province of the legislature to establish rules that shall regulate and govern in
matters of transactions occurring subsequent to the legislative action, while the judiciary
determines rights and obligations with reference to transactions that are past or
conditions that exist at the time of the exercise of judicial power, and the distinction is a
vital one and not subject to alteration or change either by legislative action or by judicial
decree.

The judiciary cannot consent that its province shall be invaded by either of the other
departments of the government. — 16 C.J.S., Constitutional Law, p. 229.

If the legislature cannot thus indirectly control the action of the courts by requiring of
them construction of the law according to its own views, it is very plain it cannot do so
directly, by settling aside their judgments, compelling them to grant new trials, ordering
the discharge of offenders, or directing what particular steps shall be taken in the
progress of a judicial inquiry. — Cooley's Constitutional Limitations, 192.

In decreeing the bar candidates who obtained in the bar examinations of 1946 to 1952, a
general average of 70 per cent without falling below 50 per cent in any subject, be admitted in
mass to the practice of law, the disputed law is not a legislation; it is a judgment — a judgment
revoking those promulgated by this Court during the aforecited year affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for
justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive
department, that may be so. Any attempt on the part of any of these departments would be a
clear usurpation of its functions, as is the case with the law in question.

That the Constitution has conferred on Congress the power to repeal, alter or supplement the
rule promulgated by this Tribunal, concerning the admission to the practice of law, is no valid
argument. Section 13, article VIII of the Constitution provides:

Section 13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice, and procedure in all courts, and the admission to the practice of law.
Said rules shall be uniform for all courts of the same grade and shall not diminish,
increase or modify substantive rights. The existing laws on pleading, practice and
procedure are hereby repealed as statutes, and are declared Rules of Court, subject to
the power of the Supreme Court to alter and modify the same. The Congress shall have
the power to repeal, alter, or supplement the rules concerning pleading, practice, and
procedure, and the admission to the practice of law in the Philippines. — Constitution of
the Philippines, Art. VIII, sec. 13.

It will be noted that the Constitution has not conferred on Congress and this Tribunal equal
responsibilities concerning the admission to the practice of law. the primary power and
responsibility which the Constitution recognizes continue to reside in this Court. Had Congress
found that this Court has not promulgated any rule on the matter, it would have nothing over
which to exercise the power granted to it. Congress may repeal, alter and supplement the rules
promulgated by this Court, but the authority and responsibility over the admission, suspension,
disbarment and reinstatement of attorneys at law and their supervision remain vested in the
Supreme Court. The power to repeal, alter and supplement the rules does not signify nor permit
that Congress substitute or take the place of this Tribunal in the exercise of its primary power on
the matter. The Constitution does not say nor mean that Congress may admit, suspend, disbar
or reinstate directly attorneys at law, or a determinate group of individuals to the practice of law.
Its power is limited to repeal, modify or supplement the existing rules on the matter, if according
to its judgment the need for a better service of the legal profession requires it. But this power
does not relieve this Court of its responsibility to admit, suspend, disbar and reinstate attorneys
at law and supervise the practice of the legal profession.

Being coordinate and independent branches, the power to promulgate and enforce rules for the
admission to the practice of law and the concurrent power to repeal, alter and supplement them
may and should be exercised with the respect that each owes to the other, giving careful
consideration to the responsibility which the nature of each department requires. These powers
have existed together for centuries without diminution on each part; the harmonious delimitation
being found in that the legislature may and should examine if the existing rules on the admission
to the Bar respond to the demands which public interest requires of a Bar endowed with high
virtues, culture, training and responsibility. The legislature may, by means of appeal,
amendment or supplemental rules, fill up any deficiency that it may find, and the judicial power,
which has the inherent responsibility for a good and efficient administration of justice and the
supervision of the practice of the legal profession, should consider these reforms as the
minimum standards for the elevation of the profession, and see to it that with these reforms the
lofty objective that is desired in the exercise of its traditional duty of admitting, suspending,
disbarring and reinstating attorneys at law is realized. They are powers which, exercise within
their proper constitutional limits, are not repugnant, but rather complementary to each other in
attaining the establishment of a Bar that would respond to the increasing and exacting
necessities of the administration of justice.

The case of Guariña (1913) 24 Phil., 37, illustrates our criterion. Guariña took examination and
failed by a few points to obtain the general average. A recently enacted law provided that one
who had been appointed to the position of Fiscal may be admitted to the practice of law without
a previous examination. The Government appointed Guariña and he discharged the duties of
Fiscal in a remote province. This tribunal refused to give his license without previous
examinations. The court said:

Relying upon the provisions of section 2 of Act No. 1597, the applicant in this case seeks
admission to the bar, without taking the prescribed examination, on the ground that he
holds the office of provincial fiscal for the Province of Batanes.

Section 2 of Act No. 1597, enacted February 28, 1907, is as follows:

Sec. 2. Paragraph one of section thirteen of Act Numbered One Hundred and ninety,
entitled "An Act providing a Code of Procedure in Civil Actions and Special Proceedings
in the Philippine Islands," is hereby amended to read as follows:

1. Those who have been duly licensed under the laws and orders of the Islands under
the sovereignty of Spain or of the United States and are in good and regular standing as
members of the bar of the Philippine Islands at the time of the adoption of this
code; Provided, That any person who, prior to the passage of this act, or at any time
thereafter, shall have held, under the authority of the United States, the position of
justice of the Supreme Court, judge of the Court of First Instance, or judge or associate
judge of the Court of Land Registration, of the Philippine Islands, or the position of
Attorney General, Solicitor General, Assistant Attorney General, assistant attorney in the
office of the Attorney General, prosecuting attorney for the City of Manila, city attorney of
Manila, assistant city attorney of Manila, provincial fiscal, attorney for the Moro Province,
or assistant attorney for the Moro Province, may be licensed to practice law in the courts
of the Philippine Islands without an examination, upon motion before the Supreme Court
and establishing such fact to the satisfaction of said court.

The records of this court disclose that on a former occasion this appellant took, and
failed to pass the prescribed examination. The report of the examining board, dated
March 23, 1907, shows that he received an average of only 71 per cent in the various
branches of legal learning upon which he was examined, thus falling four points short of
the required percentage of 75. We would be delinquent in the performance of our duty to
the public and to the bar, if, in the face of this affirmative indication of the deficiency of
the applicant in the required qualifications of learning in the law at the time when he
presented his former application for admission to the bar, we should grant him license to
practice law in the courts of these Islands, without first satisfying ourselves that despite
his failure to pass the examination on that occasion, he now "possesses the necessary
qualifications of learning and ability."

But it is contented that under the provisions of the above-cited statute the applicant is
entitled as of right to be admitted to the bar without taking the prescribed examination
"upon motion before the Supreme Court" accompanied by satisfactory proof that he has
held and now holds the office of provincial fiscal of the Province of Batanes. It is urged
that having in mind the object which the legislator apparently sought to attain in enacting
the above-cited amendment to the earlier statute, and in view of the context generally
and especially of the fact that the amendment was inserted as a proviso in that section
of the original Act which specifically provides for the admission of certain candidates
without examination. It is contented that this mandatory construction is imperatively
required in order to give effect to the apparent intention of the legislator, and to the
candidate's claim de jure to have the power exercised.

And after copying article 9 of Act of July 1, 1902 of the Congress of the United States, articles 2,
16 and 17 of Act No. 136, and articles 13 to 16 of Act 190, the Court continued:

Manifestly, the jurisdiction thus conferred upon this court by the commission and
confirmed to it by the Act of Congress would be limited and restricted, and in a case
such as that under consideration wholly destroyed, by giving the word "may," as used in
the above citation from Act of Congress of July 1, 1902, or of any Act of Congress
prescribing, defining or limiting the power conferred upon the commission is to that
extent invalid and void, as transcending its rightful limits and authority.

Speaking on the application of the law to those who were appointed to the positions
enumerated, and with particular emphasis in the case of Guariña, the Court held:

In the various cases wherein applications for the admission to the bar under the
provisions of this statute have been considered heretofore, we have accepted the fact
that such appointments had been made as satisfactory evidence of the qualifications of
the applicant. But in all of those cases we had reason to believe that the applicants had
been practicing attorneys prior to the date of their appointment.

In the case under consideration, however, it affirmatively appears that the applicant was
not and never had been practicing attorney in this or any other jurisdiction prior to the
date of his appointment as provincial fiscal, and it further affirmatively appears that he
was deficient in the required qualifications at the time when he last applied for admission
to the bar.

In the light of this affirmative proof of his defieciency on that occasion, we do not think
that his appointment to the office of provincial fiscal is in itself satisfactory proof if his
possession of the necessary qualifications of learning and ability. We conclude therefore
that this application for license to practice in the courts of the Philippines, should be
denied.

In view, however, of the fact that when he took the examination he fell only four points
short of the necessary grade to entitle him to a license to practice; and in view also of
the fact that since that time he has held the responsible office of the governor of the
Province of Sorsogon and presumably gave evidence of such marked ability in the
performance of the duties of that office that the Chief Executive, with the consent and
approval of the Philippine Commission, sought to retain him in the Government service
by appointing him to the office of provincial fiscal, we think we would be justified under
the above-cited provisions of Act No. 1597 in waiving in his case the ordinary
examination prescribed by general rule, provided he offers satisfactory evidence of his
proficiency in a special examination which will be given him by a committee of the court
upon his application therefor, without prejudice to his right, if he desires so to do, to
present himself at any of the ordinary examinations prescribed by general rule. — (In
re Guariña, pp. 48-49.)

It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs
exclusively to this Court, and the law passed by Congress on the matter is of permissive
character, or as other authorities say, merely to fix the minimum conditions for the license.

The law in question, like those in the case of Day and Cannon, has been found also to suffer
from the fatal defect of being a class legislation, and that if it has intended to make a
classification, it is arbitrary and unreasonable.

In the case of Day, a law enacted on February 21, 1899 required of the Supreme Court, until
December 31 of that year, to grant license for the practice of law to those students who began
studying before November 4, 1897, and had studied for two years and presented a diploma
issued by a school of law, or to those who had studied in a law office and would pass an
examination, or to those who had studied for three years if they commenced their studies after
the aforementioned date. The Supreme Court declared that this law was unconstitutional being,
among others, a class legislation. The Court said:

This is an application to this court for admission to the bar of this state by virtue of
diplomas from law schools issued to the applicants. The act of the general assembly
passed in 1899, under which the application is made, is entitled "An act to amend
section 1 of an act entitled "An act to revise the law in relation to attorneys and
counselors," approved March 28, 1884, in force July 1, 1874." The amendment, so far as
it appears in the enacting clause, consists in the addition to the section of the following:
"And every application for a license who shall comply with the rules of the supreme court
in regard to admission to the bar in force at the time such applicant commend the study
of law, either in a law or office or a law school or college, shall be granted a license
under this act notwithstanding any subsequent changes in said rules". — In re Day et al,
54 N.Y., p. 646.

. . . After said provision there is a double proviso, one branch of which is that up to
December 31, 1899, this court shall grant a license of admittance to the bar to the holder
of every diploma regularly issued by any law school regularly organized under the laws
of this state, whose regular course of law studies is two years, and requiring an
attendance by the student of at least 36 weeks in each of such years, and showing that
the student began the study of law prior to November 4, 1897, and accompanied with
the usual proofs of good moral character. The other branch of the proviso is that any
student who has studied law for two years in a law office, or part of such time in a law
office, "and part in the aforesaid law school," and whose course of study began prior to
November 4, 1897, shall be admitted upon a satisfactory examination by the examining
board in the branches now required by the rules of this court. If the right to admission
exists at all, it is by virtue of the proviso, which, it is claimed, confers substantial rights
and privileges upon the persons named therein, and establishes rules of legislative
creation for their admission to the bar. (p. 647.)

Considering the proviso, however, as an enactment, it is clearly a special legislation,


prohibited by the constitution, and invalid as such. If the legislature had any right to
admit attorneys to practice in the courts and take part in the administration of justice, and
could prescribe the character of evidence which should be received by the court as
conclusive of the requisite learning and ability of persons to practice law, it could only be
done by a general law, persons or classes of persons. Const. art 4, section 2. The right
to practice law is a privilege, and a license for that purpose makes the holder an officer
of the court, and confers upon him the right to appear for litigants, to argue causes, and
to collect fees therefor, and creates certain exemptions, such as from jury services and
arrest on civil process while attending court. The law conferring such privileges must be
general in its operation. No doubt the legislature, in framing an enactment for that
purpose, may classify persons so long as the law establishing classes in general, and
has some reasonable relation to the end sought. There must be some difference which
furnishes a reasonable basis for different one, having no just relation to the subject of
the legislation. Braceville Coal Co. vs. People, 147 Ill. 66, 35 N.E. 62; Ritchie vs. People,
155 Ill. 98, 40 N.E. 454; Railroad Co. vs. Ellis, 165 U.S. 150, 17 Sup. Ct. 255.

The length of time a physician has practiced, and the skill acquired by experience, may
furnish a basis for classification (Williams vs. People 121 Ill. 48, II N.E. 881); but the
place where such physician has resided and practiced his profession cannot furnish
such basis, and is an arbitrary discrimination, making an enactment based upon it void
(State vs. Pennyeor, 65 N.E. 113, 18 Atl. 878). Here the legislature undertakes to say
what shall serve as a test of fitness for the profession of the law, and plainly, any
classification must have some reference to learning, character, or ability to engage in
such practice. The proviso is limited, first, to a class of persons who began the study of
law prior to November 4, 1897. This class is subdivided into two classes — First, those
presenting diplomas issued by any law school of this state before December 31, 1899;
and, second, those who studied law for the period of two years in a law office, or part of
the time in a law school and part in a law office, who are to be admitted upon
examination in the subjects specified in the present rules of this court, and as to this
latter subdivision there seems to be no limit of time for making application for admission.
As to both classes, the conditions of the rules are dispensed with, and as between the
two different conditions and limits of time are fixed. No course of study is prescribed for
the law school, but a diploma granted upon the completion of any sort of course its
managers may prescribe is made all-sufficient. Can there be anything with relation to the
qualifications or fitness of persons to practice law resting upon the mere date of
November 4, 1897, which will furnish a basis of classification. Plainly not. Those who
began the study of law November 4th could qualify themselves to practice in two years
as well as those who began on the 3rd. The classes named in the proviso need spend
only two years in study, while those who commenced the next day must spend three
years, although they would complete two years before the time limit. The one who
commenced on the 3rd. If possessed of a diploma, is to be admitted without examination
before December 31, 1899, and without any prescribed course of study, while as to the
other the prescribed course must be pursued, and the diploma is utterly useless. Such
classification cannot rest upon any natural reason, or bear any just relation to the subject
sought, and none is suggested. The proviso is for the sole purpose of bestowing
privileges upon certain defined persons. (pp. 647-648.)

In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441, where the legislature
attempted by law to reinstate Cannon to the practice of law, the court also held with regards to
its aspect of being a class legislation:

But the statute is invalid for another reason. If it be granted that the legislature has
power to prescribe ultimately and definitely the qualifications upon which courts must
admit and license those applying as attorneys at law, that power can not be exercised in
the manner here attempted. That power must be exercised through general laws which
will apply to all alike and accord equal opportunity to all. Speaking of the right of the
Legislature to exact qualifications of those desiring to pursue chosen callings, Mr.
Justice Field in the case of Dent. vs. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233,
32 L. Ed. 626, said: "It is undoubtedly the right of every citizen of the United States to
follow any lawful calling, business or profession he may choose, subject only to such
restrictions as are imposed upon all persons of like age, sex, and condition." This right
may in many respects be considered as a distinguishing feature of our republican
institutions. Here all vocations are all open to every one on like conditions. All may be
pursued as sources of livelihood, some requiring years of study and great learning for
their successful prosecution. The interest, or, as it is sometimes termed, the "estate"
acquired in them — that is, the right to continue their prosecution — is often of great
value to the possessors and cannot be arbitrarily taken from them, any more than their
real or personal property can be thus taken. It is fundamental under our system of
government that all similarly situated and possessing equal qualifications shall enjoy
equal opportunities. Even statutes regulating the practice of medicine, requiring
medications to establish the possession on the part of the application of his proper
qualifications before he may be licensed to practice, have been challenged, and courts
have seriously considered whether the exemption from such examinations of those
practicing in the state at the time of the enactment of the law rendered such law
unconstitutional because of infringement upon this general principle. State vs. Thomas
Call, 121 N.C. 643, 28 S.E. 517; see, also, The State ex rel. Winkler vs. Rosenberg, 101
Wis. 172, 76 N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W. 468.

This law singles out Mr. Cannon and assumes to confer upon him the right to practice
law and to constitute him an officer of this Court as a mere matter of legislative grace or
favor. It is not material that he had once established his right to practice law and that one
time he possessed the requisite learning and other qualifications to entitle him to that
right. That fact in no matter affect the power of the Legislature to select from the great
body of the public an individual upon whom it would confer its favors.

A statute of the state of Minnesota (Laws 1929, c. 424) commanded the Supreme Court
to admit to the practice of law without examination, all who had served in the military or
naval forces of the United States during the World War and received a honorable
discharge therefrom and who (were disabled therein or thereby within the purview of the
Act of Congress approved June 7th, 1924, known as "World War Veteran's Act, 1924
and whose disability is rated at least ten per cent thereunder at the time of the passage
of this Act." This Act was held |unconstitutional on the ground that it clearly violated the
quality clauses of the constitution of that state. In re Application of George W.
Humphrey, 178 Minn. 331, 227 N.W. 179.

A good summary of a classification constitutionally acceptable is explained in 12 Am. Jur. 151-


153 as follows:

The general rule is well settled by unanimity of the authorities that a classification to be
valid must rest upon material differences between the person included in it and those
excluded and, furthermore, must be based upon substantial distinctions. As the rule has
sometimes avoided the constitutional prohibition, must be founded upon pertinent and
real differences, as distinguished from irrelevant and artificial ones. Therefore, any law
that is made applicable to one class of citizens only must be based on some substantial
difference between the situation of that class and other individuals to which it does not
apply and must rest on some reason on which it can be defended. In other words, there
must be such a difference between the situation and circumstances of all the members
of the class and the situation and circumstances of all other members of the state in
relation to the subjects of the discriminatory legislation as presents a just and natural
cause for the difference made in their liabilities and burdens and in their rights and
privileges. A law is not general because it operates on all within a clause unless there is
a substantial reason why it is made to operate on that class only, and not generally on
all. (12 Am. Jur. pp. 151-153.)

Pursuant to the law in question, those who, without a grade below 50 per cent in any subject,
have obtained a general average of 69.5 per cent in the bar examinations in 1946 to 1951, 70.5
per cent in 1952, 71.5 per cent in 1953, and those will obtain 72.5 per cent in 1954, and 73.5
per cent in 1955, will be permitted to take and subscribe the corresponding oath of office as
members of the Bar, notwithstanding that the rules require a minimum general average of 75
per cent, which has been invariably followed since 1950. Is there any motive of the nature
indicated by the abovementioned authorities, for this classification ? If there is none, and none
has been given, then the classification is fatally defective.

It was indicated that those who failed in 1944, 1941 or the years before, with the general
average indicated, were not included because the Tribunal has no record of the unsuccessful
candidates of those years. This fact does not justify the unexplained classification of
unsuccessful candidates by years, from 1946-1951, 1952, 1953, 1954, 1955. Neither is the
exclusion of those who failed before said years under the same conditions justified. The fact that
this Court has no record of examinations prior to 1946 does not signify that no one concerned
may prove by some other means his right to an equal consideration.

