B.
1 This original action for the writs of certiorari and
Case No. 001
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN
PARTY-LIST REP. RISA HONTIVEROS, PROF.
HARRY C. ROQUE, JR., AND UNIVERSITY OF THE
PHILIPPINES COLLEGE OF LAW STUDENTS,
ALITHEA BARBARA ACAS, VOLTAIRE ALFERES,
CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO,
SHERYL BALOT, RUBY AMOR BARRACA, JOSE
JAVIER BAUTISTA, ROMINA BERNARDO,
VALERIE PAGASA BUENAVENTURA, EDAN
MARRI CAÑETE, VANN ALLEN DELA CRUZ,
RENE DELORINO, PAULYN MAY DUMAN,
SHARON ESCOTO, RODRIGO FAJARDO III,
GIRLIE FERRER, RAOULLE OSEN FERRER,
CARLA REGINA GREPO, ANNA MARIE CECILIA
GO, IRISH KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY, MIGUEL RAFAEL
MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS,
ENRIK FORT REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN
RIVERO, DIANNE MARIE ROA, NICHOLAS
SANTIZO, MELISSA CHRISTINA SANTOS,
CRISTINE MAE TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and MARCELINO
VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS SECRETARY OF
THE DEPARTMENT OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF BUDGET
AND MANAGEMENT, HON. DIONY VENTURA, IN
HIS CAPACITY AS ADMINISTRATOR OF THE
NATIONAL MAPPING & RESOURCE
INFORMATION AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE PERMANENT
MISSION OF THE REPUBLIC OF THE
PHILIPPINES TO THE UNITED
NATIONS,Respondents.
DECISION
CARPIO, J.:
The Case
prohibition assails the constitutionality of Republic Act
No. 9522 (RA 9522) adjusting the country’s
archipelagic baselines and classifying the baseline
regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA
3046) demarcating the maritime baselines of the
Philippines as an archipelagic State. This law followed
the framing of the Convention on the Territorial Sea
and the Contiguous Zone in 1958 (UNCLOS I),
codifying, among others, the sovereign right of States
parties over their "territorial sea," the breadth of
which, however, was left undetermined. Attempts to
fill this void during the second round of negotiations in
Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for
nearly five decades, save for legislation passed in
1968 (Republic Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the drawing of
baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by
enacting RA 9522, the statute now under scrutiny.
The change was prompted by the need to make RA
3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS
III), which the Philippines ratified on 27 February
1984. Among others, UNCLOS III prescribes the
water-land ratio, length, and contour of baselines of
archipelagic States like the Philippines and sets the
deadline for the filing of application for the extended
continental shelf. Complying with these requirements,
RA 9522 shortened one baseline, optimized the
location of some basepoints around the Philippine
archipelago and classified adjacent territories,
namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as "regimes of islands" whose
islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a
legislator, in their respective capacities as "citizens,
taxpayers or legislators," as the case may be, assail
the constitutionality of RA 9522 on two principal
grounds, namely: (1) RA 9522 reduces Philippine
maritime territory, and logically, the reach of the
Philippine state’s sovereign power, in violation of
Article 1 of the 1987 Constitution, embodying the
terms of the Treaty of Paris and ancillary treaties, and
(2) RA 9522 opens the country’s waters landward of
the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and
national security, contravening the country’s nuclear-
free policy, and damaging marine resources, in
violation of relevant constitutional provisions.
In addition, petitioners contend that RA 9522’s
treatment of the KIG as "regime of islands" not only
results in the loss of a large maritime area but also
prejudices the livelihood of subsistence fishermen. To
buttress their argument of territorial diminution,
petitioners facially attack RA 9522 for what it excluded
and included – its failure to reference either the Treaty
of Paris or Sabah and its use of UNCLOS III’s
framework of regime of islands to determine the
maritime zones of the KIG and the Scarborough
Shoal.
Commenting on the petition, respondent officials
raised threshold issues questioning (1) the petition’s
compliance with the case or controversy requirement
for judicial review grounded on petitioners’ alleged
lack of locus standi and (2) the propriety of the writs of
certiorari and prohibition to assail the constitutionality
of RA 9522. On the merits, respondents defended RA
9522 as the country’s compliance with the terms of
UNCLOS III, preserving Philippine territory over the
KIG or Scarborough Shoal. Respondents add that RA
9522 does not undermine the country’s security,
environment and economic interests or relinquish the
Philippines’ claim over Sabah.
Respondents also question the normative force,
under international law, of petitioners’ assertion that
what Spain ceded to the United States under the
Treaty of Paris were the islands and all the
waters found within the boundaries of the rectangular
area drawn under the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive
writ.
The Issues
The petition raises the following issues:
1. Preliminarily –
1. Whether petitioners
possess locus standi to bring this
suit; and
2. Whether the writs of certiorari
and prohibition are the proper
remedies to assail the
constitutionality of RA 9522.
2. On the merits, whether RA 9522 is
unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners
possess locus standi to bring this suit as citizens and
(2) the writs of certiorari and prohibition are proper
remedies to test the constitutionality of RA 9522. On
the merits, we find no basis to declare RA 9522
unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion
of locus standi as legislators and taxpayers because
the petition alleges neither infringement of legislative
prerogative nor misuse of public funds, occasioned by
the passage and implementation of RA 9522.
Nonetheless, we recognize petitioners’ locus
standi as citizens with constitutionally sufficient
interest in the resolution of the merits of the case
which undoubtedly raises issues of national
significance necessitating urgent resolution. Indeed,
owing to the peculiar nature of RA 9522, it is
understandably difficult to find other litigants
possessing "a more direct and specific interest" to
bring the suit, thus satisfying one of the requirements
for granting citizenship standing.
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on
preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and
prohibition, noting that the writs cannot issue absent
any showing of grave abuse of discretion in the
exercise of judicial, quasi-judicial or ministerial powers
on the part of respondents and resulting prejudice on
the part of petitioners.
Respondents’ submission holds true in ordinary civil
proceedings. When this Court exercises its
constitutional power of judicial review, however, we
have, by tradition, viewed the writs of certiorari and
prohibition as proper remedial vehicles to test the
constitutionality of statutes, and indeed, of acts of
other branches of government. Issues of
constitutional import are sometimes crafted out of
statutes which, while having no bearing on the
personal interests of the petitioners, carry such
relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance
of the case and pass upon the issues raised, non-
compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed
here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Country’s
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large
portion of the national territory" because it discards
the pre-UNCLOS III demarcation of Philippine territory
under the Treaty of Paris and related treaties,
successively encoded in the definition of national
territory under the 1935, 1973 and 1987 Constitutions.
Petitioners theorize that this constitutional definition
trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the
territorial sea recognized at the time of the Treaty of
Paris, that Spain supposedly ceded to the United
States. Petitioners argue that from the Treaty of Paris’
technical description, Philippine sovereignty over
territorial waters extends hundreds of nautical miles
around the Philippine archipelago, embracing the
rectangular area delineated in the Treaty of Paris.
Petitioners’ theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or
loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones
(i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from
the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves
that UNCLOS III delimits. UNCLOS III was the
culmination of decades-long negotiations among
United Nations members to codify norms regulating
the conduct of States in the world’s oceans and
submarine areas, recognizing coastal and
archipelagic States’ graduated authority over a limited
span of waters and submarine lands along their
coasts.
On the other hand, baselines laws such as RA 9522
are enacted by UNCLOS III States parties to mark-out
specific basepoints along their coasts from which
baselines are drawn, either straight or contoured, to
serve as geographic starting points to measure the
breadth of the maritime zones and continental shelf.
Article 48 of UNCLOS III on archipelagic States like
ours could not be any clearer:
Article 48. Measurement of the breadth of the
territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf. – The
breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental
shelf shall be measured from archipelagic
baselines drawn in accordance with article 47.
(Emphasis supplied)
Thus, baselines laws are nothing but statutory
mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the
rest of the international community of the scope of the
maritime space and submarine areas within which
States parties exercise treaty-based rights, namely,
the exercise of sovereignty over territorial waters
(Article 2), the jurisdiction to enforce customs, fiscal,
immigration, and sanitation laws in the contiguous
zone (Article 33), and the right to exploit the living and
non-living resources in the exclusive economic zone
(Article 56) and continental shelf (Article 77).
Even under petitioners’ theory that the Philippine
territory embraces the islands and all the
waters within the rectangular area delimited in the
Treaty of Paris, the baselines of the Philippines would
still have to be drawn in accordance with RA 9522
because this is the only way to draw the baselines in
conformity with UNCLOS III. The baselines cannot be
drawn from the boundaries or other portions of the
rectangular area delineated in the Treaty of Paris, but
from the "outermost islands and drying reefs of the
archipelago."
UNCLOS III and its ancillary baselines laws play no
role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional
international law typology, States acquire (or
conversely, lose) territory through occupation,
accretion, cession and prescription, not by executing
multilateral treaties on the regulations of sea-use
rights or enacting statutes to comply with the treaty’s
terms to delimit maritime zones and continental
shelves. Territorial claims to land features are outside
UNCLOS III, and are instead governed by the rules
on general international law.
RA 9522’s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines’ Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522’s use of
UNCLOS III’s regime of islands framework to draw
the baselines, and to measure the breadth of the
applicable maritime zones of the KIG, "weakens our
territorial claim" over that area. Petitioners add that
the KIG’s (and Scarborough Shoal’s) exclusion from
the Philippine archipelagic baselines results in the
loss of "about 15,000 square nautical miles of
territorial waters," prejudicing the livelihood of
subsistence fishermen. A comparison of the
configuration of the baselines drawn under RA 3046
and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of
the text of RA 9522 and its congressional
deliberations, vis-à-vis the Philippines’ obligations
under UNCLOS III, belie this view.1avvphi1
The configuration of the baselines drawn under RA
3046 and RA 9522 shows that RA 9522 merely
followed the basepoints mapped by RA 3046, save for
at least nine basepoints that RA 9522 skipped to
optimize the location of basepoints and adjust the
length of one baseline (and thus comply with
UNCLOS III’s limitation on the maximum length of
baselines). Under RA 3046, as under RA 9522, the
KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago.
This undeniable cartographic fact takes the wind out
of petitioners’ argument branding RA 9522 as a
statutory renunciation of the Philippines’ claim over
the KIG, assuming that baselines are relevant for this
purpose.
Petitioners’ assertion of loss of "about 15,000 square
nautical miles of territorial waters" under RA 9522 is
similarly unfounded both in fact and law. On the
contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines’ total maritime
space (covering its internal waters, territorial sea and
exclusive economic zone) by 145,216 square nautical
miles, as shown in the table below:
Thus, as the map below shows, the reach of the
exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the
rectangular demarcation under the Treaty of Paris. Of
course, where there are overlapping exclusive
economic zones of opposite or adjacent States, there
will have to be a delineation of maritime boundaries in
accordance with UNCLOS III
Further, petitioners’ argument that the KIG now lies
outside Philippine territory because the baselines that
RA 9522 draws do not enclose the KIG is negated by
RA 9522 itself. Section 2 of the law commits to text
the Philippines’ continued claim of sovereignty and
jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over
which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as
"Regime of Islands" under the Republic of the
Philippines consistent with Article 121 of the United
Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted
under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as
Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the
Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have
ensued. The Philippines would have committed a
breach of two provisions of UNCLOS III. First, Article
47 (3) of UNCLOS III requires that "[t]he drawing of
such baselines shall not depart to any appreciable
extent from the general configuration of the
archipelago." Second, Article 47 (2) of UNCLOS III
requires that "the length of the baselines shall not
exceed 100 nautical miles," save for three per cent
(3%) of the total number of baselines which can reach
up to 125 nautical miles.
Although the Philippines has consistently claimed
sovereignty over the KIG and the Scarborough Shoal
for several decades, these outlying areas are located
at an appreciable distance from the nearest shoreline
of the Philippine archipelago, such that any straight
baseline loped around them from the nearest
basepoint will inevitably "depart to an appreciable
extent from the general configuration of the
archipelago."
The principal sponsor of RA 9522 in the Senate,
Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate
deliberations:
What we call the Kalayaan Island Group or what the
rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic
baseline because if we put them inside our baselines
we might be accused of violating the provision of
international law which states: "The drawing of such
baseline shall not depart to any appreciable extent
from the general configuration of the archipelago." So
sa loob ng ating baseline, dapat magkalapit ang mga
islands. Dahil malayo ang Scarborough Shoal, hindi
natin masasabing malapit sila sa atin although we are
still allowed by international law to claim them as our
own.
This is called contested islands outside our
configuration. We see that our archipelago is defined
by the orange line which [we] call[] archipelagic
baseline. Ngayon, tingnan ninyo ang maliit na circle
doon sa itaas, that is Scarborough Shoal, itong
malaking circle sa ibaba, that is Kalayaan Group or
the Spratlys. Malayo na sila sa ating archipelago kaya
kung ilihis pa natin ang dating archipelagic baselines
para lamang masama itong dalawang circles, hindi na
sila magkalapit at baka hindi na tatanggapin ng
United Nations because of the rule that it should
follow the natural configuration of the
archipelago. (Emphasis supplied)
Similarly, the length of one baseline that RA 3046
drew exceeded UNCLOS III’s limits.1avvphi1 The
need to shorten this baseline, and in addition, to
optimize the location of basepoints using current
maps, became imperative as discussed by
respondents:
[T]he amendment of the baselines law was necessary
to enable the Philippines to draw the outer limits of its
maritime zones including the extended continental
shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended
by R.A. 5446, the baselines suffer from some
technical deficiencies, to wit:
1. The length of the baseline across Moro
Gulf (from Middle of 3 Rock Awash to
Tongquil Point) is 140.06 nautical miles x x
x. This exceeds the maximum length allowed
under Article 47(2) of the [UNCLOS III],
which states that "The length of such
baselines shall not exceed 100 nautical
miles, except that up to 3 per cent of the total
number of baselines enclosing any
archipelago may exceed that length, up to a
maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal.
At least 9 basepoints can be skipped or
deleted from the baselines system. This will
enclose an additional 2,195 nautical miles of
water.
3. Finally, the basepoints were drawn from
maps existing in 1968, and not established
by geodetic survey methods. Accordingly,
some of the points, particularly along the
west coasts of Luzon down to Palawan were
later found to be located either inland or on
water, not on low-water line and drying reefs
as prescribed by Article 47.
Hence, far from surrendering the Philippines’ claim
over the KIG and the Scarborough Shoal, Congress’
decision to classify the KIG and the Scarborough
Shoal as "‘Regime[s] of Islands’ under the Republic of
the Philippines consistent with Article 121" of
UNCLOS III manifests the Philippine State’s
responsible observance of its pacta sunt
servanda obligation under UNCLOS III. Under Article
121 of UNCLOS III, any "naturally formed area of
land, surrounded by water, which is above water at
high tide," such as portions of the KIG, qualifies under
the category of "regime of islands," whose islands
generate their own applicable maritime zones.
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for
its failure to textualize the Philippines’ claim over
Sabah in North Borneo is also untenable. Section 2 of
RA 5446, which RA 9522 did not repeal, keeps open
the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the
territorial sea of the Philippine Archipelago as
provided in this Act is without prejudice to the
delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North
Borneo, over which the Republic of the
Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitution’s
Delineation of Internal Waters
As their final argument against the validity of RA
9522, petitioners contend that the law
unconstitutionally "converts" internal waters into
archipelagic waters, hence subjecting these waters to
the right of innocent and sea lanes passage under
UNCLOS III, including overflight. Petitioners
extrapolate that these passage rights indubitably
expose Philippine internal waters to nuclear and
maritime pollution hazards, in violation of the
Constitution.
Whether referred to as Philippine "internal waters"
under Article I of the Constitution or as "archipelagic
waters" under UNCLOS III (Article 49 [1]), the
Philippines exercises sovereignty over the body of
water lying landward of the baselines, including the air
space over it and the submarine areas underneath.
UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the
air space over archipelagic waters and of their bed
and subsoil. –
1. The sovereignty of an archipelagic
State extends to the waters enclosed by
the archipelagic baselines drawn in
accordance with article 47, described as
archipelagic waters, regardless of their depth
or distance from the coast.
 2. This sovereignty extends to the air
space over the archipelagic waters, as
well as to their bed and subsoil, and the
resources contained therein.
xxxx
4. The regime of archipelagic sea lanes
passage established in this Part shall not in
other respects affect the status of the
archipelagic waters, including the sea
lanes, or the exercise by the archipelagic
State of its sovereignty over such waters
and their air space, bed and subsoil, and
the resources contained therein.
(Emphasis supplied)
The fact of sovereignty, however, does not preclude
the operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international
navigation, consistent with the international law
principle of freedom of navigation. Thus, domestically,
the political branches of the Philippine government, in
the competent discharge of their constitutional
powers, may pass legislation designating routes
within the archipelagic waters to regulate innocent
and sea lanes passage. Indeed, bills drawing nautical
highways for sea lanes passage are now pending in
Congress.
In the absence of municipal legislation, international
law norms, now codified in UNCLOS III, operate to
grant innocent passage rights over the territorial sea
or archipelagic waters, subject to the treaty’s
limitations and conditions for their
exercise. Significantly, the right of innocent passage
is a customary international law, thus automatically
incorporated in the corpus of Philippine law. No
modern State can validly invoke its sovereignty to
absolutely forbid innocent passage that is exercised in
accordance with customary international law without
risking retaliatory measures from the international
community.
The fact that for archipelagic States, their archipelagic
waters are subject to both the right of innocent
passage and sea lanes passage does not place them
in lesser footing vis-à-vis continental coastal States
which are subject, in their territorial sea, to the right of
innocent passage and the right of transit passage
through international straits. The imposition of these
passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States,
in exchange for their right to claim all the waters
landward of their baselines, regardless of their depth
or distance from the coast, as archipelagic waters
subject to their territorial sovereignty. More
importantly, the recognition of archipelagic States’
archipelago and the waters enclosed by their
baselines as one cohesive entity prevents the
treatment of their islands as separate islands under
UNCLOS III. Separate islands generate their own
maritime zones, placing the waters between islands
separated by more than 24 nautical miles beyond the
States’ territorial sovereignty, subjecting these waters
to the rights of other States under UNCLOS III.
Petitioners’ invocation of non-executory constitutional
provisions in Article II (Declaration of Principles and
State Policies) must also fail. Our present state of
jurisprudence considers the provisions in Article II as
mere legislative guides, which, absent enabling
legislation, "do not embody judicially enforceable
constitutional rights x x x." Article II provisions serve
as guides in formulating and interpreting
implementing legislation, as well as in interpreting
executory provisions of the Constitution.
Although Oposa v. Factoran treated the right to a
healthful and balanced ecology under Section 16 of
Article II as an exception, the present petition lacks
factual basis to substantiate the claimed constitutional
violation. The other provisions petitioners cite, relating
to the protection of marine wealth (Article XII, Section
2, paragraph 2 ) and subsistence fishermen (Article
XIII, Section 7 ), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the
Philippines to delimit its exclusive economic zone,
reserving solely to the Philippines the exploitation of
all living and non-living resources within such zone.
Such a maritime delineation binds the international
community since the delineation is in strict
observance of UNCLOS III. If the maritime delineation
is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be
bound by it.
UNCLOS III favors States with a long coastline like
the Philippines. UNCLOS III creates a sui
generis maritime space – the exclusive economic
zone – in waters previously part of the high seas.
UNCLOS III grants new rights to coastal States to
exclusively exploit the resources found within this
zone up to 200 nautical miles. UNCLOS III, however,
preserves the traditional freedom of navigation of
other States that attached to this zone beyond the
territorial sea before UNCLOS III.
RA 9522 and the Philippines’ Maritime Zones
Petitioners hold the view that, based on the
permissive text of UNCLOS III, Congress was not
bound to pass RA 9522. We have looked at the
relevant provision of UNCLOS III and we find
petitioners’ reading plausible. Nevertheless, the
prerogative of choosing this option belongs to
Congress, not to this Court. Moreover, the luxury of
choosing this option comes at a very steep price.
Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself
devoid of internationally acceptable baselines from
where the breadth of its maritime zones and
continental shelf is measured. This is recipe for a two-
fronted disaster: first, it sends an open invitation to the
seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around
our archipelago; and second, it weakens the country’s
case in any international dispute over Philippine
maritime space. These are consequences Congress
wisely avoided.

The enactment of UNCLOS III compliant baselines

law for the Philippine archipelago and adjacent areas,
as embodied in RA 9522, allows an internationally-
recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf. RA
9522 is therefore a most vital step on the part of the
Philippines in safeguarding its maritime zones,
consistent with the Constitution and our national
interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.
Case No. 002
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26379 December 27, 1969
WILLIAM C. REAGAN, ETC., petitioner,
vs.
COMMISSIONER OF INTERNAL
REVENUE, respondent.
Quasha, Asperilla, Blanco, Zafra and Tayag for
petitioner.
Office of the Solicitor General Antonio P. Barredo,
Assistant Solicitor General Felicisimo R. Rosete,
Solicitor Lolita O. Gal-lang and Special Attorney
Gamaliel H. Mantolino for respondent.
FERNANDO, J.:
A question novel in character, the answer to which
has far-reaching implications, is raised by petitioner
William C. Reagan, at one time a civilian employee of
an American corporation providing technical
assistance to the United States Air Force in the
Philippines. He would dispute the payment of the
income tax assessed on him by respondent
Commissioner of Internal Revenue on an amount
realized by him on a sale of his automobile to a
member of the United States Marine Corps, the
transaction having taken place at the Clark Field Air
Base at Pampanga. It is his contention, seriously and
earnestly expressed, that in legal contemplation the
sale was made outside Philippine territory and
therefore beyond our jurisdictional power to tax.
Such a plea, far-fetched and implausible, on its face
betraying no kinship with reality, he would justify by
invoking, mistakenly as will hereafter be more fully
shown an observation to that effect in a 1951
opinion, 1 petitioner ignoring that such utterance was
made purely as a flourish of rhetoric and by way of
emphasizing the decision reached, that the trading
firm as purchaser of army goods must respond for the
sales taxes due from an importer, as the American
armed forces being exempt could not be taxed as
such under the National Internal Revenue
Code.2 Such an assumption, inspired by the
commendable aim to render unavailing any attempt at
tax evasion on the part of such vendee, found
expression anew in a 1962 decision,3 coupled with the
reminder however, to render the truth unmistakable,
that "the areas covered by the United States Military
Bases are not foreign territories both in the political
and geographical sense."
As thus clarified, it is manifest that such a view
amounts at most to a legal fiction and is
moreover obiter. It certainly cannot control the
resolution of the specific question that confronts us.
We declare our stand in an unequivocal manner. The
sale having taken place on what indisputably is
Philippine territory, petitioner's liability for the income
tax due as a result thereof was unavoidable. As the
Court of Tax Appeals reached a similar conclusion,
we sustain its decision now before us on appeal.
In the decision appealed from, the Court of Tax
Appeals, after stating the nature of the case, started
the recital of facts thus: "It appears that petitioner, a
citizen of the United States and an employee of
Bendix Radio, Division of Bendix Aviation
Corporation, which provides technical assistance to
the United States Air Force, was assigned at Clark Air
Base, Philippines, on or about July 7, 1959 ... . Nine
(9) months thereafter and before his tour of duty
expired, petitioner imported on April 22, 1960 a tax-
free 1960 Cadillac car with accessories valued at
$6,443.83, including freight, insurance and other
charges."4 Then came the following: "On July 11,
1960, more than two (2) months after the 1960
Cadillac car was imported into the Philippines,
petitioner requested the Base Commander, Clark Air
Base, for a permit to sell the car, which was granted
provided that the sale was made to a member of the
United States Armed Forces or a citizen of the United
States employed in the U.S. military bases in the
Philippines. On the same date, July 11, 1960,
petitioner sold his car for $6,600.00 to a certain Willie
Johnson, Jr. (Private first class), United States Marine
Corps, Sangley Point, Cavite, Philippines, as shown
by a Bill of Sale . . . executed at Clark Air Base. On
the same date, Pfc. Willie (William) Johnson, Jr. sold
the car to Fred Meneses for P32,000.00 as evidenced
by a deed of sale executed in Manila."5
As a result of the transaction thus made, respondent
Commissioner of Internal Revenue, after deducting
the landed cost of the car as well as the personal
exemption to which petitioner was entitled, fixed as
his net taxable income arising from such transaction
the amount of P17,912.34, rendering him liable for
income tax in the sum of P2,979.00. After paying the
sum, he sought a refund from respondent claiming
that he was exempt, but pending action on his request
for refund, he filed the case with the Court of Tax
Appeals seeking recovery of the sum of P2,979.00
plus the legal rate of interest.
As noted in the appealed decision: "The only issue
submitted for our resolution is whether or not the said
income tax of P2,979.00 was legally collected by
respondent for petitioner."6 After discussing the legal
issues raised, primarily the contention that the Clark
Air Base "in legal contemplation, is a base outside the
Philippines" the sale therefore having taken place on
"foreign soil", the Court of Tax Appeals found nothing
objectionable in the assessment and thereafter the
payment of P2,979.00 as income tax and denied the
refund on the same. Hence, this appeal predicated on
a legal theory we cannot accept. Petitioner cannot
make out a case for reversal.
1. Resort to fundamentals is unavoidable to place
things in their proper perspective, petitioner
apparently feeling justified in his refusal to defer to
basic postulates of constitutional and international
law, induced no doubt by the weight he would accord
to the observation made by this Court in the two
opinions earlier referred to. To repeat, scant comfort,
if at all is to be derived from such an obiter dictum,
one which is likewise far from reflecting the fact as it
is.
Nothing is better settled than that the Philippines
being independent and sovereign, its authority may
be exercised over its entire domain. There is no
portion thereof that is beyond its power. Within its
limits, its decrees are supreme, its commands
paramount. Its laws govern therein, and everyone to
whom it applies must submit to its terms. That is the
extent of its jurisdiction, both territorial and personal.
Necessarily, likewise, it has to be exclusive. If it were
not thus, there is a diminution of its sovereignty.
It is to be admitted that any state may, by its consent,
express or implied, submit to a restriction of its
sovereign rights. There may thus be a curtailment of
what otherwise is a power plenary in character. That
is the concept of sovereignty as auto-limitation, which,
in the succinct language of Jellinek, "is the property of
a state-force due to which it has the exclusive
capacity of legal self-determination and self-
restriction."7 A state then, if it chooses to, may refrain
from the exercise of what otherwise is illimitable
competence.
Its laws may as to some persons found within its
territory no longer control. Nor does the matter end
there. It is not precluded from allowing another power
to participate in the exercise of jurisdictional right over
certain portions of its territory. If it does so, it by no
means follows that such areas become impressed
with an alien character. They retain their status as
native soil. They are still subject to its authority. Its
jurisdiction may be diminished, but it does not
disappear. So it is with the bases under lease to the
American armed forces by virtue of the military bases
agreement of 1947. They are not and cannot be
foreign territory.
Decisions coming from petitioner's native land,
penned by jurists of repute, speak to that effect with
impressive unanimity. We start with the citation from
Chief Justice Marshall, announced in the leading case
of Schooner Exchange v. M'Faddon,8 an 1812
decision: "The jurisdiction of the nation within its own
territory is necessarily exclusive and absolute. It is
susceptible of no limitation not imposed by itself. Any
restriction upon it, deriving validity from an external
source, would imply a diminution of its sovereignty to
the extent of the restriction, and an investment of that
sovereignty to the same extent in that power which
could impose such restriction." After which came this
paragraph: "All exceptions, therefore, to the full and
complete power of a nation within its own territories,
must be traced up to the consent of the nation itself.
They can flow from no other legitimate source."
Chief Justice Taney, in an 1857 decision,9 affirmed
the fundamental principle of everyone within the
territorial domain of a state being subject to its
commands: "For undoubtedly every person who is
found within the limits of a government, whether the
temporary purposes or as a resident, is bound by its
laws." It is no exaggeration then for Justice Brewer to
stress that the United States government "is one
having jurisdiction over every foot of soil within its
territory, and acting directly upon each [individual
found therein]; . . ."10
Not too long ago, there was a reiteration of such a
view, this time from the pen of Justice Van Devanter.
Thus: "It now is settled in the United States and
recognized elsewhere that the territory subject to its
jurisdiction includes the land areas under its dominion
and control the ports, harbors, bays, and other in
closed arms of the sea along its coast, and a marginal
belt of the sea extending from the coast line outward
a marine league, or 3 geographic miles."11 He could
cite moreover, in addition to many American
decisions, such eminent treatise-writers as Kent,
Moore, Hyde, Wilson, Westlake, Wheaton and
Oppenheim.
As a matter of fact, the eminent commentator Hyde in
his three-volume work on International Law, as
interpreted and applied by the United States, made
clear that not even the embassy premises of a foreign
power are to be considered outside the territorial
domain of the host state. Thus: "The ground occupied
by an embassy is not in fact the territory of the foreign
State to which the premises belong through
possession or ownership. The lawfulness or
unlawfulness of acts there committed is determined
by the territorial sovereign. If an attache commits an
offense within the precincts of an embassy, his
immunity from prosecution is not because he has not
violated the local law, but rather for the reason that
the individual is exempt from prosecution. If a person
not so exempt, or whose immunity is waived, similarly
commits a crime therein, the territorial sovereign, if it
secures custody of the offender, may subject him to
prosecution, even though its criminal code normally
does not contemplate the punishment of one who
commits an offense outside of the national domain. It
is not believed, therefore, that an ambassador himself
possesses the right to exercise jurisdiction, contrary
to the will of the State of his sojourn, even within his
embassy with respect to acts there committed. Nor is
there apparent at the present time any tendency on
the part of States to acquiesce in his exercise of it." 12
2. In the light of the above, the first and crucial error
imputed to the Court of Tax Appeals to the effect that
it should have held that the Clark Air Force is foreign
soil or territory for purposes of income tax legislation
is clearly without support in law. As thus correctly
viewed, petitioner's hope for the reversal of the
decision completely fades away. There is nothing in
the Military Bases Agreement that lends support to
such an assertion. It has not become foreign soil or
territory. This country's jurisdictional rights therein,
certainly not excluding the power to tax, have been
preserved. As to certain tax matters, an appropriate
exemption was provided for.
Petitioner could not have been unaware that to
maintain the contrary would be to defy reality and
would be an affront to the law. While his first assigned
error is thus worded, he would seek to impart
plausibility to his claim by the ostensible invocation of
the exemption clause in the Agreement by virtue of
which a "national of the United States serving in or
employed in the Philippines in connection with the
construction, maintenance, operation or defense of
the bases and residing in the Philippines only by
reason of such employment" is not to be taxed on his
income unless "derived from Philippine source or
sources other than the United States sources."13 The
reliance, to repeat, is more apparent than real for as
noted at the outset of this opinion, petitioner places
more faith not on the language of the provision on
exemption but on a sentiment given expression in a
1951 opinion of this Court, which would be made to
yield such an unwarranted interpretation at war with
the controlling constitutional and international law
principles. At any rate, even if such a contention were
more adequately pressed and insisted upon, it is on
its face devoid of merit as the source clearly was
Philippine.
In Saura Import and Export Co. v. Meer,14 the case
above referred to, this Court affirmed a decision
rendered about seven months previously,15 holding
liable as an importer, within the contemplation of the
National Internal Revenue Code provision, the trading
firm that purchased army goods from a United States
government agency in the Philippines. It is easily
understandable why. If it were not thus, tax evasion
would have been facilitated. The United States forces
that brought in such equipment later disposed of as
surplus, when no longer needed for military purposes,
was beyond the reach of our tax statutes.
Justice Tuason, who spoke for the Court, adhered to
such a rationale, quoting extensively from the earlier
opinion. He could have stopped there. He chose not
to do so. The transaction having occurred in 1946, not
so long after the liberation of the Philippines, he
proceeded to discuss the role of the American military
contingent in the Philippines as a belligerent
occupant. In the course of such a dissertion, drawing
on his well-known gift for rhetoric and cognizant that
he was making an as if statement, he did say: "While
in army bases or installations within the Philippines
those goods were in contemplation of law on foreign
soil."
It is thus evident that the first, and thereafter the
controlling, decision as to the liability for sales taxes
as an importer by the purchaser, could have been
reached without any need for such expression as that
given utterance by Justice Tuason. Its value then as
an authoritative doctrine cannot be as much as
petitioner would mistakenly attach to it. It was
clearly obiter not being necessary for the resolution of
the issue before this Court.16 It was an opinion
"uttered by the way."17 It could not then be controlling
on the question before us now, the liability of the
petitioner for income tax which, as announced at the
opening of this opinion, is squarely raised for the first
time.18
On this point, Chief Justice Marshall could again be
listened to with profit. Thus: "It is a maxim, not to be
disregarded, that general expressions, in every
opinion, are to be taken in connection with the case in
which those expressions are used. If they go beyond
the case, they may be respected, but ought not to
control the judgment in a subsequent suit when the
very point is presented for decision."19
Nor did the fact that such utterance of Justice Tuason
was cited in Co Po v. Collector of Internal
Revenue,20 a 1962 decision relied upon by petitioner,
put a different complexion on the matter. Again, it was
by way of pure embellishment, there being no need to
repeat it, to reach the conclusion that it was the
purchaser of army goods, this time from military
bases, that must respond for the advance sales taxes
as importer. Again, the purpose that animated the
reiteration of such a view was clearly to emphasize
that through the employment of such a fiction, tax
evasion is precluded. What is more, how far divorced
from the truth was such statement was emphasized
by Justice Barrera, who penned the Co Po opinion,
thus: "It is true that the areas covered by the United
States Military Bases are not foreign territories both in
the political and geographical sense."21
Justice Tuason moreover made explicit that rather
than corresponding with reality, what was said by him
was in the way of a legal fiction. Note his stress on "in
contemplation of law." To lend further support to a
conclusion already announced, being at that a
confirmation of what had been arrived at in the earlier
case, distinguished by its sound appreciation of the
issue then before this Court and to preclude any tax
evasion, an observation certainly not to be taken
literally was thus given utterance.
This is not to say that it should have been ignored
altogether afterwards. It could be utilized again, as it
undoubtedly was, especially so for the purpose
intended, namely to stigmatize as without support in
law any attempt on the part of a taxpayer to escape
an obligation incumbent upon him. So it was quoted
with that end in view in the Co Po case. It certainly
does not justify any effort to render futile the collection
of a tax legally due, as here. That was farthest from
the thought of Justice Tuason.
What is more, the statement on its face is, to repeat, a
legal fiction. This is not to discount the uses of a fictio
juris in the science of the law. It was Cardozo who
pointed out its value as a device "to advance the ends
of justice" although at times it could be "clumsy" and
even "offensive".22 Certainly, then, while far from
objectionable as thus enunciated, this observation of
Justice Tuason could be misused or misconstrued in
a clumsy manner to reach an offensive result. To
repeat, properly used, a legal fiction could be relied
upon by the law, as Frankfurter noted, in the pursuit of
legitimate ends.23 Petitioner then would be well-
advised to take to heart such counsel of care and
circumspection before invoking not a legal fiction that
would avoid a mockery of the law by avoiding tax
evasion but what clearly is a misinterpretation thereof,
leading to results that would have shocked its
originator.
The conclusion is thus irresistible that the crucial error
assigned, the only one that calls for discussion to the
effect that for income tax purposes the Clark Air Force
Base is outside Philippine territory, is utterly without
merit. So we have said earlier.
3. To impute then to the statement of Justice Tuason
the meaning that petitioner would fasten on it is, to
paraphrase Frankfurter, to be guilty of succumbing to
the vice of literalness. To so conclude is, whether by
design or inadvertence, to misread it. It certainly is not
susceptible of the mischievous consequences now
sought to be fastened on it by petitioner.
That it would be fraught with such peril to the
enforcement of our tax statutes on the military bases
under lease to the American armed forces could not
have been within the contemplation of Justice
Tuason. To so attribute such a bizarre consequence
is to be guilty of a grave disservice to the memory of a
great jurist. For his real and genuine sentiment on the
matter in consonance with the imperative mandate of
controlling constitutional and international law
concepts was categorically set forth by him, not as
an obiter but as the rationale of the decision,
in People v. Acierto24 thus: "By the [Military Bases]
Agreement, it should be noted, the Philippine
Government merely consents that the United States
exercise jurisdiction in certain cases. The consent
was given purely as a matter of comity, courtesy, or
expediency over the bases as part of the Philippine
territory or divested itself completely of jurisdiction
over offenses committed therein."
Nor did he stop there. He did stress further the full
extent of our territorial jurisdiction in words that do not
admit of doubt. Thus: "This provision is not and can
not on principle or authority be construed as a
limitation upon the rights of the Philippine
Government. If anything, it is an emphatic recognition
and reaffirmation of Philippine sovereignty over the
bases and of the truth that all jurisdictional rights
granted to the United States and not exercised by the
latter are reserved by the Philippines for itself." 25
It is in the same spirit that we approach the specific
question confronting us in this litigation. We hold, as
announced at the outset, that petitioner was liable for
the income tax arising from a sale of his automobile in
the Clark Field Air Base, which clearly is and cannot
otherwise be other than, within our territorial
jurisdiction to tax.
4. With the mist thus lifted from the situation as it truly
presents itself, there is nothing that stands in the way
of an affirmance of the Court of Tax Appeals decision.
No useful purpose would be served by discussing the
other assigned errors, petitioner himself being fully
aware that if the Clark Air Force Base is to be
considered, as it ought to be and as it is, Philippine
soil or territory, his claim for exemption from the
income tax due was distinguished only by its futility.
There is further satisfaction in finding ourselves
unable to indulge petitioner in his plea for reversal.
We thus manifest fealty to a pronouncement made
time and time again that the law does not look with
favor on tax exemptions and that he who would seek
to be thus privileged must justify it by words too plain
to be mistaken and too categorical to be
misinterpreted.26 Petitioner had not done so.
Petitioner cannot do so.
WHEREFORE, the decision of the Court of Tax
Appeals of May 12, 1966 denying the refund of
P2,979.00 as the income tax paid by petitioner is
affirmed. With costs against petitioner.
Case No. 003
THIRD DIVISION
G.R. No. 143377 February 20, 2001
SHIPSIDE INCORPORATED, petitioner,
vs.
THE HON. COURT OF APPEALS [Special Former
Twelfth Division], HON. REGIONAL TRIAL COURT,
BRANCH 26 (San Fernando City, La Union) & The
REPUBLIC OF THE PHILIPPINES, respondents.
MELO, J.:
Before the Court is a petition for certiorari filed by
Shipside Incorporated under Rule 65 of the 1997
Rules on Civil Procedure against the resolutions of
the Court of Appeals promulgated on November 4,
1999 and May 23, 2000, which respectively,
dismissed a petition for certiorari and prohibition and
thereafter denied a motion for reconsideration.
The antecedent facts are, undisputed:
On October 29, 1958, Original Certificate of Title No.
0-381 was issued in favor of Rafael Galvez, over four
parcels of land - Lot 1 with 6,571 square meters; Lot
2, with 16,777 square meters; Lot 3 with 1,583 square
meters; and Lot 4, with 508 square meters.
On April 11, 1960, Lots No. 1 and 4 were conveyed
by Rafael Galvez in favor of Filipina Mamaril,
Cleopatra Llana, Regina Bustos, and Erlinda Balatbat
in a deed of sale which was inscribed as Entry No.
9115 OCT No.0-381 on August 10, 1960.
Consequently, Transfer Certificate No. T-4304 was
issued in favor of the buyers covering Lots No. 1 and
4.
Lot No. 1 is described as:
A parcel of land (Lot 1, Plan PSU-159621,
L.R. Case No. N-361; L.R.C. Record No. N-
14012, situated in the Barrio of Poro,
Municipality of San Fernando, Province of La
Union, bounded on the NE, by the
Foreshore; on the SE, by Public Land and
property of the Benguet Consolidated Mining
Company; on the SW, by properties of
Rafael Galvez (US Military Reservation
Camp Wallace) and Policarpio Munar; and
on the NW, by an old Barrio Road. Beginning
at a point marked "1" on plan, being S. 74
deg. 11'W., 2670.36 from B.L.L.M. 1, San
Fernando, thence
S. 66 deg. 19'E., 134.95 m. to point 2; S.14
deg. 57'W., 11.79 m. to point 3;
S. 12 deg. 45'W., 27.00 m. to point 4; S. 12
deg. 45'W, 6.90 m. to point 5;
N. 69 deg., 32'W., 106.00 m. to point 6; N.
52 deg., 21'W., 36.85 m. to point 7;
N. 21 deg. 31'E., 42.01 m. to the point of
beginning; containing an area of SIX
THOUSAND FIVE HUNDRED AND
SEVENTY - ONE (6,571) SQUARE
METERS, more or less. All points referred to
are indicated on the plan; and marked on the
ground; bearings true, date of survey,
February 4-21, 1957.
Lot No. 4 has the following technical description:
A parcel of land (Lot 4, Plan PSU-159621,
L.R. Case No. N-361 L.R.C. Record No. N-
14012), situated in the Barrio of Poro,
Municipality of San Fernando, La Union.
Bounded on the SE by the property of the
Benguet Consolidated Mining Company; on
the S. by property of Pelagia Carino; and on
the NW by the property of Rafael Galvez (US
Military Reservation, Camp Wallace).
Beginning at a point marked "1" on plan,
being S. deg. 24'W. 2591.69 m. from
B.L.L.M. 1, San Fernando, thence S. 12 deg.
45'W., 73.03 m. to point 2; N. 79 deg. 59'W.,
13.92 m. to point 3; N. 23 deg. 26'E., 75.00
m. to the point of beginning; containing an
area of FIVE HUNDED AND EIGHT (508)
SQUARE METERS, more or less. All points
referred to are indicated in the plan and
marked on the ground; bearings true, date of
survey, February 4-21, 1957.
On August 16, 1960, Mamaril, et al. sold Lots No. 1
and 4 to Lepanto Consolidated Mining Company. The
deed of sale covering the aforesaid property was
inscribed as Entry No. 9173 on TCT No. T-4304.
Subsequently, Transfer Certificate No. T-4314 was
issued in the name of Lepanto Consolidated Mining
Company as owner of Lots No. 1 and 4.
On February 1, 1963, unknown to Lepanto
Consolidated Mining Company, the Court of First
Instance of La Union, Second Judicial District, issued
an Order in Land Registration Case No. N- 361 (LRC
Record No. N-14012) entitled "Rafael Galvez,
Applicant, Eliza Bustos, et al., Parties-In-Interest;
Republic of the Philippines, Movant" declaring OCT
No. 0-381 of the Registry of Deeds for the Province of
La Union issued in the name of Rafael Galvez, null
and void, and ordered the cancellation thereof.
The Order pertinently provided: Accordingly,
with the foregoing, and without prejudice on
the rights of incidental parties concerned
herein to institute their respective
appropriate actions compatible with
whatever cause they may have, it is hereby
declared and this court so holds that both
proceedings in Land Registration Case No.
N-361 and Original Certificate No. 0-381 of
the Registry of Deeds for the province of La
Union issued in virtue thereof and registered
in the name of Rafael Galvez, are null and
void; the Register of Deeds for the Province
of La Union is hereby ordered to cancel the
said original certificate and/or such other
certificates of title issued subsequent thereto
having reference to the same parcels of
land; without pronouncement as to costs.
On October 28, 1963, Lepanto Consolidated Mining
Company sold to herein petitioner Lots No. 1 and 4,
with the deed being entered in TCT No. 4314 as entry
No. 12381. Transfer Certificate of Title No. T-5710
was thus issued in favor of the petitioner which
starting since then exercised proprietary rights over
Lots No. 1 and 4.
In the meantime, Rafael Galvez filed his motion for
reconsideration against the order issued by the trial
court declaring OCT No. 0-381 null and void. The
motion was denied on January 25, 1965. On appeal,
the Court of Appeals ruled in favor of the Republic of
the Philippines in a Resolution promulgated on
August 14, 1973 in CA-G.R. No. 36061-
R. 1âwphi1.nêt
Thereafter, the Court of Appeals issued an Entry of
Judgment, certifying that its decision dated August 14,
1973 became final and executory on October 23,
1973.
On April 22, 1974, the trial court in L.R.C. Case No.
N-361 issued a writ of execution of the judgment
which was served on the Register of Deeds, San
Fernando, La Union on April 29, 1974.
Twenty four long years, thereafter, on January 14,
1999, the Office of the Solicitor General received a
letter dated January 11, 1999 from Mr. Victor G.
Floresca, Vice-President, John Hay Poro Point
Development Corporation, stating that the
aforementioned orders and decision of the trial court
in L.R.C. No. N-361 have not been executed by the
Register of Deeds, San Fernando, La Union despite
receipt of the writ of execution.
On April 21, 1999, the Office of the Solicitor General
filed a complaint for revival of judgment and
cancellation of titles before the Regional Trial Court of
the First Judicial Region (Branch 26, San Fernando,
La Union) docketed therein as Civil Case No. 6346
entitled, "Republic of the Philippines, Plaintiff, versus
Heirs of Rafael Galvez, represented by Teresita Tan,
Reynaldo Mamaril, Elisa Bustos, Erlinda Balatbat,
Regina Bustos, Shipside Incorporated and the
Register of Deeds of La Union, Defendants."
The evidence shows that the impleaded defendants
(except the Register of Deeds of the province of La
Union) are the successors-in- interest of Rafael
Galvez (not Reynaldo Galvez as alleged by the
Solicitor General) over the property covered by OCT
No. 0-381, namely: (a) Shipside Inc. which is
presently the registered owner in fee simple of Lots
No. 1 and 4 covered by TCT No. T -5710, with a total
area of 7,079 square meters; (b) Elisa Bustos,
Jesusito Galvez, and Teresita Tan who are the
registered owners of Lot No. 2 of OCT No. 0-381; and
(c) Elisa Bustos, Filipina Mamaril, Regina Bustos and
Erlinda Balatbat who are the registered owners of Lot
No. 3 of OCT No. 0-381, now covered by TCT No. T-
4916, with an area of 1,583 square meters.
In its complaint in Civil Case No.6346, the Solicitor
General argued that since the trial court in LRC Case
No. 361 had ruled and declared OCT No. 0-381 to be
null and void, which ruling was subsequently affirmed
by the Court of Appeals, the defendants-successors-
in-interest of Rafael Galvez have no valid title over the
property covered by OCT No. 0-381, and the
subsequent Torrens titles issued in their names
should be consequently cancelled.
On July 22, 1999, petitioner Shipside, Inc. filed its
Motion to Dismiss, based on the following grounds:
(1) the complaint stated no cause of action because
only final and executory judgments may be subject of
an action for revival of judgment; (2) .the plaintiff is
not the real party-in-interest because the real property
covered by the Torrens titles sought to be cancelled,
allegedly part of Camp Wallace (Wallace Air Station),
were under the ownership and administration of the
Bases Conversion Development Authority (BCDA)
under Republic Act No. 7227; (3) plaintiff's cause of
action is barred by prescription; {4) twenty-five years
having lapsed since the issuance of the writ of
execution, no action for revival of judgment may be
instituted because under Paragraph 3 of Article 1144
of the Civil Code, such action may be brought only
within ten (10) years from the time the judgment had
been rendered.
An opposition to the motion to dismiss was filed by
the Solicitor General on August 23, 1999, alleging
among others, that: (1) the real party-in-interest is the
Republic of the Philippines; and (2) prescription does
not run against the State.
On August 31, 1999, the trial court denied petitioner's
motion to dismiss and on October 14, 1999, its motion
for reconsideration was likewise turned down.
On October 21, 1999, petitioner instituted a petition
for certiorari and prohibition with the Court of Appeals,
docketed therein as CA-G.R. SP No. 55535, on the
ground that the orders of the trial court denying its
motion to dismiss and its subsequent motion for
reconsideration were issued in excess of jurisdiction.
On November 4, 1999, the Court of Appeals
dismissed the petition in CA-G.R. SP No. 55535 on
the ground that the verification and certification in the
petition, tinder the signature of Lorenzo Balbin, Jr.,
was made without authority, there being no proof
therein that Balbin was authorized to institute the
petition for and in behalf and of petitioner.
On May 23, 2000, the Court of Appeals denied
petitioner's, motion for reconsideration on the grounds
that: (1) a complaint filed on behalf of a corporation
can be made only if authorized by its Board of
Directors, and in the absence thereof, the petition
cannot prosper and be granted due course; and (2)
petitioner was unable to show that it had substantially
complied with the rule requiring proof of authority to
institute an action or proceeding.
Hence, the instant petition.
In support of its petition, Shipside, Inc. asseverates
that:
1. The Honorable Court of Appeals gravely
abused its discretion in dismissing the
petition when it made a conclusive legal
presumption that Mr. Balbin had no authority
to sign the petition despite the clarity of laws,
jurisprudence and Secretary's certificate to
the contrary;
2. The Honorable Court of Appeals abused
its discretion when it dismissed the petition,
in effect affirming the grave abuse of
discretion committed by the lower court
when it refused to dismiss the 1999
Complaint for Revival of a 1973 judgment, in
violation of clear laws and jurisprudence.
Petitioner likewise adopted the arguments it raised in
the petition' and comment/reply it filed with the Court
of Appeals, attached to its petition as Exhibit "L" and
"N", respectively.
In his Comment, the Solicitor General moved for the
dismissal of the instant petition based on the following
considerations: (1) Lorenzo Balbin, who signed for
and in behalf of petitioner in the verification and
certification of non-forum shopping portion of the
petition, failed to show proof of his authorization to
institute the petition for certiorari and prohibition with
the Court of Appeals, thus the latter court acted
correctly in dismissing the same; (2) the real party-in-
interest in the case at bar being the Republic of the
Philippines, its claims are imprescriptible.
In order to preserve the rights of herein parties, the
Court issued a temporary restraining order on June
26, 2000 enjoining the trial court from conducting
further proceedings in Civil Case No. 6346.
The issues posited in this case are: (1) whether or not
an authorization from petitioner's Board of Directors is
still required in order for its resident manager to
institute or commence a legal action for and in behalf
of the corporation; and (2) whether or not the
Republic of the Philippines can maintain the action for
revival of judgment herein.
We find for petitioner.
Anent the first issue:
The Court of Appeals dismissed the petition for
certiorari on the ground that Lorenzo Balbin, the
resident manager for petitioner, who was the
signatory in the verification and certification on non-
forum shopping, failed to show proof that he was
authorized by petitioner's board of directors to file
such a petition.
A corporation, such as petitioner, has no power
except those expressly conferred on it by the
Corporation Code and those that are implied or
incidental to its existence. In turn, a corporation
exercises said powers through its board of directors
and/or its duly authorized officers and agents. Thus, it
has been observed that the power of a corporation to
sue and be sued in any court is lodged with the board
of directors that exercises its corporate
powers (Premium Marble Resources, Inc. v. CA, 264
SCRA 11 [1996]). In turn, physical acts of the
corporation, like the signing of documents, can be
performed only by natural persons duly authorized for
the purpose by corporate by-laws or by a specific act
of the board of directors.
It is undisputed that on October 21, 1999, the time
petitioner's Resident Manager Balbin filed the petition,
there was no proof attached thereto that Balbin was
authorized to sign the verification and non-forum
shopping certification therein, as a consequence of
which the petition was dismissed by the Court of
Appeals. However, subsequent to such dismissal,
petitioner filed a motion for reconsideration, attaching
to said motion a certificate issued by its "board
secretary stating that on October 11, 1999, or ten
days prior to the filing of the petition, Balbin had been
authorized by petitioner's board of directors to file said
petition.
The Court has consistently held that the requirement
regarding verification of a pleading is formal, not
jurisdictional (Uy v. LandBank, G.R. No. 136100, July
24, 2000). Such requirement is simply a condition
affecting the form of the pleading, non-compliance
with which does not necessarily render the pleading
fatally defective. Verification is simply intended to
secure an assurance that the allegations in the
pleading are true and correct and not the product of
the imagination or a matter of speculation, and that
the pleading is filed in good faith. The court may order
the correction of the pleading if verification is lacking
or act on the pleading although it is not verified, if the
attending circumstances are such that strict
compliance with the rules may be dispensed with in
order that the ends of justice may thereby be served.
On the other hand, the lack of certification, against
forum shopping is generally not curable by the
submission thereof after the filing of the petition.
Section 5, Rule 45 of the 1997 Rules of civil
Procedure provides that the failure of the petitioner to
submit the required documents that should
accompany the petition, including the certification
against forum shopping, shall be sufficient ground for
the dismissal thereof. The same rule applies to
certifications against forum shopping signed by a
person on behalf of a corporation which are
unaccompanied by proof that said signatory is
authorized to file a petition on behalf of the
corporation.
In certain exceptional circumstances, however, the
Court has allowed the belated filing of the certification.
In Loyola v. Court of Appeals, et. al. (245 SCRA 477
[1995]), the Court considered the filing of the
certification one day after the filing of an election
protest as substantial compliance with the
requirement. In Roadway Express, Inc. v. Court of
Appeals, et. al. (264 SCRA 696 [1996]), the Court
allowed the filing of the certification 14 days before
the dismissal of the petition. In "Uy v. LandBank,
supra, the Court had dismissed Uy's petition for lack
of verification and certification against non-forum
shopping. However, it subsequently reinstated the
petition after Uy submitted a motion to admit
certification and non-forum shopping certification. In
all these cases, there were special circumstances or
compelling "reasons that justified the relaxation of the
rule requiring verification and certification on non-
forum shopping.
In the instant case, the merits of petitioner' case
should be considered special circumstances or
compelling reasons that justify tempering the
requirement in regard to the certificate of non-forum
shopping. Moreover, in Loyola, Roadway, and Uy, the
Court excused non-compliance with the requirement
as to the certificate of non-forum shopping. With more
reason should we allow the instant petition since
petitioner herein did submit a certification on non-
forum shopping, failing only to show proof that the
signatory was authorized to do so. That petitioner
subsequently submitted a secretary's certificate
attesting that Balbin was authorized to file an action
on behalf of petitioner likewise, mitigates this
oversight.
It must also be kept in mind that while the requirement
of the certificate of non-forum shopping is mandatory,
nonetheless the requirements must not be interpreted
too literally and thus defeat the objective of preventing
the undesirable practice of forum-shopping (Bernardo
v. NLRC, .255 SCRA 108 [1996]). Lastly, technical
rules of procedure should be used to promote, not
frustrate justice. While the swift unclogging of court
dockets is a laudable objective, the granting of
substantial justice is an even more urgent ideal.
Now to the second issue:
The action instituted by the Solicitor General in the
trial court is one for revival of judgment which is
governed by Article 1144(3) of the Civil Code and
Section 6, Rule 39 of the 1997 Rules on Civil
Procedure. Article 1144(3) provides that
an action upon a judgment "must be brought within 10
years from the time the right of action accrues."On the
other hand, Section 6, Rule 39 provides that a final
and executory judgment or order may be executed
on motion within five (5) years from the date of its
entry, but that after the lapse of such time, and before
it is barred by the statute of limitations, a judgment
may be enforced by action. Taking these two
provisions into consideration, it is plain that an action
for revival of judgment must be brought within ten
years from the time said judgment becomes final.
From the records of this, case, it is clear that the
judgment sought to be revived became final
on October 23, 1973. On the other hand, the action
for revival of judgment was instituted only in 1999, or
more than twenty-five (25) years after the judgment
had become final. Hence, the action is barred by
extinctive prescription considering that 'such an action
can be instituted only within ten (10) years from the
time the cause of action accrues.
The Solicitor General, nonetheless, argues that the
State's cause , of action in the cancellation of the land
title issued to petitioner's predecessor-in-interest is
imprescriptible because it is included in Camp
Wallace, which belongs to the government.
The argument is misleading.
While it is true that prescription does not run against
the State, the same may not be invoked by the
government in this case since it is no longer
interested in the subject matter. While Camp Wallace
may have belonged to the government at the time
Rafael Galvez's title was ordered cancelled in Land
Registration Case No. N-361, the same no longer
holds true today.
Republic Act No. 7227, otherwise known as the
Bases Conversion and Development Act of 1992,
created the Bases Conversion and Development
Authority Section 4 pertinently provides:
Section 4. Purposes of the Conversion
Authority. - The Conversion Authority shall
have the following purposes:
(a) To own, hold and/or
administer the military reservations
of John Hay Air Station, Wallace Air
Station, O'Donnell Transmitter
Station, San Miguel Naval
Communications Station, Mt. Sta.
Rita Station (Hermosa, Bataan) and
those portions of Metro Manila
military camps which may be
transferred to it by the President;
Section 2 of Proclamation No. 216, issued on July 27,
1993, also provides:
Section 2. Transfer of Wallace Air Station
Areas to the Bases Conversion and
Development Authority. - All areas covered
by the Wallace Air Station as embraced and
defined by the 1947 Military Bases
Agreement between the Philippines and the
United States of America, as amended,
excluding those covered by Presidential
Proclamations and some 25-hectare area for
the radar and communication station of the
Philippine Air Force, are hereby transferred
to the Bases Conversion Development
Authority ...
With the transfer of Camp Wallace to the BCDA, the
government no longer has a right or interest to
protect. Consequently, the Republic is not a real party
in interest and it may not institute the instant action.
Nor may it raise the defense of imprescriptibility, the
same being applicable only in cases where the
government is a party in interest. Under Section 2 of
Rule 3 of the 1997 Rules of Civil Procedure, "every
action must be prosecuted or defended in the name of
the real party in interest." To qualify a person to be a
real party in interest in whose name an action must be
prosecuted, he must appear to be the present real
owner of the right sought to enforced (Pioneer
Insurance v. CA, 175 SCRA 668 [1989]). A real party
in interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party
entitled to the avails of the suit. And by real interest is
meant a present substantial interest, as distinguished
from a mere expectancy, or a future, contingent,
subordinate or consequential interest (Ibonilla v.
Province of Cebu, 210 SCRA 526 [1992]). Being the
owner of the areas covered by Camp Wallace, it is the
Bases Conversion and Development Authority, not
the Government, which stands to be benefited if the
land covered by TCT No. T-5710 issued in the name
of petitioner is cancelled.
Nonetheless, it has been posited that the transfer of
military reservations and their extensions to the BCDA
is basically for the purpose of accelerating the sound
and balanced conversion of these military
reservations into alternative productive uses and to
enhance the benefits to be derived from such property
as a measure of promoting the economic and social
development, particularly of Central Luzon and, in
general, the country's goal for enhancement (Section
2, Republic Act No. 7227). It is contended that the
transfer of these military reservations to the
Conversion Authority does not amount to an
abdication on the part of the Republic of its interests,
but simply a recognition of the need to create a body
corporate which will act as its agent for the realization
of its program. It is consequently asserted that the
Republic remains to be the real party in interest and
the Conversion Authority merely its agent.
We, however, must not lose sight of the fact that the
BCDA is an entity invested with a personality
separate and distinct from the government. Section 3
of Republic Act No. 7227 reads:
Section 3. Creation of the Bases Conversion
and Development Authority. - There is
hereby created a body corporate to be
known as the Conversion Authority which
shall have the attribute of perpetual
succession and shall be vested with the
powers of a corporation.
It may not be amiss to state at this point that the
functions of government have been classified into
governmental or constituent and proprietary or
ministrant. While public benefit and public welfare,
particularly, the promotion of the economic and social
development of Central Luzon, may be attributable to
the operation of the BCDA, yet it is certain that the
functions performed by the BCDA are basically
proprietary in nature. The promotion of economic and
social development of Central Luzon, in particular,
and the country's goal for enhancement, in general,
do not make the BCDA equivalent to the Government.
Other corporations have been created by government
to act as its agents for the realization of its programs,
the SSS, GSIS, NAWASA arid the NIA, to count a
few, and yet, the Court has ruled that these entities,
although performing functions aimed at promoting
public interest and public welfare, are not
government-function corporations invested with
governmental attributes. It may thus be said that the
BCDA is not a mere agency of the Government but a
corporate body performing proprietary functions.
Moreover, Section 5 of Republic Act No. 7227
provides:
Section 5. Powers of the Conversion
Authority. - To carry out its objectives under
this Act, the Conversion Authority is hereby
vested with the following powers:
(a) To succeed in its corporate
name, to sue and be sued in such
corporate name and to adopt, alter
and use a corporate seal which
shall be judicially noticed;
Having the capacity to sue or be sued, it should thus
be the BCDA which may file an action to cancel
petitioner's title, not the Republic, the former being the
real party in interest. One having no right or interest to
protect cannot invoke the jurisdiction of the court as a
party plaintiff in an action (Ralla v. Ralla, 199 SCRA
495 [1991]). A suit may be dismissed if the plaintiff or
the defendant is not a real party in interest. If the suit
is not brought in the name of the real party in interest,
a motion to dismiss may be filed, as was done by
petitioner in this case, on the ground that the
complaint states no cause of action (Tanpingco v.
IAC, 207 SCRA 652 [1992]).
However, E.B. Marcha Transport Co., Inc. v. IAC (147
SCRA 276 [1987]) is cited as authority that the
Republic is the proper party to sue for the recovery of
possession of property which at the time of the
institution of the suit was no longer held by the
national government but by the Philippine Ports
Authority .In E.B. Marcha, the Court ruled:
It can be said that in suing for the recovery of
the rentals, the Republic of the Philippines,
acted as principal of the Philippine Ports
Authority, directly exercising the commission
it had earlier conferred on the latter as its
agent. We may presume that, by doing so,
the Republic of the Philippines did not
intend .to retain the said rentals for its own
use, considering that by its voluntary act it
had transferred the land in question to the
Philippine Ports Authority effective July 11,
1974. The Republic of the Philippines had
simply sought to assist, not supplant, the
Philippine Ports Authority, whose title to the
disputed property it continues to recognize,
We may expect then that the said rentals,
once collected by the Republic of the
Philippines, shall be turned over by it to the
Philippine Ports Authority conformably to the
purposes of P.D. No. 857.
E.B. Marcha is, however, not on all fours with the
case at bar. In the former, the Court considered the
Republic a proper party to sue since the claims of the
Republic and the Philippine Ports Authority against
the petitioner therein were the same. To dismiss the
complaint in E.B. Marcha would have brought
needless delay in the settlement of the matter since
the PPA would have to refile the case on the same
claim already litigated upon. Such is not the case here
since to allow the government to sue herein enables it
to raise the issue of imprescriptibility, a claim which is
not available to the BCDA. The rule that prescription
does not run against the State does not apply to
corporations or artificial bodies created by the State
for special purposes, it being said that when the title
of the Republic has been divested, its grantees,
although artificial bodies of its own creation, are in the
same category as ordinary persons (Kingston
v. LeHigh Valley Coal Co., 241 Pa 469). By raising
the claim of imprescriptibility, a claim which cannot be
raised by the BCDA, the Government not only assists
the BCDA, as it did in E.B. Marcha, it even supplants
the latter, a course of action proscribed by said case.
Moreover, to recognize the Government as a proper
party to sue in this case would set a bad precedent as
it would allow the Republic to prosecute, on behalf of
government-owned or controlled corporations, causes
of action which have already prescribed, on the
pretext that the Government is the real party in
interest against whom prescription does not run, said
corporations having been created merely as agents
for the realization of government programs.
Parenthetically, petitioner was not a party to the
original suit for cancellation of title commenced by the
Republic twenty-seven years for which it is now being
made to answer, nay, being made to suffer financial
losses.
It should also be noted that petitioner is
unquestionably a buyer in good faith and for value,
having acquired the property in 1963, or 5 years after
the issuance of the original certificate of title, as a
third transferee. If only not to do violence and to give
some measure of respect to the Torrens System,
petitioner must be afforded some measure of
protection.
One more point.
Since the portion in dispute now forms part of the
property owned and administered by the Bases
Conversion and Development Authority, it is alienable
and registerable real property.
We find it unnecessary to rule on the other matters
raised by the herein parties.
WHEREFORE, the petition is hereby granted and the
orders dated August 31, 1999 and October 4, 1999 of
the Regional Trial, Court of the First National Judicial
Region (Branch 26, San Fernando, La Union) in Civil
Case No. 6346 entitled "Republic of the Philippines,
Plaintiff, versus Heirs of Rafael Galvez, et. al.,
Defendants" as well as the resolutions promulgated
on November 4, 1999 and May 23, 2000 by the Court
of Appeals (Twelfth Division) in
CA-G.R. SP No. 55535 entitled "Shipside, Inc.,
Petitioner versus Ron. Alfredo Cajigal, as Judge,
RTC, San Fernando, La Union, Branch 26, and the
Republic of the Philippines, Respondents" are hereby
reversed and set aside. The complaint in Civil Case
No. 6346, Regional Trial Court, Branch 26, San
Fernando City, La Union entitled "Republic of the
Philippines, Plaintiff, versus Heirs of Rafael Galvez, et
al." is ordered dismissed, without prejudice to the
filing of an appropriate action by the Bases
Development and Conversion Authority.
SO ORDERED.
Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-
Gutierrez, JJ., concur.
G.R. No. 143377 February 20, 2001
(Shipside Incorporated vs. Court of Appeals and
Republic of the Philippines)
SEPARATE OPINION
VITUG, J.:
I find no doctrinal difficulty in adhering to the
draft ponencia written by our esteemed Chairman, Mr.
Justice JARM, insofar as it declares that an action for
revival of judgment is barred by extinctive
prescription, if not brought within ten (10) years from
the time the right of action accrues, pursuant to Article
1144(3) of the New Civil Code. It appears that the
judgment in the instant case has become final on 23
October 1973 or well more than two decades prior to
the action for its revival instituted only in
1999. 1âwphi1.nêt
With due respect, however, I still am unable to
subscribe to the idea that prescription' may not be
invoked by the government in this case upon the
thesis that the transfer of Camp Wallace to the Bases
Conversion Development Authority renders the
Republic with no right or interest to protect and thus
unqualified under the rules of procedure to be the real
party-in-interest. While it is true that Republic Act
7227, otherwise known as the Bases Conversion and
Development Act of 1992, authorizes the transfer of
the military reservations and their extensions to the
Conversion Authority, the same, however, is basically
for the purpose of accelerating the sound and
balanced conversion of these military reservations
into alternative productive uses and to enhance the
benefits to be derived from such property as a
measure of promoting the economic and social
development, particularly, of Central Luzon and, In
general, the country's goal for enhancement.1 The
transfer of these military reservations to the
Conversion Authority does not amount to an
abdication on the part of the Republic of its interests
but simply a recognition of the need to create a body
corporate which will act as its agent for the realization
of its program specified in the Act. It ought to follow
that the Republic remains to be the real party-in-
interest and the Conversion Authority being merely its
agent.
In E.B. Marcha Transport Co., Inc. vs. Intermediate
Appellate Court,2 the Court succinctly resolved the
issue of whether or not the Republic of the Philippines
would be a proper party to sue for the recovery of
possession of property which at the time of the
institution of the suit was no longer being held by the
national government but by the Philippine Ports
Authority. The Court ruled:
"More importantly, as we see it, dismissing
the complaint on the ground that the
Republic of the Philippines is not the proper
party would result in needless delay in the
settlement of this matter and also in
derogation of the policy against multiplicity of
suits. Such a decision would require the
Philippine Ports Authority to refile the very
same complaint already proved by the
Republic of the Philippines and bring back
the parties as it were to square one.
"It can be said that in suing for the recovery
of the rentals, the Republic of the
Philippines, acted as principal of the
Philippine Ports Authority, directly exercising
the commission it had earlier conferred on
the latter as its agent. We may presume that,
by doing so, the Republic of the Philippines
did not intend to retain the said rentals for its
 own use, considering that by its voluntary act
it had transferred the land in question to the
Philippine Ports Authority effective July 11,
1974. The Republic of the Philippines had
simply sought to assist, not supplant, the
Philippine Ports Authority, whose title to the
disputed property it continues to recognize.
We may exact then that the said rentals,
once collected by the Republic of the
Philippines, shall be turned over by it to the
Philippine Ports Authority conformably to the
purposes of P.D. No. 857."