To defend the disputed law from being declared unconstitutional on account of its retroactivity, it
is argued that it is curative, and that in such form it is constitutional. What does Rep. Act 972
intend to cure ? Only from 1946 to 1949 were there cases in which the Tribunal permitted
admission to the bar of candidates who did not obtain the general average of 75 per cent: in
1946 those who obtained only 72 per cent; in the 1947 and those who had 69 per cent or more;
in 1948, 70 per cent and in 1949, 74 per cent; and in 1950 to 1953, those who obtained 74 per
cent, which was considered by the Court as equivalent to 75 per cent as prescribed by the
Rules, by reason of circumstances deemed to be sufficiently justifiable. These changes in the
passing averages during those years were all that could be objected to or criticized. Now, it is
desired to undo what had been done — cancel the license that was issued to those who did not
obtain the prescribed 75 per cent ? Certainly not. The disputed law clearly does not propose to
do so. Concededly, it approves what has been done by this Tribunal. What Congress lamented
is that the Court did not consider 69.5 per cent obtained by those candidates who failed in 1946
to 1952 as sufficient to qualify them to practice law. Hence, it is the lack of will or defect of
judgment of the Court that is being cured, and to complete the cure of this infirmity, the
effectivity of the disputed law is being extended up to the years 1953, 1954 and 1955,
increasing each year the general average by one per cent, with the order that said candidates
be admitted to the Bar. This purpose, manifest in the said law, is the best proof that what the
law attempts to amend and correct are not the rules promulgated, but the will or judgment of the
Court, by means of simply taking its place. This is doing directly what the Tribunal should have
done during those years according to the judgment of Congress. In other words, the power
exercised was not to repeal, alter or supplement the rules, which continue in force. What was
done was to stop or suspend them. And this power is not included in what the Constitution has
granted to Congress, because it falls within the power to apply the rules. This power
corresponds to the judiciary, to which such duty been confided.

Article 2 of the law in question permits partial passing of examinations, at indefinite intervals.
The grave defect of this system is that it does not take into account that the laws and
jurisprudence are not stationary, and when a candidate finally receives his certificate, it may
happen that the existing laws and jurisprudence are already different, seriously affecting in this
manner his usefulness. The system that the said law prescribes was used in the first bar
examinations of this country, but was abandoned for this and other disadvantages. In this case,
however, the fatal defect is that the article is not expressed in the title will have temporary effect
only from 1946 to 1955, the text of article 2 establishes a permanent system for an indefinite
time. This is contrary to Section 21 (1), article VI of the Constitution, which vitiates and annuls
article 2 completely; and because it is inseparable from article 1, it is obvious that its nullity
affect the entire law.

Laws are unconstitutional on the following grounds: first, because they are not within the
legislative powers of Congress to enact, or Congress has exceeded its powers; second,
because they create or establish arbitrary methods or forms that infringe constitutional
principles; and third, because their purposes or effects violate the Constitution or its basic
principles. As has already been seen, the contested law suffers from these fatal defects.

Summarizing, we are of the opinion and hereby declare that Republic Act No. 972 is
unconstitutional and therefore, void, and without any force nor effect for the following reasons,
to wit:

1. Because its declared purpose is to admit 810 candidates who failed in the bar examinations
of 1946-1952, and who, it admits, are certainly inadequately prepared to practice law, as was
exactly found by this Court in the aforesaid years. It decrees the admission to the Bar of these
candidates, depriving this Tribunal of the opportunity to determine if they are at present already
prepared to become members of the Bar. It obliges the Tribunal to perform something contrary
to reason and in an arbitrary manner. This is a manifest encroachment on the constitutional
responsibility of the Supreme Court.

2. Because it is, in effect, a judgment revoking the resolution of this Court on the petitions of
these 810 candidates, without having examined their respective examination papers, and
although it is admitted that this Tribunal may reconsider said resolution at any time for justifiable
reasons, only this Court and no other may revise and alter them. In attempting to do it directly
Republic Act No. 972 violated the Constitution.

3. By the disputed law, Congress has exceeded its legislative power to repeal, alter and
supplement the rules on admission to the Bar. Such additional or amendatory rules are, as they
ought to be, intended to regulate acts subsequent to its promulgation and should tend to
improve and elevate the practice of law, and this Tribunal shall consider these rules as minimum
norms towards that end in the admission, suspension, disbarment and reinstatement of lawyers
to the Bar, inasmuch as a good bar assists immensely in the daily performance of judicial
functions and is essential to a worthy administration of justice. It is therefore the primary and
inherent prerogative of the Supreme Court to render the ultimate decision on who may be
admitted and may continue in the practice of law according to existing rules.

4. The reason advanced for the pretended classification of candidates, which the law makes, is
contrary to facts which are of general knowledge and does not justify the admission to the Bar of
law students inadequately prepared. The pretended classification is arbitrary. It is undoubtedly a
class legislation.

5. Article 2 of Republic Act No. 972 is not embraced in the title of the law, contrary to what the
Constitution enjoins, and being inseparable from the provisions of article 1, the entire law is
void.
6. Lacking in eight votes to declare the nullity of that part of article 1 referring to the
examinations of 1953 to 1955, said part of article 1, insofar as it concerns the examinations in
those years, shall continue in force.

RESOLUTION

Upon mature deliberation by this Court, after hearing and availing of the magnificent and
impassioned discussion of the contested law by our Chief Justice at the opening and close of
the debate among the members of the Court, and after hearing the judicious observations of two
of our beloved colleagues who since the beginning have announced their decision not to take
part in voting, we, the eight members of the Court who subscribed to this decision have voted
and resolved, and have decided for the Court, and under the authority of the same:

1. That (a) the portion of article 1 of Republic Act No. 972 referring to the examinations of 1946
to 1952, and (b) all of article 2 of said law are unconstitutional and, therefore, void and without
force and effect.

2. That, for lack of unanimity in the eight Justices, that part of article 1 which refers to the
examinations subsequent to the approval of the law, that is from 1953 to 1955 inclusive, is valid
and shall continue to be in force, in conformity with section 10, article VII of the Constitution.

Consequently, (1) all the above-mentioned petitions of the candidates who failed in the
examinations of 1946 to 1952 inclusive are denied, and (2) all candidates who in the
examinations of 1953 obtained a general average of 71.5 per cent or more, without having a
grade below 50 per cent in any subject, are considered as having passed, whether they have
filed petitions for admission or not. After this decision has become final, they shall be permitted
to take and subscribe the corresponding oath of office as members of the Bar on the date or
dates that the chief Justice may set. So ordered.

Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes, JJ., concur.

ANNEX I

PETITIONERS UNDER REPUBLIC ACT NO. 972

A resume‚ of pertinent facts concerning the bar examinations of 1946 to 1953 inclusive follows:

August, 19461
Board of Examiners: Hon. Pedro Tuason, Chairman, Prof. Gerardo
Florendo, Atty. Bernardino Guerrero, Atty. Joaquin Ramirez, Atty.
Crispin Oben, Hon. Jose Teodoro, Atty. Federico Agrava, Atty. Jose
Perez Cardenas, and Hon. Bienvenido A. Tan, members.
Number of candidates 206
Number of candidates whose grades were raised 12
73'S 6
72'S 6
Number of candidates who passed 85
Number of candidates who failed 121
Number of those affected by Republic Act No. 972 18
Percentage of success (per cent) 41.62
Percentage of failure (per cent) 58.74
Passing grade (per cent) 72
November, 1946
Board of Examiners: The same as that of August, 1946, except Hon.
Jose Teodoro who was substituted by Atty. Honesto K. Bausan.
Number of candidates 481
Number of candidates whose grades were raised 19
(72 per cent and above 73 per cent ---
Minutes of March 31, 1947)
Number of candidates who passed 249
Number of candidates who failed 228
Number of those affected by Republic Act No. 972 43
Percentage of success (per cent) 52.20
Percentage of failure (per cent) 47.80
Passing grade (per cent) 72
(By resolution of the Court).
October, 1947
Board of Examiners: Hon. Cesar Bengzon, Chairman, Hon. Guillermo B.
Guevara, Atty. Antonio Araneta, Atty. Simon Cruz, Hon. Sixto de la
Costa, Atty. Celso B. Jamora, Hon. Emilio Peña, Atty. Federico Agrava,
Atty. Carlos B. Hilado, Members.
Number of candidates 749
Number of candidates whose grades were raised 43
70.55 per cent with 2 subject below 50 per 1
cent
69 per cent 40
68 per cent 2
Number of candidates who passed 409
Number of candidates who failed 340
Number of those affected by Republic Act No. 972 972
Percentage of success (per cent) 54.59
Percentage of failure (per cent) 45.41
Passing grade (per cent) 69
(by resolution of the Court).

Note.--In passing the 2 whose grades were 68.95 per cent and
68.1 per cent respectively, the Court found out that they were
not benefited at all by the bonus of 12 points given by the
Examiner in Civil Law.
August, 1948
Board of Examiners: Hon. Marceliano R. Montemayor, Chairman Hon.
Luis P. Torres, Hon. Felipe Natividad, Hon. Jose Teodoro, Sr., Atty.
Federico Agrava, Atty. Macario Peralta, Sr., Hon. Jesus G. Barrera,
Hon. Rafael Amparo, Atty. Alfonso Ponce Enrile, Members.
Number of candidates 899
Number of candidates whose grades were raised 64
71's 29
70's 35
Number of candidates who passed 490
Number of candidates who failed 409
Number of those affected by Republic Act No. 972 11
Percentage of success (per cent) 62.40
Percentage of failure (per cent) 37.60
Passing grade (per cent) 70
(by resolution of the Court).
August, 1949
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Fernando
Jugo, Hon. Enrique Filamor, Atty. Salvador Araneta, Hon. Pastor M.
Endencia, Atty. Federico Agrava, Hon. Mariano H. de Joya, Hon. Felipe
Natividad, Atty. Emeterio Barcelon, Members.
Number of candidates 1,218
Number of candidates whose grades were raised 55
(74's)
Number of candidates who passed 686
Number of candidates who failed 532
Number of those affected by Republic Act No. 972 164
Percentage of success (per cent) 56.28
Percentage of failure (per cent) 43.72
Passing grade (per cent) 74
(by resolution of the Court).
August, 1950
Board of Examiners: Hon. Fernando Jugo,2 Chairman, Hon. Guillermo
B. Guevara, Atty. Enrique Altavas, Atty. Marcial P. Lichauco, Atty.
Carlos B. Hilado, Atty. J. Antonio Araneta, Hon. Enrique V. Filamor,
Hon. Francisco A. Delgado, Hon. Antonio Horrilleno, Members.
Number of candidates 1,316
Number of candidates whose grades were raised 38
(The grade of 74 was raised to 75 per cent by recommendation
and authority
of the examiner in Remedial Law, Atty. Francisco Delgado).
Number of candidates who passed 432
Number of candidates who failed 894
Number of those affected by Republic Act No. 972 26
Percentage of success (per cent) 32.14
Percentage of failure (per cent) 67.86
Passing grade (per cent) 75
August, 1951
Board of Examiners: Hon. Guillermo F. Pablo, Chairman, Hon. Pastor
M. Endencia, Atty. Enrique Altavas, Hon. Manuel Lim, Hon. Felipe
Natividad, Hon. Vicente Albert, Atty. Arturo Alafriz, Hon. Enrique V.
Filamor, Hon. Alfonso Felix, Members.
Number of candidates 2,068
Number of candidates whose grades were raised 112
(74's)
Number of candidates who passed 1,189
Number of candidates who failed 879
Number of those affected by Republic Act No. 972 196
Percentage of success (per cent) 57.49
Percentage of failure (per cent) 42.51
Passing grade (per cent) 75
August, 1952
Board of Examiners: Hon. Sabino Padilla, Chairman, Hon. Pastor M.
Endencia, Hon. Enrique V. Filamor, Atty. Francisco Ortigas, Hon. Emilio
Peña, Atty. Emilio P. Virata, Hon. Alfonso Felix, Hon. Felipe Natividad,
Atty. Macario Peralta, Sr., Members.
Number of candidates 2,738
Number of candidates whose grades were raised 163
(74's)
Number of candidates who passed 1,705
Number of candidates who failed 1,033
Number of those affected by Republic Act No. 972 426
Percentage of success (per cent) 62.27
Percentage of failure (per cent) 37.73
Passing grade (per cent) 75
August, 1953
Board of Examiners: Hon. Fernando Jugo, Chairman, Hon. Pastor M.
Endencia, Atty. Enrique Altavas, Atty. Francisco Ortigas, Jr., Hon.
Emilio Peña, Atty. Jose S. de la Cruz, Hon. Alfonso Felix, Hon. Felipe
Natividad, Hon. Mariano L. de la Rosa, Members.
Number of candidates 2,555
Number of candidates whose grades were raised 100
(74's)
Number of candidates who passed 1,570
Number of candidates who failed 986
Number of those affected by Republic Act No. 972 284
Percentage of success (per cent) 61.04
Percentage of failure (per cent) 38.96
Passing grade (per cent) 75

A list of petitioners for admission to the Bar under Republic Act No. 972, grouped by the years in
which they took the bar examinations, with annotations as to who had presented motions for
reconsideration which were denied (MRD), and who filed mere motions for reconsideration
without invoking said law, which are still pending, follows:

PETITIONER UNDER THE BAR FLUNKERS' LAW


Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.
Av.
MRD- 1. Agunod, Filemon L. 66 71 61 76 80 83 73 75 71.4
MRD- 2. Cunanan, Albino 76 72 74 75 70 70 65 72 71.45
MRD- 3. Mejia, Flaviano V. 64 64 65 68 83 74 68 80 69.85
1948
MRD- 4. Orlina, Soledad R. 71 68 66 75 63 75 70 88 69.9
MRD- 5. Vivero, Antonio Lu. 75 73 73 65 63 66 65 80 69.95
MRD- 6. Gatchalian, Salud 72 66 71 75 78 68 65 50 69.65
1949
7. Abaya, Jesus A. 69 79 75 75 71 89 55 75 70.8
MRD- 8. Advincula, David D. 76 80 62 86 81 72 60 65 70.5
9. Agraviador, Alfredo L. 63 85 70 77 80 81 65 80 71.8
10. Alacar, Pascual C. 61 63 83 79 71 85 65 80 72.05
11. Amog, Pedro M. 75 66 76 78 81 74 55 85 72.2
12. Apolinario, Miguel S. 75 84 78 78 70 70 60 75 71.95
13. Aquino, Maximo G. 82 77 71 77 76 77 60 75 73.15
14. Asinas, Candido D. 75 83 69 80 81 83 55 85 72.65
15. Baldivino, Jose B. 75 65 72 82 82 69 60 80 71.95
16. Balintona, Bernardo 75 80 64 78 74 67 65 70 70
17. Banawa, Angel L. 78 70 70 75 81 83 60 60 72.3
18. Bandala, Anacleto A. 66 80 66 71 93 72 55 70 69.6
19. Bandon, Alawadin L. 74 79 69 77 91 73 60 80 73.35
20. Baquero, Benjamin 76 79 64 77 85 72 65 75 72.5
21. Blanco, Jose 75 75 70 75 77 76 60 90 72.5
22. Buenaluz, Victoriano T. 75 71 72 78 67 82 60 75 70.85
23. Canda, Benjamin S. 75 72 75 82 76 77 65 75 73.55
24. Canon, Guillermo 77 86 67 88 75 69 70 85 73.9
25. Carlos, Estela S. 75 81 81 79 72 73 65 70 73.8
26. Cerezo, Gregorio O. 69 76 76 79 71 80 55 80 70.4
27. Clarin, Manuel L. 75 82 76 81 73 69 70 75 73.95
28. Claudo, Conrado O. 76 62 78 77 73 72 60 70 71.4
29. Condevillamar, Antonio 68 65 74 80 85 75 60 75 71.65
V.
MRD- Cornejo, Crisanto R. 72 75 69 82 83 79 65 80 73.4
30.
31. Corona, Olvido D. 68 76 73 81 81 72 60 75 71.15
32. Dizon, Marcial C. 76 86 69 83 75 74 65 80 73.1
33. Enriquez, Agustin P. 75 77 70 81 81 77 65 80 73.75
34. Espiritu, Irineo E. 80 88 69 75 76 77 65 75 73.8
35. Fernandez, Macario J. 63 82 76 75 81 84 65 75 72.95
36. Gallardo, Amando C. 78 79 67 77 76 75 60 65 70.95
37. Garcia, Freidrich M. 76 80 66 75 72 70 60 75 69.7
38. Garcia, Julian L. 64 77 68 82 89 77 65 75 72.15
39. Garcia, Leon Mo. 77 86 71 80 60 82 65 75 71.85
40. Garcia, Pedro V. 76 82 73 81 74 83 60 85 73.6
41. Garcia, Santiago C. 62 91 79 75 72 75 65 80 71.8
42. Genoves, Pedro 75 83 70 78 87 76 55 80 72.7
43. Gonzales, Amado P. 75 71 71 75 86 75 60 75 72.65
44. Guia, Odon R. de 77 76 66 81 74 76 60 75 70.9
45. Fernandez, Simeon 62 68 71 80 74 90 65 75 70.85
46. Jakosalem, Filoteo 82 83 73 82 61 87 65 70 73.6
47. Jesus, Felipe D. de 75 83 67 79 78 85 60 75 72.45
48. Jocom, Jacobo M. 77 77 74 77 74 64 55 85 70.65
49. Juares, Nicolas 77 84 56 76 73 82 60 85 70
50. Kalalang, Remigio 65 75 74 80 70 70 65 85 70.3
51. Layumas, Vicente L. 67 84 65 75 89 66 60 80 70.3
52. Leyson, Amancio F. 69 83 75 76 81 75 65 75 73.15
53. Libanan, Marcelino 71 83 61 77 80 81 65 85 71.75
54. Lim, Jose E. 77 77 72 76 72 64 65 70 71.15
55. Lim, Jose F. 70 75 62 83 80 71 65 80 70.4
56. Linao, Mariano M. 66 84 76 78 80 75 60 75 71.75
57. Lopez, Angelo P. 67 81 75 72 79 81 55 80 71
58. Lopez, Eliezar M. 77 75 60 75 77 85 60 75 70.7
59. Lopez, Nicanor S. 72 71 70 78 77 84 60 75 71.55
60. Manoleto, Proceso D. 72 70 65 78 81 90 60 80 71.95
61. Mancao, Alfredo P. 67 64 71 83 76 76 65 80 70.95
62. Manera, Mariano A. 75 78 75 75 68 79 60 65 71
63. Mercado, Arsenio N. 67 64 71 83 76 76 65 80 70.95
64. Miranda, Benjamin G. 76 81 67 82 74 77 65 80 72.55
65. Manad, Andres B. 77 75 68 82 69 72 65 75 71.15
1948
66. Orosco, Casimiro P. 72 84 69 81 70 82 65 75 71.9
67. Padua, Manuel C. 76 76 68 80 79 79 50 75 70.1
68. Palang, Basilio S. 71 75 82 71 55 87 55 75 69.6
69. Palma, Cuadrato 62 75 69 93 80 79 55 80 69.5
70. Pañganiban, Jose V. 67 83 61 81 91 74 60 75 70.6
71. Pareja, Felipe 66 71 75 81 67 74 60 70 68.75
72. Patalinjug, Eriberto 73 77 78 73 78 71 55 75 71.25
73. Paulin, Jose C. 66 69 71 77 83 82 65 75 72.1
74. Pido, Serafin C. 72 78 63 80 71 85 70 80 72.05
75. Pimentel, Luis P. 77 75 76 81 76 68 55 80 71.6
76. Plantilla, Rodrigo C. 72 78 68 89 79 81 65 85 73.55
77. Regalario, Benito B. 72 80 64 80 75 81 55 80 69.55
78. Robis, Casto P. 62 77 74 73 68 80 70 80 70.9
79. Rodil, Francisco C. 68 69 70 81 76 75 65 75 70.75
80. Rodriguez, Mariano I. 80 75 69 80 72 80 65 80 73.35
81. Romero, Crispulo P. 78 75 66 77 76 83 65 75 72.85
82. Saez, Porfirio D. 75 75 72 81 69 77 60 75 71
83. Saliguma, Crisogono 79 79 74 78 69 65 65 70 71.8
D.
84. Samano, Fortunato A. 75 84 72 77 70 82 60 75 71.9
85. Santos, Faustina C. 71 68 68 76 75 85 55 75 69.5
86. Santos, Josefina R. 68 69 76 71 77 82 65 75 72.3
87. Seludo, Ananias G. 75 80 69 79 77 82 65 75 73.25
88. Semilia, Rafael I. 68 85 55 83 89 79 65 80 71.25
89. Telan, Gaudencio 77 79 70 75 70 75 60 75 70.85
90. Tesorero, Leocadio T. 75 71 63 75 82 62 65 63 69.65
91. Torre, Valentin S. de la 85 81 71 76 69 65 55 70 70.4
92. Torres, Ariston L. 78 71 72 81 61 84 55 85 70.4
93. Veyra, Zosimo C. de 70 75 71 79 65 80 65 80 70.65
94. Viado, Jose 67 70 74 75 75 90 55 80 70.7
95. Villacarlos, Delfin A. 73 87 71 82 69 70 75 85 73.85
96. Villamil, Leonor S. 73 81 76 86 86 73 55 85 73.6
97. Zabala, Amando A. 76 70 67 75 76 76 60 75 70.6
1950
MRD- Cruz, Filomeno de la 70 71 78 81 76 72 64 96 73.4
98.
99. Española, Pablo S. 71 78 55 76 85 69 65 93 70.2
100. Foronda, Clarencio J. 60 78 68 79 84 88 62 93 71.9
101. Hechanova, Vicente 59 76 75 75 69 68 75 96 71.3
MRD- Peñalosa, Osias R. 80 78 61 76 61 77 66 85 70.2
102.
103. Sarmiento, Floro A. 65 86 63 82 89 72 60 72 70.15
MRD- Torre, Catalino P. 75 85 68 78 69 67 65 69 70.25
104.
105. Ungson, Fernando S. 61 87 75 70 57 85 83 82 72.8
1951
106. Abasolo, Romulo 77 70 64 65 76 70 76 64 71.7
107. Adeva, Daniel G. 75 59 74 65 69 51 78 67 70.4
108. Aguilar, Vicente Z. 73 63 68 75 70 69 75 75 71.25
109. Amodia, Juan T. 75 76 66 75 76 60 77 76 72.35
MRD- Añosa, Pablo S. 76 78 63 75 74 61 75 79 71.6
110.
111. Antiola, Anastacio R. 68 76 75 70 71 70 81 66 73.05
112. Aquino, S. Rey A. 70 71 71 60 74 62 76 77 71.1
113. Atienza, Manuel G. 71 78 68 80 86 51 82 75 73.85
114. Avanceña, Alfonso 71 71 65 75 70 72 78 80 71.8
MRD- Balacuit, Camilo N. 75 73 75 70 72 65 75 76 73.25
115.
116. Barinaga, Jeremias L. 68 69 73 70 74 50 80 79 71.2
MRD- Barrientos, Ambrosio 76 60 67 55 74 63 77 62 70.25
117. D.
MRD- Benitez, Tomas P. 67 75 75 60 73 72 75 78 72.2
118.
119. Biason, Sixto F. 73 82 67 65 66 72 77 68 71.25
MRD- Briñas, Isagani A. 71 69 74 70 76 52 79 72 71.95
120.
121. Buela, Arcadio P. 72 77 61 70 71 58 79 71 69.75
122. Cabilao, Leonardo S. 73 50 75 75 75 60 71 79 71.25
123. Cabrera, Ireneo M. 75 66 70 65 72 81 70 79 72.4
124. Cacacho, Emilio V.
125. Calilung, Soledad C. 64 73 73 80 73 57 75 59 69.65
MRD- Calimlim, Jose B. 64 73 73 80 73 57 75 59 69.65
126.
127. Calimlim, Pedro B. 66 82 69 60 69 52 83 75 70
128. Camello, Sotero H. 70 77 63 65 75 66 84 64 71.55
129. Campos, Juan A. 71 88 70 75 64 69 71 62 70.15
130. Castillo, Antonio del 78 78 70 60 79 67 69 76 72.65
MRD- Castillo, Dominador 75 61 72 75 74 71 67 66 71.1
131. Ad.
MRD- Castro, Jesus B. 72 86 72 75 65 75 76 71 72.85
132.
133. Casuga, Bienvenido B. 75 72 72 70 69 61 75 60 70.95
134. Cabangbang, Santiago 77 67 61 80 73 59 83 76 72.2
B.
135. Cruz, Federico S. 69 74 75 75 68 65 76 70 71.65
136. Dacanay, Eufemio P. 70 73 62 75 72 69 85 71 72.05
137. Deysolong, Felisberto 66 62 72 75 70 62 83 62 70.85
MRD- Dimaano, Jr., Jose N. 78 79 63 75 73 75 81 59 73.5
138.
139. Espinosa, Domingo L. 78 63 58 70 70 67 87 63 71.6
MRD- Farol, Evencia C. 80 78 66 75 81 72 62 73 72.25
140.
141. Felix, Conrado S. 71 71 75 65 70 58 75 69 70.75
142. Fernan, Pablo L. 67 88 66 85 73 68 78 75 72.35
143. Gandioco, Salvador G. 64 58 66 65 76 70 89 75 72.1
144. Gastardo, Crispin B. 70 69 68 75 78 66 86 72 73.9
145. Genson, Angelo B. 75 57 73 65 67 54 78 56 69.55
146. Guiani, Guinald M. 68 60 75 65 74 67 75 77 71.5
147. Guina, Graciano P. 66 69 67 60 78 52 83 61 69.6
MRD- Homeres, Praxedes P. 74 74 75 75 71 69 75 71 73.35
148.
149. Ibarra, Venancio M. 60 75 74 70 74 70 80 75 71.9
150. Imperial, Monico L. 72 78 75 75 72 56 82 77 73.7
MRD- Ibasco, Jr., Emiliano M. 71 70 63 85 71 60 85 53 70.85
151.
152. Inandan, Fortunato C. 77 77 67 53 73 75 79 57 72.5
153. Jimenez, Florencio C. 75 70 70 75 72 61 75 78 72.05
154. Kintanar, Woodrow M. 70 83 72 65 76 73 75 69 72.95
155. Languido, Cesar V. 63 71 63 85 70 61 85 79 70.55
156. Lavilles, Cesar L. 61 89 75 55 73 63 75 78 70.55
157. Llenos, Francisco U. 64 70 65 60 72 65 92 75 71.75
158. Leon, Marcelo D. de 63 73 60 85 75 75 90 70 72.75
159. Llanto, Priscilla 72 68 60 65 76 67 84 68 71.35
160. Machachor, Oscar 68 59 78 70 67 57 75 75 70.15
MRD- Magsino, Encarnacion 77 66 70 70 76 71 75 61 72.75
161.
MRD- Maligaya, Demetrio M. 70 61 75 65 75 50 91 51 72.3
162.
163. Manio, Gregorio 67 67 69 80 71 67 75 75 70.65
164. Puzon, Eduardo S. 72 82 60 60 69 70 68 72 62.05
MRD- Marcial, Meynardo R. 66 75 74 70 75 67 81 75 73.15
165.
166. Martin, Benjamin S. 68 72 63 75 69 63 84 62 70.1
MRD- Monterroyo, Catalina 70 80 75 80 76 66 82 51 73.95
167. S.
MRD- Montero, Leodegario 73 67 66 80 81 65 81 75 73.75
168. C.
169. Monzon, Candido T. 70 72 74 75 67 70 77 69 72.05
170. Natividad, Alberto M. 73 79 68 65 73 69 75 79 72.2
MRD- Navallo, Capistrano C. 70 72 68 85 81 66 71 74 72.1
171.
172. Nisce, Camilo Z. 66 66 75 65 79 68 85 62 73.5
MRD- Ocampo, Antonio F. de 75 81 76 65 74 67 75 69 73.75
173.
174. Olaviar, Jose O. 72 70 69 55 66 70 77 75 70.5
MRD- Perez, Cesario Z. 75 76 66 80 72 63 82 69 72.95
175.
176. Pogado, Causin O. 70 66 65 70 75 64 75 70 69.95
177. Ramos-Balmori, 75 73 62 65 78 59 75 66 70.2
Manuela
178. Recinto, Ireneo I. 73 76 68 75 74 68 80 53 72.3
MRD- Redor, Francisco K. 62 77 73 75 69 64 76 69 70
179.
MRD- Regis, Deogracias A. 76 74 68 65 65 65 88 75 73.35
180.
181. Rigor, Estelita C. 67 78 61 80 71 77 79 65 70.9
MRD- Rimorin-Gordo, Estela 70 72 62 60 88 66 67 79 70.15
182.
183. Rosario, Prisco del 70 64 70 70 72 73 85 57 72.65
184. Rosario, Vicente D. del 75 91 65 75 68 68 79 62 72.2
185. Saavedra, Felipe 73 80 63 75 76 73 68 62 70.35
186. Salazar, Alfredo N. 66 72 73 75 67 68 77 69 70.85
187. Salem, Romulo R. 77 81 72 65 73 60 76 75 73
188. Foz, Julita A. 75 72 75 75 65 70 76 64 72.5
189. Santa Ana, Candido T. 77 69 65 75 81 75 70 75 73
190. Santos, Aquilino 72 66 69 65 68 70 81 71 71.7
191. Santos, Valeriano V. 76 72 75 75 68 62 76 79 73.1
192. Suico, Samuel 73 79 72 75 71 59 84 65 73.3
193. Suson, Teodorico 74 68 66 80 66 59 79 67 70.35
194. Tado, Florentino P. 64 76 67 65 76 72 76 53 69.7
195. Tapayan, Domingo A. 69 72 69 70 76 73 82 79 73.75
MRD- 67 60 71 75 79 67 84 60 72.7
Tiausas, Miguel V.
196.
197. Torres, Carlos P. 68 71 71 70 70 63 82 71 71.6
198. Tria, Hipolito 69 72 75 60 69 54 78 66 70.05
199. Velasco, Avelino A. 65 72 75 75 71 67 78 76 72.1
200. Villa, Francisco C. 65 80 73 75 68 79 65 75 70.2
201. Villagonzalo, Job R. 78 67 74 65 72 51 69 71 70.25
202. Villarama, Jr., Pedro 75 74 75 55 75 66 67 75 71.45
1952
203. Abacon, Pablo 75 72 78 81 78 72 64 55 72.7
MRP- Abad, Agapito 73 76 73 85 75 63 62 75 70.95
204.
MRP- Abella, Ludovico B. 70 81 76 81 70 66 77 58 72.7
205.
MRP- Abellera, Geronimo F. 75 79 79 87 76 51 63 70 71.7
206.
MRP- Abenojar, Agapito N. 71 72 78 84 70 75 69 70 72.9
207.
208. Alandy, Doroteo R. 64 83 93 91 68 59 60 60 71.2
209. Alano, Fabian T. 70 83 61 83 72 87 72 70 71.9
MRP- Alcantara, Pablo V. 71 79 80 81 73 70 72 62 73.65
210.
211. Arcangel, Agustin Ag. 75 85 71 73 76 65 68 65 71.85
212. Acosta, Dionisio N. 75 81 78 87 56 65 77 70 72.8
MRP- Abinguna, Agapito C. 66 85 80 84 75 58 76 75 73.65
213.
214. Adove, Nehemias C. 76 86 78 77 66 78 69 62 73.55
215. Adrias, Inocencio C. 75 83 61 88 76 67 79 75 73.4
216. Aglugub, Andres R. 75 83 73 88 72 62 72 62 72.65
217. Andrada, Mariano L. 76 85 66 87 63 77 75 77 73.
MRP- Almeda, Serafin V. 72 72 75 81 61 67 73 65 70.75
218.
219. Almonte-Peralta, 73 71 72 91 75 67 65 53 70.7
Felicidad
MRP- Amodia, Juan T. 75 79 68 85 62 64 75 78 71.4
220.
MRP- Antonio, Felino A. 71 76 81 83 79 52 72 70 73.3
221.
MRP- Antonio, Jose S. 75 92 90 68 65 64 68 60 73.75
222.
223. Añonuevo, Ramos B. 71 87 78 81 64 63 74 76 72.7
224. Aquino, S. Rey A. 67 77 57 78 69 70 69 80 67.7
225. Arteche, Filomeno D. 78 83 50 89 76 77 70 70 70.8
MRP- Arribas, Isaac M. 75 78 70 81 73 70 67 78 72.2
226.
MRP- Azucena, Ceferino D. 72 67 78 89 72 67 77 65 73.95
227.
228. Atienza, Ricardo 72 87 70 79 66 55 75 75 70.85
229. Balacuit, Camilo N. 75 78 89 75 70 54 66 75 73.3
MRP- Baclig, Cayetano S. 77 84 83 80 69 70 61 65 73
230.
231. Balcita, Oscar C. 75 77 79 90 64 60 67 50 70.65
232. Barilea, Dominador Z. 71 67 82 77 64 61 65 80 70.5
MRP- Banta, Jose Y. 75 80 77 81 75 63 71 75 73.95
233.
MRP- Barrientos, Ambrosio 76 70 67 80 67 65 70 81 70.7
234. D.
235. Batucan, Jose M. 66 76 78 88 62 76 67 78 71.2
236. Bautista, Atilano C. 70 82 84 85 58 61 71 62 71.25
237. Bautista, Celso J. 71 68 63 87 80 67 80 70 72.75
238. Belderon, Jose 76 81 76 92 70 66 67 62 72.65
MRP- Belo, Victor B. 76 77 64 73 75 71 76 76 72.85
239.
MRP- Bejec, Conceso D. 79 80 73 82 63 77 75 50 73.15
240.
MRP- Beltran, Gervasio M. 72 75 81 73 75 57 75 80 73.95
241.
MRP- Benaojan, Robustiano 74 84 77 84 75 63 68 62 72.85
242. O.
MRP- Beriña, Roger C. 70 80 79 79 68 72 64 78 71.85
243.
MRP- Bihis, Marcelo M. 75 86 65 92 64 64 84 75 73.45
244.
MRP- Binaoro, Vicente M. 73 69 78 83 73 59 70 82 72.75
245.
MRP- Bobila, Rosalio B. 76 86 76 83 68 59 71 78 73.05
246.
247. Buenafe, Avelina R. 78 80 75 75 70 55 72 80 72.75
248. Bueno, Anastacio F. 73 78 71 78 71 67 71 60 71.15
249. Borres, Maximino L. 67 85 62 91 72 63 76 80 70.9
MRP- Cabegin, Cesar V. 72 71 76 75 74 70 71 60 72.2
250.
MRP- Cabello, Melecio F. 72 78 78 89 58 70 67 71 70.5
251.
MRP- Cabrera, Irineo M. 79 88 53 91 71 85 75 76 73.3
252.
253. Cabreros, Paulino N. 71 79 83 84 60 62 71 50 70.85
254. Calayag, Florentino R. 69 79 66 88 69 75 68 76 70.6
MRP- Calzada, Cesar de la 76 72 80 67 62 71 66 62 70.85
255.
256. Canabal, Isabel 70 82 81 77 78 51 75 75 73.7
MRP- Cabugao, Pablo N. 76 87 69 80 58 64 78 75 71.8
257.
258. Calañgi, Mateo C. 73 93 71 87 70 66 69 62 71.8
259. Canda, Benjamin S. 72 71 77 90 62 75 66 82 71.95
260. Cantoria, Eulogio 71 80 71 89 70 55 72 75 71
261. Capacio, Jr., Conrado 67 78 71 90 65 75 72 60 70.65
262. Capitulo, Alejandro P. 75 70 53 87 78 63 76 91 71.2
MRP- Calupitan, Jr., Alfredo 75 93 81 76 64 75 68 56 73.15
263.
MRP- Caluya, Arsenio V. 75 86 70 87 77 52 77 82 73.9
264.
MRP- Campanilla, Mariano B. 80 75 78 77 73 71 63 76 73.65
265.
MRP- Campos, Juan A. 66 85 83 84 67 61 80 57 73.25
266.
267. Cardoso, Angelita G. 78 71 73 76 79 56 69 60 71.8
268. Cartagena, Herminio 71 72 65 89 64 73 80 70 71.65
R.
MRP- Castro, Daniel T. 65 75 77 76 85 60 75 69 73.15
269.
270. Cauntay, Gaudencio V. 70 78 72 73 77 69 64 80 71.2
271. Castro, Pedro L. de 70 68 69 87 76 75 72 70 73.35
272. Cerio, Juan A. 75 82 75 86 60 54 76 75 71.75
273. Colorado, Alfonso R. 68 75 80 74 77 66 67 80 72.6
274. Chavez, Doroteo M. 73 65 79 84 73 69 66 84 73.1
275. Chavez, Honorato A. 77 76 79 86 74 53 71 75 73.65
MRP- Cobangbang, Orlando 69 81 74 82 76 61 78 80 73.85
276. B.
277. Cortez, Armando R. 78 60 88 86 60 66 69 64 73.1
278. Crisostomo, Jesus L. 76 87 74 76 62 55 76 66 71.45
MRP- Cornejo, Crisanto R. 68 87 78 86 79 50 80 60 73.7
279.
MRP- Cruz, Raymundo 75 81 79 85 72 57 68 75 72.95
280.
MRP- Cunanan, Jose C. 78 92 63 83 76 72 68 65 72.4
281.
282. Cunanan, Salvador F. 70 82 64 92 67 75 73 76 71.45
283. Cimafranca, Agustin B. 71 76 76 80 70 71 75 71 73.35
284. Crisol, Getulio R. 70 91 78 85 68 55 71 50 70.8
MRP- Dusi, Felicisimo R. 76 82 69 82 66 62 80 71 72.85
285.
MRP- Datu, Alfredo J. 70 75 72 86 80 55 68 79 71.5
286.
287. Dacuma, Luis B. 71 67 87 83 71 50 65 70 71.25
MRP- Degamo, Pedro R. 73 80 82 74 80 67 67 57 73.65
288.
289. Delgado, Vicente N. 70 84 82 84 77 52 73 50 72.65
MRP- Diolazo, Ernesto A. 75 83 86 73 54 54 75 75 72.25
290.
291. Dionisio, Jr., Guillermo 73 84 64 89 71 78 75 66 72.8
MRP- Dichoso, Alberto M. 71 77 71 81 69 75 80 70 73.65
292.
MRP- Dipasupil, Claudio R. 70 76 82 73 79 70 72 56 73.9
293.
MRP- Delgado, Abner 75 84 63 67 64 60 70 72 68.35
294.
MRP- Domingo, Dominador 70 69 81 82 68 63 71 75 72.2
295. T.
296. Ducusin, Agapito B. 70 78 53 88 75 77 62 76 68.05
MRP- Duque, Antonio S. 75 77 78 86 76 72 64 75 73.9
297.
298. Duque, Castulo 75 80 73 83 66 67 65 66 70.65
299. Ebbah, Percival B. 70 80 85 76 66 63 76 75 73.95
300. Edisa, Sulpicio 65 77 75 89 75 62 75 65 72
301. Edradan, Rosa C. 70 75 84 84 71 59 69 86 73.4
MRP- Enage, Jacinto N. 66 70 88 93 72 67 65 75 73.2
302.
MRP- Encarnacion, Alfonso 75 86 73 81 63 77 69 75 72.65
303. B.
304. Encarnacion, Cesar 65 78 58 68 66 64 75 78 67.1
305. Estoista, Agustin A. 78 76 74 86 58 67 70 76 71.7
MRP- Fabros, Jose B. 66 75 80 82 80 71 67 70 73.05
306.
MRP- Fajardo, Balbino P. 77 69 82 83 65 60 75 75 73.9
307.
308. Fajardo, Genaro P. 70 79 77 79 79 50 73 75 72.5
309. Evangelista, Felicidad 75 75 72 87 63 63 77 70 72.15
P.
310. Familara, Raymundo Z. 68 75 87 83 64 65 68 65 71.85
311. Fariñas, Dionisio 70 78 89 66 65 75 70 50 72.75
312. Favila, Hilario B. 71 84 74 70 75 67 73 59 72.2
MRP- Feliciano, Alberto I. 71 69 70 85 69 81 72 70 72.25
313.
MRP- Fernando, Lope F. 73 77 86 79 70 76 64 50 73
314.
MRP- Flores, Dionisio S. 78 72 77 83 67 60 68 73 72.05
315.
MRP- Fortich, Benjamin B. 70 82 70 70 78 65 64 75 70.35
316.
MRP- Fuente, Jose S. de la 76 88 72 74 60 71 79 79 73.55
317.
318. Fohmantes, Nazario S. 72 79 71 77 68 61 76 60 70.9
MRP- Fuggan, Lorenzo B. 76 81 74 69 71 71 73 60 72.85
319.
320. Gabuya, Jesus S. 70 83 82 83 70 63 75 65 73.75
321. Galang, Victor N. 69 83 84 76 70 57 71 60 71.95
322. Gaerlan, Manuel L. 73 87 77 90 67 61 72 75 73.15
323. Galem, Nestor R. 72 79 86 78 60 61 75 70 73.05
324. Gallardo, Jose Pe B. 75 88 75 75 63 70 70 65 71.85
MRP- Gallos, Cirilo B. 70 78 84 91 80 51 65 70 72.85
325.
326. Galindo, Eulalio D. 70 89 87 65 78 71 62 62 73.4
327. Galman, Patrocinio G. 72 72 80 85 71 56 70 53 71.15
328. Gamalinda, Carlos S. 76 79 81 86 67 63 69 55 72.55
329. Gamboa, Antonio G. 71 67 70 72 76 60 75 68 70.95
330. Gannod, Jose A. 69 80 75 81 68 62 73 68 71.25
MRP- Garcia, Matias N. 67 78 74 90 79 59 76 65 72.8
331.
MRP- Ganete, Carmelo 75 87 77 82 74 57 68 81 73.3
332.
333. Gilbang, Gaudioso R. 75 67 80 82 67 57 64 70 70.5
334. Gofredo, Claro C. 68 78 72 86 78 52 70 76 70.9
335. Gomez, Jose S. 71 76 71 81 76 63 69 62 70.85
MRP- Gosiaoco, Lorenzo V. 68 93 85 78 64 69 70 54 72.35
336.
MRP- Gonzales, Rafael C. 77 75 71 89 55 70 70 60 70.05
337.
MRP- Gracia, Eulalia L. de 66 68 90 84 77 59 69 65 73.3
338.
339. Grageda, Jose M. A. 70 85 72 67 70 60 73 73 70.75
340. Guzman, Juan de 75 86 69 84 64 79 75 76 73.6
MRP- Guzman, Mateo de 76 79 79 73 72 69 68 80 73.9
341.
342. Guzman, Salvador B. 71 61 74 72 61 66 78 75 70.75
343. Guzman, Salvador T. 75 84 64 81 74 61 78 58 71.75
de
344. Habelito, Geronimo E. 71 76 71 87 73 60 67 55 69.65
345. Hedriana, Naterno G. 75 68 84 76 66 58 76 60 72.9
346. Hernandez, Quintin B. 67 75 72 81 72 72 66 76 70.6
1952
347. Homeres, Agustin R. 73 84 65 86 70 77 63 76 70.7
348. Ines, Leonilo F. 65 88 71 88 77 73 61 70 70.55
349. Jamer, Alipio S. 68 75 83 89 80 61 65 50 72
MRP- Ibasco, Jr., Emiliano M. 75 65 68 85 76 70 83 54 73.8
350.
MRP- Jardinico, Jr., Emilio 73 86 72 78 82 67 67 64 72.8
351.
MRP- Jaen, Justiniano F. 76 75 78 84 71 66 70 77 73.85
352.
353. Jaring, Antonio S. 72 77 79 70 72 57 71 50 70.75
MRP- Javier, Aquilino M. 75 84 79 78 77 61 66 66 73.05
354.
355. Jomuad, Francisco 75 75 72 88 78 58 76 43 72.4
MRP- Jose, Nestor L. 78 61 64 73 68 76 64 80 69.7
356.
357. La Q, Jose M. 75 71 75 72 70 67 81 59 73.5
358. Leon, Brigido C. de 67 75 78 91 78 51 72 80 72.55
359. Leones, Constante B. 68 81 79 84 73 60 77 60 73
360. Liboro, Horacio T. 72 69 80 87 73 62 70 61 72.4
361. Llanera, Cesar L. 77 81 80 78 64 59 75 63 73
362. Lomontod, Jose P. 75 76 69 70 73 76 74 75 73.2
363. Luna, Lucito 70 75 69 83 59 53 74 75 68.4
MRP- Luz, Lauro L. 76 90 78 88 64 58 75 77 73.95
364.
MRP- Macasaet, Tomas S. 73 81 72 83 66 75 72 70 72.5
365.
366. Magbiray, Godofredo 80 67 84 76 70 62 65 68 73.05
V.
367. Majarais, Rodolfo P. 70 62 64 82 88 75 71 79 72.85
MRP- Makabenta, Eduardo 75 90 77 83 59 71 72 78 73.3
368.
MRP- Malapit, Justiniano S. 74 83 74 89 58 60 72 76 71.1
369.
370. Maloles, Iluminado M. 70 87 73 76 77 50 76 76 72.3
371. Maniquis, Daniel R. 75 80 73 91 69 71 65 70 72.1
372. Maraña, Arsenio 65 79 60 72 73 51 75 86 67.9
373. Marasigan, Napoleon 75 71 83 75 69 62 69 70 72.75
MRP- Marco, Jaime P. 75 67 74 76 64 75 75 57 71.9
374.
MRP- Martir, Osmundo P. 70 86 76 78 72 71 75 53 72.95
375.
MRP- Masancay, Amando E. 73 87 75 77 72 50 78 80 73.2
376.
MRP- Mati-ong, Ignacio T. 62 87 72 79 73 76 69 77 71.3
377.
378. Mara, Guillermo L. 70 78 78 89 75 67 66 65 72.35
MRP- Mercado, Felipe A. 73 77 82 82 78 52 69 85 73.9
379.
MRP- Miculob, Eugenio P. 70 82 73 86 77 52 79 65 72.8
380.
381. Mison, Rafael M. Jr., 79 78 73 75 71 68 69 53 71.95
MRP- Monponbanua, Antonio 79 79 68 88 64 78 69 83 73.1
382. D.
MRP- Montero, Leodegario 72 89 69 89 70 68 70 75 72.15
383. C.
384. Morada, Servillano S. 75 76 67 71 65 66 75 76 70.9
385. Mocorro, Generoso 78 84 78 84 60 73 68 70 73
MRP- Mosquera, Estanislao 75 78 75 85 72 55 77 66 73.15
386. L.
387. Motus, Rodentor P. 80 78 70 94 72 75 70 57 73.75
388. Macario, Pedro R. 70 67 74 86 78 63 72 66 72.15
MRP- Nadela, Geredion T. 72 64 64 81 73 50 75 75 69.15
389.
MRP- Nazareno, Romeo P. 67 70 71 76 76 79 75 57 72.05
390.
391. Nieto, Benedicto S. 69 79 77 77 72 62 76 76 72.9
MRP- Noguera, Raymundo 71 86 81 80 73 56 72 70 73.15
392.
MRP- Nodado, Domiciano R. 70 70 69 73 57 37 64 72 63.6
393.
394. Nono, Pacifico G. 67 77 78 67 75 59 71 76 71.35
MRP- Nuval, Manuel R. 78 72 67 90 72 68 78 67 73.65
395.
396. Ocampo, Augusto 75 90 77 72 69 55 65 67 60.7
397. Oliveros, Amado A. 72 75 68 72 84 50 75 79 71.9
398. Opiña, Jr., Pedro 76 77 74 67 73 66 68 70 71.85
MRP- Olaviar, Jose O. 70 62 85 81 74 50 68 79 71.8
399.
MRP- Olandesca, Per O. 70 91 76 87 72 66 70 79 73.45
400.
401. Orden, Apolonio J. 72 65 84 86 66 50 72 68 71.45
402. Ortiz, Melencio T. 71 75 78 81 66 67 70 78 72.1
MRP- Pablo, Fedelino S. 72 64 76 86 72 61 76 75 72.95
403.
404. Pacifico, Vicente V. 76 79 69 80 76 52 72 80 71.95
MRP- Paderna, Perfecto D. 75 69 72 75 78 58 75 70 72.6
405.
406. Padlan, Crispin M. 71 66 76 79 68 67 74 66 71.65
407. Padilla, Jose C. 70 65 67 82 78 75 78 75 73.3
408. Padilla, Jr., Estanislao 71 88 78 86 59 75 78 50 72.95
E.
MRP- Palma, Bartolome 67 81 80 82 71 75 69 75 73.25
409.
MRP- Papa, Angel A. 75 72 85 85 77 59 63 71 73.45
410.
MRP- Parayno, Mario V. 71 88 74 89 69 66 76 73 73.65
411.
412. Pariña, Santos L. 70 87 85 77 64 67 63 76 71.85
MRP- Pasion, Anastacio 63 80 68 81 82 79 76 58 72.55
413.
414. Pastrana, Rizal R. 69 76 71 76 68 63 77 83 71.65
MRP- Paulin, Jose O. 70 66 80 87 75 50 65 80 70.9
415.
MRP- Pelaez, Jr., Vicente C. 79 87 73 83 69 71 68 65 73.2
416.
417. Peña, Jesus 75 75 75 62 75 70 60 66 70.4
418. Perez, Toribio R. 71 64 81 92 69 58 67 70 71.25
419. Pestaño, Melquiades 77 81 74 87 59 68 76 75 73.2
MRP- Pido, Serafin C. 77 81 72 82 69 71 60 75 71.15
420.
421. Pinlac, Filemon 67 76 74 86 65 79 65 72 70.55
422. Poblete, Celso B. 72 79 82 76 66 64 74 50 72.15
MRP- Piza, Luz 68 70 75 87 74 67 64 75 70.8
423.
424. Puzon, Eduardo S. 72 80 81 69 72 53 67 70 71.05
425. Quetulio, Josefina D. 75 90 60 93 64 78 76 83 72.9
MRP- Quipanes, Melchor V. 69 88 79 82 65 62 71 66 71.55
426.
MRP- Quietson, Bayani R. 73 75 76 77 70 81 71 53 72.85
427.
428. Racho, Macario D. 68 75 81 82 78 53 66 54 70.55
429. Ramirez, Sabas P. 71 80 73 87 62 62 75 80 71.65
MRP- Raffiñan, Jose A. 80 83 79 79 62 72 68 65 73.25
430.
MRP- Ramos, Patricio S. 75 87 76 75 72 72 61 75 72.25
431.
MRP- Ramos-Balmori, 78 84 76 90 48 75 80 65 73.45
432. Manuela
MRP- Raro, Celso 75 81 76 67 75 77 55 77 71.4
433.
MRP- Rayos, Victor S. 75 86 79 91 71 67 67 70 73.9
434.
435. Revilla, Mariano S. 75 78 81 90 70 54 69 81 73.35
436. Reyes, Abdon L. 72 64 81 78 76 73 69 53 72.85
437. Reyes, Domingo B. 72 87 78 83 72 75 62 70 72.7
438. Reyes, Francisco M. 75 85 84 68 75 71 68 50 73.9
439. Reyes, Lozano M. 80 57 78 79 78 65 64 79 73.35
MRP- Reyes, Oscar R. 75 75 82 82 76 64 68 60 73.65
440.
441. Rigonan, Cesar V. 71 85 65 86 75 70 76 70 72.7
442. Rivera, Honorio 71 56 70 90 71 65 75 71 71.2
MRP- Rivero, Buenaventura 72 88 72 94 68 73 66 80 72.6
443. A.
MRP- Robles, Enrique 75 77 75 77 82 64 69 70 73.7
444.
445. Rodriguez, Orestes 76 75 76 63 69 77 65 78 72.25
Arellano
446. Roldan, Jose V. 67 80 79 83 73 71 75 70 73.9
447. Rosario, Adelaida R. 80 75 65 70 68 72 80 70 73.15
del
448. Rosario, Restituto F. 75 75 79 90 68 65 66 63 72.1
del
MRP- Sabelino, Conrado S. 71 81 69 75 77 71 75 70 72.95
449.
450. San Juan, Damaso 77 86 72 89 59 76 65 72 71.6
451. Sañiel, Felix L. 72 93 76 80 67 75 66 62 72.1
452. Samaniego, Jesus B. 75 80 76 72 60 67 68 70 70.6
MRP- Sandoval, Emmanuel 75 83 70 83 77 67 77 60 73.95
453. M.
MRP- Sanidad, Emmanuel Q. 71 75 81 90 62 64 76 68 72.95
454.
455. Santiago, Jr., Cristobal 75 76 84 93 63 65 59 70 71.8
456. Santillan, Juanito Ll. 76 89 83 83 63 58 65 52 71.25
MRP- Santos, Rodolfo C. 75 75 78 82 73 76 66 70 73.7
457.
MRP- Santos, Ruperto M. 67 54 69 76 63 64 71 60 66.75
458.
MRP- Santos, Aquilino C. 72 71 73 79 73 79 71 85 73.8
459.
MRP- Santos, Rufino A. 75 81 79 85 74 72 66 54 73.3
460.
461. Suanding, Bantas 75 67 67 92 79 59 76 76 73.1
MRP- Sulit, Feliz M. 76 79 76 78 72 75 68 67 73.5
462.
463. Songco, Felicisimo G. 70 68 82 84 60 69 76 65 73.35
464. Soriano, Aniceto S. 64 79 77 80 80 53 70 65 70.7
465. Suarez, Pablo D. 73 85 70 87 76 70 64 70 71.9
MRP- Sybico, Jesus L. 79 70 70 72 75 75 72 60 73.05
466.
467. Tabaque, Benjamin R. 69 68 77 79 74 68 72 60 71.85
MRP- Tan Kiang, Clarita 81 79 72 80 62 75 73 80 73.95
468.
MRP- Tando, Amado T. 71 82 78 83 71 61 71 60 72
469.
470. Tasico, Severo E. 71 69 75 89 70 75 67 63 71.65
471. Tiburcio, Ismael P. 73 82 72 93 76 57 68 54 71.15
MRP- Tiongson, Federico T. 70 70 76 84 77 75 75 50 73.45
472.
MRP- Tolentino, Jesus C. 75 89 63 84 85 73 73 50 73.4
473.
474. Torrijas, Alfredo A. 77 66 67 83 68 75 71 63 71.3
MRP- Tobias, Artemio M. 69 58 74 81 71 55 65 57 67.55
475.
MRP- Trillana, Jr., Apolonio 76 86 76 86 70 68 75 50 73.8
476.
MRP- Trinidad, Manuel O. 66 91 83 75 63 66 67 65 70.8
477.
478. Trinidad, Pedro O. 66 78 78 85 78 51 64 75 70.8
MRP- Udarbe, Flavio J. 80 82 77 82 67 56 68 75 72.6
479.
480. Umali, Osmundo C. 68 75 81 80 71 69 68 60 71.7
481. Umayam, Juanito C. 77 75 87 85 56 56 66 60 71
MRP- Usita, Gelacio U. 75 72 75 74 73 76 71 70 73.55
482.
483. Valino, Francisco M. 72 81 80 84 62 78 71 75 73.7
484. Varela, Dominador M. 67 75 81 86 72 57 81 70 73.85
485. Vega, Macairog L. de 78 62 79 87 70 70 71 65 73.8
MRP- Velasco, Emmanuel D. 71 80 74 85 60 66 76 76 71.85
486.
487. Velez, Maria E. 73 70 89 80 56 50 72 67 71.05
MRP- Venal, Artemio V. 78 91 58 67 76 55 75 73 73.65
488.
489. Venus, Conrado B. 69 81 74 85 62 66 72 77 77.05
MRP- Verzosa, Federico B. 75 79 72 88 76 68 74 59 73.7
490.
MRP- Villafuerte, Eduardo V. 75 83 70 76 64 64 75 65 71.2
491.
MRP- Villanueva, Cecilio C. 75 85 79 88 66 77 67 70 73.95
492.
493. Villar, Custodio R. 73 69 70 88 76 66 69 50 70.75
MRP- Villaseñor, Leonidas F. 80 85 67 77 62 75 76 73 73.15
494.
495. Viterbo, Jose H. 80 77 65 93 70 65 65 65 70.65
496. Yaranon, Pedro 70 77 76 85 72 50 75 75 71.85
MRP- Yasay, Mariano R. 75 75 72 76 63 77 70 60 71.1
497.
MRP- Ygay, Venancio M. 73 80 83 84 62 59 72 77 72.65
498.
499. Yulo, Jr., Teodoro 73 82 78 75 60 81 75 75 73.95
500. Zamora, Alberto 70 65 76 79 62 77 69 82 71.3
501. Rigonan, Felipe C. 70 79 69 89 76 62 71 64 71.2