There would seem to be no cogent reason for

ignoring that rationale specially when taken in light of
the fact that the original suit for cancellation of title of
petitioner's predecessor-in-interest was commenced
by the Republic itself, and it was only in 1992 that the
subject military camp was transferred to the
Conversion Authority.
Case No. 004
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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
controversial provisions of the MOA-AD from coming
into force until the necessary changes to the legal
framework are effected. While the word
"Constitution" is not mentioned in the provision
now under consideration or anywhere else in the
MOA-AD, the term "legal framework" is certainly
broad enough to include the Constitution.
Notwithstanding the suspensive clause, however,
respondents, by their mere act of incorporating in the
MOA-AD the provisions thereof regarding the
associative relationship between the BJE and the
Central Government, have already violated the
Memorandum of Instructions From The President
dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x
x x the principles of the sovereignty and territorial
integrityof the Republic of the Philippines."
(Emphasis supplied) Establishing an associative
relationship between the BJE and the Central
Government is, for the reasons already discussed, a
preparation for independence, or worse, an implicit
acknowledgment of an independent status already
prevailing.
Even apart from the above-mentioned Memorandum,
however, the MOA-AD is defective because the
suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to
negotiate with the MILF is founded on E.O. No. 3,
Section 5(c), which states that there shall be
established Government Peace Negotiating Panels
for negotiations with different rebel groups to be
"appointed by the President as her official emissaries
to conduct negotiations, dialogues, and face-to-face
discussions with rebel groups." These negotiating
panels are to report to the President, through the
PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in
exploring lasting solutions to the Moro Problem
through its negotiations with the MILF, was not
restricted by E.O. No. 3 only to those options
available under the laws as they presently stand. One
of the components of a comprehensive peace
process, which E.O. No. 3 collectively refers to as the
"Paths to Peace," is the pursuit of social, economic,
and political reforms which may require new
legislation or even constitutional amendments. Sec.
4(a) of E.O. No. 3, which reiterates Section 3(a), of
E.O. No. 125,167 states:
 SECTION 4. The Six Paths to Peace. - The
components of the comprehensive peace
process comprise the processes known as
the "Paths to Peace". These component
processes are interrelated and not mutually
exclusive, and must therefore be pursued
simultaneously in a coordinated and
integrated fashion. They shall include, but
may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND
POLITICAL REFORMS. This component
involves the vigorous implementation of
various policies, reforms, programs and
projects aimed at addressing the root
causes of internal armed conflicts and
social unrest. This may require
administrative action, new legislation or
even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be
perceived as an attempt of respondents to address,
pursuant to this provision of E.O. No. 3, the root
causes of the armed conflict in Mindanao. The E.O.
authorized them to "think outside the box," so to
speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social,
economic, and political reforms which cannot,
however, all be accommodated within the present
legal framework, and which thus would require new
legislation and constitutional amendments.
The inquiry on the legality of the "suspensive clause,"
however, cannot stop here, because it must be
asked whether the President herself may exercise
the power delegated to the GRP Peace Panel
under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she
herself does not possess. May the President, in the
course of peace negotiations, agree to pursue
reforms that would require new legislation and
constitutional amendments, or should the reforms be
restricted only to those solutions which the present
laws allow? The answer to this question requires a
discussion of the extent of the President's power to
conduct peace negotiations.
That the authority of the President to conduct peace
negotiations with rebel groups is not explicitly
mentioned in the Constitution does not mean that she
has no such authority. In Sanlakas v. Executive
Secretary,168 in issue was the authority of the
President to declare a state of rebellion - an authority
which is not expressly provided for in the Constitution.
The Court held thus:
"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 President's power to
forbid the return of her exiled predecessor.
The rationale for the majority's ruling rested
on the President's
. . . 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.
Thus, the President's 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. x x x
(Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace
negotiations is implicitly included in her powers as
Chief Executive and Commander-in-Chief. As Chief
Executive, the President has the general
responsibility to promote public peace, and as
Commander-in-Chief, she has the more specific duty
to prevent and suppress rebellion and lawless
violence.169
As the experience of nations which have similarly
gone through internal armed conflict will show,
however, peace is rarely attained by simply pursuing
a military solution. Oftentimes, changes as far-
reaching as a fundamental reconfiguration of the
nation's constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to
wit:
x x x [T]he fact remains that a successful
political and governance transition must form
 the core of any post-conflict peace-building
mission. As we have observed in Liberia and
Haiti over the last ten years, conflict
cessation without modification of the political
environment, even where state-building is
undertaken through technical electoral
assistance and institution- or capacity-
building, is unlikely to succeed. On average,
more than 50 percent of states emerging
from conflict return to conflict. Moreover, a
substantial proportion of transitions have
resulted in weak or limited democracies.
The design of a constitution and its
constitution-making process can play an
important role in the political and governance
transition. Constitution-making after conflict
is an opportunity to create a common vision
of the future of a state and a road map on
how to get there. The constitution can be
partly a peace agreement and partly a
framework setting up the rules by which the
new democracy will operate.170
In the same vein, Professor Christine Bell, in her
article on the nature and legal status of peace
agreements, observed that the typical way that peace
agreements establish or confirm mechanisms for
demilitarization and demobilization is by linking them
to new constitutional structures addressing
governance, elections, and legal and human rights
institutions.171
In the Philippine experience, the link between peace
agreements and constitution-making has been
recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution
on autonomous regions172 is the framers' intention to
implement a particular peace agreement, namely, the
Tripoli Agreement of 1976 between the GRP and the
MNLF, signed by then Undersecretary of National
Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari.
MR. ROMULO. There are other speakers;
so, although I have some more questions, I
will reserve my right to ask them if they are
not covered by the other speakers. I have
only two questions.
I heard one of the Commissioners say
that local autonomy already exists in the
Muslim region; it is working very well; it has,
in fact, diminished a great deal of the
problems. So, my question is: since that
already exists, why do we have to go into
something new?
MR. OPLE. May I answer that on behalf of
Chairman Nolledo. Commissioner Yusup
Abubakar is right that certain definite steps
have been taken to implement the
provisions of the Tripoli Agreement with
respect to an autonomous region in
Mindanao. This is a good first step, but
there is no question that this is merely a
partial response to the Tripoli Agreement
itself and to the fuller standard of
regional autonomy contemplated in that
agreement, and now by state
policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the
statutes enacted pursuant to them have, to the credit
of their drafters, been partly successful. Nonetheless,
the Filipino people are still faced with the reality of an
on-going conflict between the Government and the
MILF. If the President is to be expected to find means
for bringing this conflict to an end and to achieve
lasting peace in Mindanao, then she must be given
the leeway to explore, in the course of peace
negotiations, solutions that may require changes to
the Constitution for their implementation. Being
uniquely vested with the power to conduct peace
negotiations with rebel groups, the President is in a
singular position to know the precise nature of their
grievances which, if resolved, may bring an end to
hostilities.
The President may not, of course, unilaterally
implement the solutions that she considers viable, but
she may not be prevented from submitting them as
recommendations to Congress, which could then, if it
is minded, act upon them pursuant to the legal
procedures for constitutional amendment and
revision. In particular, Congress would have the
option, pursuant to Article XVII, Sections 1 and 3 of
the Constitution, to propose the recommended
amendments or revision to the people, call a
constitutional convention, or submit to the electorate
the question of calling such a convention.
While the President does not possess constituent
powers - as those powers may be exercised only by
Congress, a Constitutional Convention, or the people
through initiative and referendum - she may submit
proposals for constitutional change to Congress in a
manner that does not involve the arrogation of
constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality
of then President Marcos' act of directly submitting
proposals for constitutional amendments to a
referendum, bypassing the interim National Assembly
which was the body vested by the 1973 Constitution
with the power to propose such amendments.
President Marcos, it will be recalled, never convened
the interim National Assembly. The majority upheld
the President's act, holding that "the urges of absolute
necessity" compelled the President as the agent of
the people to act as he did, there being no interim
National Assembly to propose constitutional
amendments. Against this ruling, Justices Teehankee
and Muñoz Palma vigorously dissented. The Court's
concern at present, however, is not with regard to the
point on which it was then divided in that controversial
case, but on that which was not disputed by either
side.
Justice Teehankee's dissent,175 in particular, bears
noting. While he disagreed that the President may
directly submit proposed constitutional amendments
to a referendum, implicit in his opinion is a recognition
that he would have upheld the President's action
along with the majority had the President convened
the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the
organization of the essential departments of
government, defines and delimits the powers
of each and prescribes the manner of the
exercise of such powers, and the constituent
power has not been granted to but has been
withheld from the President or Prime
Minister, it follows that the President's
questioned decrees proposing and
submitting constitutional amendments
directly to the people (without the
intervention of the interim National
Assembly in whom the power is
expressly vested) are devoid of
constitutional and legal basis."176 (Emphasis
supplied)
From the foregoing discussion, the principle may be
inferred that the President - in the course of
conducting peace negotiations - may validly consider
implementing even those policies that require
changes to the Constitution, but she
may not unilaterally implement them without the
intervention of Congress, or act in any way as if
the assent of that body were assumed as a
certainty.
Since, under the present Constitution, the people also
have the power to directly propose amendments
through initiative and referendum, the President may
also submit her recommendations to the people, not
as a formal proposal to be voted on in a plebiscite
similar to what President Marcos did in Sanidad, but
for their independent consideration of whether these
recommendations merit being formally proposed
through initiative.
These recommendations, however, may amount to
nothing more than the President's suggestions to the
people, for any further involvement in the process of
initiative by the Chief Executive may vitiate its
character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which
truly proceeds from the people. As the Court stated
in Lambino v. COMELEC:177
"The Lambino Group claims that their
initiative is the ‘people's voice.' However, the
Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of
their petition with the COMELEC, that ‘ULAP
maintains its unqualified support to the
agenda of Her Excellency President Gloria
Macapagal-Arroyo for constitutional reforms.'
The Lambino Group thus admits that their
‘people's' initiative is an ‘unqualified
support to the agenda' of the incumbent
President to change the Constitution. This
forewarns the Court to be wary of
incantations of ‘people's voice' or ‘sovereign
will' in the present initiative."
It will be observed that the President has authority, as
stated in her oath of office,178 only to preserve and
defend the Constitution. Such presidential power does
not, however, extend to allowing her to change the
Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself
to recommending these changes and submits to the
proper procedure for constitutional amendments and
revision, her mere recommendation need not be
construed as an unconstitutional act.
The foregoing discussion focused on the President's
authority to propose constitutional amendments,
since her authority to propose new legislation is not
in controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new
legislation. One of the more prominent instances the
practice is usually done is in the yearly State of the
Nation Address of the President to Congress.
Moreover, the annual general appropriations bill has
always been based on the budget prepared by the
President, which - for all intents and purposes - is a
proposal for new legislation coming from the
President.179
The "suspensive clause" in the MOA-AD viewed in
light of the above-discussed standards
Given the limited nature of the President's authority to
propose constitutional amendments, she cannot
guaranteeto any third party that the required
amendments will eventually be put in place, nor even
be submitted to a plebiscite. The most she could do is
submit these proposals as recommendations either to
Congress or the people, in whom constituent powers
are vested.
Paragraph 7 on Governance of the MOA-AD states,
however, that all provisions thereof which cannot be
reconciled with the present Constitution and laws
"shall come into force upon signing of a
Comprehensive Compact and upon effecting the
necessary changes to the legal framework." This
stipulation does not bear the marks of a suspensive
condition - defined in civil law as a future
and uncertain event - but of a term. It is not a question
of whether the necessary changes to the legal
framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what
follows, for the paragraph goes on to state that the
contemplated changes shall be "with due regard to
non derogation of prior agreements and within the
stipulated timeframe to be contained in the
Comprehensive Compact."
Pursuant to this stipulation, therefore, it
is mandatory for the GRP to effect the changes to
the legal framework contemplated in the MOA-AD -
which changes would include constitutional
amendments, as discussed earlier. It bears noting
that,
By the time these changes are put in place, the
MOA-AD itself would be counted among the "prior
agreements" from which there could be no
derogation.
What remains for discussion in the Comprehensive
Compact would merely be the implementing details
for these "consensus points" and, notably,
the deadline for effecting the contemplated changes
to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE
is inconsistent with the limits of the President's
authority to propose constitutional amendments,
it being a virtual guarantee that the Constitution and
the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus
points" found in the MOA-AD. Hence, it must be
struck down as unconstitutional.
A comparison between the "suspensive clause" of the
MOA-AD with a similar provision appearing in the
1996 final peace agreement between the MNLF and
the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement
stipulated that it would be implemented in two
phases. Phase Icovered a three-year transitional
period involving the putting up of new administrative
structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD)
and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous
government through amendment or repeal of R.A. No.
6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific
agreements on the structure of the expanded
autonomous region envisioned by the parties. To that
extent, they are similar to the provisions of the MOA-
AD. There is, however, a crucial difference between
the two agreements. While the MOA-AD virtually
guarantees that the "necessary changes to the
legal framework" will be put in place, the GRP-
MNLF final peace agreement states thus:
"Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for
incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would
have given rise to a binding international law
obligation on the part of the Philippines to change its
Constitution in conformity thereto, on the ground that
it may be considered either as a binding agreement
under international law, or a unilateral declaration of
the Philippine government to the international
community that it would grant to the Bangsamoro
people all the concessions therein stated. Neither
ground finds sufficient support in international law,
however.
The MOA-AD, as earlier mentioned in the overview
thereof, would have included foreign dignitaries as
signatories. In addition, representatives of other
nations were invited to witness its signing in Kuala
Lumpur. These circumstances readily lead one to
surmise that the MOA-AD would have had the status
of a binding international agreement had it been
signed. An examination of the prevailing principles in
international law, however, leads to the contrary
conclusion.
The Decision on Challenge to Jurisdiction: Lomé
Accord Amnesty180 (the Lomé Accord case) of the
Special Court of Sierra Leone is enlightening. The
Lomé Accord was a peace agreement signed on July
7, 1999 between the Government of Sierra Leone and
the Revolutionary United Front (RUF), a rebel group
with which the Sierra Leone Government had been in
armed conflict for around eight years at the time of
signing. There were non-contracting signatories to the
agreement, among which were the Government of the
Togolese Republic, the Economic Community of West
African States, and the UN.
On January 16, 2002, after a successful negotiation
between the UN Secretary-General and the Sierra
Leone Government, another agreement was entered
into by the UN and that Government whereby the
Special Court of Sierra Leone was established. The
sole purpose of the Special Court, an international
court, was to try persons who bore the greatest
responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed
in the territory of Sierra Leone since November 30,
1996.
Among the stipulations of the Lomé Accord was a
provision for the full pardon of the members of the
RUF with respect to anything done by them in pursuit
of their objectives as members of that organization
since the conflict began.
In the Lomé Accord case, the Defence argued that
the Accord created an internationally
binding obligation not to prosecute the beneficiaries
of the amnesty provided therein, citing, among other
things, the participation of foreign dignitaries and
international organizations in the finalization of that
agreement. The Special Court, however, rejected this
argument, ruling that the Lome Accord is not a
treaty and that it can only create binding obligations
and rights between the parties in municipal law, not in
international law. Hence, the Special Court held, it is
ineffective in depriving an international court like it of
jurisdiction.
"37. In regard to the nature of a negotiated
settlement of an internal armed conflict it is
easy to assume and to argue with some
degree of plausibility, as Defence counsel
for the defendants seem to have done,
that the mere fact that in addition to the
parties to the conflict, the document
formalizing the settlement is signed by
foreign heads of state or their
representatives and representatives of
international organizations, means the
agreement of the parties is
internationalized so as to create
obligations in international law.
xxxx
40. Almost every conflict resolution will
involve the parties to the conflict and the
mediator or facilitator of the settlement, or
persons or bodies under whose auspices the
settlement took place but who are not at all
parties to the conflict, are not contracting
parties and who do not claim any obligation
from the contracting parties or incur any
obligation from the settlement.
41. In this case, the parties to the conflict
are the lawful authority of the State and
the RUF which has no status of statehood
and is to all intents and purposes a
faction within the state. The non-
contracting signatories of the Lomé
Agreement were moral guarantors of the
principle that, in the terms of Article
XXXIV of the Agreement, "this peace
agreement is implemented with integrity
and in good faith by both parties". The
moral guarantors assumed no legal
obligation. It is recalled that the UN by its
representative appended, presumably for
avoidance of doubt, an understanding of the
extent of the agreement to be implemented
as not including certain international crimes.
42. An international agreement in the nature
of a treaty must create rights and obligations
regulated by international law so that a
breach of its terms will be a breach
determined under international law which will
also provide principle means of
enforcement. The Lomé Agreement
created neither rights nor obligations
capable of being regulated by
international law. An agreement such as
the Lomé Agreement which brings to an
end an internal armed conflict no doubt
creates a factual situation of restoration
of peace that the international community
acting through the Security Council may
take note of. That, however, will not
convert it to an international agreement
which creates an obligation enforceable
in international, as distinguished from
municipal, law. A breach of the terms of
such a peace agreement resulting in
resumption of internal armed conflict or
creating a threat to peace in the
determination of the Security Council may
indicate a reversal of the factual situation of
peace to be visited with possible legal
consequences arising from the new situation
of conflict created. Such consequences such
as action by the Security Council pursuant to
Chapter VII arise from the situation and not
from the agreement, nor from the obligation
imposed by it. Such action cannot be
regarded as a remedy for the breach. A
peace agreement which settles
an internal armed conflict cannot be
ascribed the same status as one which
settles an international armed conflict
which, essentially, must be between two
or more warring States. The Lomé
Agreement cannot be characterised as an
international instrument. x x x" (Emphasis,
italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed
by representatives of States and international
organizations not parties to the Agreement would not
have sufficed to vest in it a binding character under
international law.
In another vein, concern has been raised that the
MOA-AD would amount to a unilateral declaration of
the Philippine State, binding under international law,
that it would comply with all the stipulations stated
therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of
the people. Cited as authority for this view is Australia
v. France,181 also known as the Nuclear Tests Case,
decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged
before the ICJ the legality of France's nuclear tests in
the South Pacific. France refused to appear in the
case, but public statements from its President, and
similar statements from other French officials
including its Minister of Defence, that its 1974 series
of atmospheric tests would be its last, persuaded the
ICJ to dismiss the case.182 Those statements, the ICJ
held, amounted to a legal undertaking addressed to
the international community, which required no
acceptance from other States for it to become
effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international
community in issuing its public statements, viz:
43. It is well recognized that declarations
made by way of unilateral acts, concerning
legal or factual situations, may have the
effect of creating legal obligations.
Declarations of this kind may be, and often
are, very specific. When it is the intention
of the State making the declaration that it
should become bound according to its
terms, that intention confers on the
declaration the character of a legal
undertaking, the State being thenceforth
legally required to follow a course of
conduct consistent with the
declaration. An undertaking of this kind, if
given publicly, and with an intent to be
bound, even though not made within the
context of international negotiations, is
binding. In these circumstances, nothing in
the nature of a quid pro quo nor any
subsequent acceptance of the declaration,
nor even any reply or reaction from other
States, is required for the declaration to take
effect, since such a requirement would be
inconsistent with the strictly unilateral nature
of the juridical act by which the
pronouncement by the State was made.
44. Of course, not all unilateral acts imply
obligation; but a State may choose to
take up a certain position in relation to a
particular matter with the intention of
being bound-the intention is to be
ascertained by interpretation of the
act. When States make statements by which
their freedom of action is to be limited, a
restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of
atmospheric tests would be the last, the
French Government conveyed to the
world at large, including the Applicant, its
intention effectively to terminate these
tests. It was bound to assume that other
States might take note of these
statements and rely on their being
effective. The validity of these statements
and their legal consequences must be
considered within the general framework
of the security of international
intercourse, and the confidence and trust
which are so essential in the relations among
States. It is from the actual substance of
these statements, and from the
circumstances attending their making,
that the legal implications of the
unilateral act must be deduced. The
objects of these statements are clear and
they were addressed to the international
community as a whole, and the Court
holds that they constitute an undertaking
possessing legal effect. The Court
considers *270 that the President of the
Republic, in deciding upon the effective
cessation of atmospheric tests, gave an
undertaking to the international community to
which his words were addressed. x x x
(Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ,
public statements of a state representative may be
construed as a unilateral declaration only when the
following conditions are present: the statements were
clearly addressed to the international community, the
state intended to be bound to that community by its
statements, and that not to give legal effect to those
statements would be detrimental to the security of
international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case
ruling was recognized in a later case decided by the
ICJ entitled Burkina Faso v. Mali,183 also known as
the Case Concerning the Frontier Dispute. The public
declaration subject of that case was a statement
made by the President of Mali, in an interview by a
foreign press agency, that Mali would abide by the
decision to be issued by a commission of the
Organization of African Unity on a frontier dispute
then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that
the statement of Mali's President was not a unilateral
act with legal implications. It clarified that its ruling in
the Nuclear Tests case rested on the peculiar
circumstances surrounding the French declaration
subject thereof, to wit:
 40. In order to assess the intentions of the
author of a unilateral act, account must be
taken of all the factual circumstances in
which the act occurred. For example, in the
Nuclear Tests cases, the Court took the
view that since the applicant States were
not the only ones concerned at the
possible continuance of atmospheric
testing by the French Government, that
Government's unilateral declarations had
‘conveyed to the world at large, including
the Applicant, its intention effectively to
terminate these tests‘ (I.C.J. Reports 1974,
p. 269, para. 51; p. 474, para. 53). In the
particular circumstances of those cases,
the French Government could not
express an intention to be bound
otherwise than by unilateral declarations.
It is difficult to see how it could have
accepted the terms of a negotiated
solution with each of the applicants
without thereby jeopardizing its
contention that its conduct was lawful.
The circumstances of the present case
are radically different. Here, there was
nothing to hinder the Parties from
manifesting an intention to accept the
binding character of the conclusions of
the Organization of African Unity
Mediation Commission by the normal
method: a formal agreement on the basis
of reciprocity. Since no agreement of this
kind was concluded between the Parties, the
Chamber finds that there are no grounds to
interpret the declaration made by Mali's head
of State on 11 April 1975 as a unilateral act
with legal implications in regard to the
present case. (Emphasis and underscoring
supplied)
Assessing the MOA-AD in light of the above criteria, it
would not have amounted to a unilateral declaration
on the part of the Philippine State to the international
community. The Philippine panel did not draft the
same with the clear intention of being bound thereby
to the international community as a whole or to any
State, but only to the MILF. While there were States
and international organizations involved, one way or
another, in the negotiation and projected signing of
the MOA-AD, they participated merely as witnesses
or, in the case of Malaysia, as facilitator. As held in
the Lomé Accord case, the mere fact that in addition
to the parties to the conflict, the peace settlement is
signed by representatives of states and international
organizations does not mean that the agreement is
internationalized so as to create obligations in
international law.
Since the commitments in the MOA-AD were not
addressed to States, not to give legal effect to such
commitments would not be detrimental to the security
of international intercourse - to the trust and
confidence essential in the relations among States.
In one important respect, the circumstances
surrounding the MOA-AD are closer to that of Burkina
Faso wherein, as already discussed, the Mali
President's statement was not held to be a binding
unilateral declaration by the ICJ. As in that case, there
was also nothing to hinder the Philippine panel, had it
really been its intention to be bound to other States, to
manifest that intention by formal agreement. Here,
that formal agreement would have come about by the
inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just
the MILF, and by an equally clear indication that the
signatures of the participating states-representatives
would constitute an acceptance of that commitment.
Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine
government before the international community,
which was one of the difficulties that prevented the
French Government from entering into a formal
agreement with other countries. That the Philippine
panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the
international community. On that ground, the MOA-
AD may not be considered a unilateral declaration
under international law.
The MOA-AD not being a document that can bind the
Philippines under international law notwithstanding,
respondents' almost consummated act
of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute
grave abuse of discretion. The grave abuse lies not
in the fact that they considered, as a solution to the
Moro Problem, the creation of a state within a state,
but in their brazen willingness to guarantee that
Congress and the sovereign Filipino people would
give their imprimatur to their solution. Upholding
such an act would amount to authorizing a usurpation
of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves
through the process of initiative, for the only way that
the Executive can ensure the outcome of the
amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go to the
extent of giving up a portion of its own territory to the
Moros for the sake of peace, for it can change the
Constitution in any it wants, so long as the change is
not inconsistent with what, in international law, is
known as Jus Cogens.184 Respondents, however,
may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of
respondents to consult the local government units or
communities affected constitutes a departure by
respondents from their mandate under E.O. No. 3.
Moreover, respondents exceeded their authority by
the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution
by any branch of government is a proper matter for
judicial review.
As the petitions involve constitutional issues which
are of paramount public interest or of transcendental
importance, the Court grants the petitioners,
petitioners-in-intervention and intervening
respondents the requisite locus standi in keeping with
the liberal stance adopted in David v. Macapagal-
Arroyo.
Contrary to the assertion of respondents that the non-
signing of the MOA-AD and the eventual dissolution
of the GRP Peace Panel mooted the present
petitions, the Court finds that the present petitions
provide an exception to the "moot and academic"
principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of
the situation and paramount public interest; (c) the
need to formulate controlling principles to guide the
bench, the bar, and the public; and (d) the fact that
the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of
agreements necessary to carry out the GRP-MILF
Tripoli Agreement on Peace signed by the
government and the MILF back in June 2001. Hence,
the present MOA-AD can be renegotiated or another
one drawn up that could contain similar or significantly
dissimilar provisions compared to the original.
The Court, however, finds that the prayers for
mandamus have been rendered moot in view of the
respondents' action in providing the Court and the
petitioners with the official copy of the final draft of the
MOA-AD and its annexes.
The people's right to information on matters of public
concern under Sec. 7, Article III of the Constitution is
in splendid symmetry with the state policy of full public
disclosure of all its transactions involving public
interest under Sec. 28, Article II of the Constitution.
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. The complete and effective
exercise of the right to information necessitates that
its complementary provision on public disclosure
derive the same self-executory nature, subject only to
reasonable safeguards or limitations as may be
provided by law.
The contents of the MOA-AD is a matter of paramount
public concern involving public interest in the highest
order. In declaring that the right to information
contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial
character of the agreement.
An essential element of these twin freedoms is to
keep a continuing dialogue or process of
communication between the government and the
people. Corollary to these twin rights is the design for
feedback mechanisms. The right to public
consultation was envisioned to be a species of these
public rights.
At least three pertinent laws animate these
constitutional imperatives and justify the exercise of
the people's right to be consulted on relevant matters
relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for
continuing consultations on both national and local
levels and for a principal forum for consensus-
building. In fact, it is the duty of the Presidential
Adviser on the Peace Process to conduct regular
dialogues to seek relevant information, comments,
advice, and recommendations from peace partners
and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government
Code of 1991 requires all national offices to conduct
consultations before any project or program critical to
the environment and human ecology including those
that may call for the eviction of a particular group of
people residing in such locality, is implemented
therein. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people, which could
pervasively and drastically result to the diaspora or
displacement of a great number of inhabitants from
their total environment.
Three, Republic Act No. 8371 or the Indigenous
Peoples Rights Act of 1997 provides for clear-cut
procedure for the recognition and delineation of
ancestral domain, which entails, among other things,
the observance of the free and prior informed consent
of the Indigenous Cultural Communities/Indigenous
Peoples. Notably, the statute 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 invocation of the doctrine of executive privilege
as a defense to the general right to information or the
specific right to consultation is untenable. The various
explicit legal provisions fly in the face of executive
secrecy. In any event, respondents effectively waived
such defense after it unconditionally disclosed the
official copies of the final draft of the MOA-AD, for
judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace SO ORDERED
Process committed grave abuse of discretion when
he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act
No. 7160, and Republic Act No. 8371. 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. It
illustrates a gross evasion of positive duty and a
virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present

Constitution and laws. Not only its specific
provisions but the very concept underlying them,
namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional,
for the concept presupposes that the associated entity
is a state and implies that the same is on its way to
independence.