A list of those who petitioned for the consolidation of their grades in subjects passed in
previous examinations, showing the years in which they took the examinations together
with their grades and averages, and those who had filed motions for reconsideration
which were denied, indicated by the initials MRD, follows:

PETITIONERS UNDER REPUBLIC ACT NO. 72

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.


Av.
1. Amao, Sulpicio M.
1946 68 67 76 76 73 73 49 50 66.5
1950 59 80 67 77 62 80 71 57 67.4
2. Baldo, Olegario Ga.
1951 65 76 58 55 59 63 75 72 64.9
1952 65 68 75 84 72 59 73 57 69.75
1953 57 74 68 68 76 52 71 76 66.7
3. Blanco, Jose B.
MRD-1949 75 75 70 75 77 76 60 90 72.15
1951 64 71 58 65 68 70 75 71 66.95
4. Condeno, Mateo
1950 71 80 62 75 75 81 55 92 69.3
1951 70 60 61 65 77 64 67 81 67.85
5. Ducusin, Agapito B.
MRD-1949 69 70 76 73 76 71 55 60 68.65
1950 60 71 55 67 67 75 56 89 68.1
6. Garcia, Manuel N.
MRD-1949 60 70 82 79 70 69 60 80 69.25
1950 57 65 51 69 54 85 56 84 60.3
7. Luna, Lucito A.
1946 63 53 69 76 75 76 57 69 66.55
1952 70 75 69 83 59 53 74 75 68.4
8. Maraña, Arsenio s.
1949 72 68 68 75 75 72 60 75 69.35
1952 65 79 60 72 73 51 75 86 67.9
9. Montano, Manuel M.
1951 61 60 58 60 70 63 75 64 64.8
1952 70 77 65 79 66 52 70 50 66.4
1953 78 64 66 68 81 50 71 78 70.65
10. Peña, Jesus S.
1950 25 75 45 75 45 52 46 71 46.2
1951 70 77 65 79 66 52 70 50 66.4
1952 75 75 75 62 75 70 60 66 70.4
11. Placido, Sr., Isidro
1950 68 78 70 75 69 70 58 69 67.75
1951 65 62 75 60 73 57 75 71 66.8
12. Rementizo, Filemon S.
1949 65 75 72 75 60 75 55 85 66.65
1951 68 57 48 60 91 66 55 75 64.05
1952 68 53 68 67 58 56 75 64 65.7
13. Amao, Sulpicio M.
1952 67 80 51 69 69 77 73 53 66.35
1953 65 67 78 74 75 62 69 80 70.9
14. Rodulfa, Juan T.
1951 67 60 70 65 68 56 75 66 67.75
1952 70 71 67 78 67 75 71 70 70.1
15. Sanchez, Juan J.
1948 39 69 82 75 76 72 55 50 63.5
MRD-1949 67 56 69 75 72 77 60 75 68
1951 70 59 55 60 68 57 78 67 65.8
16. Santos, Constantino
1952 62 76 54 82 72 77 66 65 66.65
1953 73 71 70 65 78 64 65 78 70.4
17. Santos, Salvador H.
1951 60 64 55 70 68 52 70 75 62.85
1952 75 64 70 81 76 55 61 75 69.1
1953 70 71 79 65 72 54 66 80 70
18. Sevilla, Macario C.
MRD-1948 50 64 76 66 66 69 60 52 63.1
MRD-1949 47 66 78 64 71 86 65 85 68
1950 35 65 40 75 63 57 27 49 45
MRD-1951 68 59 72 55 69 65 75 75 69.3
1953 70 73 74 70 81 56 69 71 71.05

Finally, with regards to the examinations of 1953, while some candidates--85 in all--presented
motions for reconsideration of their grades, others invoked the provisions of Republic Act No.
972. A list of those candidates separating those who filed mere motions for reconsideration (56)
from those who invoked the aforesaid Republic act, is as follows:

1953 PETITIONERS FOR RECONSIDERATION

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.


Av.
1. Acenas, Calixto R. 73 70 68 62 82 51 67 77 73.45
2. Alcantara, Pedro N. 67 70 75 85 87 54 71 80 72.8
3. Alejandro, Exequiel 67 72 71 75 80 76 75 77 73.4
4. Andres, Gregorio M. 70 73 86 58 79 50 71 78 72.7
5. Arnaiz, Antonio E. 66 80 76 58 79 68 77 81 73.4
6. Asis, Floriano U. de 66 78 75 81 77 55 73 69 71.25
7. Bacaiso, Celestino M. 71 65 76 68 76 50 75 70 70.95
8. Bala, Florencio F. 64 82 47 70 82 58 75 82 67
9. Baldo, Olegario A. 57 74 68 68 76 52 71 76 66.7
10. Barrios, Benjamin O. 65 71 76 75 80 62 83 73 73.95
11. Buhay, Eduardo L. 73 76 71 91 76 61 74 78 73.35
12. Burgos, Dominador C. 72 80 89 61 66 37 69 68 70.05
13. Cariño, Eldo J. 79 81 60 75 74 74 76 74 73
14. Casar, Dimapuro 67 73 84 79 77 61 71 74 73.35
15. Castañeda, Gregorio 70 73 80 71 75 70 73 78 73.95
16. Estrellado, Benjamin R. 67 79 64 73 82 62 71 74 70.2
17. Fabunan, Edilberto C. 70 72 68 69 77 60 76 74 71.1
18. Feril, Domingo B. 75 71 84 65 70 60 65 70 71.6
19. Fernandez, Alejandro G. 65 75 87 80 81 63 61 80 72.8
20. Gapus, Rosita S. (Miss) 76 80 86 77 64 74 66 69 73.9
21. Garcia, Rafael B. 70 86 70 75 73 63 73 75 71.65
22. Gracia, Miguel L. de 73 68 75 59 80 51 72 71 71
23. Gungon, Armando G. 68 76 76 84 77 57 77 83 73.6
24. Gutierrez, Antonio S. 68 77 66 70 72 59 71 74 69.1
25. Ilejay, Abraham I. 77 70 76 77 81 62 70 68 73.7
26. Leon, Benjamin La. De 66 66 75 70 77 55 71 82 70.35
27. Lugtu, Felipe L. 62 70 78 65 78 56 69 81 69.9
28. Lukman, Abdul-Hamid 76 64 67 69 73 59 73 75 70.45
29. Maloles, Jr., Benjamin G. 77 76 68 68 71 51 75 78 70.85
30. Maloles, Julius G. 77 71 60 71 79 62 68 72 69.75
31. Mandi, Santiago P. 65 76 70 61 79 68 75 72 71.1
32. Margete, Rufino C. 70 76 66 75 85 73 71 75 72.75
33. Melocoton, Nestorio B. 70 81 73 78 83 52 72 75 72.35
34. Molina, Manuel C. 75 78 70 61 75 63 66 85 70.95
35. Muñoz, Mariano A. 75 80 86 67 74 57 68 76 73.75
36. Navarro, Buenaventura 80 75 65 75 83 55 73 79 73
M.
37. Nodado, Domiciano R. 60 67 67 50 70 50 56 75 61.7
38. Papas, Sisenando B. 65 62 71 61 70 56 66 67 66
39. Pagulayan-Sy, Fernando 63 75 71 62 83 67 70 72 70.4
40. Padula, Benjamin C. 70 77 54 62 74 78 75 68 69.05
41. Pasno, Enrique M. 78 72 66 54 71 58 72 78 69.85
42. Peña, Jr., Narciso 70 95 81 78 67 66 67 73 72.55
43. Peralta, Rodolfo P. 70 70 52 81 68 63 59 69 63.7
44. Pigar, Leopoldo R. 76 75 78 61 72 72 71 79 73.75
45. Publico, Paciano L. 68 69 76 76 70 59 74 67 70.6
46. Radaza, Leovigildo 75 78 76 61 77 50 71 86 72.2
47. Ramos, Bernardo M. 64 62 75 93 81 52 66 80 70.1
48. Rabaino, Andres D. 68 72 75 73 78 55 69 76 70.65
49. Ravanera, Oscar N. 70 77 80 71 82 62 69 78 73.6
50. Renovilla, Jose M. 65 75 80 68 79 52 62 78 69.5
51. Sabaot, Solomon B. 69 73 80 69 82 69 69 79 73.85
52. Sumaway, Ricardo S. 66 76 69 76 74 56 72 68 69.1
53. Torrefiel, Sofronio O. 70 77 74 75 73 50 68 72 69.55
54. Vera, Federico V. de 60 61 47 77 69 50 67 77 60.9
55. Viray, Venancio Bustos 65 67 67 52 73 64 71 65 67.15
56. Ylaya, Angela P. (Miss) 63 70 56 75 68 54 70 77 64.5

PETITIONERS UNDER REPUBLIC ACT NO. 972

Civ. Land Merc. Int. Pol. Crim. Rem. Leg. Gen.


Av.

1. Ala, Narciso 70 71 73 59 73 74 81 77 73.5


2. Alcantara, Pedro N. 67 70 75 85 87 54 71 80 72.8
3. Arellano, Antonio L. 74 66 73 60 78 63 78 72 72.9
4. Buhay, Eduardo L. 73 76 71 91 76 61 74 78 73.35
5. Calautit, Celestino R. 71 78 84 75 75 61 68 72 73.2
6. Casuncad, Sulvio P. 61 73 82 69 81 68 71 84 73.05
7. Enriquez, Pelagio y 84 69 76 75 82 50 58 79 72.05
Concepcion
8. Estonina, Severino 80 74 64 89 81 56 68 82 72.4
9. Fernandez, Alejandro Q. 65 75 87 80 81 63 61 80 72.8
10. Fernandez, Luis N. 70 75 77 75 78 67 72 73 73.35
11. Figueroa, Alfredo A. 70 75 87 78 75 50 68 68 72.3
12. Formilleza, Pedro 65 75 89 68 83 51 70 75 73.25
13. Garcia, Manuel M. 69 68 83 83 73 62 62 70 71
14. Grospe, Vicente E. 68 75 78 66 79 61 69 82 71.6
15. Galema, Nestor R. (1952) 72 79 86 78 60 61 75 70 73.05
16. Jacobo, Rafael F. 76 76 75 74 76 50 72 76 72.3
17. Macalindong, Reinerio L. 67 77 79 79 74 72 68 77 72.75
18. Mangubat, Antonio M. 70 70 78 61 80 74 62 70 71.45
19. Montano, Manuel M. 78 64 66 68 81 50 71 78 70.65
20. Plomantes, Marcos 73 67 74 58 68 70 76 71 71.6
21. Ramos, Eugenio R. 70 80 76 67 72 69 72 79 72.6
22. Reyes, Juan R. 71 73 77 76 81 59 72 74 73.2
23. Reyes, Santiago R. 65 78 83 60 76 75 70 70 72.9
24. Rivera, Eulogio J. 65 67 78 74 75 62 69 80 70.9
25. Santos, Constantino P. 73 71 70 65 78 64 65 78 70.4
26. Santos, Salvador H. 70 71 79 65 72 54 66 80 70
27. Sevilla, Macario C. 70 73 74 70 81 56 69 71 71.05
28. Villavicencio, Jose A. 78 75 70 67 69 77 64 77 73.2
29. Viray, Ruperto G. 76 73 76 73 80 58 68 83 73.25

There are the unsuccessful candidates totaling 604 directly affected by this resolution. Adding
490 candidates who have not presented any petition, they reach a total of 1,094.

The Enactment of Republic Act No. 972

As will be observed from Annex I, this Court reduced to 72 per cent the passing general
average in the bar examination of august and November of 1946; 69 per cent in 1947; 70 per
cent in 1948; 74 per cent in 1949; maintaining the prescribed 75 per cent since 1950, but raising
to 75 per cent those who obtained 74 per cent since 1950. This caused the introduction in 1951,
in the Senate of the Philippines of Bill No. 12 which was intended to amend Sections 5, 9, 12,
14 and 16 of Rule 127 of the Rules of Court, concerning the admission of attorneys-at-law to the
practice of the profession. The amendments embrace many interesting matters, but those
referring to sections 14 and 16 immediately concern us. The proposed amendment is as follows:

SEC. 14. Passing average. — In order that a candidate may be deemed to have passed
the examinations successfully, he must have obtained a general average of 70 per cent
without falling below 50 per cent in any subject. In determining the average, the
foregoing subjects shall be given the following relative weights: Civil Law, 20 per cent;
Land Registration and Mortgages, 5 per cent; Mercantile Law, 15 per cent; Criminal Law,
10 per cent; Political Law, 10 per cent; International Law, 5 per cent; Remedial Law, 20
per cent; Legal Ethics and Practical Exercises, 5 per cent; Social Legislation, 5 per cent;
Taxation, 5 per cent. Unsuccessful candidates shall not be required to take another
examination in any subject in which they have obtained a rating of 70 per cent or higher
and such rating shall be taken into account in determining their general average in any
subsequent examinations: Provided, however, That if the candidate fails to get a general
average of 70 per cent in his third examination, he shall lose the benefit of having
already passed some subjects and shall be required to the examination in all the
subjects.
SEC. 16. Admission and oath of successful applicants. — Any applicant who has
obtained a general average of 70 per cent in all subjects without falling below 50 per
cent in any examination held after the 4th day of July, 1946, or who has been otherwise
found to be entitled to admission to the bar, shall be allowed to take and subscribe
before the Supreme Court the corresponding oath of office. (Arts. 4 and 5, 8, No. 12).

With the bill was an Explanatory Note, the portion pertinent to the matter before us being:

It seems to be unfair that unsuccessful candidates at bar examinations should be


compelled to repeat even those subjects which they have previously passed. This is not
the case in any other government examination. The Rules of Court have therefore been
amended in this measure to give a candidate due credit for any subject which he has
previously passed with a rating of 75 per cent or higher."

Senate Bill No. 12 having been approved by Congress on May 3, 1951, the President requested
the comments of this Tribunal before acting on the same. The comment was signed by seven
Justices while three chose to refrain from making any and one took no part. With regards to the
matter that interests us, the Court said:

The next amendment is of section 14 of Rule 127. One part of this amendment provides
that if a bar candidate obtains 70 per cent or higher in any subject, although failing to
pass the examination, he need not be examined in said subject in his next examination.
This is a sort of passing the Bar Examination on the installment plan, one or two or three
subjects at a time. The trouble with this proposed system is that although it makes it
easier and more convenient for the candidate because he may in an examination
prepare himself on only one or two subjects so as to insure passing them, by the time
that he has passed the last required subjects, which may be several years away from
the time that he reviewed and passed the firs subjects, he shall have forgotten the
principles and theories contained in those subjects and remembers only those of the one
or two subjects that he had last reviewed and passed. This is highly possible because
there is nothing in the law which requires a candidate to continue taking the Bar
examinations every year in succession. The only condition imposed is that a candidate,
on this plan, must pass the examination in no more that three installments; but there is
no limitation as to the time or number of years intervening between each examination
taken. This would defeat the object and the requirements of the law and the Court in
admitting persons to the practice of law. When a person is so admitted, it is to be
presumed and presupposed that he possesses the knowledge and proficiency in the law
and the knowledge of all law subjects required in bar examinations, so as presently to be
able to practice the legal profession and adequately render the legal service required by
prospective clients. But this would not hold true of the candidates who may have
obtained a passing grade on any five subjects eight years ago, another three subjects
one year later, and the last two subjects the present year. We believe that the present
system of requiring a candidate to obtain a passing general average with no grade in
any subject below 50 per cent is more desirable and satisfactory. It requires one to be all
around, and prepared in all required legal subjects at the time of admission to the
practice of law.

xxx xxx xxx

We now come to the last amendment, that of section 16 of Rule 127. This amendment
provides that any application who has obtained a general average of 70 per cent in all
subjects without failing below 50 per cent in any subject in any examination held after
the 4th day of July, 1946, shall be allowed to take and subscribe the corresponding oath
of office. In other words, Bar candidates who obtained not less than 70 per cent in any
examination since the year 1946 without failing below 50 per cent in any subject, despite
their non-admission to the Bar by the Supreme Court because they failed to obtain a
passing general average in any of those years, will be admitted to the Bar. This provision
is not only prospective but retroactive in its effects.

We have already stated in our comment on the next preceding amendment that we are
not exactly in favor of reducing the passing general average from 75 per cent to 70 per
cent to govern even in the future. As to the validity of making such reduction retroactive,
we have serious legal doubts. We should not lose sight of the fact that after every bar
examinations, the Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing general average grade, but also
rejecting and denying the petitions for reconsideration of those who have failed. The
present amendment would have the effect of repudiating, reversing and revoking the
Supreme Court's resolution denying and rejecting the petitions of those who may have
obtained an average of 70 per cent or more but less than the general passing average
fixed for that year. It is clear that this question involves legal implications, and this phase
of the amendment if finally enacted into law might have to go thru a legal test. As one
member of the Court remarked during the discussion, when a court renders a decision or
promulgate a resolution or order on the basis of and in accordance with a certain law or
rule then in force, the subsequent amendment or even repeal of said law or rule may not
affect the final decision, order, or resolution already promulgated, in the sense of
revoking or rendering it void and of no effect.

Another aspect of this question to be considered is the fact that members of the bar are
officers of the courts, including the Supreme Court. When a Bar candidate is admitted to
the Bar, the Supreme Court impliedly regards him as a person fit, competent and
qualified to be its officer. Conversely, when it refused and denied admission to the Bar to
a candidate who in any year since 1946 may have obtained a general average of 70 per
cent but less than that required for that year in order to pass, the Supreme Court equally
and impliedly considered and declared that he was not prepared, ready, competent and
qualified to be its officer. The present amendment giving retroactivity to the reduction of
the passing general average runs counter to all these acts and resolutions of the
Supreme Court and practically and in effect says that a candidate not accepted, and
even rejected by the Court to be its officer because he was unprepared, undeserving
and unqualified, nevertheless and in spite of all, must be admitted and allowed by this
Court to serve as its officer. We repeat, that this is another important aspect of the
question to be carefully and seriously considered.

The President vetoed the bill on June 16, 1951, stating the following:

I am fully in accord with the avowed objection of the bill, namely, to elevate the standard
of the legal profession and maintain it on a high level. This is not achieved, however, by
admitting to practice precisely a special class who have failed in the bar examination,
Moreover, the bill contains provisions to which I find serious fundamental objections.

Section 5 provides that any applicant who has obtained a general average of 70 per cent
in all subjects without failing below 50 per cent in any subject in any examination held
after the 4th day of July, 1946, shall be allowed to take and subscribed the
corresponding oath of office. This provision constitutes class legislation, benefiting as it
does specifically one group of persons, namely, the unsuccessful candidates in the
1946, 1947, 1948, 1949 and 1950 bar examinations.

The same provision undertakes to revoke or set aside final resolutions of the Supreme
Court made in accordance with the law then in force. It should be noted that after every
bar examination the Supreme Court passes the corresponding resolution not only
admitting to the Bar those who have obtained a passing general average but also
rejecting and denying the petitions for reconsideration of those who have failed. The
provision under consideration would have the effect of revoking the Supreme Court's
resolution denying and rejecting the petitions of those who may have failed to obtain the
passing average fixed for that year. Said provision also sets a bad precedent in that the
Government would be morally obliged to grant a similar privilege to those who have
failed in the examinations for admission to other professions such as medicine,
engineering, architecture and certified public accountancy.

Consequently, the bill was returned to the Congress of the Philippines, but it was not repassed
by 2/3 vote of each House as prescribed by section 20, article VI of the Constitution. Instead Bill
No. 371 was presented in the Senate. It reads as follows:
AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM 1946 UP
TO AND INCLUDING 1953

Be it enacted by the Senate and House of Representatives of the Philippines in


Congress assembled:

SECTION 1. Notwithstanding the provisions of section 14, Rule 127 of the Rules of
Court, any bar candidate who obtained a general average of 70 per cent in any bar
examinations after July 4, 1946 up to the August 1951 Bar examinations; 71 per cent in
the 1952 bar examinations; 72 per cent in the 1953 bar examinations; 73 per cent in the
1954 bar examinations; 74 per cent in 1955 bar examinations without a candidate
obtaining a grade below 50 per cent in any subject, shall be allowed to take and
subscribe the corresponding oath of office as member of the Philippine Bar; Provided,
however, That 75 per cent passing general average shall be restored in all succeeding
examinations; and Provided, finally, That for the purpose of this Act, any exact one-half
or more of a fraction, shall be considered as one and included as part of the next whole
number.

SEC. 2. Any bar candidate who obtained a grade of 75 per cent in any subject in any bar
examination after July 4, 1945 shall be deemed to have passed in such subject or
subjects and such grade or grades shall be included in computing the passing general
average that said candidate may obtain in any subsequent examinations that he may
take.

SEC. 3. This bill shall take effect upon its approval.

With the following explanatory note:

This is a revised Bar bill to meet the objections of the President and to afford another
opportunity to those who feel themselves discriminated by the Supreme Court from 1946
to 1951 when those who would otherwise have passed the bar examination but were
arbitrarily not so considered by altering its previous decisions of the passing mark. The
Supreme Court has been altering the passing mark from 69 in 1947 to 74 in 1951. In
order to cure the apparent arbitrary fixing of passing grades and to give satisfaction to all
parties concerned, it is proposed in this bill a gradual increase in the general averages
for passing the bar examinations as follows; For 1946 to 1951 bar examinations, 70 per
cent; for 1952 bar examination, 71 per cent; for 1953 bar examination, 72 per cent; for
1954 bar examination, 73 percent; and for 1955 bar examination, 74 per cent. Thus in
1956 the passing mark will be restored with the condition that the candidate shall not
obtain in any subject a grade of below 50 per cent. The reason for relaxing the standard
75 per cent passing grade, is the tremendous handicap which students during the years
immediately after the Japanese occupation has to overcome such as the insufficiency of
reading materials and the inadequacy of the preparation of students who took up law
soon after the liberation. It is believed that by 1956 the preparation of our students as
well as the available reading materials will be under normal conditions, if not improved
from those years preceding the last world war.

In this will we eliminated altogether the idea of having our Supreme Court assumed the
supervision as well as the administration of the study of law which was objected to by
the President in the Bar Bill of 1951.

The President in vetoing the Bar Bill last year stated among his objections that the bill
would admit to the practice of law "a special class who failed in the bar examination". He
considered the bill a class legislation. This contention, however, is not, in good
conscience, correct because Congress is merely supplementing what the Supreme
Court have already established as precedent by making as low as 69 per cent the
passing mark of those who took the Bar examination in 1947. These bar candidates for
who this bill should be enacted, considered themselves as having passed the bar
examination on the strength of the established precedent of our Supreme Court and
were fully aware of the insurmountable difficulties and handicaps which they were
unavoidably placed. We believe that such precedent cannot or could not have been
altered, constitutionally, by the Supreme Court, without giving due consideration to the
rights already accrued or vested in the bar candidates who took the examination when
the precedent was not yet altered, or in effect, was still enforced and without being
inconsistent with the principles of their previous resolutions.