While there is a clause in the MOA-AD stating that the

provisions thereof inconsistent with the present legal
framework will not be effective until that framework is
amended, the same does not cure its defect. The
inclusion of provisions in the MOA-AD establishing an
associative relationship between the BJE and the
Central Government is, itself, a violation of the
Memorandum of Instructions From The President
dated March 1, 2001, addressed to the government
peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments
to the Constitution and the laws will eventually be put
in place. Neither the GRP Peace Panel nor the
President herself is authorized to make such a
guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers
vested only in Congress, a Constitutional Convention,
or the people themselves through the process of
initiative, for the only way that the Executive can
ensure the outcome of the amendment process is
through an undue influence or interference with that
process.

While the MOA-AD would not amount to an

international agreement or unilateral declaration
binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by
itself, already a constitutional violation that renders
the MOA-AD fatally defective.

WHEREFORE, respondents' motion to dismiss

is DENIED. The main and intervening petitions are
GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral

Domain Aspect of the GRP-MILF Tripoli Agreement
on Peace of 2001 is declared contrary to law and the
Constitution.
Case No. 005
EN BANC
July 26, 2016
G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA,
FRANCISCO "DODONG" NEMENZO, JR., SR.
MARY JOHN MANANZAN, PACIFICO A. AGABIN,
ESTEBAN "STEVE" SALONGA, H. HARRY L.
ROQUE, JR., EVALYN G. URSUA, EDRE U.
OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR.
ROLAND SIMBULAN, and TEDDY
CASIÑO, Petitioners,
vs
EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., DEPARTMENT OF NATIONAL DEFENSE
SECRETARY VOLTAIRE GAZMIN, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, JR., DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO ABAD,
and ARMED FORCES OF THE PHILIPPINES CHIEF
OF STAFF GENERAL EMMANUEL T.
BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALY ANSANG MAKABAYAN (BAYAN),
REPRESENTED BY ITS SECRETARY GENERAL
RENATO M. REYES, JR., BAYAN MUNA PARTY-
LIST REPRESENTATIVES NERI J. COLMENARES,
and CARLOS ZARATE, GABRIELA WOMEN'S
PARTY-LIST REPRESENTATIVES LUZ ILAGAN
AND EMERENCIANA DE JESUS, ACT TEACHERS
PARTY-LIST REPRESENTATIVE ANTONIO L.
TINIO, ANAKPAWIS PARTY-LIST
REPRESENTATIVE FERNANDO HICAP,
KABATAAN PARTY-LIST REPRESENTATIVE
TERRY RIDON, MAKABAYANG KOALISYON NG
MAMAMAYAN (MAKABAYAN), REPRESENTED BY
SATURNINO OCAMPO, and LIZA MAZA,
BIENVENIDO LUMBERA, JOEL C. LAMANGAN,
RAFAEL MARIANO, SALVADOR FRANCE,
ROGELIO M. SOLUTA, and CLEMENTE G.
BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND)
SECRETARY VOLTAIRE GAZMIN, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR., ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL
EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO,
AMBASSADOR LOURDES YPARRAGUIRRE,
AMBASSADOR J. EDUARDO MALAYA,
DEPARTMENT OF JUSTICE UNDERSECRETARY
FRANCISCO BARAAN III, and DND ASSISTANT
SECRETARY FOR STRATEGIC ASSESSMENTS
RAYMUND JOSE QUILOP AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE
NEGOTIATING PANEL FOR THE PHILIPPINES ON
EDCA, Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS
CHAIRPERSON, ELMER LABOG,
CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), REPRESENTED BY ITS
NATIONAL PRESIDENT FERDINAND GAITE,
NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO, REPRESENTED BY ITS
NATIONAL PRESIDENT JOSELITO USTAREZ,
NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA
FLORES, and ARMANDO TEODORO,
JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-
Intervention.
RESOLUTION
SERENO, CJ:
The Motion for Reconsideration before us seeks to
reverse the Decision of this Court in Saguisag et. al.,
v. Executive Secretary dated 12 January 2016.1 The
petitions in Sasguisag, et. al.2 had questioned the
constitutionality of the Enhanced Defense
Cooperation Agreement (EDCA) between the
Republic of the Philippines and the United States of
America (U.S.). There, this Court ruled that the
petitions be dismissed.3
On 3 February 2016, petitioners in the Decision filed
the instant Motion, asking for a reconsideration of the
Decision in Saguisag, et. al., questioning the ruling of
the Court on both procedural and substantive
grounds, viz:
WHEREFORE, premises considered, petitioners
respectfully pray that the Honorable Court
RECONSIDER, REVERSE, AND SET- ASIDE its
Decision dated January 12, 2016, and issue a new
Decision GRANTING the instant consolidated
petitions by declaring the Enhanced Defense
Cooperation Agreement (EDCA) entered into by the
respondents for the Philippine government, with the
United States of America, UNCONSTITUTIONAL
AND INVALID and to permanently enjoin its
implementation.
Other fonns of relief just and equitable under the
premises are likewise prayed for.
At the outset, petitioners questioned the procedural
findings of the Court despite acknowledging the fact
that the Court had given them standing to
sue.4 Therefore this issue is now irrelevant and
academic, and deserves no reconsideration.
As for the substantive grounds, petitioners claim this
Court erred when it ruled that EDCA was not a
treaty.5 In connection to this, petitioners move that
EDCA must be in the form of a treaty in order to
comply with the constitutional restriction under
Section 25, Article· XVIII of the 1987 Constitution on
foreign military bases, troops, and
facilities.6 Additionally, they reiterate their arguments
on the issues of telecommunications, taxation, and
nuclear weapons.7
We deny the Motion for Reconsideration.
Petitioners do not present new arguments to buttress
their claims of error on the part of this Court. They
have rehashed their prior arguments and made them
responsive to the structure of the Decision
in Saguisag, yet the points being made are the same.
However, certain claims made by petitioners must be
addressed.
On verba legis interpretation
Petitioners assert that this Court contradicted itself
when it interpreted the word "allowed in" to refer to
the initial entry of foreign bases, troops, and facilities,
based on the fact that the plain meaning of the
provision in question referred to prohibiting the return
of foreign bases, troops, and facilities except under a
treaty concurred in by the Senate.8
This argument fails to consider the function and
application of the verba legis rule.
Firstly, verba legis is a mode of construing the
provisions of law as they stand.9 This takes into
account the language of the law, which is in English,
and therefore includes reference to the meaning of
the words based on the actual use of the word in the
language.
Secondly, by interpreting "allowed in" as referring to
an initial entry, the Court has simply applied the plain
meaning of the words in the particular
provision.10 Necessarily, once entry has been
established by a subsisting treaty, latter instances of
entry need not be embodied by a separate treaty.
After all, the Constitution did not state that foreign
military bases, troops, and facilities shall not subsist
or exist in the Philippines.
Petitioners' own interpretation and application of
the verba legis rule will in fact result in an absurdity,
which legal construction strictly abhors.11 If this Court
accept the essence of their argument that every
instance of entry by foreign bases, troops, and
facilities must be set out in detail in a new treaty, then
the resulting bureaucratic impossibility of negotiating
a treaty for the entry of a head of State's or military
officer's security detail, meetings of foreign military
officials in the country, and indeed military exercises
such as Balikatan will occupy much of, if not all of the
official working time by various government agencies.
This is precisely the reason why any valid mode of
interpretation must take into account how the law is
exercised and its goals effected.12 Ut res magis valeat
quam pereat.
The Constitution cannot be viewed solely as a list of
prohibitions and limitations on governmental power,
but rather as an instrument providing the process of
structuring government in order that it may effectively
serve the people.13It is not simply a set of rules, but
an entire legal framework for Philippine society.
In this particular case, we find that EDCA did not go
beyond the framework. The entry of US troops has
long been authorized under a valid and subsisting
treaty, which is the Visiting Forces Agreement
(VFA).14 Reading the VFA along with the longstanding
Mutual Defense Treaty (MDT)15 led this Court to the
conclusion that an executive agreement such as the
EDCA was well within the bounds of the obligations
imposed by both treaties.
On strict construction of an exception
This Court agrees with petitioners' cited jurisprudence
that exceptions are strictly construed.16 However, their
patent misunderstanding of the Decision and the
confusion this creates behooves this Court to address
this argument.
To be clear, the Court did not add an exception to
Section 25 Article XVIII. The general rule is that
foreign bases, troops, and facilities are not allowed in
the Philippines.17 The exception to this is authority
granted to the foreign state in the form of a treaty duly
concurred in by the Philippine Senate.18
It is in the operation of this exception that the Court
exercised its power of review. The lengthy legal
analysis resulted in a proper categorization of EDCA:
an executive cagreement authorized by treaty. This
Court undeniably considered the arguments asserting
that EDCA was, in fact, a treaty and not an executive
agreement, but these arguments fell flat before the
stronger legal position that EDCA merely
implemented the VFA and MDT. As we stated in the
Decision:
x x x [I]t must already be clarified that the terms and
details used by an implementing agreement need not
be found in the mother treaty. They must be sourced
from the authority derived from the treaty, but are not
necessarily expressed word-for-word in the mother
treaty.19
Hence, the argument that the Court added an
exception to the law is erroneous and potentially
misleading. The parties, both petitioners and
respondents must therefore read the Decision
carefully in order to fully comply with its disposition.
On EDCA as a treaty
The principal reason for the Motion for
Reconsideration is evidently petitioners' disagreement
with the Decision that EDCA implements the VFA
and MDT. They reiterate their arguments that EDCA's
provisions fall outside the allegedly limited scope of
the VFA and MDT because it provides a wider
arrangement than the VFA for military bases, troops,
and facilities, and it allows the establishment of U.S.
military bases.20
Specifically, petitioners cite the terms of the VFA
referring to "joint exercises,"21 such that arrangements
involving the individual States-parties such as
exclusive use of prepositioned materiel are not
covered by the VFA. More emphatically, they state
that prepositioning itself as an activity is not allowed
under the VFA.22
Evidently, petitioners left out of their quote the portion
of the Decision which cited the Senate report on the
VFA. The full quote reads as follows:
Siazon clarified that it is not the VFA by itself that
determines what activities will be conducted between
the armed forces of the U.S. and the Philippines. The
VFA regulates and provides the legal framework for
the presence, conduct and legal status of U.S.
personnel while they are in the country for visits,
joint exercises and other related activities.23
Quite clearly, the VFA contemplated activities beyond
joint exercises, which this Court had already
recognized and alluded to in Lim v. Executive
Secretary,24even though the Court in that case was
faced with a challenge to the Terms of Reference of a
specific type of joint exercise, the Balikatan Exercise.
One source petitioners used to make claims on the
limitation of the VFA to joint exercises is the alleged
Department of Foreign Affairs (DFA) Primer on the
VFA, which they claim states that:
Furthermore, the VFA does not involve access
arrangements for United States armed forces or the
pre-positioning in the country of U.S. armaments and
war materials. The agreement is about personnel and
not equipment or supplies.25
Unfortunately, the uniform resource locator link cited
by petitioners is inaccessible. However, even if we
grant its veracity, the text of the VFA itself belies such
a claim. Article I of the VFA states that "[a ]s used in
this Agreement, "United States personnel" means
United States military and civilian personnel
temporarily in the Philippines in connection with
activities approved by the Philippine
Government."26 These "activities" were, as stated
in Lim, left to further implementing agreements. It is
true that Article VII on Importation did not indicate pre-
positioned materiel, since it referred to "United States
Government equipment, materials, supplies, and
other property imported into or acquired in the
Philippines by or on behalf of the United States armed
forces in connection with activities to which this
agreement applies[.]"27
Nonetheless, neither did the text of the VFA indicate
"joint exercises" as the only activity, or even as one of
those activities authorized by the treaty. In fact, the
Court had previously noted that
[n]ot much help can be had therefrom [VFA],
unfortunately, since the terminology employed is itself
the source of the problem. The VFA permits United
States personnel to engage, on an impermanent
basis, in "activities," the exact meaning of which was
left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only
to the approval of the Philippine government. The sole
encumbrance placed on its definition is couched in
the negative, in that United States personnel must
"abstain from any activity inconsistent with the spirit of
this agreement, and in particular, from any political
activity." All other activities, in other words, are fair
game.28
Moreover, even if the DFA Primer was accurate,
properly cited, and offered as evidence, it is quite
clear that the DFA's opinion on the VFA is not legally
binding nor conclusive.29 It is the exclusive duty of the
Court to interpret with finality what the VFA can or
cannot allow according to its provisions.30
In addition to this, petitioners detail their objections to
EDCA in a similar way to their original petition,
claiming that the VFA and MDT did not allow EDCA to
contain the following provisions:
1. Agreed Locations
2. Rotational presence of personnel
3. U.S. contractors
4. Activities of U.S. contractors31
We ruled in Saguisag, et. al. that the EDCA is not a
treaty despite the presence of these provisions. The
very nature of EDCA, its provisions and subject
matter, indubitably categorize it as an executive
agreement - a class of agreement that is not covered
by the Article XVIII Section 25 restriction - in
painstaking detail.32 To partially quote the Decision:
Executive agreements may dispense with the
requirement of Senate concurrence because of the
legal mandate with which they are concluded. As
culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court
Decisions, and works of noted scholars, executive
agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or
agreements. They are concluded (1) to adjust the
details of a treaty; (2) pursuant to or upon
confirmation by an act of the Legislature; or (3) in the
exercise of the President's independent powers under
the Constitution. The raison d'etre of executive
agreements hinges on prior constitutional or
legislative authorizations.
The special nature of an executive agreement is not
just a domestic variation in international agreements.
International practice has accepted the use of various
forms and designations of international agreements,
ranging from the traditional notion of a treaty - which
connotes a formal, solemn instrument - to
engagements concluded in modern, simplified forms
that no longer necessitate ratification. An international
agreement may take different forms: treaty, act,
protocol, agreement, concordat, compromis
d'arbitrage, convention, covenant, declaration,
exchange of notes, statute, pact, charter, agreed
minute, memorandum of agreement, modus
vivendi, or some other form. Consequently, under
international law, the distinction between a treaty and
an international agreement or even an executive
agreement is irrelevant for purposes of determining
international rights and obligations.
However, this principle does not mean that the
domestic law distinguishing treaties, international
agreements, and executive agreements is relegated
to a mere variation in form, or that the constitutional
requirement of Senate concurrence is demoted to an
optional constitutional directive. There remain two
very important features that
distinguish treaties from executive agreements and
translate them into terms of art in the domestic
setting.
First, executive agreements must remain traceable
to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of
these precedents puts the validity and effectivity of
executive agreements under serious question for the
main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature,
not to defeat or interfere in the performance of these
rules. In turn, executive agreements cannot create
new international obligations that are not expressly
allowed or reasonably implied in the law they purport
to implement.
Second, treaties are, by their very nature, considered
superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate
unlike executive agreements, which are solely
executive actions. Because of legislative participation
through the Senate, a treaty is regarded as being on
the same level as a statute. If there is an
irreconcilable conflict, a later law or treaty takes
precedence over one that is prior. An executive
agreement is treated differently. Executive
agreements that are inconsistent with either a law or a
treaty are considered ineffective. Both types of
international agreement are nevertheless subject to
the supremacy of the Constitution.33 (Emphasis
supplied, citations omitted)
Subsequently, the Decision goes to great lengths to
illustrate the source of EDCA's validity, in that as an
executive agreement it fell within the parameters of
the VFA and MDT, and seamlessly merged with the
whole web of Philippine law. We need not restate the
arguments here. It suffices to state that this Court
remains unconvinced that EDCA deserves treaty
status under the law.
On EDCA as basing agreement
Petitioners claim that the Decision did not consider
the similarity of EDCA to the previous Military Bases
Agreement (MBA) as grounds to declare it
unconstitutional.34
Firstly, the Court has discussed this issue in length
and there is no need to rehash the analysis leading
towards the conclusion that EDCA is different from
the MBA or any basing agreement for that matter.
Secondly, the new issues raised by petitioners are not
weighty enough to overturn the legal distinction
between EDCA and the MBA.
In disagreeing with the Court in respect of the MBA's
jurisdictional provisions, petitioners cite an exchange
of notes categorized as an "amendment" to the MBA,
as if to say it operated as a new treaty and should be
read into the MBA.35
This misleadingly equates an exchange of notes with
an amendatory treaty. Diplomatic exchanges of notes
are not treaties but rather formal communication tools
on routine agreements, akin to private law contracts,
for the executive branch.36 This cannot truly amend or
change the terms of the treaty,37 but merely serve as
private contracts between the executive branches of
government. They cannot ipso facto amend treaty
obligations between States, but may be treaty-
authorized or treaty-implementing.38
Hence, it is correct to state that the MBA as the treaty
did not give the Philippines jurisdiction over the bases
because its provisions on U.S. jurisdiction were
explicit. What the exchange of notes did provide was
effectively a contractual waiver of the jurisdictional
rights granted to the U.S. under the MBA, but did not
amend the treaty itself.
Petitioners reassert that EDCA provisions on
operational control, access to Agreed Locations,
various rights and authorities granted to the US
"ensures, establishes, and replicates what MBA had
provided."39 However, as thoroughly and individually
discussed in Saguisag, et. al., the significant
differences taken as a whole result in a very different
instrument, such that EDCA has not re-introduced the
military bases so contemplated under Article XVIII
Section 25 of the Constitution.40
On policy matters
Petitioners have littered their motion with alleged facts
on U.S. practices, ineffective provisions, or even
absent provisions to bolster their position that EDCA
is invalid.41 In this way, petitioners essentially ask this
Court to replace the prerogative of the political
branches and rescind the EDCA because it not a
good deal for the Philippines. Unfortunately, the
Court's only concern is the legality of EDCA and not
its wisdom or folly. Their remedy clearly belongs to
the executive or legislative branches of government.
EPILOGUE
While this Motion for Reconsideration was pending
resolution, the United Nations Permanent Court of
Arbitration tribunal constituted under the Convention
on the Law of the Sea (UNCLOS) in Republic of the
Philippines v. People's Republic of China released its
monumental decision on the afternoon of 12 July
2016.42 The findings and declarations in this decision
contextualizes the security requirements of the
Philippines, as they indicate an alarming degree of
international law violations committed against the
Philippines' sovereign rights over its exclusive
economic zone (EEZ).
Firstly, the tribunal found China's claimed nine-dash
line, which included sovereign claims over most of the
West Philippine, invalid under the UNCLOS for
exceeding the limits of China's maritime zones
granted under the convention.43
Secondly, the tribunal found that the maritime
features within the West Philippine Sea/South China
Sea that China had been using as basis to claim
sovereign rights within the Philippines' EEZ were not
entitled to independent maritime zones.44
Thirdly, the tribunal found that the actions of China
within the EEZ of the Philippines, namely: forcing a
Philippine vessel to cease-and-desist from survey
operations,45 the promulgation of a fishing moratorium
in 2012,46 the failure to exercise due diligence in
preventing Chinese fishing vessels from fishing in the
Philippines' EEZ without complying with Philippine
regulations,47 the failure to prevent Chinese fishing
vessels from harvesting endangered species,48 the
prevention of Filipino fishermen from fishing in
traditional fishing grounds in Scarborough
Shoal,49 and the island-building operations in various
reefs, all violate its obligations to respect the rights of
the Philippines over its EEZ.50
Fourthly, the tribunal rejected Chinese claims of
sovereignty over features within the Philippine's
EEZ,51 and found that its construction of installations
and structures, and later on the creation of an artificial
island, violated its international obligations.52
Fifthly, the tribunal found that the behaviour of
Chinese law enforcement vessels breached safe
navigation provisions of the UNCLOS in respect of
near-collision instances within Scarborough Shoal.53
Finally, the tribunal found that since the arbitration
was initiated in 2013, China has aggravated the
dispute by building a large artificial island on a low-
tide elevation located in the EEZ of the Philippines
aggravated the Parties' dispute concerning the
protection and preservation of the marine
environment at Mischief Reef by inflicting permanent,
irreparable harm to the coral reef habitat of that
feature, extended the dispute concerning the
protection and preservation of the marine
environment by commencing large-scale island-
building and construction works at Cuarteron Reef:
Fiery Cross Reef, Gaven Reef (North), Johnson Reef,
Hughes Reef, and Subi Reef, aggravated the dispute
concerning the status of maritime features in the
Spratly Islands and their capacity to generate
entitlements to maritime zones by permanently
destroying evidence of the natural condition of
Mischief Reef, Cuarteron Reef, Fiery Cross Reef,
Gaven Reef (North), Johnson Reef, Hughes Reef,
and Subi Reef.54
Taken as a whole, the arbitral tribunal has painted a
harrowing picture of a major world power unlawfully
imposing its might against the Philippines, There are
clear indications that these violations of the
Philippines' sovereign rights over its EEZ are
continuing. The Philippine state is constitutionally-
bound to defend its sovereignty, and must thus
prepare militarily.
No less than the 1987 Constitution demands that the
"State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens. "55
No less than the 1987 Constitution states that the
principal role of the military under the President as
commander-in-chief shall be as protector of the
people and the State to secure the sovereignty of the
State and the integrity of the national territory.56
To recall, the Philippines and the U.S. entered into the
MDT in 195157 with two things in mind, first, it allowed
for mutual assistance in maintaining and developing
their individual and collective capacities to resist an
armed attack;58 and second, it provided for their
mutual self-defense in the event of an armed attack
against the ten-itory of either party.59 The treaty was
premised on their recognition that an anned attack on
either of them would equally be a threat to the
security of the other.60
The EDCA embodies this very purpose. It puts into
greater effect a treaty entered into more than 50 years
ago in order to safeguard the sovereignty of the
Philippines, and cement the military friendship of the
U.S. and Philippines that has thrived for decades
through multiple presidents and multiple treaties.
While it is a fact that our country is now independent,
and that the 1987 Constitution requires Senate
consent for foreign military bases, troops, and
facilities, the EDCA as envisioned by the executive
and as formulated falls within the legal regime of the
MDT and the VFA.
In the context of recent developments, the President
is bound to defend the EEZ of the Philippines and
ensure its vast maritime wealth for the exclusive
enjoyment of Filipinos. In this light, he is obligated to
equip himself with all resources within his power to
command. With the MDT and VFA as a blueprint and
guide, EDCA strengthens the Armed Forces of the
Philippines and through them, the President's ability
to respond to any potential military crisis with
sufficient haste and greater strength.
The Republic of Indonesia is strengthening its military
presence and defences in the South China
Sea.61 Vietnam has lent its voice in support of the
settlement of disputes by peaceful means62 but still
strongly asserts its sovereignty over the Paracel
islands against China.63 The international community
has given its voice in support of the tribunal's decision
in the UNCLOS arbitration.64
Despite all this, China has rejected the ruling.65 Its
ships have continued to drive off Filipino fishermen
from areas within the Philippines' EEZ. 66 Its military
officials have promised to continue its artificial island-
building in the contested areas despite the ruling
against these activities.67
In this light, the Philippines must continue to ensure
its ability to prevent any military aggression that
violates its sovereign rights. Whether the threat is
internal or external is a matter for the proper
authorities to decide. President Rodrigo Roa Duterte
has declared, in his inaugural speech, that the threats
pervading society are many: corruption, crime, drugs,
and the breakdown of law and order.68 He has stated
that the Republic of the Philippines will honor treaties
and international obligations.69 He has also openly
supported EDCA's continuation.70
Thus, we find no reason for EDCA to be declared
unconstitutional. It fully conforms to the Philippines'
legal regime through the MDT and VFA. It also fully
conforms to the government's continued policy to
enhance our military capability in the face of various
military and humanitarian issues that may arise. This
Motion for Reconsideration has not raised any
additional legal arguments that warrant revisiting the
Decision.
WHEREFORE, we hereby DENY the Motion for
Reconsideration.
SO ORDERED.
Case No. 006
FIRST DIVISION
January 31, 2018
G.R. No. 219581
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee
vs.
MAXIMO DELA PEÑA, Accused-Appellant
DECISION
DEL CASTILLO, J.:
Maximo De La Peña (appellant) filed this appeal
assailing the December 16, 2014 Decision1 of the
Court of Appeals (CA) in CA-G.R. CR-HC. No. 00834
which affirmed with modification the October 22, 2007
Decision2 of the Regional Trial Court (RTC) of
Calbiga, Samar, Branch 33, in Criminal Case No. CC-
2006- 1608 finding him guilty beyond reasonable
doubt of the crime of piracy.
Appellant was charged, with the crime of piracy
defined under Presidential Decree (PD) No. 532
allegedly committed as follows:
That on or about the 24th day of September 2005, at
about 1:00 o'clock in the morning, more or less,
a1ong the river bank of Barangay San Roque,
Municipality of Villareal, Province of Samar,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
conspiring, confederating, and mutually helping one
another, with deliberate intent to gain, by means of
force and intimidation, did then and there willfully,
unlawfully and feloniously take and carry away the
following items, to wit:
* 13 sacks of dried coconuts (copra) valued at
₱7,537.00[;]
* 2 pieces automatic watch (Seiko and citizen) valued
at ₱ 6,796.00[:]
* 1 piece ([S]audi gold) valued at ₱4,731.00[;]
* 1 [N]okia cellphone 3350 valued at ₱3,615.00[;]
* 1 unit Briggs and [Stratton] 16 horse power with
propeller valued at ₱26,000.00[;]
* cash money worth [₱] 1,000.00.
all in the amount of Forty Nine Thousand Six Hundred
Seventy-Nine Pesos (₱49,679.00)to the damage and
prejudice of the said owner.
CONTRARY TO LAW.3
Appellant pleaded not guilty to the crime charged. His
co-accused, Romy Real (Romy), Danny Real
(Danny), and Onyong Reyes (Onyong), have not
been an-ested and remain fugitives from justice.
Version of the Prosecution
On September 24, 2005; at around 1:00 a.m., Julita
Nacoboan (Julita), her husband, Jose Nacoboan
(Jose), and their son, Marwin Nacoboan (Marwin)
were about to board their pump boat loaded with 13
sacks of copra. These sacks of copra were supposed
to be loaded and transferred to a bigger passenger
boat that would ferry the copra to Catbalogan, Samar.
Their barangay is situated along a river which opens
to the sea. When the tide is low, the bigger passenger
boat cannot dock along the shore so a smaller pump
boat has to be used to ferry the cargo to a bigger
passenger boat.
As the Nacoboan's pump boat was about to depart, a
smaller boat suddenly blocked its path. For fear of
collision, Jose stopped the engine of their pump boat
Three armed men then immediately ordered the pump
boat. One of the armed men pointed a firearm at Jose
arid ordered him to proceed to the aft or the rear side
of the boat. Julita identified him as the appellant.
Jose's hands were tied and his head covered.
Another armed person grabbed Julita’s bag and took
the following items:
1) ₱1,000.00 Cash; 2) Earrings; 3) Cellular
phone; and 4) Necklace.
Another person operated the pump boat and docked it
on a small island after nearly two hours of travel.
During the trip, Marwin’s shirt was taken off and used
to blindfold Julita. When they arrived at the small
island, the appellant unloaded the 13 sacks of copra.
The appellant and his armed companions then
brought the pump boat to another island where its
engine, prope1lertube, and tools were taken and
loaded on appellant's boat. Consequently, the
Nacoboan’s boat was left without an engine and they
had to paddle to safety. They discovered that they
were already in Equiran, Daram, Samar.
The following day, Julita went to the police authorities
in Villareal, Samar to report the incident. She reported
that the value of the copra was then ₱15.00 per kilo
and that the engine and other equipment lost were
valued at ₱30,000.00. She identified the appellant as
one of the armed men who took control of their boat
and took away its engine, propeller tube, and tools
since she had known him for 16 years already arid
she recognized him when he boarded their boat.
Version of the Defense
Appellant denied the accusa6on against him and
testified that he was a resident of Brgy. San Roque,
Villareal, Samar for 15 years. He had been engaged
in fishing for l0 years as a source of livelihood. He
claimed that from September ), 2005 up to December
5, 2005 he was fishing in Daram, Samar with Edgar
Pojas, Jose Dacletan (bacletan), Tope Dacletan,
Nestor Bombay, and Esok Pojas. During the said
period, he smyed at the house of
Barangay Kagawad Edgar Pojas and used the boat of
Dacletan to fish.
After their fishing activity, appellant went home to
Brgy. San Roque, Villareal, Samar. On December 6,
2005, four soldiers arrested and beat him up. He was
brought to the Municipal Hall thereafter and was
imprisoned. He declared that he knew the
complainants who were also residents of Brgy. San
Roque; Villareal, Samar but did not knew his co-
accused Romy, Onyong, and Danny.
Ruling of the Regional Trial Court
On October 22, 2007, the RTC of Calbiga, Samar,
Branch 33 rendered judgment finding appellant guilty
of piracy under PD 532. The RTC was convinced that
the testimonies of Julita and Marwin positively
identifying the appellant as the one who boarded their
boat and took away their cargo through violence or
intimidation were credible. The RTC ruled that
appellant's denial and alibi could not prevail over the
positive identification made by the victims.
The dispositive portion of the RTC’s Decision reads:
WHEREFORE, AND IN VIEW OF ALL THE
FOREGOING, the accused MAXIMO DE LA PEÑA is
sentenced to the penalty of imprisonment or
RECLUSION PERPETUA, without [eligibility for]
parole, and to pay the victims the following:
1. ₱49,679.00, total amount lost;
2. ₱30,000.00 in exemplary damages;
3. ₱15,000.00 in moral damages;
4. ₱25,000.00 in nominal damages;
5. and to pay the costs.
Let the continued detention of the accused be
transferred to the Leyte Regional Prison, as soon as
possible.
Issue an alias order for the arrest of Onyong Reyes,
Romy Real and Danny Real, accordingly.
Furnish copies of this decision to [the] PNP station,
PNP Regional Office and its Directorate for
operations.4
Aggrieved by the RTC's Decision, appellant filed an
appeal to the CA.
Ruling of the Court of Appeals
On December 16, 2014, the CA affirmed appellant’s
conviction for the crime of piracy under PD 532 and
held as follows:
WHEREFORE, the appeal is hereby DENIED. The
Decision dated October 22, 2007, convicting accused-
appellant for the crime of piracy penalized under PD
No. 532 and sentencing him accordingly to suffer the
penalty of reclusion perpetua without (eligibility for)
parole is AFFIRMED WITH MODIFICATION as
follows:
a. [₱]30,000.00 as temperate damages in lieu of
actual damages;
b. the award of moral damages, nominal damages,
and exemplary damages are deleted; and.
c. interest on all damages awarded at the rate of
6% per annum from the date of finality of this
judgment until such amounts shall have been fully
paid.
Costs against accused-appellant.
SO ORDERED.5
Dissatisfied with the CA's Decision, and after denial of
his Motion for Reconsideration, appellant filed a
Notice of Appeal.6
Issue
The issue in this case is whether appellant is guilty of
piracy. According to appellant, the prosecution failed
to prove the elements of piracy under PD 532.
Appellant insists that the RTC erroneously convicted
him since the prosecution failed to prove his guilt
beyond reasonable doubt.
Our Ruling
The appeal lacks merit.
Section 2(d) of PD 532 defines piracy as follows:
Any attack upon or seizure of any vessel, or the
taking away of the whole or part thereof or its cargo,
equipment, or the personal belongings of its
complement or pa5sengers, irrespective of the value
thereof, by means of violence against or intimidation
of persons or force upon things, committed by any
person, including a passenger or member of the
complement of said vessel, in Philippine waters shall
be considered as piracy. x x x
In his Appellants Brief, appellant contends that the
prosecution failed to prove the elements of piracy
under PD 532. He posits that the Information failed to
allege the elements of the crime of piracy. Appellant
maintains that the Information did not state that the
vessel in question was in Philippine waters and that
its cargo, equipment, or personal belongings of the
passengers or complement were seized.
The Court disagrees.
The Information7 charged appellant of the crime of
piracy to wit:
That on or about the 24th day of September 2005, at
about 1:00 o'clock in the morning, more or less, along
the river bank of Barangay San Roque. Municipality of
Villareal, Province of Samar, Philippines, and within
the jurisdiction of this Honorable court; the above-
named accused, conspiring, confederating, and
mutually helping one another, with deliberate intent to
gain, by means of force and intimidation, did then and
there willfully, unlawfully and feloniously take and
carry away the following items, to wit:
* 13 sacks of dried coconuts (copra) valued at
₱7.537.00[;]
* 2 pieces automatic watch (Seiko and citizen) valued
at ₱6,796.00[;]
* 1 piece ([S]audi gold] valued at ₱4,731.00[;]
* 1 [N]okia cellphone 3350 valued at ₱3,615.00[;]
* 1 unit Briggs and [Stratton] 16 horse power with
propeller valued at ₱26,000.00[;]
* Cash money worth [₱]1,000.00.
all in the amount of Forty Nine Thousand Six Hundred
Seventy Nine Pesos (₱49,679.00) to the damage and
prejudice of the said owner.
CONTRARY TO LAW.
The Information categorically alleged that the incident
happened along the river bank of Brgy. San Roque,
Municipality of Villareal, Province of Samar. Under
Section 2(a) of PD 532, "Philippine waters''' is defined
as follows:
[A]ll bodies of water, such as but not limited to, seas,
gulfs, bays around, between and connecting each of
the Islands of the Philippine Archipelago, irrespective
of its depth, breadth, length or dimension, and all
other waters belonging to the Philippines by historic or
Iegal title, including territorial sea, the sea-bed, the
insular shelves, and other submarine areas over
which the Philippines has sovereignty or jurisdiction.
(Emphasis supplied)
From this definition, it is clear that a river is
considered part of Philippine waters.
The Information also clearly alleged that the vessel's
cargo, equipment, and personal belongings of the
passengers were taken by the appellant and his
armed companions. It stated, in no uncertain terms,
that 13 sacks of copra were taken by the appellant
through force and intimidation. Undoubtedly, these
sacks of copra were part of the vessel's cargo. The
Information also stated that the vessel's equipment
which consisted of the engine, propeller tube, and
tools were taken and carried away by the appellant.
Furthermore, the Information also stated that the
personal belongings of the passengers consisting of
two watches, jewelry, cellphone, and cash money
were taken by the appellant and his armed
companions. The appellant was able to seize these
items when he, along with armed companions,
boarded the victims' pump boat and seized control of
the same. Armed with firearms, appellant and his
companions tied Jose's hands, covered his head, and
operated their pump boat. They travelled to an island
in Samar where they unloaded the sacks of copra.
Thereafter, appellant and his armed companions
travelled to another island where the engine, propeller
tube, and tools of the pump boat were taken out and
loaded on appellant's boat.
From the foregoing, the Court finds that the
prosecution was able to establish that the victims'
pump boat was in Philippine waters when appellant
and his armed companions boarded the same and
seized its cargo, equipment, and the personal
belongings of the passengers.
The Court finds no merit in appellant's contention that
he was not positively identified by the prosecution's
witnesses. Fron1 the testimony of Julita, she
positively identified the appellant as follows:
Q: Among the three (3) accused, can you recall who
particularly pointed and levelled at your husband with
his knife?
A: It was Maximo De la Peña, ma'am
xxxx
Q: Who [among the three (3) accused unloaded the
13 sacks of copra]?
A: The [ones] who unloaded our [copra] were Maximo
De la Peña and the person who was guarding me with
a short [fire]arm [whom] I do not know x x x. [T]he
other one who was carrying a long [fire]arm [was] in
charge of the engine.8
The Court finds no reason to doubt the testimony of
Julita identifying appellant as one of the assailants
who boarded their vessel and seized its cargo,
equipment, and the passengers' personal belongings.
Julita testified that she was able to identify appellant
because of the moonlight that illuminated the area.
Further, she testified that she then had a flashlight
that allowed her to see who boarded the vessel. More
importantly, Juljta had known the appellant for 16
years since they reside in the
same barangay.9 Appellant's bare denial and alibi
cannot prevail over the positive identification made by
Julita. "Time and again, this Court has consistently
ruled that positive identification prevails over alibi
since the latter can easily be fabricated and is
inherently unreliable."10 Since both the RTC and CA
found Julita's testimony to be credible and
straightfo1ward, the Court thus finds no reason to
disturb the same.
Lastly, appellant argues that the proper penalty
should be reclusion temporal in its medium and
maximum: periods and not reclusion perpetua as
imposed by the RTC.
Appellant's contention is incorrect, Section 3 of PD
532, provides:
Section 3. Penalties. Any person who commits piracy
or highway robbery/brigandage as herein defined,
shall, upon conviction by competent court be
punished by:
a. Piracy. The penalty of reclusion temporal in its
medium ai.1d maximum periods shall be
imposed.1âwphi1 If physical injuries or other crimes
are committed as a result or on the occasion thereof:
the penalty of reclusion perpetua shall be imposed. If
rape murder or homicide is committed as a result or
on the occasion of piracy, or when the offenders
abandoned the victims without means of saving
themselves or when the seizure is accomplished by
firing upon or boarding a vessel, the mandatory
penalty of death shall be imposed. (Emphasis
supplied)
In this case, it was established that the appellant and
his armed companionsboarded the victims’ boat and
seized 13 sacks of copra, the boat's engine, propeller
tube, and tools, as well as the contents of Julita’s bag.
Hence, from the provision above, the proper
imposable penalty should be death. However, due to
Republic Act No. 9346, which prohibits the imposition
of the death penalty, the Court thus finds. that the
penalty imposed by the RTC, which was reclusion
perpetua without eligibility for parole, was correct
since the seizure of the vessel and its cargo was
accomplished by boarding the vessel.
Anent the award of damages, the Court sustains the
modification made by the CA in deleting the amount
of ₱49,679.00 as actual damages and instead,
awarding Julita temperate damages since she failed
to substantiate her losses with the necessary
receipts. As we explained in Tan v. OMC Carriers.
Inc.:11
Actual damages, to be recoverable, must not only be
capable of proof, but must actually be proved with a
reasonable degree of certainty. Courts cannot simply
rely on speculation, conjecture or guesswork in
determining the fact and amount of damages. To
justify an award of actual damages there must be
competent proof of the actual amount of loss,
credence can be given only to claims which are duly
supported by receipts.
The award of temperate damages is proper since
under .Article 2224 of the Civil Code, temperature
damages may be recovered when the court finds that
some pecuniary loss had been suffered but its
amount cannot, from the nature of the case, be
proved with certainty. Likewise, the Court finds the
deletion of nominal damages proper. The CA is
correct in holding that temperate and nominal
damages arc incompatible and thus, cannot be
granted concurrently. Under Article 2221 of the Civil
Code, nominal damages are given in order that a right
of the plafr1tift: which has been violated or invaded by
the defendant, may he vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for any
loss suffered by him. Last1y, the deletion of the
awards of moral and exemplary damages are also
proper for lack of factual and legal basis.
All told, based on the evidence on record, the Court
finds no reason to disturb the findings of both the RTC
and the CA that appellant was guilty of piracy under
PD 532.

WHEREFORE, the appeal is DISMISSED. The

December 16, 2014 Decision of the Court of Appeals
in CA-G.R. CR-HC. No. 00834 finding appellant
Maximo De La Peña GUILTY beyond reasonable
doubt of the crime of piracy defined and penalized
under Presidential Decree No. 532 and sentencing
him to suffer the penalty of reclusion perpetua without
eligibility for parole is AFFIRMED.