If this bill would be enacted, it shall be considered as a simple curative act or corrective
statute which Congress has the power to enact. The requirement of a "valid
classification" as against class legislation, is very expressed in the following American
Jurisprudence:

A valid classification must include all who naturally belong to the class, all who possess
a common disability, attribute, or classification, and there must be a "natural" and
substantial differentiation between those included in the class and those it leaves
untouched. When a class is accepted by the Court as "natural" it cannot be again split
and then have the dissevered factions of the original unit designated with different rules
established for each. (Fountain Park Co. vs. Rensier, 199 Ind. 95, N. E. 465 (1926).

Another case penned by Justice Cardozo: "Time with its tides brings new conditions
which must be cared for by new laws. Sometimes the new conditions affect the
members of a class. If so, the correcting statute must apply to all alike. Sometimes the
condition affect only a few. If so, the correcting statute may be as narrow as the
mischief. The constitution does not prohibit special laws inflexibly and always. It permits
them when there are special evils with which the general laws are incompetent to cope.
The special public purpose will sustain the special form. . . . The problem in the last
analysis is one of legislative policy, with a wide margin of discretion conceded to the
lawmakers. Only in the case of plain abuse will there be revision by the court. (In
Williams vs. Mayor and City Council of Baltimore, 286 U. S. 36, 77 L. Ed. 1015, 53 Sup.
Ct. 431). (1932)

This bill has all the earmarks of a corrective statute which always retroacts to the extent
of the care of correction only as in this case from 1946 when the Supreme Court first
deviated from the rule of 75 per cent in the Rules of Court.

For the foregoing purposes the approval of this bill is earnestly recommended.

(Sgd.) PABLO ANGELES DAVID


Senator

Without much debate, the revised bill was passed by Congress as above transcribed. The
President again asked the comments of this Court, which endorsed the following:

Respectfully returned to the Honorable, the Acting Executive Secretary, Manila, with the
information that, with respect to Senate Bill No. 371, the members of the Court are
taking the same views they expressed on Senate Bill No. 12 passed by Congress in
May, 1951, contained in the first indorsement of the undersigned dated June 5, 1951, to
the Assistant Executive Secretary.

(Sgd.) RICARDO PARAS

The President allowed the period within which the bill should be signed to pass without vetoing
it, by virtue of which it became a law on June 21, 1953 (Sec. 20, Art. VI, Constitution) numbered
972 (many times erroneously cited as No. 974).

It may be mentioned in passing that 1953 was an election year, and that both the President and
the author of the Bill were candidates for re-election, together, however, they lost in the polls.
Separate Opinions

LABRADOR, J., concurring and dissenting:

The right to admit members to the Bar is, and has always been, the exclusive privilege of this
Court, because lawyers are members of the Court and only this Court should be allowed to
determine admission thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is exercise. This power should
be distinguished from the power to promulgate rules which regulate admission. It is only this
power (to promulgate amendments to the rules) that is given in the Constitution to the
Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the
holding of examination, the qualifications of applicants, the passing grades, etc. are within the
scope of the legislative power. But the power to determine when a candidate has made or has
not made the required grade is judicial, and lies completely with this Court.

I hold that the act under consideration is an exercise of the judicial function, and lies beyond the
scope of the congressional prerogative of amending the rules. To say that candidates who
obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955
should be considered as having passed the examination, is to mean exercise of the privilege
and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different
years with grades lower than the passing mark. No reasoning is necessary to show that it is an
arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as
discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to
have the privilege of a lower passing grade, while those taking earlier or later are not?

I vote that the act in toto be declared unconstitutional, because it is not embraced within the
rule-making power of Congress, because it is an undue interference with the power of this Court
to admit members thereof, and because it is discriminatory.

PARAS, C.J., dissenting:

Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to
have passed his examinations successfully, he must have obtained a general average of 75 per
cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has
always been adhered to, with certain exception presently to be specified.

With reference to the bar examinations given in August, 1946, the original list of successful
candidates included only those who obtained a general average of 75 per cent or more. Upon
motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73
per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of
November, 1946 the list first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but, upon motion for
reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent
by resolution of March 31, 1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but below 75 per cent were
included. After the original list of 1947 successful bar candidates had been released, and on
motion for reconsideration, all candidates with a general average of 69 per cent were allowed to
pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948,
in addition to the original list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of
whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28,
1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and
for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an
amendment of section 14 of Rule 127.

Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages
mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents
set by this Court in 1947 and 1948, but said motions were uniformly denied.
In the year 1951, the Congress, after public hearings where law deans and professors,
practising attorneys, presidents of bar associations, and law graduates appeared and argued
lengthily pro or con, approved a bill providing, among others, for the reduction of the passing
general average from 75 per cent to 70 per cent, retroactive to any bar examination held after
July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of
Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress
passed another bill similar to the previous bill vetoed by the President, with the important
difference that in the later bill the provisions in the first bill regarding (1) the supervision and
regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and
Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the
examination, and (4) the equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No.
972, by the President by merely not signing it within the required period; and in doing so the
President gave due respect to the will of the Congress which, speaking for the people, chose to
repass the bill first vetoed by him.

Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent
in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar
examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations;
and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in
any subject, shall be allowed to pass. Said Act also provides that any bar candidate who
obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be
deemed to have passed in such subject or subjects and such grade or grades shall be included
in computing the passing in any subsequent examinations.

Numerous candidates who had taken the bar examinations previous to the approval of Republic
Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or
separate petitions, praying that they be admitted to the practice of law under and by virtue of
said Act, upon the allegation that they have obtained the general averages prescribed therein.
In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized representatives of bar associations,
were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing
being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in
so far as it affects past bar examinations and the matter" involved "a new question of public
interest."

All discussions in support of the proposition that the power to regulate the admission to the
practice of law is inherently judicial, are immaterial, because the subject is now governed by the
Constitution which in Article VII, section 13, provides as follows:

The Supreme Court shall have the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not diminish, increase or
modify substantive right. The existing laws on pleading, practice, and procedure are
hereby repealed as statutes and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to
repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.

Under this constitutional provision, while the Supreme Court has the power to promulgate rules
concerning the admission to the practice of law, the Congress has the power to repeal, alter or
supplement said rules. Little intelligence is necessary to see that the power of the Supreme
Court and the Congress to regulate the admission to the practice of law is concurrent.

The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar
examinations held prior to its approval, is unconstitutional, because it sets aside the final
resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners,
thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view
is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the
finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods
after which they become executory and unalterable. Resolutions on bar matters, specially on
motions for reconsiderations filed by flunkers in any give year, are subject to revision by this
Court at any time, regardless of the period within which the motion were filed, and this has been
the practice heretofore. The obvious reason is that bar examinations and admission to the
practice of law may be deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no
judicial function involved, in the subject and constitutional sense of the word, because bar
examinations and the admission to the practice of law, unlike justiciable cases, do not affect
opposing litigants. It is no more than the function of other examining boards. In the second
place, retroactive laws are not prohibited by the Constitution, except only when they would
be ex post facto, would impair obligations and contracts or vested rights or would deny due
process and equal protection of the law. Republic Act No. 972 certainly is not an ex post
facto enactment, does not impair any obligation and contract or vested rights, and denies to no
one the right to due process and equal protection of the law. On the other hand, it is a mere
curative statute intended to correct certain obvious inequalities arising from the adoption by this
Court of different passing general averages in certain years.

Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against,
because we no longer have any record of those who might have failed before the war, apart
from the circumstance that 75 per cent had always been the passing mark during said period. It
may also be that there are no pre-war bar candidates similarly situated as those benefited by
Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be
determined by the legislative body. It is proper to recall that the Congress held public hearings,
and we can fairly suppose that the classification adopted in the Act reflects good legislative
judgment derived from the facts and circumstances then brought out.

As regards the alleged interference in or encroachment upon the judgment of this Court by the
Legislative Department, it is sufficient to state that, if there is any interference at all, it is one
expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited
by the Constitution is essentially aimed at protecting rights of litigants that have already been
vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating
appearances of separation and equality among the three branches of the Government. Republic
Act No. 972 has not produced a case involving two parties and decided by the Court in favor of
one and against the other. Needless to say, the statute will not affect the previous resolutions
passing bar candidates who had obtained the general average prescribed by section 14 of Rule
127. A law would be objectionable and unconstitutional if, for instance, it would provide that
those who have been admitted to the bar after July 4, 1946, whose general average is below 80
per cent, will not be allowed to practice law, because said statute would then destroy a right
already acquired under previous resolutions of this Court, namely, the bar admission of those
whose general averages were from 75 to 79 per cent.

Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power
conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by
reducing the passing average to 70 per cent, effective several years before the date of the
resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who
obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a
general average of 70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the
examinations held in August 1947 and August 1948, said section (fixing the general average at
75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the
Supreme Court and the Congress have concurrent power to regulate the admission to the
practice of law, that the latter may validly pass a retroactive rule fixing the passing general
average.

Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or
capricious, since this Court had already adopted as passing averages 69 per cent for the 1947
bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire
into the wisdom of the law, since this is a matter that is addressed to the judgment of the
legislators. This Court in many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on that ground.

To say that the admission of the bar candidates benefited under Republic Act 972 is against
public interest, is to assume that the matter of whether said Act is beneficial or harmful to the
general public was not considered by the Congress. As already stated, the Congress held public
hearings, and we are bound to assume that the legislators, loyal, as do the members of this
Court, to their oath of office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the Congress, representing the people
who elected them, should be more qualified to make an appraisal. I am inclined to accept
Republic Act No. 972 as an expression of the will of the people through their duly elected
representatives.

I would, however, not go to the extent of admitting that the Congress, in the exercise of its
concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to
the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court
may not do so. We are thus left in the situation, incidental to a democracy, where we can and
should only hope that the right men are put in the right places in our Government.

Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given
effect in its entirety.

Separate Opinions

LABRADOR, J., concurring and dissenting:

The right to admit members to the Bar is, and has always been, the exclusive privilege of this
Court, because lawyers are members of the Court and only this Court should be allowed to
determine admission thereto in the interest of the principle of the separation of powers. The
power to admit is judicial in the sense that discretion is used in is exercise. This power should
be distinguished from the power to promulgate rules which regulate admission. It is only this
power (to promulgate amendments to the rules) that is given in the Constitution to the
Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the
holding of examination, the qualifications of applicants, the passing grades, etc. are within the
scope of the legislative power. But the power to determine when a candidate has made or has
not made the required grade is judicial, and lies completely with this Court.

I hold that the act under consideration is an exercise of the judicial function, and lies beyond the
scope of the congressional prerogative of amending the rules. To say that candidates who
obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955
should be considered as having passed the examination, is to mean exercise of the privilege
and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different
years with grades lower than the passing mark. No reasoning is necessary to show that it is an
arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as
discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to
have the privilege of a lower passing grade, while those taking earlier or later are not?

I vote that the act in toto be declared unconstitutional, because it is not embraced within the
rule-making power of Congress, because it is an undue interference with the power of this Court
to admit members thereof, and because it is discriminatory.

PARAS, C.J., dissenting:

Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to
have passed his examinations successfully, he must have obtained a general average of 75 per
cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has
always been adhered to, with certain exception presently to be specified.

With reference to the bar examinations given in August, 1946, the original list of successful
candidates included only those who obtained a general average of 75 per cent or more. Upon
motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73
per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of
November, 1946 the list first released containing the names of successful candidates covered
only those who obtained a general average of 75 per cent or more; but, upon motion for
reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent
by resolution of March 31, 1947. This would indicate that in the original list of successful
candidates those having a general average of 73 per cent or more but below 75 per cent were
included. After the original list of 1947 successful bar candidates had been released, and on
motion for reconsideration, all candidates with a general average of 69 per cent were allowed to
pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948,
in addition to the original list of successful bar candidates, all those who obtained a general
average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of
whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28,
1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and
for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an
amendment of section 14 of Rule 127.

Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages
mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents
set by this Court in 1947 and 1948, but said motions were uniformly denied.

In the year 1951, the Congress, after public hearings where law deans and professors,
practising attorneys, presidents of bar associations, and law graduates appeared and argued
lengthily pro or con, approved a bill providing, among others, for the reduction of the passing
general average from 75 per cent to 70 per cent, retroactive to any bar examination held after
July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of
Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress
passed another bill similar to the previous bill vetoed by the President, with the important
difference that in the later bill the provisions in the first bill regarding (1) the supervision and
regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and
Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the
examination, and (4) the equal division among the examiners of all the admission fees paid by
bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No.
972, by the President by merely not signing it within the required period; and in doing so the
President gave due respect to the will of the Congress which, speaking for the people, chose to
repass the bill first vetoed by him.

Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent
in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar
examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations;
and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in
any subject, shall be allowed to pass. Said Act also provides that any bar candidate who
obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be
deemed to have passed in such subject or subjects and such grade or grades shall be included
in computing the passing in any subsequent examinations.

Numerous candidates who had taken the bar examinations previous to the approval of Republic
Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or
separate petitions, praying that they be admitted to the practice of law under and by virtue of
said Act, upon the allegation that they have obtained the general averages prescribed therein.
In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said
petitions, and members of the bar, especially authorized representatives of bar associations,
were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing
being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in
so far as it affects past bar examinations and the matter" involved "a new question of public
interest."

All discussions in support of the proposition that the power to regulate the admission to the
practice of law is inherently judicial, are immaterial, because the subject is now governed by the
Constitution which in Article VII, section 13, provides as follows:
The Supreme Court shall have the power to promulgate rules concerning pleading,
practice, and procedure in all courts, and the admission to the practice of law. Said rules
shall be uniform for all courts of the same grade and shall not diminish, increase or
modify substantive right. The existing laws on pleading, practice, and procedure are
hereby repealed as statutes and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to
repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and
the admission to the practice of law in the Philippines.

Under this constitutional provision, while the Supreme Court has the power to promulgate rules
concerning the admission to the practice of law, the Congress has the power to repeal, alter or
supplement said rules. Little intelligence is necessary to see that the power of the Supreme
Court and the Congress to regulate the admission to the practice of law is concurrent.

The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar
examinations held prior to its approval, is unconstitutional, because it sets aside the final
resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners,
thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view
is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the
finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods
after which they become executory and unalterable. Resolutions on bar matters, specially on
motions for reconsiderations filed by flunkers in any give year, are subject to revision by this
Court at any time, regardless of the period within which the motion were filed, and this has been
the practice heretofore. The obvious reason is that bar examinations and admission to the
practice of law may be deemed as a judicial function only because said matters happen to be
entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no
judicial function involved, in the subject and constitutional sense of the word, because bar
examinations and the admission to the practice of law, unlike justiciable cases, do not affect
opposing litigants. It is no more than the function of other examining boards. In the second
place, retroactive laws are not prohibited by the Constitution, except only when they would
be ex post facto, would impair obligations and contracts or vested rights or would deny due
process and equal protection of the law. Republic Act No. 972 certainly is not an ex post
facto enactment, does not impair any obligation and contract or vested rights, and denies to no
one the right to due process and equal protection of the law. On the other hand, it is a mere
curative statute intended to correct certain obvious inequalities arising from the adoption by this
Court of different passing general averages in certain years.

Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against,
because we no longer have any record of those who might have failed before the war, apart
from the circumstance that 75 per cent had always been the passing mark during said period. It
may also be that there are no pre-war bar candidates similarly situated as those benefited by
Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be
determined by the legislative body. It is proper to recall that the Congress held public hearings,
and we can fairly suppose that the classification adopted in the Act reflects good legislative
judgment derived from the facts and circumstances then brought out.

As regards the alleged interference in or encroachment upon the judgment of this Court by the
Legislative Department, it is sufficient to state that, if there is any interference at all, it is one
expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited
by the Constitution is essentially aimed at protecting rights of litigants that have already been
vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating
appearances of separation and equality among the three branches of the Government. Republic
Act No. 972 has not produced a case involving two parties and decided by the Court in favor of
one and against the other. Needless to say, the statute will not affect the previous resolutions
passing bar candidates who had obtained the general average prescribed by section 14 of Rule
127. A law would be objectionable and unconstitutional if, for instance, it would provide that
those who have been admitted to the bar after July 4, 1946, whose general average is below 80
per cent, will not be allowed to practice law, because said statute would then destroy a right
already acquired under previous resolutions of this Court, namely, the bar admission of those
whose general averages were from 75 to 79 per cent.
Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power
conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by
reducing the passing average to 70 per cent, effective several years before the date of the
resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who
obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a
general average of 70 per cent or more, irrespective of whether they filed petitions for
reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the
examinations held in August 1947 and August 1948, said section (fixing the general average at
75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the
Supreme Court and the Congress have concurrent power to regulate the admission to the
practice of law, that the latter may validly pass a retroactive rule fixing the passing general
average.

Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or
capricious, since this Court had already adopted as passing averages 69 per cent for the 1947
bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire
into the wisdom of the law, since this is a matter that is addressed to the judgment of the
legislators. This Court in many instances had doubted the propriety of legislative enactments,
and yet it has consistently refrained from nullifying them solely on that ground.

To say that the admission of the bar candidates benefited under Republic Act 972 is against
public interest, is to assume that the matter of whether said Act is beneficial or harmful to the
general public was not considered by the Congress. As already stated, the Congress held public
hearings, and we are bound to assume that the legislators, loyal, as do the members of this
Court, to their oath of office, had taken all the circumstances into account before passing the
Act. On the question of public interest I may observe that the Congress, representing the people
who elected them, should be more qualified to make an appraisal. I am inclined to accept
Republic Act No. 972 as an expression of the will of the people through their duly elected
representatives.

I would, however, not go to the extent of admitting that the Congress, in the exercise of its
concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to
the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court
may not do so. We are thus left in the situation, incidental to a democracy, where we can and
should only hope that the right men are put in the right places in our Government.

Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given
effect in its entirety.

G.R. No. 183591 October 14, 2008

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS


SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in his own
behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-
appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of
the Presidential Adviser on the Peace Process, respondents.

x--------------------------------------------x

G.R. No. 183752 October 14, 2008

CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT,


City Mayor of Zamboanga, and in his personal capacity as resident of the City of
Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A.
FABIAN, District 2, City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as
the Presidential Adviser on Peace Process,respondents.

x--------------------------------------------x

G.R. No. 183893 October 14, 2008

THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH


CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN.
HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his
capacity as Executive Secretary. respondents.

x--------------------------------------------x

G.R. No. 183951 October 14, 2008

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON.


ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in
his capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan,
HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON.
CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of the
Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M.
MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L.
ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON.
NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON
and HON. LUZVIMINDA E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES
ESPERON, in his capacity as the Presidential Adviser of Peace Process, respondents.

x--------------------------------------------x

G.R. No. 183962 October 14, 2008

ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners,


vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING
PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.

x--------------------------------------------x

FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-intervention.

x--------------------------------------------x

SEN. MANUEL A. ROXAS, petitioners-in-intervention.

x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N.
DEANO, petitioners-in-intervention,

x--------------------------------------------x

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P.