SO ORDERED.
B.2
Case No. 001
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24761 September 7, 1965
LEON G. MAQUERA, petitioner,
vs.
JUAN BORRA, CESAR MIRAFLOR, and
GREGORIO SANTAYANA, in their respective
capacities as Chairman and Members of the
Commission on Elections, and the COMMISSION
ON ELECTIONS, respondents.
---------------------------
G.R. No. L-24828 September 7, 1965
FELIPE N. AUREA and MELECIO
MALABANAN, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Leon G. Maquera in his own behalf as petitioner.
Ramon Barrios for respondents.
RESOLUTION
PER CURIAM:
Upon consideration of case G.R. No. L-24761, "Leon
G. Maquera vs. Juan Borra, et al.," and case G.R. No.
L-24828, "Felipe N. Aurea and Melecio Malabanan vs.
Commission on Elections," and it appearing:
1. That Republic Act No. 4421 requires "all
candidates for national, provincial, city and
municipal offices" to post a surety bond
equivalent to the one-year salary or
emoluments of the position to which he is a
candidate, which bond shall be forfeited in
favor of the national, provincial, city or
municipal government concerned if the
candidate, except when declared winner,
fails to obtain at least 10% of the votes cast
for the office to which he has filed his
certificate of candidacy, there being not more
than four (4) candidates for the same office;"
2. That, in compliance with said Republic Act
No. 4421, the Commission on Elections had,
on July 20, 1965, decided to require all
candidates for President, Vice-President,
Senator and Member of the House of
Representatives to file a surety bond, by a
bonding company of good reputation,
acceptable to the Commission, in the sums
of P60,000.00 and P40,000.00, for President
and Vice-President, respectively, and
P32,000.00 for Senator and Member of the
House of Representatives;
3. That, in consequence of said Republic Act
No. 4421 and the aforementioned action of
the Commission on Elections, every
candidate has to pay the premium charged
by bonding companies, and, to offer thereto,
either his own properties, worth, at least, the
amount of the surety bond, or properties of
the same worth, belonging to other persons
willing to accommodate him, by way of
counter-bond in favor of said bonding
companies;
4. That the effect of said Republic Act No.
4421 is, therefore, to prevent or disqualify
from running for President, Vice-President,
Senator or Member of the House of
Representatives those persons who,
although having the qualifications prescribed
by the Constitution therefore, cannot file the
surety bond aforementioned, owing to failure
to pay the premium charged by the bonding
company and/or lack of the property
necessary for said counter-bond;
5. That said Republic Act No. 4421 has,
likewise, the effect of disqualifying for
provincial, city or municipal elective offices,
persons who, although possessing the
qualifications prescribed by law therefor,
cannot pay said premium and/or do not have
the property essential for the aforementioned
counter-bond;
6. That said Republic Act No. 4421 has,
accordingly, the effect of imposing property
qualifications in order that a person could run
for a public office and that the people could
validly vote for him;
7. That said property qualifications are
inconsistent with the nature and essence of
the Republican system ordained in our
Constitution and the principle of social justice
underlying the same, for said political system
is premised upon the tenet that sovereignty
resides in the people and all government
authority emanates from them, and this, in
 turn, implies necessarily that the right to vote
and to be voted for shall not be dependent
upon the wealth of the individual concerned,
whereas social justice presupposes equal
opportunity for all, rich and poor alike, and
that, accordingly, no person shall, by reason
of poverty, be denied the chance to be
elected to public office; and

8. That the bond required in Republic Act

No. 4421 and the confiscation of said bond
are not predicated upon the necessity of
defraying certain expenses or of
compensating services given in connection
with elections, and is, therefore, arbitrary and
oppressive.

The Court RESOLVED, without prejudice to rendering

an extended decision, to declare that said Republic
Act No. 4421 is unconstitutional and hence null and
void, and, hence, to enjoin respondents herein, as
well as their representatives and agents, from
enforcing and/or implementing said constitutional
enactment.

Bautista Angelo, Concepcion, Reyes, J.B.L., Dizon.,

Makalintal and Zaldivar, JJ., concur.
Bengzon, C.J., took no part.
Barrera, J., is on leave.
Case No. 2
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case
quite as remarkable as the one which this application
for habeas corpus submits for decision. While hardly
to be expected to be met with in this modern epoch of
triumphant democracy, yet, after all, the cause
presents no great difficulty if there is kept in the
forefront of our minds the basic principles of popular
government, and if we give expression to the
paramount purpose for which the courts, as an
independent power of such a government, were
constituted. The primary question is — Shall the
judiciary permit a government of the men instead of a
government of laws to be set up in the Philippine
Islands?
Omitting much extraneous matter, of no moment to
these proceedings, but which might prove profitable
reading for other departments of the government, the
facts are these: The Mayor of the city of Manila, Justo
Lukban, for the best of all reasons, to exterminate
vice, ordered the segregated district for women of ill
repute, which had been permitted for a number of
years in the city of Manila, closed. Between October
16 and October 25, 1918, the women were kept
confined to their houses in the district by the police.
Presumably, during this period, the city authorities
quietly perfected arrangements with the Bureau of
Labor for sending the women to Davao, Mindanao, as
laborers; with some government office for the use of
the coastguard cutters Corregidor and Negros, and
with the Constabulary for a guard of soldiers. At any
rate, about midnight of October 25, the police, acting
pursuant to orders from the chief of police, Anton
Hohmann and the Mayor of the city of Manila, Justo
Lukban, descended upon the houses, hustled some
170 inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival. The
women were given no opportunity to collect their
belongings, and apparently were under the
impression that they were being taken to a police
station for an investigation. They had no knowledge
that they were destined for a life in Mindanao. They
had not been asked if they wished to depart from that
region and had neither directly nor indirectly given
their consent to the deportation. The involuntary
guests were received on board the steamers by a
representative of the Bureau of Labor and a
detachment of Constabulary soldiers. The two
steamers with their unwilling passengers sailed for
Davao during the night of October 25.
The vessels reached their destination at Davao on
October 29. The women were landed and receipted
for as laborers by Francisco Sales, provincial
governor of Davao, and by Feliciano Yñigo and
Rafael Castillo. The governor and
the hacendero Yñigo, who appear as parties in the
case, had no previous notification that the women
were prostitutes who had been expelled from the city
of Manila. The further happenings to these women
and the serious charges growing out of alleged ill-
treatment are of public interest, but are not essential
to the disposition of this case. Suffice it to say,
generally, that some of the women married, others
assumed more or less clandestine relations with men,
others went to work in different capacities, others
assumed a life unknown and disappeared, and a
goodly portion found means to return to Manila.
To turn back in our narrative, just about the time
the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a
considerable number of the deportees presented an
application for habeas corpus to a member of the
Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include
all of the women who were sent away from Manila to
Davao and, as the same questions concerned them
all, the application will be considered as including
them. The application set forth the salient facts, which
need not be repeated, and alleged that the women
were illegally restrained of their liberty by Justo
Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable
before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain
facts relative to sequestration and deportation, and
prayed that the writ should not be granted because
the petitioners were not proper parties, because the
action should have been begun in the Court of First
Instance for Davao, Department of Mindanao and
Sulu, because the respondents did not have any of
the women under their custody or control, and
because their jurisdiction did not extend beyond the
boundaries of the city of Manila. According to an
exhibit attached to the answer of the fiscal, the 170
women were destined to be laborers, at good
salaries, on the haciendas of Yñigo and Governor
Sales. In open court, the fiscal admitted, in answer to
question of a member of the court, that these women
had been sent out of Manila without their consent.
The court awarded the writ, in an order of November
4, that directed Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of
Manila, Francisco Sales, governor of the province of
Davao, and Feliciano Yñigo, an hacenderoof Davao,
to bring before the court the persons therein named,
alleged to be deprived of their liberty, on December 2,
1918.
Before the date mentioned, seven of the women had
returned to Manila at their own expense. On motion of
counsel for petitioners, their testimony was taken
before the clerk of the Supreme Court sitting as
commissioners. On the day named in the order,
December 2nd, 1918, none of the persons in whose
behalf the writ was issued were produced in court by
the respondents. It has been shown that three of
those who had been able to come back to Manila
through their own efforts, were notified by the police
and the secret service to appear before the court. The
fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him
when pleading to the original petition copied a
telegram from the Mayor of the city of Manila to the
provincial governor of Davao and the answer thereto,
and telegrams that had passed between the Director
of Labor and the attorney for that Bureau then in
Davao, and offered certain affidavits showing that the
women were contained with their life in Mindanao and
did not wish to return to Manila. Respondents Sales
answered alleging that it was not possible to fulfill the
order of the Supreme Court because the women had
never been under his control, because they were at
liberty in the Province of Davao, and because they
had married or signed contracts as laborers.
Respondent Yñigo answered alleging that he did not
have any of the women under his control and that
therefore it was impossible for him to obey the
mandate. The court, after due deliberation, on
December 10, 1918, promulgated a second order,
which related that the respondents had not complied
with the original order to the satisfaction of the court
nor explained their failure to do so, and therefore
directed that those of the women not in Manila be
brought before the court by respondents Lukban,
Hohmann, Sales, and Yñigo on January 13, 1919,
unless the women should, in written statements
voluntarily made before the judge of first instance of
Davao or the clerk of that court, renounce the right, or
unless the respondents should demonstrate some
other legal motives that made compliance impossible.
It was further stated that the question of whether the
respondents were in contempt of court would later be
decided and the reasons for the order announced in
the final decision.
Before January 13, 1919, further testimony including
that of a number of the women, of certain detectives
and policemen, and of the provincial governor of
Davao, was taken before the clerk of the Supreme
Court sitting as commissioner and the clerk of the
Court of First Instance of Davao acting in the same
capacity. On January 13, 1919, the respondents
technically presented before the Court the women
who had returned to the city through their own efforts
and eight others who had been brought to Manila by
the respondents. Attorneys for the respondents, by
their returns, once again recounted the facts and
further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was
stated that the respondents, through their
representatives and agents, had succeeded in
bringing from Davao with their consent eight women;
that eighty-one women were found in Davao who, on
notice that if they desired they could return to Manila,
transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to
Manila by other means, and that despite all efforts to
find them twenty-six could not be located. Both
counsel for petitioners and the city fiscal were
permitted to submit memoranda. The first formally
asked the court to find Justo Lukban, Mayor of the city
of Manila, Anton Hohmann, chief of police of the city
of Manila, Jose Rodriguez and Fernando Ordax,
members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto
Joaquin, the attorney for the Bureau of Labor, and
Anacleto Diaz, fiscal of the city of Manila, in contempt
of court. The city fiscal requested that the replica al
memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck
from the record.
In the second order, the court promised to give the
reasons for granting the writ of habeas corpus in the
final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled — these
one hundred and seventy women were isolated from
society, and then at night, without their consent and
without any opportunity to consult with friends or to
defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown.
Despite the feeble attempt to prove that the women
left voluntarily and gladly, that such was not the case
is shown by the mere fact that the presence of the
police and the constabulary was deemed necessary
and that these officers of the law chose the shades of
night to cloak their secret and stealthy acts. Indeed,
this is a fact impossible to refute and practically
admitted by the respondents.
With this situation, a court would next expect to
resolve the question — By authority of what law did
the Mayor and the Chief of Police presume to act in
deporting by duress these persons from Manila to
another distant locality within the Philippine Islands?
We turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine
Islands in conformity with an Act of congress. The
Governor-General can order the eviction of
undesirable aliens after a hearing from the Islands.
Act No. 519 of the Philippine Commission and section
733 of the Revised Ordinances of the city of Manila
provide for the conviction and punishment by a court
of justice of any person who is a common prostitute.
Act No. 899 authorizes the return of any citizen of the
United States, who may have been convicted of
vagrancy, to the homeland. New York and other
States have statutes providing for the commitment to
the House of Refuge of women convicted of being
common prostitutes. Always a law! Even when the
health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion
leper colony, it is done pursuant to some law or order.
But one can search in vain for any law, order, or
regulation, which even hints at the right of the Mayor
of the city of Manila or the chief of police of that city to
force citizens of the Philippine Islands — and these
women despite their being in a sense lepers of
society are nevertheless not chattels but Philippine
citizens protected by the same constitutional
guaranties as are other citizens — to change their
domicile from Manila to another locality. On the
contrary, Philippine penal law specifically punishes
any public officer who, not being expressly authorized
by law or regulation, compels any person to change
his residence.
In other countries, as in Spain and Japan, the
privilege of domicile is deemed so important as to be
found in the Bill of Rights of the Constitution. Under
the American constitutional system, liberty of abode is
a principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to
require a constitutional sanction. Even the Governor-
General of the Philippine Islands, even the President
of the United States, who has often been said to
exercise more power than any king or potentate, has
no such arbitrary prerogative, either inherent or
express. Much less, therefore, has the executive of a
municipality, who acts within a sphere of delegated
powers. If the mayor and the chief of police could, at
their mere behest or even for the most praiseworthy
of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police of
one thousand other municipalities of the Philippines
have the same privilege. If these officials can take to
themselves such power, then any other official can do
the same. And if any official can exercise the power,
then all persons would have just as much right to do
so. And if a prostitute could be sent against her
wishes and under no law from one locality to another
within the country, then officialdom can hold the same
club over the head of any citizen.
Law defines power. Centuries ago Magna Charta
decreed that — "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or
liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we pass upon him
nor condemn him, but by lawful judgment of his peers
or by the law of the land. We will sell to no man, we
will not deny or defer to any man either justice or
right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1
eng. stat. at Large, 7.) No official, no matter how high,
is above the law. The courts are the forum which
functionate to safeguard individual liberty and to
punish official transgressors. "The law," said Justice
Miller, delivering the opinion of the Supreme Court of
the United States, "is the only supreme power in our
system of government, and every man who by
accepting office participates in its functions is only the
more strongly bound to submit to that supremacy, and
to observe the limitations which it imposes upon the
exercise of the authority which it gives." (U.S. vs. Lee
[1882], 106 U.S., 196, 220.) "The very idea," said
Justice Matthews of the same high tribunal in another
case, "that one man may be compelled to hold his life,
or the means of living, or any material right essential
to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself." (Yick
Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this
explains the motive in issuing the writ of habeas
corpus, and makes clear why we said in the very
beginning that the primary question was whether the
courts should permit a government of men or a
government of laws to be established in the Philippine
Islands.
What are the remedies of the unhappy victims of
official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and
(3) habeas corpus.
The first is an optional but rather slow process by
which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to
pursue such an action, but it was never intended
effectively and promptly to meet any such situation as
that now before us.
As to criminal responsibility, it is true that the Penal
Code in force in these Islands provides:
Any public officer not thereunto authorized
by law or by regulations of a general
character in force in the Philippines who
shall banish any person to a place more than
two hundred kilometers distant from his
domicile, except it be by virtue of the
judgment of a court, shall be punished by a
fine of not less than three hundred and
twenty-five and not more than three
thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly
authorized by law or by regulation of a
general character in force in the Philippines
who shall compel any person to change his
 domicile or residence shall suffer the penalty
of destierro and a fine of not less than six
hundred and twenty-five and not more than
six thousand two hundred and fifty pesetas.
(Art. 211.)
We entertain no doubt but that, if, after due
investigation, the proper prosecuting officers find that
any public officer has violated this provision of law,
these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended
the same official in this action. Nevertheless, that the
act may be a crime and that the persons guilty thereof
can be proceeded against, is no bar to the instant
proceedings. To quote the words of Judge Cooley in a
case which will later be referred to — "It would be a
monstrous anomaly in the law if to an application by
one unlawfully confined, ta be restored to his liberty, it
could be a sufficient answer that the confinement was
a crime, and therefore might be continued indefinitely
until the guilty party was tried and punished therefor
by the slow process of criminal procedure." (In the
matter of Jackson [1867], 15 Mich., 416, 434.) The
writ of habeas corpus was devised and exists as a
speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient
defense of personal freedom. Any further rights of the
parties are left untouched by decision on the writ,
whose principal purpose is to set the individual at
liberty.
Granted that habeas corpus is the proper remedy,
respondents have raised three specific objections to
its issuance in this instance. The fiscal has argued (l)
that there is a defect in parties petitioners, (2) that the
Supreme Court should not a assume jurisdiction, and
(3) that the person in question are not restrained of
their liberty by respondents. It was finally suggested
that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city
limits and that perforce they could not bring the
women from Davao.
The first defense was not presented with any vigor by
counsel. The petitioners were relatives and friends of
the deportees. The way the expulsion was conducted
by the city officials made it impossible for the women
to sign a petition for habeas corpus. It was
consequently proper for the writ to be submitted by
persons in their behalf. (Code of Criminal Procedure,
sec. 78; Code of Civil Procedure, sec. 527.) The law,
in its zealous regard for personal liberty, even makes
it the duty of a court or judge to grant a writ of habeas
corpus if there is evidence that within the court's
jurisdiction a person is unjustly imprisoned or
restrained of his liberty, though no application be
made therefor. (Code of Criminal Procedure, sec. 93.)
Petitioners had standing in court.
The fiscal next contended that the writ should have
been asked for in the Court of First Instance of Davao
or should have been made returnable before that
court. It is a general rule of good practice that, to
avoid unnecessary expense and inconvenience,
petitions for habeas corpus should be presented to
the nearest judge of the court of first instance. But this
is not a hard and fast rule. The writ of habeas
corpus may be granted by the Supreme Court or any
judge thereof enforcible anywhere in the Philippine
Islands. (Code of Criminal Procedure, sec. 79; Code
of Civil Procedure, sec. 526.) Whether the writ shall
be made returnable before the Supreme Court or
before an inferior court rests in the discretion of the
Supreme Court and is dependent on the particular
circumstances. In this instance it was not shown that
the Court of First Instance of Davao was in session,
or that the women had any means by which to
advance their plea before that court. On the other
hand, it was shown that the petitioners with their
attorneys, and the two original respondents with their
attorney, were in Manila; it was shown that the case
involved parties situated in different parts of the
Islands; it was shown that the women might still be
imprisoned or restrained of their liberty; and it was
shown that if the writ was to accomplish its purpose, it
must be taken cognizance of and decided
immediately by the appellate court. The failure of the
superior court to consider the application and then to
grant the writ would have amounted to a denial of the
benefits of the writ.
The last argument of the fiscal is more plausible and
more difficult to meet. When the writ was prayed for,
says counsel, the parties in whose behalf it was
asked were under no restraint; the women, it is
claimed, were free in Davao, and the jurisdiction of
the mayor and the chief of police did not extend
beyond the city limits. At first blush, this is a tenable
position. On closer examination, acceptance of such
dictum is found to be perversive of the first principles
of the writ of habeas corpus.
A prime specification of an application for a writ
of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint
which will preclude freedom of action is sufficient. The
forcible taking of these women from Manila by officials
of that city, who handed them over to other parties,
who deposited them in a distant region, deprived
these women of freedom of locomotion just as
effectively as if they had been imprisoned. Placed in
Davao without either money or personal belongings,
they were prevented from exercising the liberty of
going when and where they pleased. The restraint of
liberty which began in Manila continued until the
aggrieved parties were returned to Manila and
released or until they freely and truly waived his right.
Consider for a moment what an agreement with such
a defense would mean. The chief executive of any
municipality in the Philippines could forcibly and
illegally take a private citizen and place him beyond
the boundaries of the municipality, and then, when
called upon to defend his official action, could calmly
fold his hands and claim that the person was under no
restraint and that he, the official, had no jurisdiction
over this other municipality. We believe the true
principle should be that, if the respondent is within the
jurisdiction of the court and has it in his power to obey
the order of the court and thus to undo the wrong that
he has inflicted, he should be compelled to do so.
Even if the party to whom the writ is addressed has
illegally parted with the custody of a person before the
application for the writ is no reason why the writ
should not issue. If the mayor and the chief of police,
acting under no authority of law, could deport these
women from the city of Manila to Davao, the same
officials must necessarily have the same means to
return them from Davao to Manila. The respondents,
within the reach of process, may not be permitted to
restrain a fellow citizen of her liberty by forcing her to
change her domicile and to avow the act with impunity
in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The
great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore
been presented to the courts for decision.
Nevertheless, strange as it may seem, a close
examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable
courts are however very persuasive in nature.
A question came before the Supreme Court of the
State of Michigan at an early date as to whether or
not a writ of habeas corpus would issue from the
Supreme Court to a person within the jurisdiction of
the State to bring into the State a minor child under
guardianship in the State, who has been and
continues to be detained in another State. The
membership of the Michigan Supreme Court at this
time was notable. It was composed of Martin, chief
justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was
equally divided. Campbell, J., with whom concurred
Martin, C. J., held that the writ should be quashed.
Cooley, J., one of the most distinguished American
judges and law-writers, with whom concurred
Christiancy, J., held that the writ should issue. Since
the opinion of Justice Campbell was predicated to a
large extent on his conception of the English
decisions, and since, as will hereafter appear, the
English courts have taken a contrary view, only the
following eloquent passages from the opinion of
Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt
the power of this court to issue the present
writ on the petition which was laid before
us. . . .
It would be strange indeed if, at this late day,
after the eulogiums of six centuries and a
half have been expended upon the Magna
Charta, and rivers of blood shed for its
establishment; after its many confirmations,
until Coke could declare in his speech on the
petition of right that "Magna Charta was such
a fellow that he will have no sovereign," and
after the extension of its benefits and
securities by the petition of right, bill of rights
and habeas corpus acts, it should now be
discovered that evasion of that great clause
for the protection of personal liberty, which is
the life and soul of the whole instrument, is
so easy as is claimed here. If it is so, it is
important that it be determined without delay,
that the legislature may apply the proper
remedy, as I can not doubt they would, on
the subject being brought to their notice. . . .
The second proposition — that the statutory
provisions are confined to the case of
imprisonment within the state — seems to
me to be based upon a misconception as to
the source of our jurisdiction. It was never
the case in England that the court of king's
bench derived its jurisdiction to issue and
enforce this writ from the statute. Statutes
were not passed to give the right, but to
compel the observance of rights which
existed. . . .
The important fact to be observed in regard
to the mode of procedure upon this writ is,
that it is directed to and served upon, not the
person confined, but his jailor. It does not
reach the former except through the latter.
The officer or person who serves it does not
unbar the prison doors, and set the prisoner
free, but the court relieves him by compelling
the oppressor to release his constraint. The
whole force of the writ is spent upon the
respondent, and if he fails to obey it, the
means to be resorted to for the purposes of
compulsion are fine and imprisonment. This
is the ordinary mode of affording relief, and if
any other means are resorted to, they are
only auxiliary to those which are usual. The
place of confinement is, therefore, not
important to the relief, if the guilty party is
within reach of process, so that by the power
of the court he can be compelled to release
his grasp. The difficulty of affording redress
is not increased by the confinement being
beyond the limits of the state, except as
greater distance may affect it. The important
question is, where the power of control
exercised? And I am aware of no other
 remedy. (In the matter of Jackson [1867], 15
Mich., 416.)
The opinion of Judge Cooley has since been
accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193;
Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration
to the subject. Thus, a child had been taken out of
English by the respondent. A writ of habeas
corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband
directing the defendant to produce the child. The
judge at chambers gave defendant until a certain date
to produce the child, but he did not do so. His return
stated that the child before the issuance of the writ
had been handed over by him to another; that it was
no longer in his custody or control, and that it was
impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord
Esher, M. R., said:
A writ of habeas corpus was ordered to
issue, and was issued on January 22. That
writ commanded the defendant to have the
body of the child before a judge in chambers
at the Royal Courts of Justice immediately
after the receipt of the writ, together with the
cause of her being taken and detained. That
is a command to bring the child before the
judge and must be obeyed, unless some
lawful reason can be shown to excuse the
nonproduction of the child. If it could be
shown that by reason of his having lawfully
parted with the possession of the child
before the issuing of the writ, the defendant
had no longer power to produce the child,
that might be an answer; but in the absence
of any lawful reason he is bound to produce
the child, and, if he does not, he is in
contempt of the Court for not obeying the
writ without lawful excuse. Many efforts have
been made in argument to shift the question
of contempt to some anterior period for the
purpose of showing that what was done at
some time prior to the writ cannot be a
contempt. But the question is not as to what
was done before the issue of the writ. The
question is whether there has been a
contempt in disobeying the writ it was issued
by not producing the child in obedience to its
commands. (The Queen vs. Bernardo
[1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews,
12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of
interest. A habeas corpus was directed to the
defendant to have before the circuit court of the
District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the
writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as
he believed, they were removed beyond the District of
Columbia before the service of the writ of habeas
corpus, and that they were then beyond his control
and out of his custody. The evidence tended to show
that Davis had removed the negroes because he
suspected they would apply for a writ of habeas
corpus. The court held the return to be evasive and
insufficient, and that Davis was bound to produce the
negroes, and Davis being present in court, and
refusing to produce them, ordered that he be
committed to the custody of the marshall until he
should produce the negroes, or be otherwise
discharged in due course of law. The court afterwards
ordered that Davis be released upon the production of
two of the negroes, for one of the negroes had run
away and been lodged in jail in Maryland. Davis
produced the two negroes on the last day of the term.
(United States vs. Davis [1839], 5 Cranch C.C., 622,
Fed. Cas. No. 14926. See also Robb vs. Connolly
[1883], 111 U.S., 624; Church on Habeas, 2nd ed., p.
170.)
We find, therefore, both on reason and authority, that
no one of the defense offered by the respondents
constituted a legitimate bar to the granting of the writ
of habeas corpus.
There remains to be considered whether the
respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus,
and if it be found that they did not, whether the
contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo
Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named in the
writ before the court on December 2, 1918. The order
was dated November 4, 1918. The respondents were
thus given ample time, practically one month, to
comply with the writ. As far as the record discloses,
the Mayor of the city of Manila waited until the 21st of
November before sending a telegram to the provincial
governor of Davao. According to the response of the
attorney for the Bureau of Labor to the telegram of his
chief, there were then in Davao women who desired
to return to Manila, but who should not be permitted to
do so because of having contracted debts. The half-
hearted effort naturally resulted in none of the parties
in question being brought before the court on the day
named.
For the respondents to have fulfilled the court's order,
three optional courses were open: (1) They could
have produced the bodies of the persons according to
the command of the writ; or (2) they could have
shown by affidavit that on account of sickness or
infirmity those persons could not safely be brought
before the court; or (3) they could have presented
affidavits to show that the parties in question or their
attorney waived the right to be present. (Code of
Criminal Procedure, sec. 87.) They did not produce
the bodies of the persons in whose behalf the writ
was granted; they did not show impossibility of
performance; and they did not present writings that
waived the right to be present by those interested.
Instead a few stereotyped affidavits purporting to
show that the women were contended with their life in
Davao, some of which have since been repudiated by
the signers, were appended to the return. That
through ordinary diligence a considerable number of
the women, at least sixty, could have been brought
back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number
either returned at their own expense or were
produced at the second hearing by the respondents.
The court, at the time the return to its first order was
made, would have been warranted summarily in
finding the respondents guilty of contempt of court,
and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the
persons were far from sufficient. The, authorities cited
herein pertaining to somewhat similar facts all tend to
indicate with what exactitude a habeas corpus writ
must be fulfilled. For example, in Gossage's case,
supra, the Magistrate in referring to an earlier decision
of the Court, said: "We thought that, having brought
about that state of things by his own illegal act, he
must take the consequences; and we said that he
was bound to use every effort to get the child back;
that he must do much more than write letters for the
purpose; that he must advertise in America, and even
if necessary himself go after the child, and do
everything that mortal man could do in the matter; and
that the court would only accept clear proof of an
absolute impossibility by way of excuse." In other
words, the return did not show that every possible
effort to produce the women was made by the
respondents. That the court forebore at this time to
take drastic action was because it did not wish to see
presented to the public gaze the spectacle of a clash
between executive officials and the judiciary, and
because it desired to give the respondents another
chance to demonstrate their good faith and to mitigate
their wrong.
In response to the second order of the court, the
respondents appear to have become more zealous
and to have shown a better spirit. Agents were
dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in
rounding up the women, and a steamer with free
transportation to Manila was provided. While charges
and counter-charges in such a bitterly contested case
are to be expected, and while a critical reading of the
record might reveal a failure of literal fulfillment with
our mandate, we come to conclude that there is a
substantial compliance with it. Our finding to this
effect may be influenced somewhat by our sincere
desire to see this unhappy incident finally closed. If
any wrong is now being perpetrated in Davao, it
should receive an executive investigation. If any
particular individual is still restrained of her liberty, it
can be made the object of separate habeas
corpus proceedings.
Since the writ has already been granted, and since
we find a substantial compliance with it, nothing
further in this connection remains to be done.
The attorney for the petitioners asks that we find in
contempt of court Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of
Manila, Jose Rodriguez, and Fernando Ordax,
members of the police force of the city of Manila,
Modesto Joaquin, the attorney for the Bureau of
Labor, Feliciano Yñigo, an hacendero of Davao, and
Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be
exercised on the preservative and not on the
vindictive principle. Only occasionally should the court
invoke its inherent power in order to retain that
respect without which the administration of justice
must falter or fail. Nevertheless when one is
commanded to produce a certain person and does
not do so, and does not offer a valid excuse, a court
must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order
him either imprisoned or fined. An officer's failure to
produce the body of a person in obedience to a writ
of habeas corpus when he has power to do so, is a
contempt committed in the face of the court. (Ex
parte Sterns [1888], 77 Cal., 156; In re Patterson
[1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with
judicial regard for human imperfections, we cannot
say that any of the respondents, with the possible
exception of the first named, has flatly disobeyed the
court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and
Joaquin only followed the orders of their chiefs, and
while, under the law of public officers, this does not
exonerate them entirely, it is nevertheless a powerful
mitigating circumstance. The hacendero Yñigo
appears to have been drawn into the case through a
misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would
seem to have done no more than to fulfill his duty as
the legal representative of the city government.
Finding him innocent of any disrespect to the court,
his counter-motion to strike from the record the
memorandum of attorney for the petitioners, which
brings him into this undesirable position, must be
granted. When all is said and done, as far as this
record discloses, the official who was primarily
responsible for the unlawful deportation, who ordered
the police to accomplish the same, who made
arrangements for the steamers and the constabulary,
who conducted the negotiations with the Bureau of
Labor, and who later, as the head of the city
government, had it within his power to facilitate the
return of the unfortunate women to Manila, was Justo
Lukban, the Mayor of the city of Manila. His intention
to suppress the social evil was commendable. His
methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily
and reluctantly acknowledged.

It would be possible to turn to the provisions of

section 546 of the Code of Civil Procedure, which
relates to the penalty for disobeying the writ, and in
pursuance thereof to require respondent Lukban to
forfeit to the parties aggrieved as much as P400 each,
which would reach to many thousands of pesos, and
in addition to deal with him as for a contempt. Some
members of the court are inclined to this stern view. It
would also be possible to find that since respondent
Lukban did comply substantially with the second order
of the court, he has purged his contempt of the first
order. Some members of the court are inclined to this
merciful view. Between the two extremes appears to
lie the correct finding. The failure of respondent
Lukban to obey the first mandate of the court tended
to belittle and embarrass the administration of justice
to such an extent that his later activity may be
considered only as extenuating his conduct. A
nominal fine will at once command such respect
without being unduly oppressive — such an amount is
P100.

In resume — as before stated, no further action on

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

In concluding this tedious and disagreeable task, may

we not be permitted to express the hope that this
decision may serve to bulwark the fortifications of an
orderly government of laws and to protect individual
liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.
Case No. 003
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-27714 November 5, 1981
ANTONIO J. VILLEGAS, in his capacity as Mayor
of the City of Manila, petitioner-appellee,
vs.
ABELARDO SUBIDO, in his capacity as
Commissioner of Civil Service, respondent-
appellant.
FERNANDO, C.J.:
There is an aspect of futility to this appeal from an
ably-written and well-reasoned decision of the then
Judge Conrado M. Vasquez ordering then respondent
Commissioner of Civil Service Abelardo Subido, now
deceased, "to (a) refrain from enforcing and
implementing the directive contained in its letter to the
City Auditor of Manila dated October 5, 1966 (Annex
D); (b) making the preliminary injunction issued for
this purpose to be permanent, and (c) commanding
the respondent to note and record the appointments
of the 91 women street sweepers listed in Annex B of
the petition." 1 Annex D reads as follows: "It has come
to the knowledge of this Office that there are still
women employed as street sweepers in the City,
contrary to the provisions of Memorandum Circular
No. 18, s. 1964, on the subject: "Womenin Laborer
Positions." Pursuant to said memorandum circular,
this Office will disapprove all appointments extended
to females as street sweepers, when the same are
submitted to this Office. In view thereof, and to
prevent disbursement of city funds for illegal
employment and to preclude injustice to these female
employees who may leter be required to refund
whatever they may have recieved as salary or wages,
it is requested that the salaries or wages of all women
street sweepers or women laborers employed as such
be withheld immediately." 2 The pertinent portion of
such memorandum is worded thus: "This Office has
observed that some offices which employ women
laborers make them perform work in the street
alongside men workers. While it cannot be denied
that those occupying laborer positions should be
made to perform the duties properly belonging to such
positions, it is the opinion of this Office that the
practice of making them perform manual labor outside
office premises exposes them to contempt and
ridicule and constitutes a violation of the traditional
dignity and respect accorded Filipino womwnhood. ...
In view of the above, it is directed that agencies
affected put a stop immediately to the practice
referring to above; otherwise, this Office shall, except
for justifiable reasons, be constrained to withhold
approval of any or all appointments to laborer
positions extended to women and shall accordingly,
bring the matter to the attention of the General
Auditing Office." 3 Upon the filing of the certiorariand
mandamus petition with preliminary injunction was set
for hearing. It resulted inthis order of then Judge
Vasquez: "On motion of petitioner, it appearing that
the respondent's Memorandum-circular No. 18 dated
April 10, 1964 had already been set aside by the
Office of the President of the Philippines, let a writ of
preliminary injunction issue to enjoin the respondent
from enforcing and implementing said memorandum
circular until further orders from this Court, upon the
filing of the petitioner of a bond and its approval by
the Court in the sum of P5,000.00 to answer for
damages that the respoindent may sustain by reason
of the issuance of said writ." 4
Clearly, the lower court decision is buttressed by the
law and the applicable authorities.
1. It was pointed out in the petition of the then Mayor
Villegas in the lower court that the memorandum on
which then respondent Commissioner would base his
refusal to not the appointments of the 91 women as
street sweepers in the City goverment of Manila was
his Memorandum Circular No. 18 dated April 10,
1964. It was then stated that it had been set aside
and declared without force and effect by the Office of
the President under a fiftth indorsement to respondent
on September 14, 1965. 5 All that respondent could
allege in the answer was that there was still a pending
motion for reconsideration. Why such a contention
could not be taken seriously was made clear in the
applealed decision in this wise: " It is of no moment
that the respondent, in a 6th Indorsement dated
November 7, 1966, had requested the Office of the
President to reconsider the ruling declaring
Memorandum Circular No.18, series of 1964, as of no
force and effect. Aside frim the fact the attempt to
secure as reconsideration of the said ruling was done
more than one year after the promulgation of the
same, it is significant to note that the respondent
sought the reconsideration only after the ruling of this
case on October 28, 1966. In any event, as the
situation stands, the memorandum circular in question
may not be enforced until and unles the Office of the
President shall reconsider its disapproval of the
same." 6
2. The situation thus presented is one akin to that
found in another case between the dsame parties,
likewise entitled Villegas v. Subido. 7 There as well as
here, reliance of then respondent Commissioner was
not on any law or rule but simply on his own concept
of what policy to pursue, in this instance in
accordance with his own personal predilection. Here
he appeared to be unalterably convinced that to allow
women laborers to work outside their offices as street WHEREFORE, the fappealed decision is affirmed. No
sweepers would run counter to Filipino tratition. The cost.
sincerity of his conviction is conceded, but that does
not suffice. Apublic official must be able to pint to a
particular provision of law or rule justifying the
exercise of a challenged authority. So it was correctly
held in the decision on appeal. The pertinent excerpt
from the cited Villegas v. Subido decision follows:
"One last word. Nothing is better settedt in tha law
than that a public official exercises power, not rights.
The gorverment itself is merly an agency through
which the will of the state is expressed and enforce.
Its officers therfore are likewise agents entrusted
withe responsibility of discharging its functions. As
such there is no presumption that they are
empowered to act. There must be delegation of such
atuhority, either expresse of implied. In gthe absence
of a valid grant, they are devoid or power. What they
do suffers from a fata infirmity. The principle cannot
be sufficiently stressed. In the appropriate language
of Chief Justice Hughes: 'It must be conceded that
departamental zeal may not be permitted to outrun
the authority conferred by statute. "Neither the high
dignity of the office nor the righteousness of the
motive then is an acceptable substitute. Otherwise the
rule of law becomes a myth. Such an eventuality, we
must take all pains to avoid." 8

3. It might be said by way of a concluding observation

that for the past six yhears at least, Filipino women
have been serving in that capacity among ohters as
Metro Aides, an innovation introduced by the First
Lady. They have contributed along with the male
employees in keeping Metro Manila clean, attractive,
and hygienic. There has been no offense to the well
known Filipino tradition of holding the women in high
esteem and respect. Moreover, as is quite obvious in
civic parades where a contingent of them usually
takes part, they take pride — and justly so — in what
they are doing. There would even be less justification
then even from the policy standpoint for a
Memorandum Circular similar to that issued by
respondent and justifiably nullified by the Office of the
President. Moreover, the trened towards grteater and
greater recognition of equal rights for both sexes
under the shelter of the equal proctection clause
argues most strongly against this kind of
discrimination. 9

4. If this case had not been decided earlier, it must

have been due to the fact that with the lower court
deciding in favor of the then City Mayor and no
restraining order having been issued by this Court,
the ninety-one street sweepers could continue with
their work. Neither party then apparently failed to
manifest further interest in the outcome of this
litigaition. Moreover it was not long after this case was
submitted for decision tht the late respondent
Commissioner left public office. Apparently, his
successor was of a different mind. Hence the case
was not disposed of sooner.
Case No. 004
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 119987-88 October 12, 1995
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. LORENZO B. VENERACION, Presiding
Judge of the Regional Trial Court, National Capital
Judicial Region, Branch 47, Manila, HENRY
LAGARTO y PETILLA and ERNESTO
CORDERO, respondents.
KAPUNAN, J.:
The sole issue in the case at bench involves a
question of law. After finding that an accused
individual in a criminal case has, on the occasion of
Rape, committed Homicide, is the judge allowed any
discretion in imposing either the penalty of Reclusion
Perpetua or Death?
The facts antecedent to the case before this Court, as
narrated by petitioner,1 involve the perpetration of acts
so bizarre and devoid of humanity as to horrify and
numb the senses of all civilized men:
On August 2, 1994, the cadaver of
a young girl, later identified as
Angel Alquiza wrapped in a sack
and yellow table cloth tied with a
nylon cord with both feet and left
hand protruding from it was seen
floating along Del Pan St. near the
corner of Lavesares St., Binondo,
Manila.
When untied and removed from its
cover, the lifeless body of the victim
was seen clad only in a light
colored duster without her panties,
with gaping wounds on the left side
of the face, the left chin, left ear,
lacerations on her genitalia, and
with her head bashed in.
On the basis of sworn statements of witnesses,
booking sheets, arrest reports and the necropsy
report of the victim, Abundio Lagunday, a.k.a. Jr.
Jeofrey of no fixed address, and Henry Lagarto y
Petilla, of 288 Area H. Parola Compound, Tondo,
Manila were later charged with the crime of Rape with
Homicide in an Information dated August 8, 1994 filed
with the Regional Trial Court of Manila, National
Capital Judicial Region. Said Information, docketed as
Criminal Case No. 94-138071, reads:
That on or about August 2, 1994, in
the City of Manila, Philippines, the
said accused, conspiring and
confederating together with
one alias "LANDO" and other
persons whose true names,
identifies and present whereabouts
are still unknown and helping one
another, with treachery, taking
advantage of their superior strength
and nocturnity, and ignominy, and
with the use of force and violence,
that is, by taking ANGEL ALQUIZA
y LAGMAN into a warehouse,
covering her mouth, slashing her
vagina, hitting her head with a thick
piece of wood and stabbing her
neck did then and there wilfully,
unlawfully and feloniously have
carnal knowledge of the person of
said ANGEL ALQUIZA y LAGMAN,
a minor, seven (7) years of age,
against the latter's will and consent
and on said occasion the said
ABUNDIO LAGUNDAY, a.k.a.
"LANDO" and others, caused her
fatal injuries which were the direct
cause of her death immediately
thereafter.
CONTRARY TO LAW.
Subsequently thereafter, Ernesto
Cordero y Maristela, a.k.a.
"Booster," of 1198 Sunflower St.,
Tondo, Manila, Rolando Manlangit
y Mamerta, a.k.a. "Lando," of 1274
Kagitingan St., Tondo, Manila,
Richard Baltazar y Alino, a.k.a.
"Curimao," also of 1274 Kagitingan
St., Tondo, Manila, and Catalino
Yaon y Aberin, a.k.a. "Joel," of 1282
Lualhati St., Tondo, Manila were
accused of the same crime of Rape
with Homicide in an Information
dated August 11, 1994, docketed
as Criminal Case No. 94-138138,
allegedly committed as follows:
That on or about the 2nd day of August, 1994, in the
City of Manila, Philippines, the said accused
conspiring and confederating with ABUNDIO
LAGUNDAY Alias "JR," JEOFREY and HENRY
LAGARTO y PETILLA who have already been
charged in the Regional Trial Court of Manila of the
same offense under Criminal Case No. 94-138071,
and helping one another, with treachery, taking
advantage of their superior strength and nocturnity
and ignominy, and with the use of force and violence,
that is, by taking ANGEL ALQUIZA y LAGMAN into a
pedicab, and once helpless, forcibly bringing her to a
nearby warehouse, covering her mouth, slashing her
vagina, hitting her head with a thick piece of wood
and stabbing her neck, did then and there wilfully,
unlawfully and feloniously have carnal knowledge of
the person of said ANGEL ALQUIZA y LAGMAN, a
minor, seven (7) years of age, against the latter's will
and consent and on said occasion the said accused
together with their confederates ABUNDIO LAGARTO
y PETILLA caused her fatal injuries which were the
direct cause of her death immediately thereafter.
CONTRARY TO
LAW.
The two criminal cases were
consolidated to Branch 47 of the
Regional Trial Court of Manila,
presided over by respondent Judge.
Duly arraigned, all the accused,
except Abundio Lagunday who was
already dead, (allegedly shot by
police escorts after attempting to
fire a gun he was able to grab from
SPO1 D. Vidad on August 12,
1994), pleaded "Not Guilty."
Abundio Lagunday was dropped
from the Information.
After trial and presentation of the evidence of the
prosecution and the defense, the trial court rendered
a decision2on January 31, 1995 finding the
defendants Henry Lagarto y Petilla and Ernesto
Cordero y Maristela guilty beyond reasonable doubt
of the crime of Rape with Homicide and sentenced
both accused with the "penalty of reclusion
perpetua with all the accessories provided for by
law."3 Disagreeing with the sentence imposed, the
City Prosecutor of Manila on February 8, 1995, filed a
Motion for Reconsideration, praying that the Decision
be "modified in that the penalty of death be imposed"
against respondents Lagarto and Cordero, in place of
the original penalty (reclusion perpetua). Refusing to
act on the merits of the said Motion for
Reconsideration, respondent Judge, on February 10,
1995, issued an Order denying the same for lack of
jurisdiction. The pertinent portion reads:
The Court believes that in the
above-entitled cases, the accused
Lagarto and Cordero have complied
with the legal requirements for the
perfection of an appeal.
Consequently, for lack of
jurisdiction, this Court cannot take
cognizance of the Motion for
Reconsideration of the Public
Prosecutor of Manila.
WHEREFORE, the order earlier
issued by this Court regarding the
Notices of Appeal filed by both
herein accused is hereby reiterated.
The Clerk of this Court is hereby
directed to transmit the complete
records of these cases, together
with the notices of appeal, to the
Honorable Supreme Court, in
accordance with Sec. 8, Rule 122
of the Revised Rules of Criminal
Procedure.
SO ORDERED.
Hence, the instant petition.
The trial court's finding of guilt is not at issue in the
case at bench. The basis of the trial court's
determination of guilt and its conclusions will only be
subject to our scrutiny at an appropriate time on
appeal. We have thus clinically limited our narration of
events to those cold facts antecedent to the instant
case relevant to the determination of the legal
question at hand, i.e., whether or not the respondent
judge acted with grave abuse of discretion and in
excess of jurisdiction when he failed and/or refused to
impose the mandatory penalty of death under
Republic Act No. 7659, after finding the accused
guilty of the crime of Rape with Homicide.
We find for petitioner.
Obedience to the rule of law forms the bedrock of our
system of justice. If judges, under the guise of
religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are
required by law to exercise the duties of their office,
then law becomes meaningless. A government of
laws, not of men excludes the exercise of broad
discretionary powers by those acting under its
authority. Under this system, judges are guided by the
Rule of Law, and ought "to protect and enforce it
without fear or favor,"4 resist encroachments by
governments, political parties,5 or even the
interference of their own personal beliefs.
In the case at bench, respondent judge, after
weighing the evidence of the prosecution and the
defendant at trial found the accused guilty beyond
reasonable doubt of the crime of Rape with Homicide.
Since the law in force at the time of the commission of
the crime for which respondent judge found the
accused guilty was Republic Act No. 7659, he was
bound by its provisions.
Section 11 of R.A. No. 7659 provides:
Sec. 11. Article 335 of the same
Code is hereby amended to read as
follows:
Art. 335. When and how rape is
committed. — Rape is committed
by having carnal knowledge of a
woman under any of the following
circumstances:
1. By using force or intimidation.
2. When the woman is deprived of
reason or otherwise unconscious;
and
3. When the woman is under twelve
years of age or is demented.
The crime of rape shall be punished
by reclusion perpetua.
Whenever the crime of rape is
committed with the use of a deadly
weapon or by two or more persons,
the penalty shall be reclusion
perpetua to death.
When by reason or on the occasion
of the rape, the victim has become
insane, the penalty shall be death.
When the rape is attempted or
frustrated and a homicide is
committed by reason or on the
occasion thereof, the penalty shall
be reclusion perpetua to death.
When by reason or on the occasion
of the rape, a homicide is
committed, the penalty shall be
death. . . .6
Clearly, under the law, the penalty imposable for the
crime of Rape with Homicide is not Reclusion
Perpetua but Death. While Republic Act 7659
punishes cases of ordinary rape with the penalty
of Reclusion Perpetua, it allows judges the discretion
— depending on the existence of circumstances
modifying the offense committed — to impose the
penalty of either Reclusion Perpetua only in the three
instances mentioned therein. Rape with homicide is
not one of these three instances. The law plainly and
unequivocably provides that "[w]hen by reason or on
the occasion of rape, a homicide is committed, the
penalty shall be death." The provision leaves no room
for the exercise of discretion on the part of the trial
judge to impose a penalty under the circumstances
described, other than a sentence of death.
We are aware of the trial judge's misgivings in
imposing the death sentence because of his religious
convictions. While this Court sympathizes with his
predicament, it is its bounden duty to emphasize that
a court of law is no place for a protracted debate on
the morality or propriety of the sentence, where the
law itself provides for the sentence of death as a
penalty in specific and well-defined instances. The
discomfort faced by those forced by law to impose the
death penalty is an ancient one, but it is a matter
upon which judges have no choice. Courts are not
concerned with the wisdom, efficacy or morality of
laws. In People vs. Limaco 7 we held that:
[W]hen . . . private opinions not only
form part of their decision but
constitute a decisive factor in
arriving at a conclusion and
determination of a case or the
penalty imposed, resulting in an
illegality and reversible error, then
we are constrained to state our
opinion, not only to correct the error
but for the guidance of the courts.
We have no quarrel with the trial
judge or with anyone else, layman
or jurist as to the wisdom or folly of
the death penalty. Today there are
quite a number of people who
honestly believe that the supreme
penalty is either morally wrong or
unwise or ineffective. However, as
long as that penalty remains in the
statute books, and as long as our
criminal law provides for its
imposition in certain cases, it is the
duty of judicial officers to respect
and apply the law regardless of
their private opinions. It is a well
settled rule that the courts are not
concerned with the wisdom,
efficacy or morality of laws. That
question falls exclusively within the
province of the Legislature which
enacts them and the Chief
Executive who approves or vetoes
them. The only function of the
judiciary is to interpret the laws and,
if not in disharmony with the
Constitution, to apply them. And for
the guidance of the members of the
judiciary we feel it incumbent upon
 us to state that while they as
citizens or as judges may regard a
certain law as harsh, unwise or
morally wrong, and may
recommend to the authority or
department concerned, its
amendment, modification, or repeal,
still, as long as said law is in force,
they must apply it and give it effect
as decreed by the law-making
body.8

Finally, the Rules of Court mandates that after an

adjudication of guilt, the judge should impose "the
proper penalty and civil liability provided for by the law
on the accused."9 This is not a case of a magistrate
ignorant of the law. This is a case in which a judge,
fully aware of the appropriate provisions of the law,
refuses to impose a penalty to which he disagrees. In
so doing, respondent judge acted without or in excess
of his jurisdiction or with grave abuse of discretion
amounting to a lack of jurisdiction in imposing the
penalty of Reclusion Perpetua where the law clearly
imposes the penalty of Death.

WHEREFORE, PREMISES CONSIDERED, the

instant petition is GRANTED. The case is hereby
REMANDED to the Regional Trial Court for the
imposition of the penalty of death upon private
respondents in consonance with respondent judge's
finding that the private respondents in the instant case
had committed the crime of Rape with Homicide
under Article 335 of the Revised Penal Code, as
amended by Section 11 of Republic Act No. 7659,
subject to automatic review by this Court of the
decision imposing the death penalty.

SO ORDERED.
Case No. 005 In its 9 January 2003 Decision, the COA denied
petitioner’s claim for lack of jurisdiction. The COA
ruled:
Republic of the Philippines
SUPREME COURT
Manila It becomes immediately noticeable that the resolution
of the issue at hand hinges upon the validity of
EN BANC Section 27 of P.D. No. 1638, as amended. Pursuant
to the mandate of the Constitution, whenever a
dispute involves the validity of laws, "the courts, as
G.R. No. 162224 June 7, 2007 guardians of the Constitution, have the inherent
authority to determine whether a statute enacted by
2nd LT. SLVADOR PARREÑO represented by his the legislature transcends the limit imposed by the
daughter yrna P. Caintic, petitioner, fundamental law. Where the statute violates the
vs. Constitution, it is not only the right but the duty of the
COMMISSION ON AUDIT and CHIEF OF STAFF, judiciary to declare such act as unconstitutional and
ARMED FORCES OF THE void." (Tatad vs. Secretary of Department of Energy,
PHILIPPINES, respondents. 281 SCRA 330) That being so, prudence dictates that
this Commission defer to the authority and jurisdiction
of the judiciary to rule in the first instance upon the
DECISION
constitutionality of the provision in question.

CARPIO, J.:
Premises considered, the request is denied for lack of
jurisdiction to adjudicate the same. Claimant is
The Case advised to file his claim with the proper court of
original jurisdiction.6
Before the Court is a petition for certiorari1 assailing
the 9 January 2003 Decision2 and 13 January 2004 Petitioner filed a motion for reconsideration. Petitioner
Resolution3 of the Commission on Audit (COA). alleged that the COA has the power and authority to
incidentally rule on the constitutionality of Section 27
The Antecedent Facts of PD 1638, as amended. Petitioner alleged that a
direct recourse to the court would be dismissed for
failure to exhaust administrative remedies. Petitioner
Salvador Parreño (petitioner) served in the Armed
further alleged that since his monthly pension involves
Forces of the Philippines (AFP) for 32 years. On 5
government funds, the reason for the termination of
January 1982, petitioner retired from the Philippine
the pension is subject to COA’s authority and
Constabulary with the rank of 2nd Lieutenant.
jurisdiction.
Petitioner availed, and received payment, of a lump
sum pension equivalent to three years pay. In 1985,
petitioner started receiving his monthly pension In its 13 January 2004 Resolution, the COA denied
amounting to ₱13,680. the motion. The COA ruled that the doctrine of
exhaustion of administrative remedies does not apply
if the administrative body has, in the first place, no
Petitioner migrated to Hawaii and became a
jurisdiction over the case. The COA further ruled that
naturalized American citizen. In January 2001, the
even if it assumed jurisdiction over the claim,
AFP stopped petitioner’s monthly pension in
petitioner’s entitlement to the retirement benefits he
accordance with Section 27 of Presidential Decree
was previously receiving must necessarily cease
No. 16384 (PD 1638), as amended by Presidential
upon the loss of his Filipino citizenship in accordance
Decree No. 1650.5 Section 27 of PD 1638, as
with Section 27 of PD 1638, as amended.
amended, provides that a retiree who loses his
Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon loss of Hence, the petition before this Court.
Filipino citizenship. Petitioner requested for
reconsideration but the Judge Advocate General of The Issues
the AFP denied the request.
Petitioner raises the following issues:
Petitioner filed a claim before the COA for the
continuance of his monthly pension.
1. Whether Section 27 of PD 1638, as amended, is
constitutional;
The Ruling of the Commission on Audit
2. Whether the COA has jurisdiction to rule on the
constitutionality of Section 27 of PD 1638, as
amended; and
3. Whether PD 1638, as amended, has retroactive or
prospective effect.7
The Ruling of this Court
The petition has no merit.
Jurisdiction of the COA
Petitioner filed his money claim before the COA. A
money claim is "a demand for payment of a sum of
money, reimbursement or compensation arising from
law or contract due from or owing to a government
agency."8 Under Commonwealth Act No. 327,9 as
amended by Presidential Decree No. 1445,10 money
claims against the government shall be filed before
the COA.11
Section 2(1), Article IX(D) of the 1987 Constitution
prescribes the powers of the COA, as follows:
Sec. 2. (1) The Commission on Audit shall have the
power, authority, and duty to examine, audit, and
settle all accounts pertaining to the revenue and
receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to,
the Government, or any of its subdivisions, agencies,
or instrumentalities, including government-owned or
controlled corporations with original charters, and on
a post-audit basis; (a) constitutional bodies,
commissions and offices that have been granted
fiscal autonomy under this Constitution; (b)
autonomous state colleges and universities; (c) other
government-owned or controlled corporations and
their subsidiaries; and (d) such non-governmental
entities receiving subsidy or equity, directly or
indirectly, from or through the Government, which are
required by law or the granting institution to submit
such audit as a condition of subsidy or equity.
However, where the internal control system of the
audited agencies is inadequate, the Commission may
adopt such measures, including temporary or special
pre-audit, as are necessary and appropriate to correct
the deficiencies. It shall keep the general accounts of
the Government and, for such period as may be
provided by law, preserve the vouchers and other
supporting papers pertaining thereto.
The jurisdiction of the COA over money claims
against the government does not include the power to
rule on the constitutionality or validity of laws. The
1987 Constitution vests the power of judicial review or
the power to declare unconstitutional a law, treaty,
international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation in
this Court and in all Regional Trial
Courts.12 Petitioner’s money claim essentially involved
the constitutionality of Section 27 of PD 1638, as
amended. Hence, the COA did not commit grave
abuse of discretion in dismissing petitioner’s money
claim.
Petitioner submits that the COA has the authority to
order the restoration of his pension even without
ruling on the constitutionality of Section 27 of PD
1638, as amended. The COA actually ruled on the
matter in its 13 January 2004 Resolution, thus:
Furthermore, assuming arguendo that this
Commission assumed jurisdiction over the instant
case, claimant’s entitlement to the retirement benefits
he was previously receiving must necessarily be
severed or stopped upon the loss of his Filipino
citizenship as prescribed in Section 27, P.D. No.
1638, as amended by P.D. No. 1650.13
The COA effectively denied petitioner’s claim because
of the loss of his Filipino citizenship.
Application of PD 1638, as amended
Petitioner alleges that PD 1638, as amended, should
apply prospectively. The Office of the Solicitor
General (OSG) agrees with petitioner. The OSG
argues that PD 1638, as amended, should apply only
to those who joined the military service after its
effectivity, citing Sections 33 and 35, thus:
Section 33. Nothing in this Decree shall be construed
in any manner to reduce whatever retirement and
separation pay or gratuity or other monetary benefits
which any person is heretofore receiving or is entitled
to receive under the provisions of existing law.
xxxx
Section. 35. Except those necessary to give effect to
the provisions of this Decree and to preserve the
rights granted to retired or separated military
personnel, all laws, rules and regulations inconsistent
with the provisions of this Decree are hereby repealed
or modified accordingly.
The OSG further argues that retirement laws are
liberally construed in favor of the retirees. Article 4 of
the Civil Code provides: "Laws shall have no
retroactive effect, unless the contrary is provided."
Section 36 of PD 1638, as amended, provides that it
shall take effect upon its approval. It was signed on
10 September 1979. PD 1638, as amended, does not
provide for its retroactive application. There is no
question that PD 1638, as amended, applies
prospectively.
However, we do not agree with the interpretation of
petitioner and the OSG that PD 1638, as amended,
should apply only to those who joined the military
after its effectivity. Since PD 1638, as amended, is
about the new system of retirement and separation
from service of military personnel, it should apply to
those who were in the service at the time of its
approval. In fact, Section 2 of PD 1638, as amended,
provides that "th[e] Decree shall apply to all military
personnel in the service of the Armed Forces of the
Philippines." PD 1638, as amended, was signed on
10 September 1979. Petitioner retired in 1982, long
after the approval of PD 1638, as amended. Hence,
the provisions of PD 1638, as amended, apply to
petitioner.
Petitioner Has No Vested Right to his
Retirement Benefits
Petitioner alleges that Section 27 of PD 1638, as
amended, deprives him of his property which the
Constitution and statutes vest in him. Petitioner
alleges that his pension, being a property vested by
the Constitution, cannot be removed or taken from
him just because he became a naturalized American
citizen. Petitioner further alleges that the termination
of his monthly pension is a penalty equivalent to
deprivation of his life.
The allegations have no merit. PD 1638, as amended,
does not impair any vested right or interest of
petitioner. Where the employee retires and meets the
eligibility requirements, he acquires a vested right to
the benefits that is protected by the due process
clause.14 At the time of the approval of PD 1638 and
at the time of its amendment, petitioner was still in
active service. Hence, petitioner’s retirement benefits
were only future benefits and did not constitute a
vested right. Before a right to retirement benefits or
pension vests in an employee, he must have met the
stated conditions of eligibility with respect to the
nature of employment, age, and length of service.15 It
is only upon retirement that military personnel acquire
a vested right to retirement benefits. Retirees enjoy a
protected property interest whenever they acquire a
right to immediate payment under pre-existing law.16
Further, the retirement benefits of military personnel
are purely gratuitous in nature. They are not similar to
pension plans where employee participation is
mandatory, hence, the employees have contractual or
vested rights in the pension which forms part of the
compensation.17
Constitutionality of Section 27 of PD 1638
Section 27 of PD 1638, as amended, provides:
Section 27. Military personnel retired under Sections
4, 5, 10, 11 and 12 shall be carried in the retired list of
the Armed Forces of the Philippines. The name of a
retiree who loses his Filipino citizenship shall be
removed from the retired list and his retirement
benefits terminated upon such loss.
The OSG agrees with petitioner that Section 27 of PD
1638, as amended, is unconstitutional. The OSG
argues that the obligation imposed on petitioner to
retain his Filipino citizenship as a condition for him to
remain in the AFP retired list and receive his
retirement benefit is contrary to public policy and
welfare, oppressive, discriminatory, and violative of
the due process clause of the Constitution. The OSG
argues that the retirement law is in the nature of a
contract between the government and its employees.
The OSG further argues that Section 27 of PD 1638,
as amended, discriminates against AFP retirees who
have changed their nationality.
We do not agree.
The constitutional right to equal protection of the laws
is not absolute but is subject to reasonable
classification.18 To be reasonable, the classification
(a) must be based on substantial distinctions which
make real differences; (b) must be germane to the
purpose of the law; (c) must not be limited to existing
conditions only; and (d) must apply equally to each
member of the class.19
There is compliance with all these conditions. There is
a substantial difference between retirees who are
citizens of the Philippines and retirees who lost their
Filipino citizenship by naturalization in another
country, such as petitioner in the case before us. The
constitutional right of the state to require all citizens to
render personal and military service20 necessarily
includes not only private citizens but also citizens who
have retired from military service. A retiree who had
lost his Filipino citizenship already renounced his
allegiance to the state. Thus, he may no longer be
compelled by the state to render compulsory military
service when the need arises. Petitioner’s loss of
Filipino citizenship constitutes a substantial distinction
that distinguishes him from other retirees who retain
their Filipino citizenship. If the groupings are
characterized by substantial distinctions that make
real differences, one class may be treated and
regulated differently from another.21
Republic Act No. 707722 (RA 7077) affirmed the
constitutional right of the state to a Citizen Armed
Forces. Section 11 of RA 7077 provides that citizen
soldiers or reservists include ex-servicemen and
retired officers of the AFP. Hence, even when a
retiree is no longer in the active service, he is still a
part of the Citizen Armed Forces. Thus, we do not find
the requirement imposed by Section 27 of PD 1638,
as amended, oppressive, discriminatory, or contrary
to public policy. The state has the right to impose a
reasonable condition that is necessary for national
defense. To rule otherwise would be detrimental to
the interest of the state.
There was no denial of due process in this case.
When petitioner lost his Filipino citizenship, the AFP
had no choice but to stop his monthly pension in
accordance with Section 27 of PD 1638, as amended.
Petitioner had the opportunity to contest the
termination of his pension when he requested for
reconsideration of the removal of his name from the
list of retirees and the termination of his pension. The
Judge Advocate General denied the request pursuant
to Section 27 of PD 1638, as amended.
is no legal obstacle to the resumption of his retirement
benefits from the time he complies again with the
condition of the law, that is, he can receive his
retirement benefits provided he is a Filipino citizen.
We acknowledge the service rendered to the country
by petitioner and those similarly situated. However,
petitioner failed to overcome the presumption of
constitutionality of Section 27 of PD 1638, as
amended. Unless the provision is amended or
repealed in the future, the AFP has to apply Section
27 of PD 1638, as amended.
WHEREFORE, we DISMISS the petition.
We AFFIRM the 9 January 2003 Decision and 13
January 2004 Resolution of the Commission on Audit.

Petitioner argues that he can reacquire his Filipino SO ORDERED.

citizenship under Republic Act No. 922523 (RA 9225),
in which case he will still be considered a natural-born
Filipino. However, petitioner alleges that if he
reacquires his Filipino citizenship under RA 9225, he
will still not be entitled to his pension because of its
prior termination. This situation is speculative. In the
first place, petitioner has not shown that he has any
intention of reacquiring, or has done anything to
reacquire, his Filipino citizenship. Secondly, in
response to the request for opinion of then AFP Chief
of Staff, General Efren L. Abu, the Department of
Justice (DOJ) issued DOJ Opinion No. 12, series of
2005, dated 19 January 2005, thus:

[T]he AFP uniformed personnel retirees, having re-

acquired Philippine citizenship pursuant to R.A. No.
9225 and its IRR, are entitled to pension and gratuity
benefits reckoned from the date they have taken their
oath of allegiance to the Republic of the Philippines. It
goes without saying that these retirees have no right
to receive such pension benefits during the time that
they have ceased to be Filipinos pursuant to the
aforequoted P.D. No. 1638, as amended, and any
payment made to them should be returned to the
AFP. x x x.24

Hence, petitioner has other recourse if he desires to

continue receiving his monthly pension. Just recently,
in AASJS Member-Hector Gumangan Calilung v.
Simeon Datumanong,25 this Court upheld the
constitutionality of RA 9225. If petitioner reacquires
his Filipino citizenship, he will even recover his
natural-born citizenship.26 In Tabasa v. Court of
Appeals,27 this Court reiterated that "[t]he repatriation
of the former Filipino will allow him to recover his
natural-born citizenship x x x."

Petitioner will be entitled to receive his monthly

pension should he reacquire his Filipino citizenship
since he will again be entitled to the benefits and
privileges of Filipino citizenship reckoned from the
time of his reacquisition of Filipino citizenship. There
Case No. 006
EN BANC
G.R. No. 153888 July 9, 2003
ISLAMIC DA'WAH COUNCIL OF THE
PHILIPPINES, INC., herein represented by PROF.
ABDULRAFIH H. SAYEDY, petitioner,
vs.
OFFICE OF THE EXECUTIVE SECRETARY of the
Office of the President of the Philippines, herein
represented by HON. ALBERTO G. ROMULO,
Executive Secretary, and the OFFICE ON MUSLIM
AFFAIRS, herein represented by its Executive
Director, HABIB MUJAHAB HASHIM, respondents.
CORONA, J.:
Before us is a petition for prohibition filed by petitioner
Islamic Da'wah Council of the Philippines, Inc. (IDCP)
praying for the declaration of nullity of Executive
Order (EO) 46, s. 2001 and the prohibition of herein
respondents Office of the Executive Secretary and
Office of Muslim Affairs (OMA) from implementing the
subject EO.
Petitioner IDCP, a corporation that operates under
Department of Social Welfare and Development
License No. SB-01-085, is a non-governmental
organization that extends voluntary services to the
Filipino people, especially to Muslim communities. It
claims to be a federation of national Islamic
organizations and an active member of international
organizations such as the Regional Islamic Da'wah
Council of Southeast Asia and the Pacific
(RISEAP)1 and The World Assembly of Muslim Youth.
The RISEAP accredited petitioner to issue
halal2certifications in the Philippines. Thus, among the
functions petitioner carries out is to conduct seminars,
orient manufacturers on halal food and issue halal
certifications to qualified products and manufacturers.
Petitioner alleges that, on account of the actual need
to certify food products as halal and also due to halal
food producers' request, petitioner formulated in 1995
internal rules and procedures based on the
Qur'an3 and the Sunnah4 for the analysis of food,
inspection thereof and issuance of halal certifications.
In that same year, petitioner began to issue, for a fee,
certifications to qualified products and food
manufacturers. Petitioner even adopted for use on its
halal certificates a distinct sign or logo registered in
the Philippine Patent Office under Patent No. 4-2000-
03664.
On October 26, 2001, respondent Office of the
Executive Secretary issued EO 465 creating the
Philippine Halal Certification Scheme and designating
respondent OMA to oversee its implementation.
Under the EO, respondent OMA has the exclusive
authority to issue halal certificates and perform other
related regulatory activities.
On May 8, 2002, a news article entitled "OMA Warns
NGOs Issuing Illegal 'Halal' Certification" was
published in the Manila Bulletin, a newspaper of
general circulation. In said article, OMA warned
Muslim consumers to buy only products with its
official halal certification since those without said
certification had not been subjected to careful
analysis and therefore could contain pork or its
derivatives. Respondent OMA also sent letters to food
manufacturers asking them to secure the halal
certification only from OMA lest they violate EO 46
and RA 4109.6 As a result, petitioner lost revenues
after food manufacturers stopped securing
certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the
constitutional provision on the separation of Church
and State.7It is unconstitutional for the government to
formulate policies and guidelines on the halal
certification scheme because said scheme is a
function only religious organizations, entity or scholars
can lawfully and validly perform for the Muslims.
According to petitioner, a food product becomes halal
only after the performance of Islamic religious ritual
and prayer. Thus, only practicing Muslims are
qualified to slaughter animals for food. A government
agency like herein respondent OMA cannot therefore
perform a religious function like certifying qualified
food products as halal.
Petitioner also maintains that the respondents
violated Section 10, Article III of the 1987 Constitution
which provides that "(n)o law impairing the obligation
of contracts, shall be passed." After the subject EO
was implemented, food manufacturers with existing
contracts with petitioner ceased to obtain certifications
from the latter.
Moreover, petitioner argues that the subject EO
violates Sections 15 and 16 of Article XIII of the 1987
Constitution which respectively provide:
 ROLE AND RIGHTS OF PEOPLE'S
ORGANIZATIONS
Sec. 15. The State shall respect the role of
independent people's 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.
People's organizations are bona
fide associations of citizens with
demonstrated capacity to promote the public
interest and with identifiable leadership,
membership, and structure.
Sec. 16. The rights of the people and their
organizations to effective and reasonable
participation at all levels of social, political,
and economic decision-making shall not be
abridged. The State shall, by law, facilitate,
the establishment of adequate consultation
mechanisms.
According to petitioner, the subject EO was issued
with utter haste and without even consulting Muslim
people's organizations like petitioner before it became
effective.
We grant the petition.
OMA was created in 1981 through Executive Order
No. 697 (EO 697) "to ensure the integration of Muslim
Filipinos into the mainstream of Filipino society with
due regard to their beliefs, customs, traditions, and
institutions."8 OMA deals with the societal, legal,
political and economic concerns of the Muslim
community as a "national cultural community" and not
as a religious group. Thus, bearing in mind the
constitutional barrier between the Church and State,
the latter must make sure that OMA does not intrude
into purely religious matters lest it violate the non-
establishment clause and the "free exercise of
religion" provision found in Article III, Section 5 of the
1987 Constitution.9
Freedom of religion was accorded preferred status by
the framers of our fundamental law. And this Court
has consistently affirmed this preferred status, well
aware that it is "designed to protect the broadest
possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the
common good."10
Without doubt, classifying a food product as halal is a
religious function because the standards used are
drawn from the Qur'an and Islamic beliefs. By giving
OMA the exclusive power to classify food products as
halal, EO 46 encroached on the religious freedom of
Muslim organizations like herein petitioner to interpret
for Filipino Muslims what food products are fit for
Muslim consumption. Also, by arrogating to itself the
task of issuing halal certifications, the State has in
effect forced Muslims to accept its own interpretation
of the Qur'an and Sunnah on halal food.
To justify EO 46's intrusion into the subject religious
activity, the Solicitor General argues that the freedom
of religion is subservient to the police power of the
State. By delegating to OMA the authority to issue
halal certifications, the government allegedly seeks to
protect and promote the muslim Filipinos' right to
health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave
danger to the security and welfare of the community
can justify the infringement of religious freedom.11 If
the government fails to show the seriousness and
immediacy of the threat, State intrusion is
constitutionally unacceptable. In a society with a
democratic framework like ours, the State must
minimize its interference with the affairs of its citizens
and instead allow them to exercise reasonable
freedom of personal and religious activity.
In the case at bar, we find no compelling justification
for the government to deprive muslim organizations,
like herein petitioner, of their religious right to classify
a product as halal, even on the premise that the
health of muslim Filipinos can be effectively protected
by assigning to OMA the exclusive power to issue
halal certifications. The protection and promotion of
the muslim Filipinos' right to health are already
provided for in existing laws and ministered to by
government agencies charged with ensuring that food
products released in the market are fit for human
consumption, properly labeled and safe. Unlike EO
46, these laws do not encroach on the religious
freedom of muslims.
Section 48(4) of the Administrative Code of 1987
gives to the National Meat Inspection Commission
(NMIC) of the Department of Agriculture (DOA) the
power to inspect slaughtered animals intended for
human consumption to ensure the safety of the meat
released in the market. Another law, RA 7394,
otherwise known as "The Consumer Act of 1992,"
gives to certain government departments the duty to
protect the interests of the consumer, promote his
general welfare and to establish standards of conduct
for business and industry.12 To this end, a food
product, before its distribution to the market, is
required to secure the Philippine Standard
Certification Mark after the concerned department
inspects and certifies its compliance with quality and consumers can actually verify through the labels
safety standards.13 whether a product contains non-food substances, we
believe that they are discerning enough to know who
One such government agency designated by RA the reliable and competent certifying organizations in
7394 is the Bureau of Food and Drugs (BFD) of the their community are. Before purchasing a product,
Department of Health (DOH). Under Article 22 of said they can easily avert this perceived evil by a diligent
law, BFD has the duty to promulgate and enforce inquiry on the reliability of the concerned certifying
rules and regulations fixing and establishing a organization.
reasonable definition and standard of identity, a
standard of quality and a standard of fill of containers WHEREFORE, the petition is GRANTED. Executive
for food. The BFD also ensures that food products Order 46, s. 2000, is hereby declared NULL AND
released in the market are not adulterated.14 VOID. Consequently, respondents are prohibited from
enforcing the same.
Furthermore, under Article 48 of RA 7394, the
Department of Trade and Industry (DTI) is tasked to SO ORDERED.
protect the consumer against deceptive, unfair and
unconscionable sales acts or practices as defined in
Article 50.15 DTI also enforces compulsory labeling
and fair packaging to enable the consumer to obtain
accurate information as to the nature, quality and
quantity of the contents of consumer products and to
facilitate his comparison of the value of such
products.16

With these regulatory bodies given detailed functions

on how to screen and check the quality and safety of
food products, the perceived danger against the
health of muslim and non-muslim Filipinos alike is
totally avoided. Of great help are the provisions on
labeling of food products (Articles 74 to 85)17 of RA
7394. In fact, through these labeling provisions, the
State ably informs the consuming public of the
contents of food products released in the market. Stiff
sanctions are imposed on violators of said labeling
requirements.

Through the laws on food safety and quality,

therefore, the State indirectly aids muslim consumers
in differentiating food from non-food products. The
NMIC guarantees that the meat sold in the market
has been thoroughly inspected and fit for
consumption. Meanwhile, BFD ensures that food
products are properly categorized and have passed
safety and quality standards. Then, through the
labeling provisions enforced by the DTI, muslim
consumers are adequately apprised of the products
that contain substances or ingredients that, according
to their Islamic beliefs, are not fit for human intake.
These are the non-secular steps put in place by the
State to ensure that the muslim consumers' right to
health is protected. The halal certifications issued by
petitioner and similar organizations come forward as
the official religious approval of a food product fit for
muslim consumption.

We do not share respondents' apprehension that the

absence of a central administrative body to regulate
halal certifications might give rise to schemers who,
for profit, will issue certifications for products that are
not actually halal. Aside from the fact that muslim
Case No. 007