SANTOS-AKBAR,petitioners-in-intervention.

x--------------------------------------------x

THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in


his capacity as Provincial Governor and a resident of the Province of Sultan
Kudarat, petitioner-in-intervention.

x-------------------------------------------x

RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in
Mindanao Not Belonging to the MILF, petitioner-in-intervention.

x--------------------------------------------x

CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and


RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention.

x--------------------------------------------x

MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.

x--------------------------------------------x

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF), respondent-in-intervention.

x--------------------------------------------x

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT


(MMMPD), respondent-in-intervention.

x--------------------------------------------x

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing
the peace process.While the facts surrounding this controversy center on the armed conflict in
Mindanao between the government and the Moro Islamic Liberation Front (MILF), the legal
issue involved has a bearing on all areas in the country where there has been a long-standing
armed conflict. Yet again, the Court is tasked to perform a delicate balancing act. It must
uncompromisingly delineate the bounds within which the President may lawfully exercise her
discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts
the freedom of action vested by that same Constitution in the Chief Executive precisely to
enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF,
through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the leadership of
the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then
headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the
manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.1

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however,
for upon motion of petitioners, specifically those who filed their cases before the scheduled
signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP
from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior
agreements between the two parties beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement
on General Cessation of Hostilities. The following year, they signed the General Framework of
Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that
the same contained, among others, the commitment of the parties to pursue peace negotiations,
protect and respect human rights, negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of threat or force to attain undue advantage
while the peace negotiations on the substantive agenda are on-going.2

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-
MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took control of the town hall of
Kauswagan, Lanao del Norte.3 In response, then President Joseph Estrada declared and
carried out an "all-out-war" against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the
MILF was suspended and the government sought a resumption of the peace talks. The MILF,
according to a leading MILF member, initially responded with deep reservation, but when
President Arroyo asked the Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its
Central Committee to seriously discuss the matter and, eventually, decided to meet with the
GRP.4

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the
Malaysian government, the parties signing on the same date the Agreement on the General
Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF
thereafter suspended all its military actions.5

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the
outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001)
containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With
regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed
"that the same be discussed further by the Parties in their next meeting."

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which
ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli
Agreement 2001 leading to a ceasefire status between the parties. This was followed by the
Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the
Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless,
there were many incidence of violence between government forces and the MILF from 2002 to
2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was
replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's
position as chief peace negotiator was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually
leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be
signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious "consensus" ever embodied in an
instrument - the MOA-AD which is assailed principally by the present petitions bearing docket
numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain7 and the
Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol filed a
petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the
Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. 9 Invoking the right
to information on matters of public concern, petitioners seek to compel respondents to disclose
and furnish them the complete and official copies of the MOA-AD including its attachments, and
to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the
MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that
the MOA-AD be declared unconstitutional.10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma.
Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro
Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be
declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding
and directing public respondents and their agents to cease and desist from formally signing the
MOA-AD.13 The Court also required the Solicitor General to submit to the Court and petitioners
the official copy of the final draft of the MOA-AD,14 to which she complied.15

Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed
as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the
same had already been signed, from implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as
respondent.

The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor Francis
Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for
Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia,
that the MOA-AD be declared null and void and without operative effect, and that respondents
be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition
for Prohibition,20docketed as G.R. No. 183962, praying for a judgment prohibiting and
permanently enjoining respondents from formally signing and executing the MOA-AD and or any
other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being
unconstitutional and illegal. Petitioners herein additionally implead as respondent the MILF
Peace Negotiating Panel represented by its Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file their petitions-
/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas, former
Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela21 and Mayor
Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the
Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo
tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of
Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf)
and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their
respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents
filed Comments on the petitions, while some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to address the
issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of
pleadings, respondents' motion was met with vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the
following principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of


official copies of the final draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is
concerned, if it is considered that consultation has become fait accompli with the
finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel


committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the people's right to information on matters of public


concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all
its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF
1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines
would be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate


state, or a juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for
ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS
PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of


Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte
in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments of
the Government of the Republic of the Philippines.24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the
parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five
petitions and six petitions-in-intervention against the MOA-AD, as well as the two comments-in-
intervention in favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and the
MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of
the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of
President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous
Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples Rights Act (IPRA),26 and
several international law instruments - the ILO Convention No. 169 Concerning Indigenous and
Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the
Indigenous Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment
emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or
territory under peace agreement) that partakes the nature of a treaty device."

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a
simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode
of War). The first referred to those lands where Islamic laws held sway, while the second
denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however, became more complex through the
centuries as the Islamic world became part of the international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-
governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-
harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving
non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-
sulh (land of treaty) referred to countries which, though under a secular regime, maintained
peaceful and cooperative relations with Muslim States, having been bound to each other by
treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which,
though not bound by treaty with Muslim States, maintained freedom of religion for Muslims.28

It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-
mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the
Philippine government - the Philippines being the land of compact and peace agreement - that
partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn
agreement in writing that sets out understandings, obligations, and benefits for both parties
which provides for a framework that elaborates the principles declared in the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS,"
and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES


This strand begins with the statement that it is "the birthright of all Moros and all Indigenous
peoples of Mindanao to identify themselves and be accepted as ‘Bangsamoros.'" It defines
"Bangsamoro people" as the natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and
their descendants whether mixed or of full blood, including their spouses.30

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only
"Moros" as traditionally understood even by Muslims,31 but all indigenous peoples of Mindanao
and its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples
shall be respected. What this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is
vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation.32 Both
parties to the MOA-AD acknowledge that ancestral domain does not form part of the public
domain.33

The Bangsamoro people are acknowledged as having the right to self-governance, which right
is said to be rooted on ancestral territoriality exercised originally under the suzerain authority of
their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states
or "karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-state
in the modern sense.34

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past
suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro
homeland was ruled by several sultanates and, specifically in the case of the Maranao, by
the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong)
each ruled by datus and sultans, none of whom was supreme over the others.35

The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with defined
territory and with a system of government having entered into treaties of amity and commerce
with foreign nations."

The term "First Nation" is of Canadian origin referring to the indigenous peoples of that
territory, particularly those known as Indians. In Canada, each of these indigenous peoples is
equally entitled to be called "First Nation," hence, all of them are usually described collectively
by the plural "First Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro
people as "the First Nation" - suggesting its exclusive entitlement to that designation - departs
from the Canadian usage of the term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to
which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of
the Bangsamoro.37

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM -
thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan,
and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte
that voted for inclusion in the ARMM in the 2001 plebiscite.39

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays,
which are grouped into two categories, Category A and Category B. Each of these areas is to
be subjected to a plebiscite to be held on different dates, years apart from each other. Thus,
Category A areas are to be subjected to a plebiscite not later than twelve (12) months following
the signing of the MOA-AD.40 Category B areas, also called "Special Intervention Areas," on the
other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a
separate agreement - the Comprehensive Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its "internalwaters," defined as extending fifteen (15) kilometers from the
coastline of the BJE area;42 that the BJE shall also have "territorial waters," which shall stretch
beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south
east and south west of mainland Mindanao; and that within these territorial waters, the BJE and
the "Central Government" (used interchangeably with RP) shall exercise joint jurisdiction,
authority and management over all natural resources.43 Notably, the jurisdiction over
the internal waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial waters between the
Central Government and the BJE, in favor of the latter, through production sharing and
economic cooperation agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration and utilization of natural
resources, regulation of shipping and fishing activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of minerals and allowed activities with
respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade
relations with foreign countries and shall have the option to establish trade missions in those
countries. Such relationships and understandings, however, are not to include aggression
against the GRP. The BJE may also enter into environmental cooperation agreements.46

The external defense of the BJE is to remain the duty and obligation of the Central Government.
The Central Government is also bound to "take necessary steps to ensure the BJE's
participation in international meetings and events" like those of the ASEAN and the specialized
agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or protocols for environmental protection
and equitable sharing of incomes and revenues involving the bodies of water adjacent to or
between the islands forming part of the ancestral domain.47

With regard to the right of exploring for, producing, and obtaining all potential sources of energy,
petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be
vested in the BJE "as the party having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so requires," the Central
Government may, for a fixed period and under reasonable terms as may be agreed upon by
both Parties, assume or direct the operation of such resources.48

The sharing between the Central Government and the BJE of total production pertaining to
natural resources is to be 75:25 in favor of the BJE.49

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any
unjust dispossession of their territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation
is to be in such form as mutually determined by the Parties.50

The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted
by the Philippine Government, including those issued by the present ARMM.51

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the
implementation of the Comprehensive Compact. This compact is to embody the "details for
the effective enforcement" and "the mechanisms and modalities for the actual implementation"
of the MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not
in any way affect the status of the relationship between the Central Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as
"associative," characterized by shared authority and responsibility. And it states that the
structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existing legal
framework" shall take effect upon signing of the Comprehensive Compact and upon effecting
the aforesaid amendments, with due regard to the non-derogation of prior agreements and
within the stipulated timeframe to be contained in the Comprehensive Compact. As will be
discussed later, much of the present controversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil
service, electoral, financial and banking, education, legislation, legal, economic, police and
internal security force, judicial system and correctional institutions, the details of which shall be
discussed in the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and
Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF,
respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as
"the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of
the negotiating panels.53 In addition, the signature page of the MOA-AD states that it is
"WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of
Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern
Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign
Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all
of whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the
provinces, municipalities, and barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies. 54 Courts decline to issue
advisory opinions or to resolve hypothetical or feigned problems, or mere academic
questions.55 The limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the
courts will not intrude into areas committed to the other branches of government.56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal
claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute. There must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence.57 The Court can decide the
constitutionality of an act or treaty only when a proper case between opposing parties is
submitted for judicial determination.58

Related to the requirement of an actual case or controversy is the requirement of ripeness. A


question is ripe for adjudication when the act being challenged has had a direct adverse effect
on the individual challenging it.59 For a case to be considered ripe for adjudication, it is a
prerequisite that something had then been accomplished or performed by either branch before a
court may come into the picture,60 and the petitioner must allege the existence of an immediate
or threatened injury to itself as a result of the challenged action. 61 He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of the act
complained of.62
The Solicitor General argues that there is no justiciable controversy that is ripe for judicial
review in the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further


negotiations and legislative enactments as well as constitutional processes aimed at
attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and obligations until the list
of operative acts required have been duly complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority
to pass upon issues based on hypothetical or feigned constitutional problems or
interests with no concrete bases. Considering the preliminary character of the MOA-AD,
there are no concrete acts that could possibly violate petitioners' and intervenors' rights
since the acts complained of are mere contemplated steps toward the formulation of a
final peace agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is
merely imaginary and illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied)

The Solicitor General cites63 the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:

xxxx

d. Without derogating from the requirements of prior agreements, the Government


stipulates to conduct and deliver, using all possible legal measures, within twelve (12)
months following the signing of the MOA-AD, a plebiscite covering the areas as
enumerated in the list and depicted in the map as Category A attached herein (the
"Annex"). The Annex constitutes an integral part of this framework agreement. Toward
this end, the Parties shall endeavor to complete the negotiations and resolve all
outstanding issues on the Comprehensive Compact within fifteen (15) months from the
signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation of
this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such
steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.64 (Underscoring supplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the challenged
action, the dispute is said to have ripened into a judicial controversy even without any
other overt act. Indeed, even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws
x x x settling the dispute becomes the duty and the responsibility of the courts.66

In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that
the challenge to the constitutionality of the school's policy allowing student-led prayers and
speeches before games was ripe for adjudication, even if no public prayer had yet been led
under the policy, because the policy was being challenged as unconstitutional on its face.68

That the law or act in question is not yet effective does not negate ripeness. For example,
in New York v. United States,69 decided in 1992, the United States Supreme Court held that the
action by the State of New York challenging the provisions of the Low-Level Radioactive Waste
Policy Act was ripe for adjudication even if the questioned provision was not to take effect until
January 1, 1996, because the parties agreed that New York had to take immediate action to
avoid the provision's consequences.70

The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and Prohibition
are remedies granted by law when any tribunal, board or officer has acted, in the case of
certiorari, or is proceeding, in the case of prohibition, without or in excess of its jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.72 Mandamus is a
remedy granted by law when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or
office to which such other is entitled.73 Certiorari, Mandamus and Prohibition are appropriate
remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials.74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3),
issued on February 28, 2001.75 The said executive order requires that "[t]he government's policy
framework for peace, including the systematic approach and the administrative structure for
carrying out the comprehensive peace process x x x be governed by this Executive Order."76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms
of the MOA-AD without consulting the local government units or communities affected, nor
informing them of the proceedings. As will be discussed in greater detail later, such omission, by
itself, constitutes a departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The
MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon the signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF
the amendment of the Constitution. Such act constitutes another violation of its authority. Again,
these points will be discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority,
by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the
petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case
or controversy ripe for adjudication exists. When an act of a branch of government is
seriously alleged to have infringed the Constitution, it becomes not only the right but in
fact the duty of the judiciary to settle the dispute.77

B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions."78

Because constitutional cases are often public actions in which the relief sought is likely to affect
other persons, a preliminary question frequently arises as to this interest in the constitutional
question raised.79

When suing as a citizen, the person complaining must allege that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected
to some burdens or penalties by reason of the statute or act complained of. 80 When the issue
concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.81

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally
disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through
the enforcement of an invalid or unconstitutional law.82 The Court retains discretion whether or
not to allow a taxpayer's suit.83

In the case of a legislator or member of Congress, an act of the Executive that injures the
institution of Congress causes a derivative but nonetheless substantial injury that can be
questioned by legislators. A member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the Constitution in his office.84

An organization may be granted standing to assert the rights of its members,85 but the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law does not suffice to clothe it with standing.86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an
interest of its own, and of the other LGUs.87

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the
requirements of the law authorizing intervention,88 such as a legal interest in the matter in
litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given
the liberal attitude it has exercised, highlighted in the case of David v. Macapagal-
Arroyo,89 where technicalities of procedure were brushed aside, the constitutional issues raised
being of paramount public interest or of transcendental importance deserving the attention of
the Court in view of their seriousness, novelty and weight as precedents.90 The Court's
forbearing stance on locus standi on issues involving constitutional issues has for its purpose
the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine
whether the other branches of government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given them, has brushed aside
technical rules of procedure.91

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of
Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of
Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan
Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct
and substantial injury that they, as LGUs, would suffer as their territories, whether in whole or in
part, are to be included in the intended domain of the BJE. These petitioners allege that they did
not vote for their inclusion in the ARMM which would be expanded to form the BJE territory.
Petitioners' legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel
III would have no standing as citizens and taxpayers for their failure to specify that they would
be denied some right or privilege or there would be wastage of public funds. The fact that they
are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro,
respectively, is of no consequence. Considering their invocation of the transcendental
importance of the issues at hand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert
that government funds would be expended for the conduct of an illegal and unconstitutional
plebiscite to delineate the BJE territory. On that score alone, they can be given legal standing.
Their allegation that the issues involved in these petitions are of "undeniable transcendental
importance" clothes them with added basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the
Senate and a citizen to enforce compliance by respondents of the public's constitutional right to
be informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or
in the success or failure of either of the parties. He thus possesses the requisite standing as an
intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of
Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members
of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and
member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they
failed to allege any proper legal interest in the present petitions. Just the same, the Court
exercises its discretion to relax the procedural technicality on locus standi given the paramount
public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an


advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao;
and Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim
lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the
resolution of the petitions concerning the MOA-AD, and prays for the denial of the petitions on
the grounds therein stated. Such legal interest suffices to clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfaction of
all the reliefs prayed for by petitioners and the subsequent pronouncement of the Executive
Secretary that "[n]o matter what the Supreme Court ultimately decides[,] the government will not
sign the MOA."92

In lending credence to this policy decision, the Solicitor General points out that the President
had already disbanded the GRP Peace Panel.93

In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not
being a magical formula that automatically dissuades courts in resolving a case, it will decide
cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the
Constitution;95 (b) the situation is of exceptional character and paramount public interest is
involved;96 (c) the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public;97 and (d) the case is capable of repetition yet evading
review.98

Another exclusionary circumstance that may be considered is where there is


a voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit is
filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive
the tribunal of power to hear and determine the case and does not render the case moot
especially when the plaintiff seeks damages or prays for injunctive relief against the possible
recurrence of the violation.99

The present petitions fall squarely into these exceptions to thus thrust them into the domain of
judicial review. The grounds cited above in David are just as applicable in the present cases as
they were, not only in David, but also in Province of Batangas v. Romulo100 and Manalo v.
Calderon101 where the Court similarly decided them on the merits, supervening events that
would ordinarily have rendered the same moot notwithstanding.
Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears
emphasis that the signing of the MOA-AD did not push through due to the Court's issuance of a
Temporary Restraining Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of
consensus points," especially given its nomenclature, the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional
implications of these "consensus points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework for
certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not
confined to the terms and provisions of the MOA-AD, but to other on-
going and future negotiations and agreements necessary for its realization. The petitions have
not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-
AD,102 the manifestation that it will not be signed as well as the disbanding of the GRP Panel not
withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a
significant part of the country's territory and the wide-ranging political modifications of affected
LGUs. The assertion that the MOA-AD is subject to further legal enactments including
possible Constitutional amendments more than ever provides impetus for the Court
to formulate controlling principles to guide the bench, the bar, the public and, in this
case, the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues
which no longer legitimately constitute an actual case or controversy [as this] will do more harm
than good to the nation as a whole."

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was
assailed and eventually cancelled was a stand-alone government procurement contract for a
national broadband network involving a one-time contractual relation between two parties-the
government and a private foreign corporation. As the issues therein involved specific
government procurement policies and standard principles on contracts, the majority opinion
in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to
the transactions and parties involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of


agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on
the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and
the Humanitarian, Rehabilitation and Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the
Solicitor General, has stated that "no matter what the Supreme Court ultimately decides[,] the
government will not sign the MOA[-AD]," mootness will not set in in light of the terms of the
Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out
the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form,
which could contain similar or significantly drastic provisions. While the Court notes the word of
the Executive Secretary that the government "is committed to securing an agreement that is
both constitutional and equitable because that is the only way that long-lasting peace can be
assured," it is minded to render a decision on the merits in the present petitions to formulate
controlling principles to guide the bench, the bar, the public and, most especially, the
government in negotiating with the MILF regarding Ancestral Domain.

Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio
Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of "capable of repetition
yet evading review" can override mootness, "provided the party raising it in a proper case has
been and/or continue to be prejudiced or damaged as a direct result of their issuance." They
contend that the Court must have jurisdiction over the subject matter for the doctrine to be
invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises original
jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and
Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implications
and raises questions that need to be resolved.105 At all events, the Court has jurisdiction over
most if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine
immediately referred to as what it had done in a number of landmark cases. 106 There is
a reasonable expectation that petitioners, particularly the Provinces of North Cotabato,
Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, will again be subjected to the same problem in the future as
respondents' actions are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and petitioners with
official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have been
furnished, or have procured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD was
negotiated and finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the
right to information when they negotiated and later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as


provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as
may be provided by law.107

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the
1987 Constitution, has been recognized as a self-executory constitutional right.109

In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public
records is predicated on the right of the people to acquire information on matters of public
concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters of
social and political significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of
free exchange of information in a democracy. There can be no realistic perception by the public
of the nation's problems, nor a meaningful democratic decision-making if they are denied
access to information of general interest. Information is needed to enable the members of
society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the
flow of such information depends on protection for both its acquisition and its dissemination
since, if either process is interrupted, the flow inevitably ceases." x x x111

In the same way that free discussion enables members of society to cope with the exigencies of
their time, access to information of general interest aids the people in democratic decision-
making by giving them a better perspective of the vital issues confronting the nation112 so that
they may be able to criticize and participate in the affairs of the government in a responsible,
reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of
ideas among a well-informed public that a government remains responsive to the changes
desired by the people.113

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public
concern114 faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of
public concern.115 In previous cases, the Court found that the regularity of real estate
transactions entered in the Register of Deeds,116 the need for adequate notice to the public of
the various laws,117 the civil service eligibility of a public employee,118 the proper management of
GSIS funds allegedly used to grant loans to public officials,119 the recovery of the Marcoses'
alleged ill-gotten wealth,120 and the identity of party-list nominees,121 among others, are matters
of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public
concern, involving as it does the sovereignty and territorial integrity of the State, which
directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations
leading to the consummation of the contract. In not distinguishing as to the executory nature or
commercial character of agreements, the Court has categorically ruled:

x x x [T]he right to information "contemplates inclusion of negotiations leading to the


consummation of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is consummated, it may be
too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes fait
accompli. This negates the State policy of full transparency on matters of public concern,
a situation which the framers of the Constitution could not have intended. Such a
requirement will prevent the citizenry from participating in the public discussion of
any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights.
We can allow neither an emasculation of a constitutional right, nor a retreat by the State
of its avowed "policy of full disclosure of all its transactions involving public
interest."122 (Emphasis and italics in the original)

Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the
policy of public disclosure under Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.124

The policy of full public disclosure enunciated in above-quoted Section


28 complements the right of access to information on matters of public concern found in the Bill
of Rights. The right to information guarantees the right of the people to demand information,
while Section 28 recognizes the duty of officialdom to give information even if nobody
demands.125

The policy of public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is a
mandate of the State to be accountable by following such policy.126 These provisions are vital to
the exercise of the freedom of expression and essential to hold public officials at all times
accountable to the people.127

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional


Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or
will not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course,
the implementing law will have to be enacted by Congress, Mr. Presiding Officer. 128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the
issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I
get the Gentleman correctly as having said that this is not a self-executing provision? It
would require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an


amendment from Commissioner Regalado, so that the safeguards on national interest
are modified by the clause "as may be provided by law"

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect
and Congress may provide for reasonable safeguards on the sole ground national
interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course,
Congress here may no longer pass a law revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy.129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of
a statute. As Congress cannot revoke this principle, it is merely directed to provide for
"reasonable safeguards." The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature. Since both provisions go hand-in-hand, it is absurd to say that the
broader130 right to information on matters of public concern is already enforceable while the
correlative duty of the State to disclose its transactions involving public interest is not
enforceable until there is an enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or process of


communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may
perceive and be responsive to the people's will.131Envisioned to be corollary to the twin rights to
information and disclosure is the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to
participate? Will the government provide feedback mechanisms so that the people
can participate and can react where the existing media facilities are not able to
provide full feedback mechanisms to the government? I suppose this will be part
of the government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these
courses take place. There is a message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public
officials but also network of private business o[r] community-based organizations
that will be reacting. As a matter of fact, we will put more credence or credibility on the
private network of volunteers and voluntary community-based organizations. So I do not
think we are afraid that there will be another OMA in the making.132(Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the
"marching orders" to respondents. The mechanics for the duty to disclose information and to
conduct public consultation regarding the peace agenda and process is manifestly provided by
E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that there is a need to further
enhance the contribution of civil society to the comprehensive peace process by
institutionalizing the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should be
community-based, reflecting the sentiments, values and principles important to all Filipinos" and
"shall be defined not by the government alone, nor by the different contending groups only, but
by all Filipinos as one community."134 Included as a component of the comprehensive peace
process is consensus-building and empowerment for peace, which includes "continuing
consultations on both national and local levels to build consensus for a peace agenda and
process, and the mobilization and facilitation of people's participation in the peace process."135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is "more
than sufficient consultation."136

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is
to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners
to seek relevant information, comments, recommendations as well as to render appropriate and
timely reports on the progress of the comprehensive peace process."137 E.O. No. 3 mandates
the establishment of the NPF to be "the principal forum for the PAPP to consult with and seek
advi[c]e from the peace advocates, peace partners and concerned sectors of society on both
national and local levels, on the implementation of the comprehensive peace process, as well
as for government[-]civil society dialogue and consensus-building on peace agenda and
initiatives."138

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation. The furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way
or manner. It may, however, require him to comply with the law and discharge the
functions within the authority granted by the President.139

Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in
justifying the denial of petitioners' right to be consulted. Respondents' stance manifests the
manner by which they treat the salient provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not much different from superficial conduct
toward token provisos that border on classic lip service.140 It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the
premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit
provisions on continuing consultation and dialogue on both national and local levels.
The executive order even recognizes the exercise of the public's right even before the
GRP makes its official recommendations or before the government proffers its definite
propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information,
comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of
their unqualified disclosure of the official copies of the final draft of the MOA-AD. By
unconditionally complying with the Court's August 4, 2008 Resolution, without a prayer for the
document's disclosure in camera, or without a manifestation that it was complying therewith ex
abundante ad cautelam.

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy
to "require all national agencies and offices to conduct periodic consultations with appropriate
local government units, non-governmental and people's organizations, and other concerned
sectors of the community before any project or program is implemented in their respective
jurisdictions"142 is well-taken. The LGC chapter on intergovernmental relations puts flesh into
this avowed policy:

Prior Consultations Required. - No project or program shall be implemented by


government authorities unlessthe consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall not
be evicted unless appropriate relocation sites have been provided, in accordance with
the provisions of the Constitution.143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-quoted
provision of the LGU apply only to national programs or projects which are to be implemented in
a particular local community. Among the programs and projects covered are those that are
critical to the environment and human ecology including those that may call for the eviction of a
particular group of people residing in the locality where these will be implemented.145 The MOA-
AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people,146 which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total
environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose


interests are represented herein by petitioner Lopez and are adversely affected by the MOA-AD,
the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making
in matters which may affect their rights, lives and destinies. 147 The MOA-AD, an instrument
recognizing ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms
ordained in said Act,148 which entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-AD,
without which all other stipulations or "consensus points" necessarily must fail. In proceeding to
make a sweeping declaration on ancestral domain, without complying with the IPRA, which is
cited as one of the TOR of the MOA-AD, respondents clearly transcended the boundaries of
their authority. As it seems, even the heart of the MOA-AD is still subject to necessary
changes to the legal framework. While paragraph 7 on Governance suspends the effectivity of
all provisions requiring changes to the legal framework, such clause is itself invalid, as will be
discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public scrutiny
and available always to public cognizance. This has to be so if the country is to remain
democratic, with sovereignty residing in the people and all government authority emanating from
them.149

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be
accommodated under the present Constitution and laws. Respondents have admitted as much
in the oral arguments before this Court, and the MOA-AD itself recognizes the need to amend
the existing legal framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions
therein which are inconsistent with the present legal framework will not be effective until the
necessary changes to that framework are made. The validity of this argument will be considered
later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded
therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted
to any local government under present laws, and even go beyond those of the present ARMM.
Before assessing some of the specific powers that would have been vested in the BJE,
however, it would be useful to turn first to a general idea that serves as a unifying link to the
different provisions of the MOA-AD, namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually
framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and


paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-
AD most clearly uses it to describe the envisioned relationship between the BJE and the Central
Government.

4. The relationship between the Central Government and the Bangsamoro juridical
entity shall be associative characterized by shared authority and
responsibility with a structure of governance based on executive, legislative, judicial
and administrative institutions with defined powers and functions in the comprehensive
compact. A period of transition shall be established in a comprehensive peace compact
specifying the relationship between the Central Government and the BJE. (Emphasis
and underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a
concept of "association" in international law, and the MOA-AD - by its inclusion of international
law instruments in its TOR- placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of the term "associative" in the
MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish
durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international
status as a state. Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of
Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific
Islands,151 are associated states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet
they issue their own travel documents, which is a mark of their statehood. Their international
legal status as states was confirmed by the UN Security Council and by their admission to UN
membership.

According to their compacts of free association, the Marshall Islands and the FSM generally
have the capacity to conduct foreign affairs in their own name and right, such capacity
extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil
aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is
obligated to consult with the governments of the Marshall Islands or the FSM on matters which it
(U.S. government) regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government
has the authority and obligation to defend them as if they were part of U.S. territory. The U.S.
government, moreover, has the option of establishing and using military areas and facilities
within these associated states and has the right to bar the military personnel of any third country
from having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national constitution, and
each party may terminate the association consistent with the right of independence. It has been
said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized
that the American model of free association is actually based on an underlying status of
independence.152

In international practice, the "associated state" arrangement has usually been used as
a transitional device of former colonies on their way to full independence. Examples of states
that have passed through the status of associated states as a transitional phase are Antigua, St.
Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states.153

Back to the MOA-AD, it contains many provisions which are consistent with the international
legal concept of association, specifically the following: the BJE's capacity to enter into economic
and trade relations with foreign countries, the commitment of the Central Government to ensure
the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies,
and the continuing responsibility of the Central Government over external defense. Moreover,
the BJE's right to participate in Philippine official missions bearing on negotiation of border
agreements, environmental protection, and sharing of revenues pertaining to the bodies of
water adjacent to or between the islands forming part of the ancestral domain, resembles the
right of the governments of FSM and the Marshall Islands to be consulted by the U.S.
government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in
the BJE the status of an associated state or, at any rate, a status closely approximating
it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having
an "associative" relationship with the national government. Indeed, the concept implies powers
that go beyond anything ever granted by the Constitution to any local or regional government. It
also implies the recognition of the associated entity as a state. The Constitution, however, does
not contemplate any state in this jurisdiction other than the Philippine State, much less does it
provide for a transitory status that aims to prepare any part of Philippine territory for
independence.

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires
for its validity the amendment of constitutional provisions, specifically the following provisions of
Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines
are the provinces, cities, municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

The BJE is a far more powerful


entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national
government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all
but name as it meets the criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population, a defined territory, a government, and
a capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it - which has betrayed itself by its use of the concept
of association - runs counter to the national sovereignty and territorial integrity of the
Republic.

The defining concept underlying the relationship between the national government and
the BJE being itself contrary to the present Constitution, it is not surprising that many of
the specific provisions of the MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region
shall be effective when approved by a majority of the votes cast by the constituent units in a
plebiscite called for the purpose, provided that only provinces, cities, and geographic areas
voting favorably in such plebiscite shall be included in the autonomous region."
(Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming
that it is covered by the term "autonomous region" in the constitutional provision just quoted, the
MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to
2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of
Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi,
Munai, Nunungan, Pantar, Tagoloan and Tangkal - are automatically part of the BJE without
need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier
in the overview. That the present components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because what these areas voted for then was
their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not


comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:

(1) Administrative organization;


(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD
would require an amendment that would expand the above-quoted provision. The mere
passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision
would not suffice, since any new law that might vest in the BJE the powers found in the MOA-
AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to
merely pass legislation vesting the BJE with treaty-making power in order to accommodate
paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign countries: provided, however, that such
relationships and understandings do not include aggression against the Government of the
Republic of the Philippines x x x." Under our constitutional system, it is only the President who
has that power. Pimentel v. Executive Secretary155 instructs:

In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned
in the MOA-AD is to be effected. That constitutional provision states: "The State recognizes
and promotes the rights of indigenous cultural communities within the framework of national
unity and development." (Underscoring supplied) An associative arrangement does not uphold
national unity. While there may be a semblance of unity because of the associative ties between
the BJE and the national government, the act of placing a portion of Philippine territory in a
status which, in international practice, has generally been a preparation for independence, is
certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with
prevailing statutory law, among which are R.A. No. 9054156 or the Organic Act of the ARMM,
and the IPRA.157

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts and
Principles states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to
those who are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of conquest or
colonization of its descendants whether mixed or of full blood. Spouses and their
descendants are classified as Bangsamoro. The freedom of choice of the Indigenous
people shall be respected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of
the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other
indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people
and Tribal peoples, as follows:

"As used in this Organic Act, the phrase "indigenous cultural community" refers
to Filipino citizens residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political
institutions."

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of
ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the
Bangsamoro people is a clear departure from that procedure. By paragraph 1 of Territory, the
Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land mass as well as the maritime,
terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region."

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the
following provisions thereof:

SECTION 52. Delineation Process. - The identification and delineation of ancestral


domains shall be done in accordance with the following procedures:

xxxx

b) Petition for Delineation. - The process of delineating a specific perimeter may be


initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for
Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. - The official delineation of ancestral domain boundaries including


census of all community members therein, shall be immediately undertaken by the
Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community concerned and shall at all
times include genuine involvement and participation by the members of the communities
concerned;

d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of
elders or community under oath, and other documents directly or indirectly attesting to
the possession or occupation of the area since time immemorial by such ICCs/IPs in the
concept of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements,


burial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries


entered into by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting


grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains,


rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the
community.

e) Preparation of Maps. - On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map,
complete with technical descriptions, and a description of the natural features and
landmarks embraced therein;

f) Report of Investigation and Other Documents. - A complete copy of the preliminary


census and a report of investigation, shall be prepared by the Ancestral Domains Office
of the NCIP;

g) Notice and Publication. - A copy of each document, including a translation in the


native language of the ICCs/IPs concerned shall be posted in a prominent place therein
for at least fifteen (15) days. A copy of the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be published in a newspaper of
general circulation once a week for two (2) consecutive weeks to allow other claimants
to file opposition thereto within fifteen (15) days from date of such publication: Provided,
That in areas where no such newspaper exists, broadcasting in a radio station will be a
valid substitute: Provided, further, That mere posting shall be deemed sufficient if both
newspaper and radio station are not available;

h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the NCIP
endorsing a favorable action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral Domains Office shall require
the submission of additional evidence: Provided, That the Ancestral Domains Office shall
reject any claim that is deemed patently false or fraudulent after inspection and
verification: Provided, further, That in case of rejection, the Ancestral Domains Office
shall give the applicant due notice, copy furnished all concerned, containing the grounds
for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in
cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral
domain claims, the Ancestral Domains Office shall cause the contending parties to meet
and assist them in coming up with a preliminary resolution of the conflict, without
prejudice to its full adjudication according to the section below.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a
discussion of not only the Constitution and domestic statutes, but also of international law is in
order, for

Article II, Section 2 of the Constitution states that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that
the Universal Declaration of Human Rights is part of the law of the land on account of which it
ordered the release on bail of a detained alien of Russian descent whose deportation order had
not been executed even after two years. Similarly, the Court in Agustin v. Edu159 applied the
aforesaid constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples," understood
not merely as the entire population of a State but also a portion thereof. In considering the
question of whether the people of Quebec had a right to unilaterally secede from Canada, the
Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC160 had occasion to
acknowledge that "the right of a people to self-determination is now so widely recognized in
international conventions that the principle has acquired a status beyond ‘convention' and is
considered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil and Political
Rights161 and the International Covenant on Economic, Social and Cultural Rights162 which
state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination,
"freely determine their political status and freely pursue their economic, social, and cultural
development."

The people's right to self-determination should not, however, be understood as extending to a


unilateral right of secession. A distinction should be made between the right of internal and
external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination -
a people's pursuit of its political, economic, social and cultural development
within the framework of an existing state. A right to external self-determination
(which in this case potentially takes the form of the assertion of a right to
unilateral secession) arises in only the most extreme of cases and, even then,
under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from


the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or


integration with an independent State or the emergence into any other political
status freely determined by a peopleconstitute modes of implementing the right of
self-determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a


framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a people's right to self-
determination also contain parallel statements supportive of the conclusion that the
exercise of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign
domination or exploitation outside a colonial context, and - less definitely but asserted by a
number of commentators - is blocked from the meaningful exercise of its right to internal self-
determination. The Court ultimately held that the population of Quebec had no right to
secession, as the same is not under colonial rule or foreign domination, nor is it being deprived
of the freedom to make political choices and pursue economic, social and cultural development,
citing that Quebec is equitably represented in legislative, executive and judicial institutions
within Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE
INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND
ISLANDS QUESTION.163 There, Sweden presented to the Council of the League of Nations the
question of whether the inhabitants of the Aaland Islands should be authorized to determine by
plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the
kingdom of Sweden. The Council, before resolving the question, appointed an International
Committee composed of three jurists to submit an opinion on the preliminary issue of whether
the dispute should, based on international law, be entirely left to the domestic jurisdiction of
Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of


disposing of national territory is essentially an attribute of the sovereignty of
every State. Positive International Law does not recognize the right of national
groups, as such, to separate themselves from the State of which they form part by
the simple expression of a wish, any more than it recognizes the right of other States
to claim such a separation. Generally speaking, the grant or refusal of the right to a
portion of its population of determining its own political fate by plebiscite or by
some other method, is, exclusively, an attribute of the sovereignty of every
State which is definitively constituted. A dispute between two States concerning such
a question, under normal conditions therefore, bears upon a question which International
Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any
other solution would amount to an infringement of sovereign rights of a State and would
involve the risk of creating difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term "State," but would also endanger the interests
of the international community. If this right is not possessed by a large or small section of
a nation, neither can it be held by the State to which the national group wishes to be
attached, nor by any other State. (Emphasis and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a question
which is left by international law to the domestic jurisdiction of Finland, thereby applying the
exception rather than the rule elucidated above. Its ground for departing from the general rule,
however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when
Finland was undergoing drastic political transformation. The internal situation of Finland was,
according to the Committee, so abnormal that, for a considerable time, the conditions required
for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil
war, the legitimacy of the Finnish national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and forcibly prevented from carrying out
its duties. The armed camps and the police were divided into two opposing forces. In light of
these circumstances, Finland was not, during the relevant time period, a "definitively
constituted" sovereign state. The Committee, therefore, found that Finland did not possess the
right to withhold from a portion of its population the option to separate itself - a right which
sovereign nations generally have with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in
scholarship as well as international, regional, and state practices, to refer to groups with distinct
cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly
incorporated into a larger governing society. These groups are regarded as "indigenous" since
they are the living descendants of pre-invasion inhabitants of lands now dominated by others.
Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups
that find themselves engulfed by settler societies born of the forces of empire and
conquest.164 Examples of groups who have been regarded as indigenous peoples are the Maori
of New Zealand and the aboriginal peoples of Canada.

As with the broader category of "peoples," indigenous peoples situated within states do not
have a general right to independence or secession from those states under international
law,165 but they do have rights amounting to what was discussed above as the right
to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the
United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General
Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among
those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S.
The Declaration clearly recognized the right of indigenous peoples to self-determination,
encompassing the right to autonomy or self-government, to wit:
Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right


to autonomy or self-government in matters relating to their internal and local
affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political,
legal, economic, social and cultural institutions, while retaining their right to participate
fully, if they so choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has


been understood as equivalent to "internal self-determination."166 The extent of self-
determination provided for in the UN DRIP is more particularly defined in its subsequent articles,
some of which are quoted hereunder:

Article 8

1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.

2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;

(c) Any form of forced population transfer which has the aim or effect of violating
or undermining any of their rights;

(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic


discrimination directed against them.

Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their
economic and social conditions, including, inter alia, in the areas of education,
employment, vocational training and retraining, housing, sanitation, health and social
security.

2. States shall take effective measures and, where appropriate, special measures to
ensure continuing improvement of their economic and social conditions. Particular
attention shall be paid to the rights and special needs of indigenous elders, women,
youth, children and persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested
by the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative institutions,
prior to using their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies
for the development or use of their lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their free and
informed consent prior to the approval of any project affecting their lands or territories
and other resources, particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such
activities, and appropriate measures shall be taken to mitigate adverse environmental,
economic, social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights


of indigenous peoples contained in treaties, agreements and other constructive
arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be
regarded as embodying customary international law - a question which the Court need not
definitively resolve here - the obligations enumerated therein do not strictly require the Republic
to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and
powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are
general in scope, allowing for flexibility in its application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous
peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the
State which will provide protection for indigenous peoples against acts like the forced
dispossession of their lands - a function that is normally performed by police officers. If the
protection of a right so essential to indigenous people's identity is acknowledged to be the
responsibility of the State, then surely the protection of rights less significant to them as such
peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of
the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in
Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not
obligate States to grant indigenous peoples the near-independent status of an associated state.
All the rights recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people,
group or person any right to engage in any activity or to perform any act contrary to the
Charter of the United Nations or construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II,
Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to
render its compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be
reconciled with the Constitution and the laws as presently worded. Respondents proffer,
however, that the signing of the MOA-AD alone would not have entailed any violation of law or
grave abuse of discretion on their part, precisely because it stipulates that the provisions thereof
inconsistent with the laws shall not take effect until these laws are amended. They cite
paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced
below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation
of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such
steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.

Indeed, the foregoing stipulation keeps many