Williams v. Calalang????
Case No 008
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 80609 August 23, 1988
PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, petitioner,
vs.
THE NATIONAL LABOR RELATIONS
COMMISSION and MARILYN
ABUCAY, respondents.
Nicanor G. Nuevas for petitioner.
CRUZ, J.:
The only issue presented in the case at bar is the
legality of the award of financial assistance to an
employee who had been dismissed for cause as
found by the public respondent.
Marilyn Abucay, a traffic operator of the Philippine
Long Distance Telephone Company, was accused by
two complainants of having demanded and received
from them the total amount of P3,800.00 in
consideration of her promise to facilitate approval of
their applications for telephone
installation. 1 Investigated and heard, she was found
guilty as charged and accordingly separated from the
service.2 She went to the Ministry of Labor and
Employment claiming she had been illegally removed.
After consideration of the evidence and arguments of
the parties, the company was sustained and the
complaint was dismissed for lack of merit.
Nevertheless, the dispositive portion of labor arbiter's
decision declared:
WHEREFORE, the instant
complaint is dismissed for lack of
merit.
Considering that Dr. Helen
Bangayan and Mrs. Consolacion
Martinez are not totally blameless in
the light of the fact that the deal
happened outhide the premises of
respondent company and that their
act of giving P3,800.00 without any
receipt is tantamount to corruption
of public officers, complainant must
be given one month pay for every
year of service as financial
assistance. 3
Both the petitioner and the private respondent
appealed to the National Labor Relations Board,
which upheld the said decision in toto and dismissed
the appeals. 4 The private respondent took no further
action, thereby impliedly accepting the validity of her
dismissal. The petitioner, however, is now before us
to question the affirmance of the above- quoted award
as having been made with grave abuse of discretion.
In its challenged resolution of September 22, 1987,
the NLRC said:
... Anent the award of separation
pay as financial assistance in
complainant's favor, We find the
same to be equitable, taking into
consideration her long years of
service to the company whereby
she had undoubtedly contributed to
the success of respondent. While
we do not in any way approve of
complainants (private respondent)
mal feasance, for which she is to
suffer the penalty of dismissal, it is
for reasons of equity and
compassion that we resolve to
uphold the award of financial
assistance in her favor. 5
The position of the petitioner is simply stated: It is
conceded that an employee illegally dismissed is
entitled to reinstatement and backwages as required
by the labor laws. However, an employee dismissed
for cause is entitled to neither reinstatement nor
backwages and is not allowed any relief at all
because his dismissal is in accordance with law. In
the case of the private respondent, she has been
awarded financial assistance equivalent to ten months
pay corresponding to her 10 year service in the
company despite her removal for cause. She is,
therefore, in effect rewarded rather than punished for
her dishonesty, and without any legal authorization or
justification. The award is made on the ground of
equity and compassion, which cannot be a substitute
for law. Moreover, such award puts a premium on
dishonesty and encourages instead of deterring
corruption.
For its part, the public respondent claims that the
employee is sufficiently punished with her dismissal.
The grant of financial assistance is not intended as a
reward for her offense but merely to help her for the
loss of her employment after working faithfully with
the company for ten years. In support of this position,
the Solicitor General cites the cases of Firestone Tire
and Rubber Company of the Philippines v.
Lariosa 6 and Soco v. Mercantile Corporation of
Davao, 7 where the employees were dismissed for
cause but were nevertheless allowed separation pay
on grounds of social and compassionate justice. As
the Court put it in the Firestone case:
In view of the foregoing, We rule
that Firestone had valid grounds to
dispense with the services of
Lariosa and that the NLRC acted
with grave abuse of discretion in
ordering his reinstatement.
However, considering that Lariosa
had worked with the company for
eleven years with no known
previous bad record, the ends of
social and compassionate justice
would be served if he is paid full
separation pay but not
reinstatement without backwages
by the NLRC.
In the said case, the employee was validly dismissed
for theft but the NLRC nevertheless awarded him full
separation pay for his 11 years of service with the
company. In Soco, the employee was also legally
separated for unauthorized use of a company vehicle
and refusal to attend the grievance proceedings but
he was just the same granted one-half month
separation pay for every year of his 18-year service.
Similar action was taken in Filipro, Inc. v.
NLRC, 8 where the employee was validly dismissed
for preferring certain dealers in violation of company
policy but was allowed separation pay for his 2 years
of service. In Metro Drug Corporation v. NLRC, 9 the
employee was validly removed for loss of confidence
because of her failure to account for certain funds but
she was awarded separation pay equivalent to one-
half month's salary for every year of her service of 15
years. In Engineering Equipment, Inc. v. NLRC, 10 the
dismissal of the employee was justified because he
had instigated labor unrest among the workers and
had serious differences with them, among other
grounds, but he was still granted three months
separation pay corresponding to his 3-year service. In
New Frontier Mines, Inc. v. NLRC, 11 the employee's
3- year service was held validly terminated for lack of
confidence and abandonment of work but he was
nonetheless granted three months separation pay.
And in San Miguel Corporation v. Deputy Minister of
Labor and Employment, et al ., 12 full separation pay
for 6, 10, and 16 years service, respectively, was also
allowed three employees who had been dismissed
after they were found guilty of misappropriating
company funds.
The rule embodied in the Labor Code is that a person
dismissed for cause as defined therein is not entitled
to separation pay. 13 The cases above cited constitute
the exception, based upon considerations of equity.
Equity has been defined as justice outside
law, 14 being ethical rather than jural and belonging to
the sphere of morals than of law. 15 It is grounded on
the precepts of conscience and not on any sanction of
positive law. 16 Hence, it cannot prevail against the
expressed provision of the labor laws allowing
dismissal of employees for cause and without any
provision for separation pay.
Strictly speaking, however, it is not correct to say that
there is no express justification for the grant of
separation pay to lawfully dismissed employees other
than the abstract consideration of equity. The reason
is that our Constitution is replete with positive
commands for the promotion of social justice, and
particularly the protection of the rights of the workers.
The enhancement of their welfare is one of the
primary concerns of the present charter. In fact,
instead of confining itself to the general commitment
to the cause of labor in Article II on the Declaration of
Principles of State Policies, the new Constitution
contains a separate article devoted to the promotion
of social justice and human rights with a separate
sub- topic for labor. Article XIII expressly recognizes
the vital role of labor, hand in hand with management,
in the advancement of the national economy and the
welfare of the people in general. The categorical
mandates in the Constitution for the improvement of
the lot of the workers are more than sufficient basis to
justify the award of separation pay in proper cases
even if the dismissal be for cause.
The Court notes, however, that where the exception
has been applied, the decisions have not been
consistent as to the justification for the grant of
separation pay and the amount or rate of such award.
Thus, the employees dismissed for theft in the
Firestone case and for animosities with fellow workers
in the Engineering Equipment case were both
awarded separation pay notnvithstanding that the first
cause was certainly more serious than the second.
No less curiously, the employee in the Soco case was
allowed only one-half month pay for every year of his
18 years of service, but in Filipro the award was two
months separation pay for 2 years service. In
Firestone, the emplovee was allowed full separation
pay corresponding to his 11 years of service, but in
Metro, the employee was granted only one-half month
separation pay for every year of her 15year service. It
would seem then that length of service is not
necessarily a criterion for the grant of separation pay
and neither apparently is the reason for the dismissal.
The Court feels that distinctions are in order. We note
that heretofore the separation pay, when it was
considered warranted, was required regardless of the
nature or degree of the ground proved, be it mere
inefficiency or something graver like immorality or
dishonesty. The benediction of compassion was
made to cover a multitude of sins, as it were, and to
justify the helping hand to the validly dismissed
employee whatever the reason for his dismissal. This
policy should be re-examined. It is time we
rationalized the exception, to make it fair to both labor
and management, especially to labor.
There should be no question that where it comes to
such valid but not iniquitous causes as failure to
comply with work standards, the grant of separation
pay to the dismissed employee may be both just and
compassionate, particularly if he has worked for some
time with the company. For example, a subordinate
who has irreconcilable policy or personal differences
with his employer may be validly dismissed for
demonstrated loss of confidence, which is an
allowable ground. A working mother who has to be
frequently absent because she has also to take care
of her child may also be removed because of her poor
attendance, this being another authorized ground. It is
not the employee's fault if he does not have the
necessary aptitude for his work but on the other hand
the company cannot be required to maintain him just
the same at the expense of the efficiency of its
operations. He too may be validly replaced. Under
these and similar circumstances, however, the award
to the employee of separation pay would be
sustainable under the social justice policy even if the
separation is for cause.
But where the cause of the separation is more serious
than mere inefficiency, the generosity of the law must
be more discerning. There is no doubt it is
compassionate to give separation pay to a salesman
if he is dismissed for his inability to fill his quota but
surely he does not deserve such generosity if his
offense is misappropriation of the receipts of his
sales. This is no longer mere incompetence but clear
dishonesty. A security guard found sleeping on the
job is doubtless subject to dismissal but may be
allowed separation pay since his conduct, while inept,
is not depraved. But if he was in fact not really
sleeping but sleeping with a prostitute during his tour
of duty and in the company premises, the situation is
changed completely. This is not only inefficiency but
immorality and the grant of separation pay would be
entirely unjustified.
We hold that henceforth separation pay shall be
allowed as a measure of social justice only in those
instances where the employee is validly dismissed for
causes other than serious misconduct or those
reflecting on his moral character. Where the reason
for the valid dismissal is, for example, habitual
intoxication or an offense involving moral turpitude,
like theft or illicit sexual relations with a fellow worker,
the employer may not be required to give the
dismissed employee separation pay, or financial
assistance, or whatever other name it is called, on the
ground of social justice.
A contrary rule would, as the petitioner correctly
argues, have the effect, of rewarding rather than
punishing the erring employee for his offense. And we
do not agree that the punishment is his dismissal only
and that the separation pay has nothing to do with the
wrong he has committed. Of course it has. Indeed, if
the employee who steals from the company is granted
separation pay even as he is validly dismissed, it is
not unlikely that he will commit a similar offense in his
next employment because he thinks he can expect a
like leniency if he is again found out. This kind of
misplaced compassion is not going to do labor in
general any good as it will encourage the infiltration of
its ranks by those who do not deserve the protection
and concern of the Constitution.
The policy of social justice is not intended to
countenance wrongdoing simply because it is
committed by the underprivileged. At best it may
mitigate the penalty but it certainly will not condone
the offense. Compassion for the poor is an imperative
of every humane society but only when the recipient
is not a rascal claiming an undeserved privilege.
Social justice cannot be permitted to be refuge of
scoundrels any more than can equity be an
impediment to the punishment of the guilty. Those
who invoke social justice may do so only if their hands
are clean and their motives blameless and not simply
because they happen to be poor. This great policy of
our Constitution is not meant for the protection of
those who have proved they are not worthy of it, like
the workers who have tainted the cause of labor with
the blemishes of their own character.
Applying the above considerations, we hold that the
grant of separation pay in the case at bar is
unjustified. The private respondent has been
dismissed for dishonesty, as found by the labor arbiter
and affirmed by the NLRC and as she herself has
impliedly admitted. The fact that she has worked with
the PLDT for more than a decade, if it is to be
considered at all, should be taken against her as it
reflects a regrettable lack of loyalty that she should
have strengthened instead of betraying during all of
her 10 years of service with the company. If regarded
as a justification for moderating the penalty of
dismissal, it will actually become a prize for disloyalty,
perverting the meaning of social justice and
undermining the efforts of labor to cleanse its ranks of
all undesirables.
The Court also rules that the separation pay, if found
due under the circumstances of each case, should be
computed at the rate of one month salary for every
year of service, assuming the length of such service is
deemed material. This is without prejudice to the
application of special agreements between the
employer and the employee stipulating a higher rate
of computation and providing for more benefits to the
discharged employee. 17
WHEREFORE, the petition is GRANTED. The
challenged resolution of September 22,1987, is
AFFIRMED in toto except for the grant of separation
pay in the form of financial assistance, which is
hereby DISALLOWED. The temporary restraining
order dated March 23, 1988, is LIFTED. It is so
ordered.
Case No. 009
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C.
IMBONG, for themselves and in behalf of their
minor children, LUCIA CARLOS IMBONG and
BERNADETTE CARLOS IMBONG and
MAGNIFICAT CHILD DEVELOPMENT CENTER,
INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department
of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION
PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses
Reynaldo S. Luistro & Rosie B . Luistro, Jose S.
Sandejas & Elenita S.A. Sandejas, Arturo M.
Gorrez & Marietta C. Gorrez, Salvador S. Mante,
Jr. & Hazeleen L. Mante, Rolando M. Bautista &
Maria Felisa S. Bautista, Desiderio Racho &
Traquilina Racho, F emand Antonio A. Tansingco
& Carol Anne C. Tansingco for themselves and on
behalf of their minor children, Therese Antonette
C. Tansingco, Lorenzo Jose C. Tansingco, Miguel
F emando C. Tangsingco, Carlo Josemaria C.
Tansingco & Juan Paolo C. Tansingco, Spouses
Mariano V. Araneta & Eileen Z. Araneta for
themselves and on behalf of their minor children,
Ramon Carlos Z. Araneta & Maya Angelica Z.
Araneta, Spouses Renato C. Castor & Mildred C.
Castor for themselves and on behalf of their
minor children, Renz Jeffrey C. Castor, Joseph
Ramil C. Castor, John Paul C. Castor & Raphael C.
Castor, Spouses Alexander R. Racho & Zara Z.
Racho for themselves and on behalf of their minor
children Margarita Racho, Mikaela Racho, Martin
Racho, Mari Racho & Manolo Racho, Spouses
Alfred R. Racho & Francine V. Racho for
themselves and on behalf of their minor children
Michael Racho, Mariana Racho, Rafael Racho,
Maxi Racho, Chessie Racho & Laura Racho,
Spouses David R. Racho & Armilyn A. Racho for
themselves and on behalf of their minor child
Gabriel Racho, Mindy M. Juatas and on behalf of
her minor children Elijah Gerald Juatas and Elian
Gabriel Juatas, Salvacion M. Monteiro, Emily R.
Laws, Joseph R . Laws & Katrina R.
Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and
Sports, HON. CORAZON SOLIMAN, Secretary,
Department of Social Welfare and Development,
HON. MANUELA. ROXAS II, Secretary, Department
of Interior and Local Government, HON.
FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ARSENIO M.
BALISACAN, Socio-Economic Planning Secretary
and NEDA Director-General, THE PHILIPPINE
COMMISSION ON WOMEN, represented by its
Chairperson, Remedios lgnacio-Rikken, THE
PHILIPPINE HEALTH INSURANCE
CORPORATION, represented by its President
Eduardo Banzon, THE LEAGUE OF PROVINCES
OF THE PHILIPPINES, represented by its
President Alfonso Umali, THE LEAGUE OF CITIES
OF THE PHILIPPINES, represented by its
President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES,
represented by its President Donato
Marcos,Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS,
INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary; HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC.,
represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity,
ROSEVALE FOUNDATION INC., represented by
Dr. Rodrigo M. Alenton, M.D., as member of the
school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA,
CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and
MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE
PHILIPPINES, HOUSE OF REPRESENTATIVES,
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary, Department of
Health; HON. ARMIN A. LUISTRO, Secretary,
Department of Education and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, HON. SENATE PRESIDENT,
HON. SPEAKER OF THE HOUSE OF
REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC
XYBRSPACE APOSTOLATE OF THE
PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA
DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY
MANUELA. ROXAS II, DECS SECRETARY ARMIN
A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC.
(PAX), herein represented by its National
President, Atty. Ricardo M . Ribo, and in his own
behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte,
Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J.
Yap, Jaime F. Mateo, Rolly Siguan, Dante E.
Magdangal, Michael Eugenio O. Plana, Bienvenido
C. Miguel, Jr., Landrito M. Diokno and Baldomero
Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and
Local Government, HON. CORAZON J. SOLIMAN,
Secretary, Department of Social Welfare and
Development, HON. ARSENIO BALISACAN,
Director-General, National Economic and
Development Authority, HON. SUZETTE H. LAZO,
Director-General, Food and Drugs Administration,
THE BOARD OF DIRECTORS, Philippine Health
Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on
Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H.
KING, M.D., CYNTHIA T. DOMINGO, M.D., AND
JOSEPHINE MILLADO-LUMITAO, M.D.,
collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA,
CARLOS ANTONIO PALAD, WILFREDO JOSE,
CLAIRE NAVARRO, ANNA COSIO, and GABRIEL
DY LIACCO collectively known as Filipinos For
Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary; HON. FLORENCIO B. ABAD, Secretary
of the Department of Budget and Management;
HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO,
Secretary of the Department of Education; and
HON. MANUELA. ROXAS II, Secretary of the
Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA
FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of
Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of
the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc.,
represented by Loma Melegrito, as Executive
Director, and in her personal capacity, JOSELYN
B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA
A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON
CONRAD B. PADOJINOG, RUFINO L.
POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE
PHILIPPINES, HOUSE OF REPRESENTATIVES,
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education and HON. MANUEL A.
ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY.
RAMON PEDROSA, ATTY. CITA BORROMEO-
GARCIA, STELLAACEDERA, ATTY. BERTENI
CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE
EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF
EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG,
ANTHONY VICTORIO B. LUMICAO, JOSEPH
MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS
and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO ABAD, Secretary,
Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and
HON. MANUEL A. ROXAS II, Secretary,
Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC.,
SPOUSES JUAN CARLOS ARTADI SARMIENTO
AND FRANCESCA ISABELLE BESINGA-
SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA
N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary,
Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department
of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M.
KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. ENRIQUE T. ONA, Secretary of
the Department of Health, and HON. ARMIN A.
LUISTRO,Secretary of the Department of Budget
and Management,Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by
the framers of our fundamental law. And this Court
has consistently affirmed this preferred status, well
aware that it is "designed to protect the broadest
possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his
beliefs , and to live as he believes he ought to live,
consistent with the liberty of others and with the
common good."1
To this day, poverty is still a major stumbling block to
the nation's emergence as a developed country,
leaving our people beleaguered in a state of hunger,
illiteracy and unemployment. While governmental
policies have been geared towards the revitalization
of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not
only the poor, but every member of society. The
government continues to tread on a trying path to the
realization of its very purpose, that is, the general
welfare of the Filipino people and the development of
the country as a whole. The legislative branch, as the
main facet of a representative government, endeavors
to enact laws and policies that aim to remedy looming
societal woes, while the executive is closed set to fully
implement these measures and bring concrete and
substantial solutions within the reach of Juan dela
Cruz. Seemingly distant is the judicial branch,
oftentimes regarded as an inert governmental body
that merely casts its watchful eyes on clashing
stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the
Judiciary then willingly embarks on its solemn duty to
interpret legislation vis-a-vis the most vital and
enduring principle that holds Philippine society
together - the supremacy of the Philippine
Constitution.
Nothing has polarized the nation more in recent years
than the issues of population growth control, abortion
and contraception. As in every democratic society,
diametrically opposed views on the subjects and their
perceived consequences freely circulate in various
media. From television debates2 to sticker
campaigns,3 from rallies by socio-political activists to
mass gatherings organized by members of the
clergy4 - the clash between the seemingly antithetical
ideologies of the religious conservatives and
progressive liberals has caused a deep division in
every level of the society. Despite calls to withhold
support thereto, however, Republic Act (R.A.) No.
10354, otherwise known as the Responsible
Parenthood and Reproductive Health Act of 2012 (RH
Law), was enacted by Congress on December 21,
2012.
Shortly after the President placed his imprimatur on
the said law, challengers from various sectors of
society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound
and lasting impact that its decision may produce, the
Court now faces the iuris controversy, as presented in
fourteen (14) petitions and two (2) petitions- in-
intervention, to wit:
(1) Petition for Certiorari and
Prohibition,5 filed by spouses Attys. James
M. Imbong and Lovely Ann C. Imbong, in
their personal capacities as citizens, lawyers
and taxpayers and on behalf of their minor
children; and the Magnificat Child Leaming
Center, Inc., a domestic, privately-owned
educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the
Alliance for the Family Foundation
Philippines, Inc., through its president, Atty.
Maria Concepcion S. Noche7 and several
others8 in their personal capacities as
citizens and on behalf of the generations
unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task
Force for Family and Life Visayas, Inc., and
Valeriano S. Avila, in their capacities as
citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and
Prohibition,10 filed by Serve Life Cagayan De
Oro City, Inc.,11 Rosevale Foundation,
Inc.,12 a domestic, privately-owned
educational institution, and several
others,13 in their capacities as citizens (Serve
Life);
(5) Petition,14 filed by Expedito A. Bugarin,
Jr. in his capacity as a citizen (Bugarin);
(6) Petition for Certiorari and
Prohibition,15 filed by Eduardo Olaguer and
the Catholic Xybrspace Apostolate of the
Philippines,16 in their capacities as a citizens
and taxpayers (Olaguer);
(7) Petition for Certiorari and
Prohibition,17 filed by the Philippine Alliance
of Xseminarians Inc.,18 and several
others19 in their capacities as citizens and
taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez,
M.D. and several others,21 in their capacities
as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and
Prohibition,22 filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F.
Paguia, in their capacities as citizens,
taxpayers and on behalf of those yet unborn.
Atty. Alan F. Paguia is also proceeding in his
capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and
Prohibition,23 filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in
their capacities as citizens and taxpayers
and on behalf of its associates who are
members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by
Millennium Saint Foundation, Inc.,27 Attys.
Ramon Pedrosa, Cita Borromeo-Garcia,
Stella Acedera, and Berteni Catalufia
Causing, in their capacities as citizens,
taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and
Prohibition,28 filed by John Walter B. Juat
and several others,29 in their capacities as
citizens (Juat) ;
(13) Petition for Certiorari and
Prohibition,30 filed by Couples for Christ
Foundation, Inc. and several others,31in their
capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim
Centi Tillah and Abdulhussein M. Kashim in
their capacities as citizens and taxpayers
(Tillah); and
(15) Petition-In-Intervention,33 filed by Atty.
Samson S. Alcantara in his capacity as a
citizen and a taxpayer (Alcantara); and
 (16) Petition-In-Intervention,34 filed by Buhay
Hayaang Yumabong (B UHAY) , an
accredited political party.
A perusal of the foregoing petitions shows that the
petitioners are assailing the constitutionality of RH
Law on the following GROUNDS:
• The RH Law violates the right to life of the
unborn. According to the petitioners,
notwithstanding its declared policy against
abortion, the implementation of the RH Law
would authorize the purchase of hormonal
contraceptives, intra-uterine devices and
injectables which are abortives, in violation
of Section 12, Article II of the Constitution
which guarantees protection of both the life
of the mother and the life of the unborn from
conception.35
• The RH Law violates the right to health and
the right to protection against hazardous
products. The petitioners posit that the RH
Law provides universal access to
contraceptives which are hazardous to one's
health, as it causes cancer and other health
problems.36
• The RH Law violates the right to religious
freedom. The petitioners contend that the
RH Law violates the constitutional guarantee
respecting religion as it authorizes the use of
public funds for the procurement of
contraceptives. For the petitioners, the use
of public funds for purposes that are believed
to be contrary to their beliefs is included in
the constitutional mandate ensuring religious
freedom.37
It is also contended that the RH Law threatens
conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who
seek advice on reproductive health programs to other
doctors; and 2] to provide full and correct information
on reproductive health programs and service,
although it is against their religious beliefs and
convictions.38
In this connection, Section 5 .23 of the Implementing
Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who
are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical
officers, medical specialists, rural health physicians,
hospital staff nurses, public health nurses, or rural
health midwives, who are specifically charged with the
duty to implement these Rules, cannot be considered
as conscientious objectors.40
It is also argued that the RH Law providing for the
formulation of mandatory sex education in schools
should not be allowed as it is an affront to their
religious beliefs.41
While the petit10ners recognize that the guarantee of
religious freedom is not absolute, they argue that the
RH Law fails to satisfy the "clear and present danger
test" and the "compelling state interest test" to justify
the regulation of the right to free exercise of religion
and the right to free speech.42
• The RH Law violates the constitutional
provision on involuntary servitude. According
to the petitioners, the RH Law subjects
medical practitioners to involuntary servitude
because, to be accredited under the
PhilHealth program, they are compelled to
provide forty-eight (48) hours of pro bona
services for indigent women, under threat of
criminal prosecution, imprisonment and other
forms of punishment.43
The petitioners explain that since a majority of
patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render
reproductive health services since the lack of
PhilHealth accreditation would mean that the majority
of the public would no longer be able to avail of the
practitioners services.44
• The RH Law violates the right to equal
protection of the law. It is claimed that the
RH Law discriminates against the poor as it
makes them the primary target of the
government program that promotes
contraceptive use. The petitioners argue
that, rather than promoting reproductive
health among the poor, the RH Law seeks to
introduce contraceptives that would
effectively reduce the number of the poor.45
• The RH Law is "void-for-vagueness" in
violation of the due process clause of the
Constitution. In imposing the penalty of
imprisonment and/or fine for "any violation,"
it is vague because it does not define the
type of conduct to be treated as "violation" of
the RH Law.46
In this connection, it is claimed that "Section 7 of the
RH Law violates the right to due process by removing
from them (the people) the right to manage their own
affairs and to decide what kind of health facility they
shall be and what kind of services they shall offer." 47 It
ignores the management prerogative inherent in
corporations for employers to conduct their affairs in
accordance with their own discretion and judgment.
 • The RH Law violates the right to free
speech. To compel a person to explain a full
range of family planning methods is plainly to
curtail his right to expound only his own
preferred way of family planning. The
petitioners note that although exemption is
granted to institutions owned and operated
by religious groups, they are still forced to
refer their patients to another healthcare
facility willing to perform the service or
procedure.48
• The RH Law intrudes into the zone of
privacy of one's family protected by the
Constitution. It is contended that the RH Law
providing for mandatory reproductive health
education intrudes upon their constitutional
right to raise their children in accordance
with their beliefs.49
It is claimed that, by giving absolute authority to the
person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue
between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to
the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child
who has suffered a miscarriage are deprived of
parental authority to determine whether their child
should use contraceptives.50
• The RH Law violates the constitutional
principle of non-delegation of legislative
authority. The petitioners question the
delegation by Congress to the FDA of the
power to determine whether a product is
non-abortifacient and to be included in the
Emergency Drugs List (EDL).51
• The RH Law violates the one subject/one
bill rule provision under Section 26( 1 ),
Article VI of the Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of
Autonomy of Local Government Units
(LGUs) and the Autonomous Region of
Muslim Mindanao {ARMM). It is contended
that the RH Law, providing for reproductive
health measures at the local government
level and the ARMM, infringes upon the
powers devolved to LGUs and the ARMM
under the Local Government Code and R.A .
No. 9054.54
Various parties also sought and were granted leave to
file their respective comments-in-intervention in
defense of the constitutionality of the RH Law. Aside
from the Office of the Solicitor General (OSG) which
commented on the petitions in behalf of the
respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health
Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr.
Alberto G. Romualdez,57 the Filipino Catholic Voices
for Reproductive Health (C4RH),58 Ana Theresa
"Risa" Hontiveros,59 and Atty. Joan De Venecia60 also
filed their respective Comments-in-Intervention in
conjunction with several others. On June 4, 2013,
Senator Pia Juliana S. Cayetano was also granted
leave to intervene.61
The respondents, aside from traversing the
substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that
1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial
determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are
essentially petitions for declaratory relief over which
the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the
enforcement of the assailed legislation took effect.
On March 19, 2013, after considering the issues and
arguments raised, the Court issued the Status Quo
Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period
of one hundred and twenty (120) days, or until July
17, 2013.62
On May 30, 2013, the Court held a preliminary
conference with the counsels of the parties to
determine and/or identify the pertinent issues raised
by the parties and the sequence by which these
issues were to be discussed in the oral arguments.
On July 9 and 23, 2013, and on August 6, 13, and 27,
2013, the cases were heard on oral argument. On
July 16, 2013, the SQAO was ordered extended until
further orders of the Court.63
Thereafter, the Court directed the parties to submit
their respective memoranda within sixty (60) days
and, at the same time posed several questions for
their clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health
Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country
has allowed the sale, dispensation and distribution of
contraceptive drugs and devices. As far back as June
18, 1966, the country enacted R.A. No. 4729 entitled
"An Act to Regu,late the Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices."
Although contraceptive drugs and devices were
allowed, they could not be sold, dispensed or
distributed "unless such sale, dispensation and
distribution is by a duly licensed drug store or
pharmaceutical company and with the prescription of
a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21,
1969, contained provisions relative to "dispensing of
abortifacients or anti-conceptional substances and
devices." Under Section 37 thereof, it was provided
that "no drug or chemical product or device capable of
provoking abortion or preventing conception as
classified by the Food and Drug Administration shall
be delivered or sold to any person without a proper
prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to
the UN Declaration on Population, which recognized
that the population problem should be considered as
the principal element for long-term economic
development, enacted measures that promoted male
vasectomy and tubal ligation to mitigate population
growth.67 Among these measures included R.A. No.
6365, approved on August 16, 1971, entitled "An Act
Establishing a National Policy on Population, Creating
the Commission on Population and for Other
Purposes. " The law envisioned that "family planning
will be made part of a broad educational program;
safe and effective means will be provided to couples
desiring to space or limit family size; mortality and
morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President
Ferdinand E . Marcos issued Presidential Decree.
(P.D.) No. 79,68 dated December 8, 1972, which,
among others, made "family planning a part of a
broad educational program," provided "family
planning services as a part of over-all health care,"
and made "available all acceptable methods of
contraception, except abortion, to all Filipino citizens
desirous of spacing, limiting or preventing
pregnancies."
Through the years, however, the use of
contraceptives and family planning methods evolved
from being a component of demographic
management, to one centered on the promotion of
public health, particularly, reproductive
health.69 Under that policy, the country gave priority to
one's right to freely choose the method of family
planning to be adopted, in conformity with its
adherence to the commitments made in the
International Conference on Population and
Development.70 Thus, on August 14, 2009, the
country enacted R.A. No. 9710 or "The Magna Carta
for Women, " which, among others, mandated the
State to provide for comprehensive health services
and programs for women, including family planning
and sex education.71
The RH Law
Despite the foregoing legislative measures, the
population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over
27 million Filipinos in 1960, the population of the
country reached over 76 million in the year 2000 and
over 92 million in 2010.72 The executive and the
legislative, thus, felt that the measures were still not
adequate. To rein in the problem, the RH Law was
enacted to provide Filipinos, especially the poor and
the marginalized, access and information to the full
range of modem family planning methods, and to
ensure that its objective to provide for the peoples'
right to reproductive health be achieved. To make it
more effective, the RH Law made it mandatory for
health providers to provide information on the full
range of modem family planning methods, supplies
and services, and for schools to provide reproductive
health education. To put teeth to it, the RH Law
criminalizes certain acts of refusals to carry out its
mandates.
Stated differently, the RH Law is an enhancement
measure to fortify and make effective the current laws
on contraception, women's health and population
control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH
Law be declared unconstitutional. Petitioner ALFI, in
particular, argues that the government sponsored
contraception program, the very essence of the RH
Law, violates the right to health of women and the
sanctity of life, which the State is mandated to protect
and promote. Thus, ALFI prays that "the status quo
ante - the situation prior to the passage of the RH Law
- must be maintained."73 It explains:
x x x. The instant Petition does not question
contraception and contraceptives per se. As provided
under Republic Act No. 5921 and Republic Act No.
4729, the sale and distribution of contraceptives are
prohibited unless dispensed by a prescription duly
licensed by a physician. What the Petitioners find
deplorable and repugnant under the RH Law is the
role that the State and its agencies - the entire
bureaucracy, from the cabinet secretaries down to the
barangay officials in the remotest areas of the country
- is made to play in the implementation of the
contraception program to the fullest extent possible
using taxpayers' money. The State then will be the
funder and provider of all forms of family planning
methods and the implementer of the program by
ensuring the widespread dissemination of, and
universal access to, a full range of family planning
methods, devices and supplies.74
ISSUES
After a scrutiny of the various arguments and
contentions of the parties, the Court has synthesized
and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its
power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is
unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free
Speech
4] The Family
5] Freedom of Expression and Academic
Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law
and its implementing rules, it behooves the Court to
resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can
exercise its power of judicial review over the
controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial
hand, the OSG asserts that it should submit to the
legislative and political wisdom of Congress and
respect the compromises made in the crafting of the
RH Law, it being "a product of a majoritarian
democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits
that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak,"
since the Constitution vests the discretion to
implement the constitutional policies and positive
norms with the political departments, in particular,
with Congress.77 It further asserts that in view of the
Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,78 the remedies of certiorari and
prohibition utilized by the petitioners are improper to
assail the validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied
challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the
petitioners, and that the government has yet to
distribute reproductive health devices that are
abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-
regulating measure.80
In many cases involving the determination of the
constitutionality of the actions of the Executive and
the Legislature, it is often sought that the Court
temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the
basis of the principle of separation of powers. To be
clear, the separation of powers is a fundamental
principle in our system of government, which obtains
not through express provision but by actual division in
our Constitution. Each department of the government
has exclusive cognizance of matters within its
jurisdiction and is supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the
legislative power shall be vested in the Congress of
the Philippines;82 (b) the executive power shall be
vested in the President of the Philippines;83 and (c)
the judicial power shall be vested in one Supreme
Court and in such lower courts as may be established
by law.84 The Constitution has truly blocked out with
deft strokes and in bold lines, the allotment of powers
among the three branches of government.85
In its relationship with its co-equals, the Judiciary
recognizes the doctrine of separation of powers which
imposes upon the courts proper restraint, born of the
nature of their functions and of their respect for the
other branches of government, in striking down the
acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious
blend of courtesy and caution.86
It has also long been observed, however, that in times
of social disquietude or political instability, the great
landmarks of the Constitution are apt to be forgotten
or marred, if not entirely obliterated.87 In order to
address this, the Constitution impresses upon the
Court to respect the acts performed by a co-equal
branch done within its sphere of competence and
authority, but at the same time, allows it to cross the
line of separation - but only at a very limited and
specific point - to determine whether the acts of the
executive and the legislative branches are null
because they were undertaken with grave abuse of
discretion.88 Thus, while the Court may not pass upon
questions of wisdom, justice or expediency of the RH
Law, it may do so where an attendant
unconstitutionality or grave abuse of discretion
results.89 The Court must demonstrate its unflinching
commitment to protect those cherished rights and
principles embodied in the Constitution.
In this connection, it bears adding that while the
scope of judicial power of review may be limited, the
Constitution makes no distinction as to the kind of
legislation that may be subject to judicial scrutiny, be
it in the form of social legislation or otherwise. The
reason is simple and goes back to the earlier point.
The Court may pass upon the constitutionality of acts
of the legislative and the executive branches, since its
duty is not to review their collective wisdom but,
rather, to make sure that they have acted in
consonance with their respective authorities and
rights as mandated of them by the Constitution. If
after said review, the Court finds no constitutional
violations of any sort, then, it has no more authority of
proscribing the actions under review.90 This is in line
with Article VIII, Section 1 of the Constitution which
expressly provides:
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
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. [Emphases
supplied]
As far back as Tanada v. Angara,91 the Court has
unequivocally declared that certiorari, prohibition and
mandamus are appropriate remedies to raise
constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and
executive officials, as there is no other plain, speedy
or adequate remedy in the ordinary course of law.
This ruling was later on applied in Macalintal v.
COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94 and countless others. In Tanada, the Court
wrote:
In seeking to nullify an act of the Philippine Senate on
the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to
settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains
to assure that the supremacy of the Constitution is
upheld. " Once a "controversy as to the application or
interpretation of constitutional provision is raised
before this Court (as in the instant case), it becomes a
legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court
Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the
separation of powers and the balancing of powers
among the three great departments of government
through the definition and maintenance of the
boundaries of authority and control between them. To
him, judicial review is the chief, indeed the only,
medium of participation - or instrument of intervention
- of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that
the Court does not have the unbridled authority to rule
on just any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power
of judicial review is limited by four exacting requisites,
viz : (a) there must be an actual case or controversy;
(b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect
petitions do not present any actual case or
controversy because the RH Law has yet to be
implemented.97 They claim that the questions raised
by the petitions are not yet concrete and ripe for
adjudication since no one has been charged with
violating any of its provisions and that there is no
showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is
contended that judicial review of the RH Law is
premature.
An actual case or controversy means an existing case
or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory
opinion.99 The rule is that courts do not sit to
adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging.
The controversy must be justiciable-definite and
concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion
of a legal right, on the one hand, and a denial thereof,
on the other; that is, it must concern a real, tangible
and not merely a theoretical question or issue. There
ought to be an actual and substantial controversy
admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical
state of facts.100
Corollary to the requirement of an actual case or
controversy is the requirement of ripeness.101 A
question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the
individual challenging it. For a case to be considered
ripe for adjudication, it is a prerequisite that something
has then been accomplished or performed by either
branch before a court may come into the picture, and
the petitioner must allege the existence of an
immediate or threatened injury to himself as a result
of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining
some direct injury as a result of the act complained
of102
In The Province of North Cotabato v. The
Government of the Republic of the
Philippines,103 where the constitutionality of an
unimplemented Memorandum of Agreement on the
Ancestral Domain (MOA-AD) was put in question, it
was argued that the Court has no authority to pass
upon the issues raised as there was yet no concrete
act performed that could possibly violate the
petitioners' and the intervenors' rights. Citing
precedents, the Court ruled that the fact of the law or
act in question being not yet effective does not negate
ripeness. Concrete acts under a law are not
necessary to render the controversy ripe. Even a
singular violation of the Constitution and/or the law is
enough to awaken judicial duty.
In this case, the Court is of the view that an actual
case or controversy exists and that the same is ripe
for judicial determination. Considering that the RH
Law and its implementing rules have already taken
effect and that budgetary measures to carry out the
law have already been passed, it is evident that the
subject petitions present a justiciable controversy. As
stated earlier, when an action of the legislative branch
is seriously alleged to have infringed the Constitution,
it not only becomes a right, but also a duty of the
Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is
so because medical practitioners or medical providers
are in danger of being criminally prosecuted under the
RH Law for vague violations thereof, particularly
public health officers who are threatened to be
dismissed from the service with forfeiture of
retirement and other benefits. They must, at least, be
heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial
challenge lodged by the subject petitions, contending
that the RH Law cannot be challenged "on its face" as
it is not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial
challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity
of statutes concerning not only protected speech, but
also all other rights in the First Amendment.106 These
include religious freedom, freedom of the press, and
the right of the people to peaceably assemble, and to
petition the Government for a redress of
grievances.107 After all, the fundamental right to
religious freedom, freedom of the press and peaceful
assembly are but component rights of the right to
one's freedom of expression, as they are modes
which one's thoughts are externalized.
In this jurisdiction, the application of doctrines
originating from the U.S. has been generally
maintained, albeit with some modifications. While this
Court has withheld the application of facial challenges
to strictly penal statues,108 it has expanded its scope
to cover statutes not only regulating free speech, but
also those involving religious freedom, and other
fundamental rights.109 The underlying reason for this
modification is simple. For unlike its counterpart in the
U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle
actual controversies involving rights which are legally
demandable and enforceable, but also 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.110 Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its
duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions
have seriously alleged that the constitutional human
rights to life, speech and religion and other
fundamental rights mentioned above have been
violated by the assailed legislation, the Court has
authority to take cognizance of these kindred petitions
and to determine if the RH Law can indeed pass
constitutional scrutiny. To dismiss these petitions on
the simple expedient that there exist no actual case or
controversy, would diminish this Court as a reactive
branch of government, acting only when the
Fundamental Law has been transgressed, to the
detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the
petitioners to file their respective petitions. It contends
that the "as applied challenge" lodged by the
petitioners cannot prosper as the assailed law has yet
to be enforced and applied against them,111 and the
government has yet to distribute reproductive health
devices that are abortive.112
The petitioners, for their part, invariably invoke the
"transcendental importance" doctrine and their status
as citizens and taxpayers in establishing the requisite
locus standi.
Locus standi or legal standing is defined as a
personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as
a result of the challenged governmental act.113 It
requires a personal stake in the outcome of the
controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult
constitutional questions.114
In relation to locus standi, the "as applied challenge"
embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a
violation of his own rights. The rule prohibits one from
challenging the constitutionality of the statute
grounded on a violation of the rights of third persons
not before the court. This rule is also known as the
prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that
"the rule on standing is a matter of procedure, hence,
can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the
public interest so requires, such as when the matter is
of transcendental importance, of overreaching
significance to society, or of paramount public
interest."116
In Coconut Oil Refiners Association, Inc. v.
Torres,117 the Court held that in cases of paramount
importance where serious constitutional questions are
involved, the standing requirement may be relaxed
and a suit may be allowed to prosper even where
there is no direct injury to the party claiming the right
of judicial review. In the first Emergency Powers
Cases,118 ordinary citizens and taxpayers were
allowed to question the constitutionality of several
executive orders although they had only an indirect
and general interest shared in common with the
public.
With these said, even if the constitutionality of the RH
Law may not be assailed through an "as-applied
challenge, still, the Court has time and again acted
liberally on the locus s tandi requirement. It has
accorded certain individuals standing to sue, not
otherwise directly injured or with material interest
affected by a Government act, provided a
constitutional issue of transcendental importance is
invoked. The rule on locus standi is, after all, a
procedural technicality which the Court has, on more
than one occasion, waived or relaxed, thus allowing
non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been directly injured
by the operation of a law or any other government act.
As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be
properly treated as a petition for prohibition, the
transcendental importance of the issues involved in
this case warrants that we set aside the technical
defects and take primary jurisdiction over the petition
at bar. One cannot deny that the issues raised herein
have potentially pervasive influence on the social and
moral well being of this nation, specially the youth;
hence, their proper and just determination is an
imperative need. This is in accordance with the well-
entrenched principle that rules of procedure are not
inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice.
Their strict and rigid application, which would result in
technicalities that tend to frustrate, rather than
promote substantial justice, must always be
eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as
precedents, not only to the public, but also to the
bench and bar, the issues raised must be resolved for
the guidance of all. After all, the RH Law drastically
affects the constitutional provisions on the right to life
and health, the freedom of religion and expression
and other constitutional rights. Mindful of all these and
the fact that the issues of contraception and
reproductive health have already caused deep
division among a broad spectrum of society, the Court
entertains no doubt that the petitions raise issues of
transcendental importance warranting immediate
court adjudication. More importantly, considering that
it is the right to life of the mother and the unborn
which is primarily at issue, the Court need not wait for
a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial
restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do
so, when the life of either the mother or her child is at
stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because
they are essentially petitions for declaratory relief over
which the Court has no original jurisdiction.120 Suffice
it to state that most of the petitions are praying for
injunctive reliefs and so the Court would just consider
them as petitions for prohibition under Rule 65, over
which it has original jurisdiction. Where the case has
far-reaching implications and prays for injunctive
reliefs, the Court may consider them as petitions for
prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of
the RH Law, claiming that it violates Section 26(1 ),
Article VI of the Constitution,122 prescribing the one
subject-one title rule. According to them, being one for
reproductive health with responsible parenthood, the
assailed legislation violates the constitutional
standards of due process by concealing its true intent
- to act as a population control measure.123
To belittle the challenge, the respondents insist that
the RH Law is not a birth or population control
measure,124 and that the concepts of "responsible
parenthood" and "reproductive health" are both
interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive
health law, the Court sees it as principally a
population control measure. The corpus of the RH
Law is geared towards the reduction of the country's
population. While it claims to save lives and keep our
women and children healthy, it also promotes
pregnancy-preventing products. As stated earlier, the
RH Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with access
to information on the full range of modem family
planning products and methods. These family
planning methods, natural or modem, however, are
clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of
the RH Law is to reduce the number of births in the
country.
It cannot be denied that the measure also seeks to
provide pre-natal and post-natal care as well. A large
portion of the law, however, covers the dissemination
of information and provisions on access to medically-
safe, non-abortifacient, effective, legal, affordable,
and quality reproductive health care services,
methods, devices, and supplies, which are all
intended to prevent pregnancy.
The Court, thus, agrees with the petitioners'
contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central
idea of the RH Law.126 Indeed, remove the provisions
that refer to contraception or are related to it and the
RH Law loses its very foundation.127 As earlier
explained, "the other positive provisions such as
skilled birth attendance, maternal care including pre-
and post-natal services, prevention and management
of reproductive tract infections including HIV/AIDS are
already provided for in the Magna Carta for
Women."128
Be that as it may, the RH Law does not violate the
one subject/one bill rule. In Benjamin E. Cawaling, Jr.
v. The Commission on Elections and Rep. Francis
Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule
does not require the Congress to employ in the title of
the enactment language of such precision as to
mirror, fully index or catalogue all the contents and
the minute details therein. The rule is sufficiently
complied with if the title is comprehensive enough as
to include the general object which the statute seeks
to effect, and where, as here, the persons interested
are informed of the nature, scope and consequences
of the proposed law and its operation. Moreover, this
Court has invariably adopted a liberal rather than
technical construction of the rule "so as not to cripple
or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various
provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated
and germane to the overriding objective to control the
population growth. As expressed in the first paragraph
of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes
and guarantees the human rights of all persons
including their right to equality and nondiscrimination
of these rights, the right to sustainable human
development, the right to health which includes
reproductive health, the right to education and
information, and the right to choose and make
decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the
demands of responsible parenthood.
The one subject/one title rule expresses the principle
that the title of a law must not be "so uncertain that
the average person reading it would not be informed
of the purpose of the enactment or put on inquiry as
to its contents, or which is misleading, either in
referring to or indicating one subject where another or
different one is really embraced in the act, or in
omitting any expression or indication of the real
subject or scope of the act."129
Considering the close intimacy between "reproductive
health" and "responsible parenthood" which bears to
the attainment of the goal of achieving "sustainable
human development" as stated under its terms, the
Court finds no reason to believe that Congress
intentionally sought to deceive the public as to the
contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates
the right to life and health of the unborn child under
Section 12, Article II of the Constitution. The assailed
legislation allowing access to abortifacients/abortives
effectively sanctions abortion.130
According to the petitioners, despite its express terms
prohibiting abortion, Section 4(a) of the RH Law
considers contraceptives that prevent the fertilized
ovum to reach and be implanted in the mother's
womb as an abortifacient; thus, sanctioning
contraceptives that take effect after fertilization and
prior to implantation, contrary to the intent of the
Framers of the Constitution to afford protection to the
fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law
allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and
other safe, legal, non-abortifacient and effective family
planning products and supplies, medical research
shows that contraceptives use results in abortion as
they operate to kill the fertilized ovum which already
has life.131
As it opposes the initiation of life, which is a
fundamental human good, the petitioners assert that
the State sanction of contraceptive use contravenes
natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH
Law requires the Food and Drug Administration (FDA)
to certify that the product or supply is not to be used
as an abortifacient, the assailed legislation effectively
confirms that abortifacients are not prohibited. Also
considering that the FDA is not the agency that will
actually supervise or administer the use of these
products and supplies to prospective patients, there is
no way it can truthfully make a certification that it shall
not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out
that the intent of the Framers of the Constitution was
simply the prohibition of abortion. They contend that
the RH Law does not violate the Constitution since
the said law emphasizes that only "non-abortifacient"
reproductive health care services, methods, devices
products and supplies shall be made accessible to the
public.134
According to the OSG, Congress has made a
legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH
Law was enacted with due consideration to various
studies and consultations with the World Health
Organization (WHO) and other experts in the medical
field, it is asserted that the Court afford deference and
respect to such a determination and pass judgment
only when a particular drug or device is later on
determined as an abortive.135
For his part, respondent Lagman argues that the
constitutional protection of one's right to life is not
violated considering that various studies of the WHO
show that life begins from the implantation of the
fertilized ovum. Consequently, he argues that the RH
Law is constitutional since the law specifically
provides that only contraceptives that do not prevent
the implantation of the fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human
being enjoys the right to life.137
Even if not formally established, the right to life, being
grounded on natural law, is inherent and, therefore,
not a creation of, or dependent upon a particular law,
custom, or belief. It precedes and transcends any
authority or the laws of men.
In this jurisdiction, the right to life is given more than
ample protection. Section 1, Article III of the
Constitution provides:
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.
As expounded earlier, the use of contraceptives and
family planning methods in the Philippines is not of
recent vintage. From the enactment of R.A. No. 4729,
entitled "An Act To Regulate The Sale, Dispensation,
and/or Distribution of Contraceptive Drugs and
Devices "on June 18, 1966, prescribing rules on
contraceptive drugs and devices which prevent
fertilization,138 to the promotion of male vasectomy
and tubal ligation,139 and the ratification of numerous
international agreements, the country has long
recognized the need to promote population control
through the use of contraceptives in order to achieve
long-term economic development. Through the years,
however, the use of contraceptives and other family
planning methods evolved from being a component of
demographic management, to one centered on the
promotion of public health, particularly, reproductive
health.140
This has resulted in the enactment of various
measures promoting women's rights and health and
the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710,
otherwise known as the "The Magna Carta of
Women" were legislated. Notwithstanding this
paradigm shift, the Philippine national population
program has always been grounded two cornerstone
principles: "principle of no-abortion" and the "principle
of non-coercion."141 As will be discussed later, these
principles are not merely grounded on administrative
policy, but rather, originates from the constitutional
protection expressly provided to afford protection to
life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the
position that the question of when life begins is a
scientific and medical issue that should not be
decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was
agreed upon that the individual members of the Court
could express their own views on this matter.
In this regard, the ponente, is of the strong view that
life begins at fertilization.
In answering the question of when life begins, focus
should be made on the particular phrase of Section
12 which reads:
Section 12. The State recognizes the sanctity of
family life and shall protect and strengthen the family
as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the
unborn from conception. The natural and primary right
and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character
shall receive the support of the Government.
Textually, the Constitution affords protection to the
unborn from conception. This is undisputable because
before conception, there is no unborn to speak of. For
said reason, it is no surprise that the Constitution is
mute as to any proscription prior to conception or
when life begins. The problem has arisen because,
amazingly, there are quarters who have conveniently
disregarded the scientific fact that conception is
reckoned from fertilization. They are waving the view
that life begins at implantation. Hence, the issue of
when life begins.
In a nutshell, those opposing the RH Law contend
that conception is synonymous with "fertilization" of
the female ovum by the male sperm.142 On the other
side of the spectrum are those who assert that
conception refers to the "implantation" of the fertilized
ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of
the Constitution should be interpreted in their plain
and ordinary meaning. As held in the recent case of
Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory
construction is that where the words of a statute are
clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted
interpretation. It is a well-settled principle of
constitutional construction that the language
employed in the Constitution must be given their
ordinary meaning except where technical terms are
employed. As much as possible, the words of the
Constitution should be understood in the sense they
have in common use. What it says according to the
text of the provision to be construed compels
acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and
the people mean what they say. Verba legis non est
recedendum - from the words of a statute there
should be no departure.
The raison d' etre for the rule is essentially two-fold:
First, because it is assumed that the words in which
constitutional provisions are couched express the
objective sought to be attained; and second, because
the Constitution is not primarily a lawyer's document
but essentially that of the people, in whose
consciousness it should ever be present as an
important condition for the rule of law to prevail.
In conformity with the above principle, the traditional
meaning of the word "conception" which, as described
and defined by all reliable and reputable sources,
means that life begins at fertilization.
Webster's Third New International Dictionary
describes it as the act of becoming pregnant,
formation of a viable zygote; the fertilization that
results in a new entity capable of developing into a
being like its parents.145
Black's Law Dictionary gives legal meaning to the
term "conception" as the fecundation of the female
ovum by the male spermatozoon resulting in human
life capable of survival and maturation under normal
conditions.146
Even in jurisprudence, an unborn child has already a
legal personality. In Continental Steel Manufacturing
Corporation v. Hon. Accredited Voluntary Arbitrator
Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One
need not acquire civil personality first before he/she
could die. Even a child inside the womb already has
life. No less than the Constitution recognizes the life
of the unborn from conception, that the State must
protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof
even prior to the child being delivered, qualifies as
death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy,
writing for the US Supreme Court, said that the State
"has respect for human life at all stages in the
pregnancy" and "a legitimate and substantial interest
in preserving and promoting fetal life." Invariably, in
the decision, the fetus was referred to, or cited, as a
baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed
light on the intention of the Framers regarding the
term "conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers
to the moment of "fertilization." The records reflect the
following:
Rev. Rigos: In Section 9, page 3, there is a sentence
which reads:
"The State shall equally protect the life of the mother
and the life of the unborn from the moment of
conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship
speech, it is when the ovum is fertilized by the sperm
that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization
and, as such, the beginning of human life, it was
explained:
Mr. Villegas: I propose to review this issue in a
biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically
categorically says yes, the fertilized ovum is alive.
First of all, like all living organisms, it takes in
nutrients which it processes by itself. It begins doing
this upon fertilization. Secondly, as it takes in these
nutrients, it grows from within. Thirdly, it multiplies
itself at a geometric rate in the continuous process of
cell division. All these processes are vital signs of life.
Therefore, there is no question that biologically the
fertilized ovum has life.
The second question: Is it human? Genetics gives an
equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm
rupture. As this happens 23 chromosomes from the
ovum combine with 23 chromosomes of the sperm to
form a total of 46 chromosomes. A chromosome
count of 46 is found only - and I repeat, only in human
cells. Therefore, the fertilized ovum is human.
Since these questions have been answered
affirmatively, we must conclude that if the fertilized
ovum is both alive and human, then, as night follows
day, it must be human life. Its nature is human.151
Why the Constitution used the phrase "from the
moment of conception" and not "from the moment of
fertilization" was not because of doubt when human
life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of
conception" was described by us here before with the
scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the
simpler phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is
given ample protection under the Constitution, it was
discussed:
Rev. Rigos: Yes, we think that the word "unborn" is
sufficient for the purpose of writing a Constitution,
without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular
view because according to the Commissioner's own
admission, he would leave it to Congress to define
when life begins. So, Congress can define life to
begin from six months after fertilization; and that
would really be very, very, dangerous. It is now
determined by science that life begins from the
moment of conception. There can be no doubt about
it. So we should not give any doubt to Congress,
too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask
a question on that point. Actually, that is one of the
questions I was going to raise during the period of
interpellations but it has been expressed already. The
provision, as proposed right now states:
The State shall equally protect the life of the mother
and the life of the unborn from the moment of
conception.
When it speaks of "from the moment of conception,"
does this mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to
Congress the right to determine whether certain
contraceptives that we know today are abortifacient or
not because it is a fact that some of the so-called
contraceptives deter the rooting of the ovum in the
uterus. If fertilization has already occurred, the next
process is for the fertilized ovum to travel towards the
uterus and to take root. What happens with some
contraceptives is that they stop the opportunity for the
fertilized ovum to reach the uterus. Therefore, if we
take the provision as it is proposed, these so called
contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established,
then that is what is called abortifacient and, therefore,
would be unconstitutional and should be banned
under this provision.
Mr. Gascon: Yes. So my point is that I do not think it
is up to Congress to state whether or not these
certain contraceptives are abortifacient. Scientifically
and based on the provision as it is now proposed,
they are already considered abortifacient.154
From the deliberations above-quoted, it is apparent
that the Framers of the Constitution emphasized that
the State shall provide equal protection to both the
mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon
the union of the male sperm and the female ovum. It
is also apparent is that the Framers of the
Constitution intended that to prohibit Congress from
enacting measures that would allow it determine
when life begins.
Equally apparent, however, is that the Framers of the
Constitution did not intend to ban all contraceptives
for being unconstitutional. In fact, Commissioner
Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized
that the determination of whether a contraceptive
device is an abortifacient is a question of fact which
should be left to the courts to decide on based on
established evidence.155
From the discussions above, contraceptives that kill
or destroy the fertilized ovum should be deemed an
abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the
male sperm and the female ovum, and those that
similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally
permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on
the US bases, I am pro-life, to the point that I would
like not only to protect the life of the unborn, but also
the lives of the millions of people in the world by
fighting for a nuclear-free world. I would just like to be
assured of the legal and pragmatic implications of the
term "protection of the life of the unborn from the
moment of conception." I raised some of these
implications this afternoon when I interjected in the
interpellation of Commissioner Regalado. I would like
to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life
of the unborn from the moment of conception" we are
also actually saying "no," not "maybe," to certain
contraceptives which are already being encouraged at
this point in time. Is that the sense of the committee or
does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because
contraceptives would be preventive. There is no
unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was
speaking more about some contraceptives, such as
the intra-uterine device which actually stops the egg
which has already been fertilized from taking route to
the uterus. So if we say "from the moment of
conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the
fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by
the 1987 Constitution is even admitted by petitioners
during the oral arguments. There it was conceded that
tubal ligation, vasectomy, even condoms are not
classified as abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm,
there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche: in the Philippines, also concludes that human life
(human person) begins at the moment of fertilization
So, there is no life to be protected. with the union of the egg and the sperm resulting in
the formation of a new individual, with a unique
genetic composition that dictates all developmental
Justice Bersamin: stages that ensue.

To be protected. Similarly, recent medical research on the matter also

reveals that: "Human development begins after the
Atty. Noche: union of male and female gametes or germ cells
during a process known as fertilization (conception).
Under Section 12, yes. Fertilization is a sequence of events that begins with
the contact of a sperm (spermatozoon) with a
secondary oocyte (ovum) and ends with the fusion of
Justice Bersamin: their pronuclei (the haploid nuclei of the sperm and
ovum) and the mingling of their chromosomes to form
So you have no objection to condoms? a new cell. This fertilized ovum, known as a zygote, is
a large diploid cell that is the beginning, or
primordium, of a human being."162
Atty. Noche:

The authors of Human Embryology &

Not under Section 12, Article II.
Teratology163 mirror the same position. They wrote:
"Although life is a continuous process, fertilization is a
Justice Bersamin: critical landmark because, under ordinary
circumstances, a new, genetically distinct human
Even if there is already information that condoms organism is thereby formed.... The combination of 23
sometimes have porosity? chromosomes present in each pronucleus results in
46 chromosomes in the zygote. Thus the diploid
number is restored and the embryonic genome is
Atty. Noche:
formed. The embryo now exists as a genetic unity."

Well, yes, Your Honor, there are scientific findings to

that effect, Your Honor, but I am discussing here
Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient,
Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of
medical foundation. Mosby s Medical, Nursing, and
Allied Health Dictionary defines conception as "the
beginning of pregnancy usually taken to be the instant
a spermatozoon enters an ovum and forms a viable
zygote."159
It describes fertilization as "the union of male and
female gametes to form a zygote from which the
embryo develops."160
The Textbook of Obstetrics (Physiological &
Pathological Obstetrics),161 used by medical schools
In support of the RH Bill, The Philippine Medical
Association came out with a "Paper on the
Reproductive Health Bill (Responsible Parenthood
Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH
Bill at the same time that PMA maintains its strong
position that fertilization is sacred because it is at this
stage that conception, and thus human life, begins.
Human lives are sacred from the moment of
conception, and that destroying those new lives is
never licit, no matter what the purported good
outcome would be. In terms of biology and human
embryology, a human being begins immediately at
fertilization and after that, there is no point along the
continuous line of human embryogenesis where only
a "potential" human being can be posited. Any
philosophical, legal, or political conclusion cannot
escape this objective scientific fact.
The scientific evidence supports the conclusion that a
zygote is a human organism and that the life of a new
human being commences at a scientifically well
defined "moment of conception." This conclusion is
objective, consistent with the factual evidence, and
independent of any specific ethical, moral, political, or
religious view of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned
from
Fertilization
In all, whether it be taken from a plain meaning, or
understood under medical parlance, and more
importantly, following the intention of the Framers of
the Constitution, the undeniable conclusion is that a
zygote is a human organism and that the life of a new
human being commences at a scientifically well-
defined moment of conception, that is, upon
fertilization.
For the above reasons, the Court cannot subscribe to
the theory advocated by Hon. Lagman that life begins
at implantation.165 According to him, "fertilization and
conception are two distinct and successive stages in
the reproductive process. They are not identical and
synonymous."166 Citing a letter of the WHO, he wrote
that "medical authorities confirm that the implantation
of the fertilized ovum is the commencement of
conception and it is only after implantation that
pregnancy can be medically detected."167
This theory of implantation as the beginning of life is
devoid of any legal or scientific mooring. It does not
pertain to the beginning of life but to the viability of the
fetus. The fertilized ovum/zygote is not an inanimate
object - it is a living human being complete with DNA
and 46 chromosomes.168 Implantation has been
conceptualized only for convenience by those who
had population control in mind. To adopt it would
constitute textual infidelity not only to the RH Law but
also to the Constitution.
Not surprisingly, even the OSG does not support this
position.
If such theory would be accepted, it would unnervingly
legitimize the utilization of any drug or device that
would prevent the implantation of the fetus at the
uterine wall. It would be provocative and further
aggravate religious-based divisiveness.
It would legally permit what the Constitution
proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of
the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the
Legislature from enacting a measure legalizing
abortion. It was so clear that even the Court cannot
interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986
Constitutional Commission. Commissioner Bernardo
Villegas, the principal proponent of the protection of
the unborn from conception, explained:
The intention .. .is to make sure that there would be
no pro-abortion laws ever passed by Congress or any
pro-abortion decision passed by the Supreme
Court.169
A reading of the RH Law would show that it is in line
with this intent and actually proscribes abortion. While
the Court has opted not to make any determination, at
this stage, when life begins, it finds that the RH Law
itself clearly mandates that protection be afforded
from the moment of fertilization. As pointed out by
Justice Carpio, the RH Law is replete with provisions
that embody the policy of the law to protect to the
fertilized ovum and that it should be afforded safe
travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a
crime under Article 256 of the Revised Penal Code,
which penalizes the destruction or expulsion of the
fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of
this Act, the following terms shall be defined as
follows:
xxx.
(q) Reproductive health care refers to the access to a
full range of methods, facilities, services and supplies
that contribute to reproductive health and well-being
by addressing reproductive health-related problems. It
also includes sexual health, the purpose of which is
the enhancement of life and personal relations. The
elements of reproductive health care include the
following:
xxx.
(3) Proscription of abortion and management of
abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of
individuals and couples, to decide freely and
responsibly whether or not to have children; the
number, spacing and timing of their children; to make
other decisions concerning reproduction, free of
discrimination, coercion and violence; to have the
information and means to do so; and to attain the
highest standard of sexual health and reproductive
health: Provided, however, That reproductive health
rights do not include abortion, and access to
abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing
laws against abortion, any law, presidential decree or
issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or
is inconsistent with the provisions of this Act including
Republic Act No. 7392, otherwise known as the
Midwifery Act, is hereby repealed, modified or
amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is
consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient
as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that
induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's
womb upon determination of the FDA.
As stated above, the RH Law mandates that
protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law
prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and
those that induce the destruction of a fetus inside the
mother's womb. Thus, an abortifacient is any drug or
device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside
the mother's womb; or
(c) Prevents the fertilized ovum to reach and
be implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the petitioners,
the Court finds that the RH Law, consistent with the
Constitution, recognizes that the fertilized ovum
already has life and that the State has a bounden duty
to protect it. The conclusion becomes clear because
the RH Law, first, prohibits any drug or device that
induces abortion (first kind), which, as discussed
exhaustively above, refers to that which induces the
killing or the destruction of the fertilized ovum, and,
second, prohibits any drug or device the fertilized
ovum to reach and be implanted in the mother's
womb (third kind).
By expressly declaring that any drug or device that
prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient
(third kind), the RH Law does not intend to mean at all
that life only begins only at implantation, as Hon.
Lagman suggests. It also does not declare either that
protection will only be given upon implantation, as the
petitioners likewise suggest. Rather, it recognizes
that: one, there is a need to protect the fertilized ovum
which already has life, and two, the fertilized ovum
must be protected the moment it becomes existent -
all the way until it reaches and implants in the
mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized
ovum implants - there is nothing to prevent any drug
or device from killing or destroying the fertilized ovum
prior to implantation.
From the foregoing, the Court finds that inasmuch as
it affords protection to the fertilized ovum, the RH Law
does not sanction abortion. To repeat, it is the Court's
position that life begins at fertilization, not at
implantation. When a fertilized ovum is implanted in
the uterine wall , its viability is sustained but that
instance of implantation is not the point of beginning
of life. It started earlier. And as defined by the RH
Law, any drug or device that induces abortion, that is,
which kills or destroys the fertilized ovum or prevents
the fertilized ovum to reach and be implanted in the
mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso
under Section 9 of the law that "any product or supply
included or to be included in the EDL must have a
certification from the FDA that said product and
supply is made available on the condition that it is not
to be used as an abortifacient" as empty as it is
absurd. The FDA, with all its expertise, cannot fully
attest that a drug or device will not all be used as an
abortifacient, since the agency cannot be present in
every instance when the contraceptive product or
supply will be used.171
Pursuant to its declared policy of providing access
only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the
proviso of Section 9, as worded, should bend to the
legislative intent and mean that "any product or supply
included or to be included in the EDL must have a
certification from the FDA that said product and
supply is made available on the condition that it
cannot be used as abortifacient." Such a construction
is consistent with the proviso under the second
paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not
purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that
will be used for such purpose and their other forms or
equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the
authors of the RH-IRR gravely abused their office
when they redefined the meaning of abortifacient. The
RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this
Act, the following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that
induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's
womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines
"abortifacient" as:
Section 3.01 For purposes of these Rules, the terms
shall be defined as follows:
a) Abortifacient refers to any drug or device that
primarily induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the
mother's womb upon determination of the Food and
Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR,
"contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and
scientifically proven modern family planning method,
device, or health product, whether natural or artificial,
that prevents pregnancy but does not primarily
destroy a fertilized ovum or prevent a fertilized ovum
from being implanted in the mother's womb in doses
of its approved indication as determined by the Food
and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows
"contraceptives" and recognizes as "abortifacient"
only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be
implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and
Justice Del Castillo are well taken. As they pointed
out, with the insertion of the word "primarily," Section
3.0l(a) and G) of the RH-IRR173 must be struck down
for being ultra vires.
Evidently, with the addition of the word "primarily," in
Section 3.0l(a) and G) of the RH-IRR is indeed ultra
vires. It contravenes Section 4(a) of the RH Law and
should, therefore, be declared invalid. There is danger
that the insertion of the qualifier "primarily" will pave
the way for the approval of contraceptives which may
harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section
12 of the Constitution. With such qualification in the
RH-IRR, it appears to insinuate that a contraceptive
will only be considered as an "abortifacient" if its sole
known effect is abortion or, as pertinent here, the
prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive"
would permit the approval of contraceptives which are
actually abortifacients because of their fail-safe
mechanism.174
Also, as discussed earlier, Section 9 calls for the
certification by the FDA that these contraceptives
cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the
RH Law and its declared policy against abortion, the
undeniable conclusion is that contraceptives to be
included in the PNDFS and the EDL will not only be
those contraceptives that do not have the primary
action of causing abortion or the destruction of a fetus
inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the
mother's womb, but also those that do not have the
secondary action of acting the same way.
Indeed, consistent with the constitutional policy
prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each
other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR
should be declared void. To uphold the validity of
Section 3.0l(a) and G) of the RH-IRR and prohibit only
those contraceptives that have the primary effect of
being an abortive would effectively "open the
floodgates to the approval of contraceptives which
may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section
12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle
of no abortion" embodied in the constitutional
protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the
right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the
National Drug Formulary and the inclusion of the
same in the regular purchase of essential medicines
and supplies of all national hospitals.176Citing various
studies on the matter, the petitioners posit that the
risk of developing breast and cervical cancer is
greatly increased in women who use oral
contraceptives as compared to women who never use
them. They point out that the risk is decreased when
the use of contraceptives is discontinued. Further, it is
contended that the use of combined oral
contraceptive pills is associated with a threefold
increased risk of venous thromboembolism, a twofold
increased risk of ischematic stroke, and an
indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive
health" and "sexual health" under Sections 4(p)178 and
(w)179 of the RH Law, the petitioners assert that the
assailed legislation only seeks to ensure that women
have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article
II of the Constitution is not self-executory, it being a
mere statement of the administration's principle and
policy. Even if it were self-executory, the OSG posits
that medical authorities refute the claim that
contraceptive pose a danger to the health of
women.181
The Court's Position
A component to the right to life is the constitutional
right to health. In this regard, the Constitution is
replete with provisions protecting and promoting the
right to health. Section 15, Article II of the Constitution
provides:
Section 15. The State shall protect and promote the
right to health of the people and instill health
consciousness among them.
A portion of Article XIII also specifically provides for
the States' duty to provide for the health of the people,
viz:
HEALTH
Section 11. The State shall adopt an integrated and
comprehensive approach to health development
which shall endeavor to make essential goods, health
and other social services available to all the people at
affordable cost. There shall be priority for the needs of
the underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide free
medical care to paupers.
Section 12. The State shall establish and maintain an
effective food and drug regulatory system and
undertake appropriate health, manpower
development, and research, responsive to the
country's health needs and problems.
Section 13. The State shall establish a special agency
for disabled person for their rehabilitation, self-
development, and self-reliance, and their integration
into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from
trade malpractices and from substandard or
hazardous products.
Contrary to the respondent's notion, however, these
provisions are self-executing. Unless the provisions
clearly express the contrary, the provisions of the
Constitution should be considered self-executory.
There is no need for legislation to implement these
self-executing provisions.182 In Manila Prince Hotel v.
GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a
legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of
the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead
of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of
the fundamental law. This can be cataclysmic. That is
why the prevailing view is, as it has always been, that
–
... in case of doubt, the Constitution should be
considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended,
the provisions of the Constitution should be
considered self-executing, as a contrary rule would
give the legislature discretion to determine when, or
whether, they shall be effective. These provisions
would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by
simply refusing to pass the needed implementing
statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the
petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact,
ALFI prays that the status quo - under R.A. No. 5921
and R.A. No. 4729, the sale and distribution of
contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a
physician - be maintained.185
The legislative intent in the enactment of the RH Law
in this regard is to leave intact the provisions of R.A.
No. 4729. There is no intention at all to do away with
it. It is still a good law and its requirements are still in
to be complied with. Thus, the Court agrees with the
observation of respondent Lagman that the effectivity
of the RH Law will not lead to the unmitigated
proliferation of contraceptives since the sale,
distribution and dispensation of contraceptive drugs
and devices will still require the prescription of a
licensed physician. With R.A. No. 4729 in place, there
exists adequate safeguards to ensure the public that
only contraceptives that are safe are made available
to the public. As aptly explained by respondent
Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of
contraceptives, the same cannot be dispensed and
used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the
Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act
No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of Pharmaceutical
Education in the Philippines and for Other Purposes"
are not repealed by the RH Law and the provisions of
said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and
dispensation of contraceptive drugs and devices are
particularly governed by RA No. 4729 which provides
in full:
"Section 1. It shall be unlawful for any person,
partnership, or corporation, to sell, dispense or
otherwise distribute whether for or without
consideration, any contraceptive drug or device,
unless such sale, dispensation or distribution is by a
duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical
practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine,
drug, chemical, or portion which is used
exclusively for the purpose of preventing
fertilization of the female ovum: and
"(b) "Contraceptive device" is any
instrument, device, material, or agent
introduced into the female reproductive
system for the primary purpose of preventing
conception.
"Sec. 3 Any person, partnership, or corporation,
violating the provisions of this Act shall be punished
with a fine of not more than five hundred pesos or an
imprisonment of not less than six months or more
than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner,
Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs
and devices. No medicine, pharmaceutical, or drug of
whatever nature and kind or device shall be
compounded, dispensed, sold or resold, or otherwise
be made available to the consuming public except
through a prescription drugstore or hospital
pharmacy, duly established in accordance with the
provisions of this Act.
112. With all of the foregoing safeguards, as provided
for in the RH Law and other relevant statutes, the
pretension of the petitioners that the RH Law will lead
to the unmitigated proliferation of contraceptives,
whether harmful or not, is completely unwarranted
and baseless.186 [Emphases in the Original.
Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in
connection with Section 10 of the RH Law which
provides:
SEC. 10. Procurement and Distribution of Family
Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of family
planning supplies for the whole country. The DOH
shall coordinate with all appropriate local government
bodies to plan and implement this procurement and
distribution program. The supply and budget
allotments shall be based on, among others, the
current levels and projections of the following:
(a) Number of women of reproductive age
and couples who want to space or limit their
children;
(b) Contraceptive prevalence rate, by type of
method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own
procurement, distribution and monitoring program
consistent with the overall provisions of this Act and
the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive
drugs and devices, it must consider the provisions of
R.A. No. 4729, which is still in effect, and ensure that
the contraceptives that it will procure shall be from a
duly licensed drug store or pharmaceutical company
and that the actual dispensation of these
contraceptive drugs and devices will done following a
prescription of a qualified medical practitioner. The
distribution of contraceptive drugs and devices must
not be indiscriminately done. The public health must
be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden
are assumed by the government in supplying
contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life
resulting from or incidental to their use.187
At any rate, it bears pointing out that not a single
contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to
await its determination which drugs or devices are
declared by the FDA as safe, it being the agency
tasked to ensure that food and medicines available to
the public are safe for public consumption.
Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature.
Indeed, the various kinds of contraceptives must first
be measured up to the constitutional yardstick as
expounded herein, to be determined as the case
presents itself.
At this point, the Court is of the strong view that
Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and
non-abortifacient. The first sentence of Section 9 that
ordains their inclusion by the National Drug Formulary
in the EDL by using the mandatory "shall" is to be
construed as operative only after they have been
tested, evaluated, and approved by the FDA. The
FDA, not Congress, has the expertise to determine
whether a particular hormonal contraceptive or
intrauterine device is safe and non-abortifacient. The
provision of the third sentence concerning the
requirements for the inclusion or removal of a
particular family planning supply from the EDL
supports this construction.
Stated differently, the provision in Section 9 covering
the inclusion of hormonal contraceptives, intra-uterine
devices, injectables, and other safe, legal, non-
abortifacient and effective family planning products
and supplies by the National Drug Formulary in the
EDL is not mandatory. There must first be a
determination by the FDA that they are in fact safe,
legal, non-abortifacient and effective family planning
products and supplies. There can be no
predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and
effective" without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy
and tubal ligation are not covered by the constitutional
proscription, there are those who, because of their
religious education and background, sincerely believe
that contraceptives, whether abortifacient or not, are
evil. Some of these are medical practitioners who
essentially claim that their beliefs prohibit not only the
use of contraceptives but also the willing participation
and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that
"contraception is gravely opposed to marital chastity,
it is contrary to the good of the transmission of life,
and to the reciprocal self-giving of the spouses; it
harms true love and denies the sovereign rule of God
in the transmission of Human life."188
The petitioners question the State-sponsored
procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates
the guarantee of religious freedom since
contraceptives contravene their religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH
Law attempts to address religious sentiments by
making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated
because the law also imposes upon the conscientious
objector the duty to refer the patient seeking
reproductive health services to another medical
practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to
requiring the conscientious objector to cooperate with
the very thing he refuses to do without violating
his/her religious beliefs.190
They further argue that even if the conscientious
objector's duty to refer is recognized, the recognition
is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option
to refer a patient seeking reproductive health services
and information - no escape is afforded the
conscientious objector in Section 23 (a)(l) and (2), i.e.
against a patient seeking reproductive health
procedures. They claim that the right of other
individuals to conscientiously object, such as: a) those
working in public health facilities referred to in Section
7; b) public officers involved in the implementation of
the law referred to in Section 23(b ); and c) teachers
in public schools referred to in Section 14 of the RH
Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners
meanwhile, contend that the requirement to refer the
matter to another health care service provider is still
considered a compulsion on those objecting
healthcare service providers. They add that
compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality.
Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-
bono reproductive health services to indigents
encroach upon the religious freedom of those upon
whom they are required.192
Petitioner CFC also argues that the requirement for a
conscientious objector to refer the person seeking
reproductive health care services to another provider
infringes on one's freedom of religion as it forces the
objector to become an unwilling participant in the
commission of a serious sin under Catholic teachings.
While the right to act on one's belief may be regulated
by the State, the acts prohibited by the RH Law are
passive acts which produce neither harm nor injury to
the public.193
Petitioner CFC adds that the RH Law does not show
compelling state interest to justify regulation of
religious freedom because it mentions no emergency,
risk or threat that endangers state interests. It does
not explain how the rights of the people (to equality,
non-discrimination of rights, sustainable human
development, health, education, information, choice
and to make decisions according to religious
convictions, ethics, cultural beliefs and the demands
of responsible parenthood) are being threatened or
are not being met as to justify the impairment of
religious freedom.194
Finally, the petitioners also question Section 15 of the
RH Law requiring would-be couples to attend family
planning and responsible parenthood seminars and to
obtain a certificate of compliance. They claim that the
provision forces individuals to participate in the
implementation of the RH Law even if it contravenes
their religious beliefs.195 As the assailed law dangles
the threat of penalty of fine and/or imprisonment in
case of non-compliance with its provisions, the
petitioners claim that the RH Law forcing them to
provide, support and facilitate access and information
to contraception against their beliefs must be struck
down as it runs afoul to the constitutional guarantee of
religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the
RH Law does not provide that a specific mode or type
of contraceptives be used, be it natural or artificial. It
neither imposes nor sanctions any religion or
belief.196 They point out that the RH Law only seeks to
serve the public interest by providing accessible,
effective and quality reproductive health services to
ensure maternal and child health, in line with the
State's duty to bring to reality the social justice health
guarantees of the Constitution,197 and that what the
law only prohibits are those acts or practices, which
deprive others of their right to reproductive
health.198 They assert that the assailed law only seeks
to guarantee informed choice, which is an assurance
that no one will be compelled to violate his religion
against his free will.199
The respondents add that by asserting that only
natural family planning should be allowed, the
petitioners are effectively going against the
constitutional right to religious freedom, the same
right they invoked to assail the constitutionality of the
RH Law.200 In other words, by seeking the declaration
that the RH Law is unconstitutional, the petitioners are
asking that the Court recognize only the Catholic
Church's sanctioned natural family planning methods
and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents
insist that the same does not violate the constitutional
guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the
religious objector, on one hand, who is allowed to
keep silent but is required to refer -and that of the
citizen who needs access to information and who has
the right to expect that the health care professional in
front of her will act professionally. For the
respondents, the concession given by the State under
Section 7 and 23(a)(3) is sufficient accommodation to
the right to freely exercise one's religion without
unnecessarily infringing on the rights of others.202
Whatever burden is placed on the petitioner's
religious freedom is minimal as the duty to refer is
limited in duration, location and impact.203
Regarding mandatory family planning seminars under
Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for
would-be couples to have access to information
regarding parenthood, family planning, breastfeeding
and infant nutrition. It is argued that those who object
to any information received on account of their
attendance in the required seminars are not
compelled to accept information given to them. They
are completely free to reject any information they do
not agree with and retain the freedom to decide on
matters of family life without intervention of the
State.204
For their part, respondents De Venecia et al., dispute
the notion that natural family planning is the only
method acceptable to Catholics and the Catholic
hierarchy. Citing various studies and surveys on the
matter, they highlight the changing stand of the
Catholic Church on contraception throughout the
years and note the general acceptance of the benefits
of contraceptives by its followers in planning their
families.
The Church and The State
At the outset, it cannot be denied that we all live in a
heterogeneous society. It is made up of people of
diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our
government, in law and in practice, has allowed these
various religious, cultural, social and racial groups to
thrive in a single society together. It has embraced
minority groups and is tolerant towards all - the
religious people of different sects and the non-
believers. The undisputed fact is that our people
generally believe in a deity, whatever they conceived
Him to be, and to whom they call for guidance and
enlightenment in crafting our fundamental law. Thus,
the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of
Almighty God, in order to build a just and humane
society, and establish a Government that shall
embody our ideals and aspirations, promote the
common good, conserve and develop our patrimony,
and secure to ourselves and our posterity, the
blessings of independence and democracy under the
rule of law and a regime of truth, justice, freedom,
love, equality, and peace, do ordain and promulgate
this Constitution.
The Filipino people in "imploring the aid of Almighty
God " manifested their spirituality innate in our nature
and consciousness as a people, shaped by tradition
and historical experience. As this is embodied in the
preamble, it means that the State recognizes with
respect the influence of religion in so far as it instills
into the mind the purest principles of
morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and
1987 constitutions contain benevolent and
accommodating provisions towards religions such as
tax exemption of church property, salary of religious
officers in government institutions, and optional
religious instructions in public schools.
The Framers, however, felt the need to put up a
strong barrier so that the State would not encroach
into the affairs of the church, and vice-versa. The
principle of separation of Church and State was, thus,
enshrined in Article II, Section 6 of the 1987
Constitution, viz:
Section 6. The separation of Church and State shall
be inviolable.
Verily, the principle of separation of Church and State
is based on mutual respect.1âwphi1 Generally, the
State cannot meddle in the internal affairs of the
church, much less question its faith and dogmas or
dictate upon it. It cannot favor one religion and
discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on
the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it
sincerely believes that they are good for the country.
Consistent with the principle that not any one religion
should ever be preferred over another, the
Constitution in the above-cited provision utilizes the
term "church" in its generic sense, which refers to a
temple, a mosque, an iglesia, or any other house of
God which metaphorically symbolizes a religious
organization. Thus, the "Church" means the religious
congregations collectively.
Balancing the benefits that religion affords and the
need to provide an ample barrier to protect the State
from the pursuit of its secular objectives, the
Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of
the 1987 Constitution:
Section. 5. No law shall be made respecting an
establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of
religious profession and worship, without
discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of
civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other
religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious
freedom provides two guarantees: the Establishment
Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the
State from sponsoring any religion or favoring any
religion as against other religions. It mandates a strict
neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment
of a state religion and the use of public resources for
the support or prohibition of a religion.
On the other hand, the basis of the free exercise
clause is the respect for the inviolability of the human
conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly
interfering with the outside manifestations of one's
belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope
Workers Union209 wrote:
The constitutional provisions not only prohibits
legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or
the practice of any form of worship (U.S. Ballard, 322
U.S. 78, 88 L. ed. 1148, 1153), but also assures the
free exercise of one's chosen form of religion within
limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to
protect the broadest possible liberty of conscience, to
allow each man to believe as his conscience directs,
to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and
with the common good. Any legislation whose effect
or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v.
Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970)
But if the state regulates conduct by enacting, within
its power, a general law which has for its purpose and
effect to advance the state's secular goals, the statute
is valid despite its indirect burden on religious
observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v.
Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144;
McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not
designed to serve contradictory purposes. They have
a single goal-to promote freedom of individual
religious beliefs and practices. In simplest terms, the
free exercise clause prohibits government from
inhibiting religious beliefs with penalties for religious
beliefs and practice, while the establishment clause
prohibits government from inhibiting religious belief
with rewards for religious beliefs and practices. In
other words, the two religion clauses were intended to
deny government the power to use either the carrot or
the stick to influence individual religious beliefs and
practices.210
Corollary to the guarantee of free exercise of one's
religion is the principle that the guarantee of religious
freedom is comprised of two parts: the freedom to
believe, and the freedom to act on one's belief. The
first part is absolute. As explained in Gerona v.
Secretary of Education:211
The realm of belief and creed is infinite and limitless
bounded only by one's imagination and thought. So is
the freedom of belief, including religious belief,
limitless and without bounds. One may believe in
most anything, however strange, bizarre and
unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or
doctrinal standards. But between the freedom of belief
and the exercise of said belief, there is quite a stretch
of road to travel.212
The second part however, is limited and subject to the
awesome power of the State and can be enjoyed only
with proper regard to the rights of others. It is "subject
to regulation where the belief is translated into
external acts that affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise
clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been
clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent
neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework
underlying the Philippine Constitution."215 In the same
case, it was further explained that"
The benevolent neutrality theory believes that with
respect to these governmental actions,
accommodation of religion may be allowed, not to
promote the government's favored form of religion,
but to allow individuals and groups to exercise their
religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate
the exercise of, a person's or institution's
religion."216 "What is sought under the theory of
accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an
exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."217
In ascertaining the limits of the exercise of religious
freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test
is the notion that free exercise is a fundamental right
and that laws burdening it should be subject to strict
scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to
determine these limits. Beginning with the first case
on the Free Exercise Clause, American Bible Society,
the Court mentioned the "clear and present danger"
test but did not employ it. Nevertheless, this test
continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced
that the test of permissibility of religious freedom is
whether it violates the established institutions of
society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the
doctrine that a law of general applicability may burden
religious exercise provided the law is the least
restrictive means to accomplish the goal of the law.
The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano ,
German went back to the Gerona rule. Ebralinag then
employed the "grave and immediate danger" test and
overruled the Gerona test. The fairly recent case of
Iglesia ni Cristo went back to the " clear and present
danger" test in the maiden case of A merican Bible
Society. Not surprisingly, all the cases which
employed the "clear and present danger" or "grave
and immediate danger" test involved, in one form or
another, religious speech as this test is often used in
cases on freedom of expression. On the other hand,
the Gerona and German cases set the rule that
religious freedom will not prevail over established
institutions of society and law. Gerona, however,
which was the authority cited by German has been
overruled by Ebralinag which employed the "grave
and immediate danger" test . Victoriano was the only
case that employed the "compelling state interest"
test, but as explained previously, the use of the test
was inappropriate to the facts of the case.
The case at bar does not involve speech as in A
merican Bible Society, Ebralinag and Iglesia ni Cristo
where the "clear and present danger" and "grave and
immediate danger" tests were appropriate as speech
has easily discernible or immediate effects. The
Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent
neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case
involves purely conduct arising from religious belief.
The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human
conduct has different effects on the state's interests:
some effects may be immediate and short-term while
others delayed and far-reaching. A test that would
protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is
therefore necessary. However, not any interest of the
state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a
preferred position in the hierarchy of rights - "the most
inalienable and sacred of all human rights", in the
words of Jefferson. This right is sacred for an
invocation of the Free Exercise Clause is an appeal to
a higher sovereignty. The entire constitutional order of
limited government is premised upon an
acknowledgment of such higher sovereignty, thus the
Filipinos implore the "aid of Almighty God in order to
build a just and humane society and establish a
government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests
which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a
compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires
the state to carry a heavy burden, a compelling one,
for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they
are destroyed. In determining which shall prevail
between the state's interest and religious liberty,
reasonableness shall be the guide. The "compelling
state interest" serves the purpose of revering religious
liberty while at the same time affording protection to
the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal
to work on Saturdays. In the end, the "compelling
state interest" test, by upholding the paramount
interests of the state, seeks to protect the very state,
without which, religious liberty will not be preserved.
[Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of
the Court to determine whether the use of
contraceptives or one's participation in the support of
modem reproductive health measures is moral from a
religious standpoint or whether the same is right or
wrong according to one's dogma or belief. For the
Court has declared that matters dealing with "faith,
practice, doctrine, form of worship, ecclesiastical law,
custom and rule of a church ... are unquestionably
ecclesiastical matters which are outside the province
of the civil courts."220 The jurisdiction of the Court
extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bench
should be understood only in this realm where it has
authority. Stated otherwise, while the Court stands
without authority to rule on ecclesiastical matters, as
vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the
guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes
and respects religion and religious beliefs and
convictions. It is replete with assurances the no one
can be compelled to violate the tenets of his religion
or defy his religious convictions against his free will.
Provisions in the RH Law respecting religious
freedom are the following:
1. The State recognizes and guarantees the human
rights of all persons including their right to equality
and nondiscrimination of these rights, the right to
sustainable human development, the right to health
which includes reproductive health, the right to
education and information, and the right to choose
and make decisions for themselves in accordance
with their religious convictions, ethics, cultural beliefs,
and the demands of responsible parenthood. [Section
2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable
social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant
thereto, the State shall defend:
(a) The right of spouses to found a family in
accordance with their religious convictions and the
demands of responsible parenthood." [Section 2,
Declaration of Policy]
3. The State shall promote and provide information
and access, without bias, to all methods of family
planning, including effective natural and modern
methods which have been proven medically safe,
legal, non-abortifacient, and effective in accordance
with scientific and evidence-based medical research
standards such as those registered and approved by
the FDA for the poor and marginalized as identified
through the NHTS-PR and other government
measures of identifying marginalization: Provided,
That the State shall also provide funding support to
promote modern natural methods of family planning,
especially the Billings Ovulation Method, consistent
with the needs of acceptors and their religious
convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable
individuals and couples to have the number of
children they desire with due consideration to the
health, particularly of women, and the resources
available and affordable to them and in accordance
with existing laws, public morals and their religious
convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and
choice of family planning methods that are in
accordance with their religious convictions and
cultural beliefs, taking into consideration the State's
obligations under various human rights instruments.
[Section 3(h)]
6. Active participation by nongovernment
organizations (NGOs) , women's and people's
organizations, civil society, faith-based organizations,
the religious sector and communities is crucial to
ensure that reproductive health and population and
development policies, plans, and programs will
address the priority needs of women, the poor, and
the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and
ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a
shared responsibility between parents to determine
and achieve the desired number of children, spacing
and timing of their children according to their own
family life aspirations, taking into account
psychological preparedness, health status,
sociocultural and economic concerns consistent with
their religious convictions. [Section 4(v)] (Emphases
supplied)
While the Constitution prohibits abortion, laws were
enacted allowing the use of contraceptives. To some
medical practitioners, however, the whole idea of
using contraceptives is an anathema. Consistent with
the principle of benevolent neutrality, their beliefs
should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause
restricts what the government can do with religion, it
also limits what religious sects can or cannot do with
the government. They can neither cause the
government to adopt their particular doctrines as
policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in
simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state
religion.
Consequently, the petitioners are misguided in their
supposition that the State cannot enhance its
population control program through the RH Law
simply because the promotion of contraceptive use is
contrary to their religious beliefs. Indeed, the State is
not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies
of any one religion. One cannot refuse to pay his
taxes simply because it will cloud his conscience. The
demarcation line between Church and State demands
that one render unto Caesar the things that are
Caesar's and unto God the things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to
promote reproductive health manifestly respects
diverse religious beliefs in line with the Non-
Establishment Clause, the same conclusion cannot
be reached with respect to Sections 7, 23 and 24
thereof. The said provisions commonly mandate that
a hospital or a medical practitioner to immediately
refer a person seeking health care and services under
the law to another accessible healthcare provider
despite their conscientious objections based on
religious or ethical beliefs.
In a situation where the free exercise of religion is
allegedly burdened by government legislation or
practice, the compelling state interest test in line with
the Court's espousal of the Doctrine of Benevolent
Neutrality in Escritor, finds application. In this case,
the conscientious objector's claim to religious freedom
would warrant an exemption from obligations under
the RH Law, unless the government succeeds in
demonstrating a more compelling state interest in the
accomplishment of an important secular objective.
Necessarily so, the plea of conscientious objectors for
exemption from the RH Law deserves no less than
strict scrutiny.
In applying the test, the first inquiry is whether a
conscientious objector's right to religious freedom has
been burdened. As in Escritor, there is no doubt that
an intense tug-of-war plagues a conscientious
objector. One side coaxes him into obedience to the
law and the abandonment of his religious beliefs,
while the other entices him to a clean conscience yet
under the pain of penalty. The scenario is an
illustration of the predicament of medical practitioners
whose religious beliefs are incongruent with what the
RH Law promotes.
The Court is of the view that the obligation to refer
imposed by the RH Law violates the religious belief
and conviction of a conscientious objector. Once the
medical practitioner, against his will, refers a patient
seeking information on modem reproductive health
products, services, procedures and methods, his
conscience is immediately burdened as he has been
compelled to perform an act against his beliefs. As
Commissioner Joaquin A. Bernas (Commissioner
Bernas) has written, "at the basis of the free exercise
clause is the respect for the inviolability of the human
conscience.222
Though it has been said that the act of referral is an
opt-out clause, it is, however, a false compromise
because it makes pro-life health providers complicit in
the performance of an act that they find morally
repugnant or offensive. They cannot, in conscience,
do indirectly what they cannot do directly. One may
not be the principal, but he is equally guilty if he abets
the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is
necessarily intertwined with the right to free speech, it
being an externalization of one's thought and
conscience. This in turn includes the right to be silent.
With the constitutional guarantee of religious freedom
follows the protection that should be afforded to
individuals in communicating their beliefs to others as
well as the protection for simply being silent. The Bill
of Rights guarantees the liberty of the individual to
utter what is in his mind and the liberty not to utter
what is not in his mind.223 While the RH Law seeks to
provide freedom of choice through informed consent,
freedom of choice guarantees the liberty of the
religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in
the practice of one's religion.224
In case of conflict between the religious beliefs and
moral convictions of individuals, on one hand, and the
interest of the State, on the other, to provide access
and information on reproductive health products,
services, procedures and methods to enable the
people to determine the timing, number and spacing
of the birth of their children, the Court is of the strong
view that the religious freedom of health providers,
whether public or private, should be accorded
primacy. Accordingly, a conscientious objector should
be exempt from compliance with the mandates of the
RH Law. If he would be compelled to act contrary to
his religious belief and conviction, it would be violative
of "the principle of non-coercion" enshrined in the
constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner
House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and
Clyde Health Board,225 that the midwives claiming to
be conscientious objectors under the provisions of
Scotland's Abortion Act of 1967, could not be required
to delegate, supervise or support staff on their labor
ward who were involved in abortions.226 The Inner
House stated "that if 'participation' were defined
according to whether the person was taking part
'directly' or ' indirectly' this would actually mean more
complexity and uncertainty."227
While the said case did not cover the act of referral,
the applicable principle was the same - they could not
be forced to assist abortions if it would be against
their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity
specialty hospitals and hospitals owned and operated
by a religious group and health care service
providers. Considering that Section 24 of the RH Law
penalizes such institutions should they fail or refuse to
comply with their duty to refer under Section 7 and
Section 23(a)(3), the Court deems that it must be
struck down for being violative of the freedom of
religion. The same applies to Section 23(a)(l) and
(a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and
services and in the performance of reproductive
health procedures, the religious freedom of health
care service providers should be respected.
In the case of Islamic Da'wah Council of the
Philippines, Inc. v. Office of the Executive
Secretary228 it was stressed:
Freedom of religion was accorded preferred status by
the framers of our fundamental law. And this Court
has consistently affirmed this preferred status, well
aware that it is "designed to protect the broadest
possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the
common good."10
The Court is not oblivious to the view that penalties
provided by law endeavour to ensure compliance.
Without set consequences for either an active
violation or mere inaction, a law tends to be toothless
and ineffectual. Nonetheless, when what is bartered
for an effective implementation of a law is a
constitutionally-protected right the Court firmly
chooses to stamp its disapproval. The punishment of
a healthcare service provider, who fails and/or refuses
to refer a patient to another, or who declines to
perform reproductive health procedure on a patient
because incompatible religious beliefs, is a clear
inhibition of a constitutional guarantee which the
Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR
reads:
Provided, That skilled health professional such as
provincial, city or municipal health officers, chiefs of
hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically
charged with the duty to implement the provisions of
the RPRH Act and these Rules, cannot be considered
as conscientious objectors.
This is discriminatory and violative of the equal
protection clause. The conscientious objection clause
should be equally protective of the religious belief of
public health officers. There is no perceptible
distinction why they should not be considered exempt
from the mandates of the law. The protection
accorded to other conscientious objectors should
equally apply to all medical practitioners without
distinction whether they belong to the public or private
sector. After all, the freedom to believe is intrinsic in
every individual and the protective robe that
guarantees its free exercise is not taken off even if
one acquires employment in the government.
It should be stressed that intellectual liberty occupies
a place inferior to none in the hierarchy of human
values. The mind must be free to think what it wills,
whether in the secular or religious sphere, to give
expression to its beliefs by oral discourse or through
the media and, thus, seek other candid views in
occasions or gatherings or in more permanent
aggrupation. Embraced in such concept then are
freedom of religion, freedom of speech, of the press,
assembly and petition, and freedom of association. 229
The discriminatory provision is void not only because
no such exception is stated in the RH Law itself but
also because it is violative of the equal protection
clause in the Constitution. Quoting respondent
Lagman, if there is any conflict between the RH-IRR
and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your
Comment- in-Intervention on page 52, you mentioned
RH Law is replete with provisions in upholding the
freedom of religion and respecting religious
convictions. Earlier, you affirmed this with
qualifications. Now, you have read, I presumed you
have read the IRR-Implementing Rules and
Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's
a long IRR and I have not thoroughly dissected the
nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This
I cannot find in the RH Law. But in the IRR it says:
" .... skilled health professionals such as provincial,
city or municipal health officers, chief of hospitals,
head nurses, supervising midwives, among others,
who by virtue of their office are specifically charged
with the duty to implement the provisions of the RPRH
Act and these Rules, cannot be considered as
conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your
Honor.
Justice Mendoza:
In other words, public health officers in contrast to the
private practitioners who can be conscientious
objectors, skilled health professionals cannot be
considered conscientious objectors. Do you agree
with this? Is this not against the constitutional right to
the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR
and the law, the law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on
whether the respondents, in defense of the subject
provisions, were able to: 1] demonstrate a more
compelling state interest to restrain conscientious
objectors in their choice of services to render; and 2]
discharge the burden of proof that the obligatory
character of the law is the least intrusive means to
achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents'
submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more
compelling state interest that would rationalize the
curbing of a conscientious objector's right not to
adhere to an action contrary to his religious
convictions. During the oral arguments, the OSG
maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the
following:
Justice De Castro:
Let's go back to the duty of the conscientious objector
to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice
Abad. What is the compelling State interest in
imposing this duty to refer to a conscientious objector
which refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this
burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the
standard is a compelling State interest, this is an
ordinary health legislation involving professionals.
This is not a free speech matter or a pure free
exercise matter. This is a regulation by the State of
the relationship between medical doctors and their
patients.231
Resultantly, the Court finds no compelling state
interest which would limit the free exercise clause of
the conscientious objectors, however few in number.
Only the prevention of an immediate and grave
danger to the security and welfare of the community
can justify the infringement of religious freedom. If the
government fails to show the seriousness and
immediacy of the threat, State intrusion is
constitutionally unacceptable.232
Freedom of religion means more than just the
freedom to believe. It also means the freedom to act
or not to act according to what one believes. And this
freedom is violated when one is compelled to act
against one's belief or is prevented from acting
according to one's belief.233
Apparently, in these cases, there is no immediate
danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all,
a couple who plans the timing, number and spacing of
the birth of their children refers to a future event that
is contingent on whether or not the mother decides to
adopt or use the information, product, method or
supply given to her or whether she even decides to
become pregnant at all. On the other hand, the
burden placed upon those who object to contraceptive
use is immediate and occurs the moment a patient
seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to
justify the infringement of the conscientious objector's
religious freedom, the respondents have failed to
demonstrate "the gravest abuses, endangering
paramount interests" which could limit or override a
person's fundamental right to religious freedom. Also,
the respondents have not presented any government
effort exerted to show that the means it takes to
achieve its legitimate state objective is the least
intrusive means.234 Other than the assertion that the
act of referring would only be momentary, considering
that the act of referral by a conscientious objector is
the very action being contested as violative of
religious freedom, it behooves the respondents to
demonstrate that no other means can be undertaken
by the State to achieve its objective without violating
the rights of the conscientious objector. The health
concerns of women may still be addressed by other
practitioners who may perform reproductive health-
related procedures with open willingness and
motivation. Suffice it to say, a person who is forced to
perform an act in utter reluctance deserves the
protection of the Court as the last vanguard of
constitutional freedoms.
At any rate, there are other secular steps already
taken by the Legislature to ensure that the right to
health is protected. Considering other legislations as
they stand now, R.A . No. 4 729 or the Contraceptive
Act, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as
"The Magna Carta of Women," amply cater to the
needs of women in relation to health services and
programs. The pertinent provision of Magna Carta on
comprehensive health services and programs for
women, in fact, reads:
Section 17. Women's Right to Health. - (a)
Comprehensive Health Services. - The State shall, at
all times, provide for a comprehensive, culture-
sensitive, and gender-responsive health services and
programs covering all stages of a woman's life cycle
and which addresses the major causes of women's
mortality and morbidity: Provided, That in the
provision for comprehensive health services, due
respect shall be accorded to women's religious
convictions, the rights of the spouses to found a
family in accordance with their religious convictions,
and the demands of responsible parenthood, and the
right of women to protection from hazardous drugs,
devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre-
and post-natal services to address
pregnancy and infant health and
nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe,
and effective methods of family
planning;
(4) Family and State collaboration
in youth sexuality education and
health services without prejudice to
the primary right and duty of
parents to educate their children;
(5) Prevention and management of
reproductive tract infections,
including sexually transmitted
diseases, HIV, and AIDS;
(6) Prevention and management of
reproductive tract cancers like
breast and cervical cancers, and
other gynecological conditions and
disorders;
(7) Prevention of abortion and
management of pregnancy-related
complications;
(8) In cases of violence against
women and children, women and
children victims and survivors shall
be provided with comprehensive
health services that include
psychosocial, therapeutic, medical,
and legal interventions and
assistance towards healing,
recovery, and empowerment;
(9) Prevention and management of
infertility and sexual dysfunction
pursuant to ethical norms and
medical standards;
(10) Care of the elderly women
beyond their child-bearing years;
and
(11) Management, treatment, and
intervention of mental health
problems of women and girls. In
addition, healthy lifestyle activities
are encouraged and promoted
through programs and projects as
strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education.
- The State shall provide women in all sectors with
appropriate, timely, complete, and accurate
information and education on all the above-stated
aspects of women's health in government education
and training programs, with due regard to the
following:
(1) The natural and primary right
and duty of parents in the rearing of
the youth and the development of
moral character and the right of
children to be brought up in an
atmosphere of morality and
rectitude for the enrichment and
strengthening of character;
(2) The formation of a person's
sexuality that affirms human dignity;
and
(3) Ethical, legal, safe, and effective
family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay
eventually replied that the compelling state interest
was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed,
x x x."235 He, however, failed to substantiate this point
by concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World
Health Organization reported that the Filipino
maternal mortality rate dropped to 48 percent from
1990 to 2008, 236 although there was still no RH Law
at that time. Despite such revelation, the proponents
still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in
the delivery of social healthcare programs for Filipino
women, they could not be solved by a measure that
puts an unwarrantable stranglehold on religious
beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes
a valid exception set forth in the law. While generally
healthcare service providers cannot be forced to
render reproductive health care procedures if doing it
would contravene their religious beliefs, an exception
must be made in life-threatening cases that require
the performance of emergency procedures. In these
situations, the right to life of the mother should be
given preference, considering that a referral by a
medical practitioner would amount to a denial of
service, resulting to unnecessarily placing the life of a
mother in grave danger. Thus, during the oral
arguments, Atty. Liban, representing CFC,
manifested: "the forced referral clause that we are
objecting on grounds of violation of freedom of
religion does not contemplate an emergency." 237
In a conflict situation between the life of the mother
and the life of a child, the doctor is morally obliged
always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be
deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind
the principal author of the RH Bill in the House of
Representatives of the principle of double-effect
wherein intentional harm on the life of either the
mother of the child is never justified to bring about a
"good" effect. In a conflict situation between the life of
the child and the life of the mother, the doctor is
morally obliged always to try to save both lives.
However, he can act in favor of one (not necessarily
the mother) when it is medically impossible to save
both, provided that no direct harm is intended to the
other. If the above principles are observed, the loss of
the child's life or the mother's life is not intentional
and, therefore, unavoidable. Hence, the doctor would
not be guilty of abortion or murder. The mother is
never pitted against the child because both their lives
are equally valuable.238
Accordingly, if it is necessary to save the life of a
mother, procedures endangering the life of the child
may be resorted to even if is against the religious
sentiments of the medical practitioner. As quoted
above, whatever burden imposed upon a medical
practitioner in this case would have been more than
justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section
15239 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable
exercise of police power by the government. A
cursory reading of the assailed provision bares that
the religious freedom of the petitioners is not at all
violated. All the law requires is for would-be spouses
to attend a seminar on parenthood, family planning
breastfeeding and infant nutrition. It does not even
mandate the type of family planning methods to be
included in the seminar, whether they be natural or
artificial. As correctly noted by the OSG, those who
receive any information during their attendance in the
required seminars are not compelled to accept the
information given to them, are completely free to
reject the information they find unacceptable, and
retain the freedom to decide on matters of family life
without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section
23(a) (2) (i) thereof violates the provisions of the
Constitution by intruding into marital privacy and
autonomy. It argues that it cultivates disunity and
fosters animosity in the family rather than promote its
solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions
strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted
entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as
the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total
development.
Section 2. Marriage, as an inviolable social institution,
is the foundation of the family and shall be protected
by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance
with their religious convictions and the demands of
responsible parenthood;
The right of children to assistance, including proper
care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation and
other conditions prejudicial to their development;
The right of the family to a family living wage and
income; and
The right of families or family assoc1at1ons to
participate in the planning and implementation of
policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to
control population growth, contains provisions which
tend to wreck the family as a solid social institution. It
bars the husband and/or the father from participating
in the decision making process regarding their
common future progeny. It likewise deprives the
parents of their authority over their minor daughter
simply because she is already a parent or had
suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or
private, who shall: ...
(2) refuse to perform legal and medically-safe
reproductive health procedures on any person of legal
age on the ground of lack of consent or authorization
of the following persons in the following instances:
(i) Spousal consent in case of married persons:
provided, That in case of disagreement, the decision
of the one undergoing the procedures shall prevail.
[Emphasis supplied]
The above provision refers to reproductive health
procedures like tubal litigation and vasectomy which,
by their very nature, should require mutual consent
and decision between the husband and the wife as
they affect issues intimately related to the founding of
a family. Section 3, Art. XV of the Constitution
espouses that the State shall defend the "right of the
spouses to found a family." One person cannot found
a family. The right, therefore, is shared by both
spouses. In the same Section 3, their right "to
participate in the planning and implementation of
policies and programs that affect them " is equally
recognized.
The RH Law cannot be allowed to infringe upon this
mutual decision-making. By giving absolute authority
to the spouse who would undergo a procedure, and
barring the other spouse from participating in the
decision would drive a wedge between the husband
and wife, possibly result in bitter animosity, and
endanger the marriage and the family, all for the sake
of reducing the population. This would be a marked
departure from the policy of the State to protect
marriage as an inviolable social institution.241
Decision-making involving a reproductive health
procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would
reach would affect their future as a family because the
size of the family or the number of their children
significantly matters. The decision whether or not to
undergo the procedure belongs exclusively to, and
shared by, both spouses as one cohesive unit as they
chart their own destiny. It is a constitutionally
guaranteed private right. Unless it prejudices the
State, which has not shown any compelling interest,
the State should see to it that they chart their destiny
together as one family.
As highlighted by Justice Leonardo-De Castro,
Section 19( c) of R.A. No. 9710, otherwise known as
the "Magna Carta for Women," provides that women
shall have equal rights in all matters relating to
marriage and family relations, including the joint
decision on the number and spacing of their children.
Indeed, responsible parenthood, as Section 3(v) of
the RH Law states, is a shared responsibility between
parents. Section 23(a)(2)(i) of the RH Law should not
be allowed to betray the constitutional mandate to
protect and strengthen the family by giving to only one
spouse the absolute authority to decide whether to
undergo reproductive health procedure.242
The right to chart their own destiny together falls
within the protected zone of marital privacy and such
state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our
jurisdiction, the right to privacy was first recognized in
Marje v. Mutuc,243 where the Court, speaking through
Chief Justice Fernando, held that "the right to privacy
as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving
of constitutional protection."244 Marje adopted the
ruling of the US Supreme Court in Griswold v.
Connecticut,245 where Justice William O. Douglas
wrote:
We deal with a right of privacy older than the Bill of
Rights -older than our political parties, older than our
school system. Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to
the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association
for as noble a purpose as any involved in our prior
decisions.
Ironically, Griswold invalidated a Connecticut statute
which made the use of contraceptives a criminal
offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of
married persons. Nevertheless, it recognized the zone
of privacy rightfully enjoyed by couples. Justice
Douglas in Grisworld wrote that "specific guarantees
in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give
them life and substance. Various guarantees create
zones of privacy."246
At any rate, in case of conflict between the couple, the
courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental
consent in cases where the minor, who will be
undergoing a procedure, is already a parent or has
had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to
family planning services, whether natural or artificial:
Provided, That minors will not be allowed access to
modern methods of family planning without written
consent from their parents or guardian/s except when
the minor is already a parent or has had a
miscarriage.
There can be no other interpretation of this provision
except that when a minor is already a parent or has
had a miscarriage, the parents are excluded from the
decision making process of the minor with regard to
family planning. Even if she is not yet emancipated,
the parental authority is already cut off just because
there is a need to tame population growth.
It is precisely in such situations when a minor parent
needs the comfort, care, advice, and guidance of her
own parents. The State cannot replace her natural
mother and father when it comes to providing her
needs and comfort. To say that their consent is no
longer relevant is clearly anti-family. It does not
promote unity in the family. It is an affront to the
constitutional mandate to protect and strengthen the
family as an inviolable social institution.
More alarmingly, it disregards and disobeys the
constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for
civic efficiency and the development of moral
character shall receive the support of the
Government."247 In this regard, Commissioner Bernas
wrote:
The 1987 provision has added the adjective "primary"
to modify the right of parents. It imports the assertion
that the right of parents is superior to that of the
State.248 [Emphases supplied]
To insist on a rule that interferes with the right of
parents to exercise parental control over their minor-
child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of
marriage, that is, the establishment of conjugal and
family life, would result in the violation of one's privacy
with respect to his family. It would be dismissive of the
unique and strongly-held Filipino tradition of
maintaining close family ties and violative of the
recognition that the State affords couples entering into
the special contract of marriage to as one unit in
forming the foundation of the family and society.
The State cannot, without a compelling state interest,
take over the role of parents in the care and custody
of a minor child, whether or not the latter is already a
parent or has had a miscarriage. Only a compelling
state interest can justify a state substitution of their
parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under
the exception provided in the second paragraph of
Section 7 or with respect to the consenting spouse
under Section 23(a)(2)(i), a distinction must be made.
There must be a differentiation between access to
information about family planning services, on one
hand, and access to the reproductive health
procedures and modern family planning methods
themselves, on the other. Insofar as access to
information is concerned, the Court finds no
constitutional objection to the acquisition of
information by the minor referred to under the
exception in the second paragraph of Section 7 that
would enable her to take proper care of her own body
and that of her unborn child. After all, Section 12,
Article II of the Constitution mandates the State to
protect both the life of the mother as that of the
unborn child. Considering that information to enable a
person to make informed decisions is essential in the
protection and maintenance of ones' health, access to
such information with respect to reproductive health
must be allowed. In this situation, the fear that parents
might be deprived of their parental control is
unfounded because they are not prohibited to
exercise parental guidance and control over their
minor child and assist her in deciding whether to
accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an
exception must be made in life-threatening cases that
require the performance of emergency procedures. In
such cases, the life of the minor who has already
suffered a miscarriage and that of the spouse should
not be put at grave risk simply for lack of consent. It
should be emphasized that no person should be
denied the appropriate medical care urgently needed
to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section
23(a)(2)(ii)249 should be struck down. By effectively
limiting the requirement of parental consent to "only in
elective surgical procedures," it denies the parents
their right of parental authority in cases where what is
involved are "non-surgical procedures." Save for the
two exceptions discussed above, and in the case of
an abused child as provided in the first sentence of
Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental
authority. To deny them of this right would be an
affront to the constitutional mandate to protect and
strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in
relation to Section 24 thereof, mandating the teaching
of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or
imprisonment violates the principle of academic
freedom . According to the petitioners, these
provisions effectively force educational institutions to
teach reproductive health education even if they
believe that the same is not suitable to be taught to
their students.250 Citing various studies conducted in
the United States and statistical data gathered in the
country, the petitioners aver that the prevalence of
contraceptives has led to an increase of out-of-
wedlock births; divorce and breakdown of families; the
acceptance of abortion and euthanasia; the
"feminization of poverty"; the aging of society; and
promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the
validity of Section 14 of the RH Law is premature
because the Department of Education, Culture and
Sports has yet to formulate a curriculum on age-
appropriate reproductive health education. One can
only speculate on the content, manner and medium of
instruction that will be used to educate the
adolescents and whether they will contradict the
religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature
nature of this particular issue, the Court declines to
rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987
Constitution provides that the natural and primary
right and duty of parents in the rearing of the youth for
civic efficiency and development of moral character
shall receive the support of the Government. Like the
1973 Constitution and the 1935 Constitution, the 1987
Constitution affirms the State recognition of the
invaluable role of parents in preparing the youth to
become productive members of society. Notably, it
places more importance on the role of parents in the
development of their children by recognizing that said
role shall be "primary," that is, that the right of parents
in upbringing the youth is superior to that of the
State.252
It is also the inherent right of the State to act as
parens patriae to aid parents in the moral
development of the youth. Indeed, the Constitution
makes mention of the importance of developing the
youth and their important role in nation
building.253 Considering that Section 14 provides not
only for the age-appropriate-reproductive health
education, but also for values formation; the
development of knowledge and skills in self-protection
against discrimination; sexual abuse and violence
against women and children and other forms of
gender based violence and teen pregnancy; physical,
social and emotional changes in adolescents;
women's rights and children's rights; responsible
teenage behavior; gender and development; and
responsible parenthood, and that Rule 10, Section
11.01 of the RH-IRR and Section 4(t) of the RH Law
itself provides for the teaching of responsible teenage
behavior, gender sensitivity and physical and
emotional changes among adolescents - the Court
finds that the legal mandate provided under the
assailed provision supplements, rather than
supplants, the rights and duties of the parents in the
moral development of their children.
Furthermore, as Section 14 also mandates that the
mandatory reproductive health education program
shall be developed in conjunction with parent-teacher-
community associations, school officials and other
interest groups, it could very well be said that it will be
in line with the religious beliefs of the petitioners. By
imposing such a condition, it becomes apparent that
the petitioners' contention that Section 14 violates
Article XV, Section 3(1) of the Constitution is without
merit.254
While the Court notes the possibility that educators
might raise their objection to their participation in the
reproductive health education program provided
under Section 14 of the RH Law on the ground that
the same violates their religious beliefs, the Court
reserves its judgment should an actual case be filed
before it.
6 - Due Process
The petitioners contend that the RH Law suffers from
vagueness and, thus violates the due process clause
of the Constitution. According to them, Section 23
(a)(l) mentions a "private health service provider"
among those who may be held punishable but does
not define who is a "private health care service
provider." They argue that confusion further results
since Section 7 only makes reference to a "private
health care institution."
The petitioners also point out that Section 7 of the
assailed legislation exempts hospitals operated by
religious groups from rendering reproductive health
service and modern family planning methods. It is
unclear, however, if these institutions are also exempt
from giving reproductive health information under
Section 23(a)(l), or from rendering reproductive health
procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the
withholding, restricting and providing of incorrect
information, but at the same time fails to define
"incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness
when it lacks comprehensible standards that men of
common intelligence must necessarily guess its
meaning and differ as to its application. It is repugnant
to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the
parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes
an arbitrary flexing of the Government
muscle.255 Moreover, in determining whether the
words used in a statute are vague, words must not
only be taken in accordance with their plain meaning
alone, but also in relation to other parts of the statute.
It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every
part of it must be construed together with the other
parts and kept subservient to the general intent of the
whole enactment.256
As correctly noted by the OSG, in determining the
definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH
Law which defines a "public health service provider,"
viz:
(n) Public health care service provider refers to: (1)
public health care institution, which is duly licensed
and accredited and devoted primarily to the
maintenance and operation of facilities for health
promotion, disease prevention, diagnosis, treatment
and care of individuals suffering from illness, disease,
injury, disability or deformity, or in need of obstetrical
or other medical and nursing care; (2) public health
care professional, who is a doctor of medicine, a
nurse or a midvvife; (3) public health worker engaged
in the delivery of health care services; or (4) barangay
health worker who has undergone training programs
under any accredited government and NGO and who
voluntarily renders primarily health care services in
the community after having been accredited to
function as such by the local health board in
accordance with the guidelines promulgated by the
Department of Health (DOH) .
Further, the use of the term "private health care
institution" in Section 7 of the law, instead of "private
health care service provider," should not be a cause
of confusion for the obvious reason that they are used
synonymously.
The Court need not belabor the issue of whether the
right to be exempt from being obligated to render
reproductive health service and modem family
planning methods, includes exemption from being
obligated to give reproductive health information and
to render reproductive health procedures. Clearly,
subject to the qualifications and exemptions earlier
discussed, the right to be exempt from being
obligated to render reproductive health service and
modem family planning methods, necessarily includes
exemption from being obligated to give reproductive
health information and to render reproductive health
procedures. The terms "service" and "methods" are
broad enough to include the providing of information
and the rendering of medical procedures.
The same can be said with respect to the contention
that the RH Law punishes health care service
providers who intentionally withhold, restrict and
provide incorrect information regarding reproductive
health programs and services. For ready reference,
the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are
prohibited:
(a) Any health care service provider, whether public or
private, who shall:
(1) Knowingly withhold information or restrict the
dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services
on reproductive health including the right to informed
choice and access to a full range of legal, medically-
safe, non-abortifacient and effective family planning
methods;
From its plain meaning, the word "incorrect" here
denotes failing to agree with a copy or model or with
established rules; inaccurate, faulty; failing to agree
with the requirements of duty, morality or propriety;
and failing to coincide with the truth. 257 On the other
hand, the word "knowingly" means with awareness or
deliberateness that is intentional.258 Used together in
relation to Section 23(a)(l), they connote a sense of
malice and ill motive to mislead or misrepresent the
public as to the nature and effect of programs and
services on reproductive health. Public health and
safety demand that health care service providers give
their honest and correct medical information in
accordance with what is acceptable in medical
practice. While health care service providers are not
barred from expressing their own personal opinions
regarding the programs and services on reproductive
health, their right must be tempered with the need to
provide public health and safety. The public deserves
no less.
7-Egual Protection
The petitioners also claim that the RH Law violates
the equal protection clause under the Constitution as
it discriminates against the poor because it makes
them the primary target of the government program
that promotes contraceptive use . They argue that,
rather than promoting reproductive health among the
poor, the RH Law introduces contraceptives that
would effectively reduce the number of the poor. Their
bases are the various provisions in the RH Law
dealing with the poor, especially those mentioned in
the guiding principles259 and definition of terms260 of
the law.
They add that the exclusion of private educational
institutions from the mandatory reproductive health
education program imposed by the RH Law renders it
unconstitutional.
In Biraogo v. Philippine TruthCommission,261the
Court had the occasion to expound on the concept of
equal protection. Thus:
One of the basic principles on which this government
was founded is that of the equality of right which is
embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is
embraced in the concept of due process, as every
unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a
separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism
or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due
process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the
sharper weapon to cut it down is the equal protection
clause.
"According to a long line of decisions, equal protection
simply requires that all persons or things similarly
situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires
public bodies and inst itutions to treat similarly
situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure
every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its
improper execution through the state's duly
constituted authorities." "In other words, the concept
of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions
between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official
state actions, not just those of the legislature. Its
inhibitions cover all the departments of the
government including the political and executive
departments, and extend to all actions of a state
denying equal protection of the laws, through
whatever agency or whatever guise is taken.
It, however, does not require the universal application
of the laws to all persons or things without distinction.
What it simply requires is equality among equals as
determined according to a valid classification. Indeed,
the equal protection clause permits classification.
Such classification, however, to be valid must pass
the test of reasonableness. The test has four
requisites: (1) The classification rests on substantial
distinctions; (2) It is germane to the purpose of the
law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same
class. "Superficial differences do not make for a valid
classification."
For a classification to meet the requirements of
constitutionality, it must include or embrace all
persons who naturally belong to the class. "The
classification will be regarded as invalid if all the
members of the class are not similarly treated, both
as to rights conferred and obligations imposed. It is
not necessary that the classification be made with
absolute symmetry, in the sense that the members of
the class should possess the same characteristics in
equal degree. Substantial similarity will suffice; and as
long as this is achieved, all those covered by the
classification are to be treated equally. The mere fact
that an individual belonging to a class differs from the
other members, as long as that class is substantially
distinguishable from all others, does not justify the
non-application of the law to him."
The classification must not be based on existing
circumstances only, or so constituted as to preclude
addition to the number included in the class. It must
be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions.
It must not leave out or "underinclude" those that
should otherwise fall into a certain classification.
[Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the
government's reproductive health care program is not
a violation of the equal protection clause. In fact, it is
pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the
needs of the underprivileged by providing that they be
given priority in addressing the health development of
the people. Thus:
Section 11. The State shall adopt an integrated and
comprehensive approach to health development
which shall endeavor to make essential goods, health
and other social services available to all the people at
affordable cost. There shall be priority for the needs of
the underprivileged, sick, elderly, disabled, women,
and children. The State shall endeavor to provide free
medical care to paupers.
It should be noted that Section 7 of the RH Law
prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have
children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the
poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as
elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the
population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number
of children a couple may have and does not impose
conditions upon couples who intend to have children.
While the petitioners surmise that the assailed law
seeks to charge couples with the duty to have
children only if they would raise them in a truly
humane way, a deeper look into its provisions shows
that what the law seeks to do is to simply provide
priority to the poor in the implementation of
government programs to promote basic reproductive
health care.
With respect to the exclusion of private educational
institutions from the mandatory reproductive health
education program under Section 14, suffice it to state
that the mere fact that the children of those who are
less fortunate attend public educational institutions
does not amount to substantial distinction sufficient to
annul the assailed provision. On the other hand,
substantial distinction rests between public
educational institutions and private educational
institutions, particularly because there is a need to
recognize the academic freedom of private
educational institutions especially with respect to
religious instruction and to consider their sensitivity
towards the teaching of reproductive health
education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is
constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit
that Section 17 of the assailed legislation requiring
private and non-government health care service
providers to render forty-eight (48) hours of pro bono
reproductive health services, actually amounts to
involuntary servitude because it requires medical
practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono
services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as
reproductive health care service providers have the
discretion as to the manner and time of giving pro
bono services. Moreover, the OSG points out that the
imposition is within the powers of the government, the
accreditation of medical practitioners with PhilHealth
being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of
medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to
control and regulate it in order to protect and promote
the public welfare. Like the legal profession, the
practice of medicine is not a right but a privileged
burdened with conditions as it directly involves the
very lives of the people. A fortiori, this power includes
the power of Congress263 to prescribe the
qualifications for the practice of professions or trades
which affect the public welfare, the public health, the
public morals, and the public safety; and to regulate
or control such professions or trades, even to the
point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of
involuntary servitude connotes the presence of force,
threats, intimidation or other similar means of
coercion and compulsion.265 A reading of the assailed
provision, however, reveals that it only encourages
private and non- government reproductive healthcare
service providers to render pro bono service. Other
than non-accreditation with PhilHealth, no penalty is
imposed should they choose to do otherwise. Private
and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind
of health service they wish to provide, when, where
and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is
made upon them to render pro bono service against
their will. While the rendering of such service was
made a prerequisite to accreditation with PhilHealth,
the Court does not consider the same to be an
unreasonable burden, but rather, a necessary
incentive imposed by Congress in the furtherance of a
perceived legitimate state interest.
Consistent with what the Court had earlier discussed,
however, it should be emphasized that conscientious
objectors are exempt from this provision as long as
their religious beliefs and convictions do not allow
them to render reproductive health service, pro bona
or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by
Congress to the FDA of the power to determine
whether or not a supply or product is to be included in
the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation.
The FDA does not only have the power but also the
competency to evaluate, register and cover health
services and methods. It is the only government entity
empowered to render such services and highly
proficient to do so. It should be understood that health
services and methods fall under the gamut of terms
that are associated with what is ordinarily understood
as "health products."
In this connection, Section 4 of R.A. No. 3 720, as
amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there
is hereby created an office to be called the Food and
Drug Administration (FDA) in the Department of
Health (DOH). Said Administration shall be under the
Office of the Secretary and shall have the following
functions, powers and duties:
"(a) To administer the effective
implementation of this Act and of the rules
and regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the
collection of samples of health products;
"(c) To analyze and inspect health products
in connection with the implementation of this
Act;
"(d) To establish analytical data to serve as
basis for the preparation of health products
standards, and to recommend standards of
identity, purity, safety, efficacy, quality and fill
of container;
"(e) To issue certificates of compliance with
technical requirements to serve as basis for
the issuance of appropriate authorization
and spot-check for compliance with
regulations regarding operation of
manufacturers, importers, exporters,
distributors, wholesalers, drug outlets, and
other establishments and facilities of health
products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all
applicable health products prior to the
issuance of appropriate authorizations to
ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders,
distributors, importers, exporters,
wholesalers, retailers, consumers, and non-
consumer users of health products to report
to the FDA any incident that reasonably
indicates that said product has caused or
contributed to the death, serious illness or
serious injury to a consumer, a patient, or
any person;
"(j) To issue cease and desist orders motu
propio or upon verified complaint for health
products, whether or not registered with the
FDA Provided, That for registered health
products, the cease and desist order is valid
for thirty (30) days and may be extended for
sixty ( 60) days only after due process has
been observed;
"(k) After due process, to order the ban,
recall, and/or withdrawal of any health
product found to have caused death, serious
illness or serious injury to a consumer or
patient, or is found to be imminently
injurious, unsafe, dangerous, or grossly
deceptive, and to require all concerned to
implement the risk management plan which
is a requirement for the issuance of the
appropriate authorization;
x x x.
As can be gleaned from the above, the functions,
powers and duties of the FDA are specific to enable
the agency to carry out the mandates of the law.
Being the country's premiere and sole agency that
ensures the safety of food and medicines available to
the public, the FDA was equipped with the necessary
powers and functions to make it effective. Pursuant to
the principle of necessary implication, the mandate by
Congress to the FDA to ensure public health and
safety by permitting only food and medicines that are
safe includes "service" and "methods." From the
declared policy of the RH Law, it is clear that
Congress intended that the public be given only those
medicines that are proven medically safe, legal, non-
abortifacient, and effective in accordance with
scientific and evidence-based medical research
standards. The philosophy behind the permitted
delegation was explained in Echagaray v. Secretary
of Justice,267 as follows:
The reason is the increasing complexity of the task of
the government and the growing inability of the
legislature to cope directly with the many problems
demanding its attention. The growth of society has
ramified its activities and created peculiar and
sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization
even in legislation has become necessary. To many
of the problems attendant upon present day
undertakings, the legislature may not have the
competence, let alone the interest and the time, to
provide the required direct and efficacious, not to say
specific solutions.
10- Autonomy of Local Governments and the
Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the
petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs)
under Section 17 of the Local Government Code.
Said Section 17 vested upon the LGUs the duties and
functions pertaining to the delivery of basic services
and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to
be self-reliant and shall continue exercising
the powers and discharging the duties and
functions currently vested upon them. They
shall also discharge the functions and
responsibilities of national agencies and
offices devolved to them pursuant to this
Code. Local government units shall likewise
exercise such other powers and discharge
such other functions and responsibilities as
are necessary, appropriate, or incidental to
efficient and effective provision of the basic
services and facilities enumerated herein.
(b) Such basic services and facilities include,
but are not limited to, x x x.
While the aforementioned provision charges
the LGUs to take on the functions and
responsibilities that have already been
devolved upon them from the national
agencies on the aspect of providing for basic
services and facilities in their respective
jurisdictions, paragraph (c) of the same
provision provides a categorical exception of
cases involving nationally-funded projects,
facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of
subsection (b) hereof, public works and
infrastructure projects and other facilities,
programs and services funded by the
National Government under the annual
General Appropriations Act, other special
laws, pertinent executive orders, and those
wholly or partially funded from foreign
sources, are not covered under this Section,
except in those cases where the local
government unit concerned is duly
designated as the implementing agency for
such projects, facilities, programs and
services. [Emphases supplied]
The essence of this express reservation of power by
the national government is that, unless an LGU is
particularly designated as the implementing agency, it
has no power over a program for which funding has
been provided by the national government under the
annual general appropriations act, even if the
program involves the delivery of basic services within
the jurisdiction of the LGU.269 A complete
relinquishment of central government powers on the
matter of providing basic facilities and services cannot
be implied as the Local Government Code itself
weighs against it.270
In this case, a reading of the RH Law clearly shows
that whether it pertains to the establishment of health
care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health
workers,273 it will be the national government that will
provide for the funding of its implementation. Local
autonomy is not absolute. The national government
still has the say when it comes to national priority
programs which the local government is called upon
to implement like the RH Law.
Moreover, from the use of the word "endeavor," the
LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law
which can be construed as making the availability of
these services mandatory for the LGUs. For said
reason, it cannot be said that the RH Law amounts to
an undue encroachment by the national government
upon the autonomy enjoyed by the local
governments.
The ARMM
The fact that the RH Law does not intrude in the
autonomy of local governments can be equally
applied to the ARMM. The RH Law does not infringe
upon its autonomy. Moreover, Article III, Sections 6,
10 and 11 of R.A. No. 9054, or the organic act of the
ARMM, alluded to by petitioner Tillah to justify the
exemption of the operation of the RH Law in the
autonomous region, refer to the policy statements for
the guidance of the regional government. These
provisions relied upon by the petitioners simply
delineate the powers that may be exercised by the
regional government, which can, in no manner, be
characterized as an abdication by the State of its
power to enact legislation that would benefit the
general welfare. After all, despite the veritable
autonomy granted the ARMM, the Constitution and
the supporting jurisprudence, as they now stand,
reject the notion of imperium et imperio in the
relationship between the national and the regional
governments.274 Except for the express and implied
limitations imposed on it by the Constitution,
Congress cannot be restricted to exercise its inherent
and plenary power to legislate on all subjects which
extends to all matters of general concern or common
interest.275
11 - Natural Law
With respect to the argument that the RH Law violates
natural law,276 suffice it to say that the Court does not
duly recognize it as a legal basis for upholding or
invalidating a law. Our only guidepost is the
Constitution. While every law enacted by man
emanated from what is perceived as natural law, the
Court is not obliged to see if a statute, executive
issuance or ordinance is in conformity to it. To begin
with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and
notions on inherent rights espoused by theorists,
philosophers and theologists. The jurists of the
philosophical school are interested in the law as an
abstraction, rather than in the actual law of the past or
present.277 Unless, a natural right has been
transformed into a written law, it cannot serve as a
basis to strike down a law. In Republic v.
Sandiganbayan,278 the very case cited by the
petitioners, it was explained that the Court is not duty-
bound to examine every law or action and whether it
conforms with both the Constitution and natural law.
Rather, natural law is to be used sparingly only in the
most peculiar of circumstances involving rights
inherent to man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does
not sanction the taking away of life. It does not allow
abortion in any shape or form. It only seeks to
enhance the population control program of the
government by providing information and making non-
abortifacient contraceptives more readily available to
the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as
unconstitutional insofar as it seeks to provide access
to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare
services, methods, devices, and supplies. As earlier
pointed out, however, the religious freedom of some
sectors of society cannot be trampled upon in pursuit
of what the law hopes to achieve. After all, the
Constitutional safeguard to religious freedom is a
recognition that man stands accountable to an
authority higher than the State.
In conformity with the principle of separation of
Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society.
Philippine modem society leaves enough room for
diversity and pluralism. As such, everyone should be
tolerant and open-minded so that peace and harmony
may continue to reign as we exist alongside each
other.
As healthful as the intention of the RH Law may be,
the idea does not escape the Court that what it seeks
to address is the problem of rising poverty and
unemployment in the country. Let it be said that the
cause of these perennial issues is not the large
population but the unequal distribution of wealth.
Even if population growth is controlled, poverty will
remain as long as the country's wealth remains in the
hands of the very few.
At any rate, population control may not be beneficial
for the country in the long run. The European and
Asian countries, which embarked on such a program
generations ago , are now burdened with ageing
populations. The number of their young workers is
dwindling with adverse effects on their economy.
These young workers represent a significant human
capital which could have helped them invigorate,
innovate and fuel their economy. These countries are
now trying to reverse their programs, but they are still
struggling. For one, Singapore, even with incentives,
is failing.
And in this country, the economy is being propped up
by remittances from our Overseas Filipino Workers.
This is because we have an ample supply of young
able-bodied workers. What would happen if the
country would be weighed down by an ageing
population and the fewer younger generation would
not be able to support them? This would be the
situation when our total fertility rate would go down
below the replacement level of two (2) children per
woman.280
Indeed, at the present, the country has a population
problem, but the State should not use coercive
measures (like the penal provisions of the RH Law
against conscientious objectors) to solve it.
Nonetheless, the policy of the Court is non-
interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the
legislature has laid down. Its duty is to say what the
law is as enacted by the lawmaking body. That is not
the same as saying what the law should be or what is
the correct rule in a given set of circumstances. It is
not the province of the judiciary to look into the
wisdom of the law nor to question the policies
adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust
situation that may arise from the application of a
particular law. It is for the legislature to enact remedial
legislation if that would be necessary in the premises.
But as always, with apt judicial caution and cold
neutrality, the Court must carry out the delicate
function of interpreting the law, guided by the
Constitution and existing legislation and mindful of
settled jurisprudence. The Court's function is therefore
limited, and accordingly, must confine itself to the
judicial task of saying what the law is, as enacted by
the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law
is a mere compilation and enhancement of the prior
existing contraceptive and reproductive health laws,
but with coercive measures. Even if the Court decrees
the RH Law as entirely unconstitutional, there will still
be the Population Act (R.A. No. 6365), the
Contraceptive Act (R.A. No. 4729) and the
reproductive health for women or The Magna Carta of
Women (R.A. No. 9710), sans the coercive provisions
of the assailed legislation. All the same, the principle
of "no-abortion" and "non-coercion" in the adoption of
any family planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY
GRANTED. Accordingly, the Court declares R.A. No.
10354 as NOT UNCONSTITUTIONAL except with
respect to the following provisions which are declared
UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision
in the RH-IRR insofar as they: a) require
private health facilities and non-maternity
specialty hospitals and hospitals owned and
operated by a religious group to refer
patients, not in an emergency or life-
threatening case, as defined under Republic
Act No. 8344, to another health facility which
is conveniently accessible; and b) allow
minor-parents or minors who have suffered a
miscarriage access to modem methods of
family planning without written consent from
their parents or guardian/s;
2) Section 23(a)(l) and the corresponding
provision in the RH-IRR, particularly Section
5 .24 thereof, insofar as they punish any
healthcare service provider who fails and or
refuses to disseminate information regarding
programs and services on reproductive
health regardless of his or her religious
beliefs.
3) Section 23(a)(2)(i) and the corresponding
provision in the RH-IRR insofar as they allow
a married individual, not in an emergency or
life-threatening case, as defined under
Republic Act No. 8344, to undergo
reproductive health procedures without the
consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding
provision in the RH-IRR insofar as they limit
the requirement of parental consent only to
elective surgical procedures.
5) Section 23(a)(3) and the corresponding
provision in the RH-IRR, particularly Section
5.24 thereof, insofar as they punish any
healthcare service provider who fails and/or
refuses to refer a patient not in an
emergency or life-threatening case, as
defined under Republic Act No. 8344, to
another health care service provider within
the same facility or one which is conveniently
accessible regardless of his or her religious
beliefs;
6) Section 23(b) and the corresponding
provision in the RH-IRR, particularly Section
5 .24 thereof, insofar as they punish any
public officer who refuses to support
reproductive health programs or shall do any
act that hinders the full implementation of a
reproductive health program, regardless of
his or her religious beliefs;
7) Section 17 and the corresponding
prov1s10n in the RH-IRR regarding the
rendering of pro bona reproductive health
service in so far as they affect the
conscientious objector in securing PhilHealth
accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the
RH-IRR, which added the qualifier "primarily"
in defining abortifacients and contraceptives,
as they are ultra vires and, therefore, null
and void for contravening Section 4(a) of the
RH Law and violating Section 12, Article II of
the Constitution.
The Status Quo Ante Order issued by the Court on
March 19, 2013 as extended by its Order, dated July
16, 2013 , is hereby LIFTED, insofar as the provisions
of R.A. No. 10354 which have been herein declared
as constitutional.
SO ORDERED
Case No. 010
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 89572 December 21, 1989
DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS (DECS) and DIRECTOR OF CENTER FOR
EDUCATIONAL MEASUREMENT, petitioners,
vs.
ROBERTO REY C. SAN DIEGO and JUDGE
TERESITA DIZON-CAPULONG, in her capacity as
Presiding Judge of the Regional Trial Court of
Valenzuela, Metro Manila, Branch
172, respondents.
Ramon M. Guevara for private respondent.
CRUZ, J.:
The issue before us is mediocrity. The question is
whether a person who has thrice failed the National
Medical Admission Test (NMAT) is entitled to take it
again.
The petitioner contends he may not, under its rule
that-
h) A student shall be allowed only
three (3) chances to take the
NMAT. After three (3) successive
failures, a student shall not be
allowed to take the NMAT for the
fourth time.
The private respondent insists he can, on
constitutional grounds.
But first the facts.
The private respondent is a graduate of the University
of the East with a degree of Bachelor of Science in
Zoology. The petitioner claims that he took the NMAT
three times and flunked it as many times.1 When he
applied to take it again, the petitioner rejected his
application on the basis of the aforesaid rule. He then
went to the Regional Trial Court of Valenzuela, Metro
Manila, to compel his admission to the test.
In his original petition for mandamus, he first invoked
his constitutional rights to academic freedom and
quality education. By agreement of the parties, the
private respondent was allowed to take the NMAT
scheduled on April 16, 1989, subject to the outcome
of his petition. 2 In an amended petition filed with
leave of court, he squarely challenged the
constitutionality of MECS Order No. 12, Series of
1972, containing the above-cited rule. The additional
grounds raised were due process and equal
protection.
After hearing, the respondent judge rendered a
decision on July 4, 1989, declaring the challenged
order invalid and granting the petition. Judge Teresita
Dizon-Capulong held that the petitioner had been
deprived of his right to pursue a medical education
through an arbitrary exercise of the police power. 3
We cannot sustain the respondent judge. Her
decision must be reversed.
In Tablarin v. Gutierrez, 4 this Court upheld the
constitutionality of the NMAT as a measure intended
to limit the admission to medical schools only to those
who have initially proved their competence and
preparation for a medical education. Justice
Florentino P. Feliciano declared for a unanimous
Court:
Perhaps the only issue that needs
some consideration is whether
there is some reasonable relation
between the prescribing of passing
the NMAT as a condition for
admission to medical school on the
one hand, and the securing of the
health and safety of the general
community, on the other hand. This
question is perhaps most usefully
approached by recalling that the
regulation of the pratice of medicine
in all its branches has long been
recognized as a reasonable method
of protecting the health and safety
of the public. That the power to
regulate and control the practice of
medicine includes the power to
regulate admission to the ranks of
those authorized to practice
medicine, is also well recognized.
Thus, legislation and administrative
regulations requiring those who
wish to practice medicine first to
take and pass medical board
examinations have long ago been
recognized as valid exercises of
governmental power. Similarly, the
establishment of minimum medical
educational requirements-i.e., the
completion of prescribed courses in
a recognized medical school-for
admission to the medical
profession, has also been sustained
as a legitimate exercise of the
regulatory authority of the state.
What we have before us in the
instant case is closely related: the
regulation of access to medical
schools. MECS Order No. 52, s.
1985, as noted earlier, articulates
the rationale of regulation of this
type: the improvement of the
professional and technical quality of
the graduates of medical schools,
by upgrading the quality of those
admitted to the student body of the
medical schools. That upgrading is
sought by selectivity in the process
of admission, selectivity consisting,
among other things, of limiting
admission to those who exhibit in
the required degree the aptitude for
medical studies and eventually for
medical practice. The need to
maintain, and the difficulties of
maintaining, high standards in our
professional schools in general, and
medical schools in particular, in the
current state of our social and
economic development, are widely
known.
We believe that the government is
entitled to prescribe an admission
test like the NMAT as a means of
achieving its stated objective of
"upgrading the selection of
applicants into [our] medical
schools" and of "improv[ing] the
quality of medical education in the
country." Given the widespread use
today of such admission tests in, for
instance, medical schools in the
United States of America (the
Medical College Admission Test
[MCAT] and quite probably, in other
countries with far more developed
educational resources than our
own, and taking into account the
failure or inability of the petitioners
to even attempt to prove otherwise,
we are entitled to hold that the
NMAT is reasonably related to the
securing of the ultimate end of
legislation and regulation in this
area. That end, it is useful to recall,
is the protection of the public from
the potentially deadly effects of
incompetence and ignorance in
those who would undertake to treat
our bodies and minds for disease or
trauma.
However, the respondent judge agreed with the
petitioner that the said case was not applicable. Her
reason was that it upheld only the requirement for the
admission test and said nothing about the so-called
"three-flunk rule."
We see no reason why the rationale in the Tablarin
case cannot apply to the case at bar. The issue raised
in both cases is the academic preparation of the
applicant. This may be gauged at least initially by the
admission test and, indeed with more reliability, by the
three-flunk rule. The latter cannot be regarded any
less valid than the former in the regulation of the
medical profession.
There is no need to redefine here the police power of
the State. Suffice it to repeat that the power is validly
exercised if (a) the interests of the public generally, as
distinguished from those of a particular class, require
the interference of the State, and (b) the means
employed are reasonably necessary to the attainment
of the object sought to be accomplished and not
unduly oppressive upon individuals.5
In other words, the proper exercise of the police
power requires the concurrence of a lawful subject
and a lawful method.
The subject of the challenged regulation is certainly
within the ambit of the police power. It is the right and
indeed the responsibility of the State to insure that the
medical profession is not infiltrated by incompetents
to whom patients may unwarily entrust their lives and
health.
The method employed by the challenged regulation is
not irrelevant to the purpose of the law nor is it
arbitrary or oppressive. The three-flunk rule is
intended to insulate the medical schools and
ultimately the medical profession from the intrusion of
those not qualified to be doctors.
While every person is entitled to aspire to be a doctor,
he does not have a constitutional right to be a doctor.
This is true of any other calling in which the public
interest is involved; and the closer the link, the longer
the bridge to one's ambition. The State has the
responsibility to harness its human resources and to
see to it that they are not dissipated or, no less worse,
not used at all. These resources must be applied in a
manner that will best promote the common good while
also giving the individual a sense of satisfaction.
A person cannot insist on being a physician if he will
be a menace to his patients. If one who wants to be a
lawyer may prove better as a plumber, he should be
so advised and adviced. Of course, he may not be
forced to be a plumber, but on the other hand he may
not force his entry into the bar. By the same token, a
student who has demonstrated promise as a pianist
cannot be shunted aside to take a course in nursing,
however appropriate this career may be for others.
The right to quality education invoked by the private
respondent is not absolute. The Constitution also
provides that "every citizen has the right to choose a
profession or course of study, subject to fair,
reasonable and equitable admission and academic
requirements.6
calling that he is entitled to quality education for the
full harnessing of his potentials and the sharpening of
his latent talents toward what may even be a brilliant
future.
We cannot have a society of square pegs in round
holes, of dentists who should never have left the farm
and engineers who should have studied banking and
teachers who could be better as merchants.

The private respondent must yield to the challenged It is time indeed that the State took decisive steps to
rule and give way to those better prepared. Where regulate and enrich our system of education by
even those who have qualified may still not be directing the student to the course for which he is best
accommodated in our already crowded medical suited as determined by initial tests and evaluations.
schools, there is all the more reason to bar those Otherwise, we may be "swamped with mediocrity," in
who, like him, have been tested and found wanting. the words of Justice Holmes, not because we are
lacking in intelligence but because we are a nation of
The contention that the challenged rule violates the misfits.
equal protection clause is not well-taken. A law does
not have to operate with equal force on all persons or WHEREFORE, the petition is GRANTED. The
things to be conformable to Article III, Section 1 of the decision of the respondent court dated January 13,
Constitution. 1989, is REVERSED, with costs against the private
respondent. It is so ordered.
There can be no question that a substantial distinction
exists between medical students and other students
who are not subjected to the NMAT and the three-
flunk rule. The medical profession directly affects the
very lives of the people, unlike other careers which,
for this reason, do not require more vigilant regulation.
The accountant, for example, while belonging to an
equally respectable profession, does not hold the
same delicate responsibility as that of the physician
and so need not be similarly treated.

There would be unequal protection if some applicants

who have passed the tests are admitted and others
who have also qualified are denied entrance. In other
words, what the equal protection requires is equality
among equals.

The Court feels that it is not enough to simply invoke

the right to quality education as a guarantee of the
Constitution: one must show that he is entitled to it
because of his preparation and promise. The private
respondent has failed the NMAT five times. 7 While
his persistence is noteworthy, to say the least, it is
certainly misplaced, like a hopeless love.

No depreciation is intended or made against the

private respondent. It is stressed that a person who
does not qualify in the NMAT is not an absolute
incompetent unfit for any work or occupation. The
only inference is that he is a probably better, not for
the medical profession, but for another calling that
has not excited his interest.

In the former, he may be a bungler or at least

lackluster; in the latter, he is more likely to succeed
and may even be outstanding. It is for the appropriate
Case No 011
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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:
Sec. 10. No law impairing, the
obligation of contracts shall be
passed. 27
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
Corp. 28 this Court stated:
 The freedom of contract, under our SO ORDERED.
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.
Case No.012
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 171947-48 December 18, 2008
METROPOLITAN MANILA DEVELOPMENT
AUTHORITY, DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, DEPARTMENT OF
EDUCATION, CULTURE AND
SPORTS,1 DEPARTMENT OF HEALTH,
DEPARTMENT OF AGRICULTURE, DEPARTMENT
OF PUBLIC WORKS AND HIGHWAYS,
DEPARTMENT OF BUDGET AND MANAGEMENT,
PHILIPPINE COAST GUARD, PHILIPPINE
NATIONAL POLICE MARITIME GROUP, and
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY,
represented and joined by DIVINA V. ILAS,
SABINIANO ALBARRACIN, MANUEL SANTOS,
JR., DINAH DELA PEÑA, PAUL DENNIS
QUINTERO, MA. VICTORIA LLENOS, DONNA
CALOZA, FATIMA QUITAIN, VENICE SEGARRA,
FRITZIE TANGKIA, SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS, FELIMON
SANTIAGUEL, and JAIME AGUSTIN R.
OPOSA, respondents.
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a
cause of climate change, has of late gained the
attention of the international community. Media have
finally trained their sights on the ill effects of pollution,
the destruction of forests and other critical habitats, oil
spills, and the unabated improper disposal of
garbage. And rightly so, for the magnitude of
environmental destruction is now on a scale few ever
foresaw and the wound no longer simply heals by
itself.2 But amidst hard evidence and clear signs of a
climate crisis that need bold action, the voice of
cynicism, naysayers, and procrastinators can still be
heard.
This case turns on government agencies and their
officers who, by the nature of their respective offices
or by direct statutory command, are tasked to protect
and preserve, at the first instance, our internal waters,
rivers, shores, and seas polluted by human activities.
To most of these agencies and their official
complement, the pollution menace does not seem to
carry the high national priority it deserves, if their track
records are to be the norm. Their cavalier attitude
towards solving, if not mitigating, the environmental
pollution problem, is a sad commentary on
bureaucratic efficiency and commitment.
At the core of the case is the Manila Bay, a place with
a proud historic past, once brimming with marine life
and, for so many decades in the past, a spot for
different contact recreation activities, but now a dirty
and slowly dying expanse mainly because of the
abject official indifference of people and institutions
that could have otherwise made a difference.
This case started when, on January 29, 1999,
respondents Concerned Residents of Manila Bay filed
a complaint before the Regional Trial Court (RTC) in
Imus, Cavite against several government agencies,
among them the petitioners, for the cleanup,
rehabilitation, and protection of the Manila Bay.
Raffled to Branch 20 and docketed as Civil Case No.
1851-99 of the RTC, the complaint alleged that the
water quality of the Manila Bay had fallen way below
the allowable standards set by law, specifically
Presidential Decree No. (PD) 1152 or the Philippine
Environment Code. This environmental aberration,
the complaint stated, stemmed from:
x x x [The] reckless, wholesale, accumulated
and ongoing acts of omission or commission
[of the defendants] resulting in the clear and
present danger to public health and in the
depletion and contamination of the marine
life of Manila Bay, [for which reason] ALL
defendants must be held jointly and/or
solidarily liable and be collectively ordered to
clean up Manila Bay and to restore its water
quality to class B waters fit for swimming,
skin-diving, and other forms of contact
recreation.3
In their individual causes of action, respondents
alleged that the continued neglect of petitioners in
abating the pollution of the Manila Bay constitutes a
violation of, among others:
(1) Respondents’ constitutional right to life,
health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree
(PD 825);
 (7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law
(Republic Act No. 6969);
(10) Civil Code provisions on nuisance and
human relations;
(11) The Trust Doctrine and the Principle of
Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that
petitioners be ordered to clean the Manila Bay and
submit to the RTC a concerted concrete plan of action
for the purpose.
The trial of the case started off with a hearing at the
Manila Yacht Club followed by an ocular inspection of
the Manila Bay. Renato T. Cruz, the Chief of the
Water Quality Management Section, Environmental
Management Bureau, Department of Environment
and Natural Resources (DENR), testifying for
petitioners, stated that water samples collected from
different beaches around the Manila Bay showed that
the amount of fecal coliform content ranged from
50,000 to 80,000 most probable number (MPN)/ml
when what DENR Administrative Order No. 34-90
prescribed as a safe level for bathing and other forms
of contact recreational activities, or the "SB" level, is
one not exceeding 200 MPN/100 ml.4
Rebecca de Vera, for Metropolitan Waterworks and
Sewerage System (MWSS) and in behalf of other
petitioners, testified about the MWSS’ efforts to
reduce pollution along the Manila Bay through the
Manila Second Sewerage Project. For its part, the
Philippine Ports Authority (PPA) presented, as part of
its evidence, its memorandum circulars on the study
being conducted on ship-generated waste treatment
and disposal, and its Linis Dagat (Clean the Ocean)
project for the cleaning of wastes accumulated or
washed to shore.
The RTC Ordered Petitioners to Clean Up and
Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a
Decision5 in favor of respondents. The dispositive
portion reads:
WHEREFORE, finding merit in the
complaint, judgment is hereby rendered
ordering the abovenamed defendant-
government agencies, jointly and solidarily,
to clean up and rehabilitate Manila Bay and
restore its waters to SB classification to
make it fit for swimming, skin-diving and
other forms of contact recreation. To attain
this, defendant-agencies, with defendant
DENR as the lead agency, are directed,
within six (6) months from receipt hereof, to
act and perform their respective duties by
devising a consolidated, coordinated and
concerted scheme of action for the
rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install,
operate and maintain adequate [sewerage]
treatment facilities in strategic places under
its jurisdiction and increase their capacities.
Defendant LWUA, to see to it that the water
districts under its wings, provide, construct
and operate sewage facilities for the proper
disposal of waste.
Defendant DENR, which is the lead agency
in cleaning up Manila Bay, to install, operate
and maintain waste facilities to rid the bay of
toxic and hazardous substances.
Defendant PPA, to prevent and also to treat
the discharge not only of ship-generated
wastes but also of other solid and liquid
wastes from docking vessels that contribute
to the pollution of the bay.
Defendant MMDA, to establish, operate and
maintain an adequate and appropriate
sanitary landfill and/or adequate solid waste
and liquid disposal as well as other
alternative garbage disposal system such as
re-use or recycling of wastes.
Defendant DA, through the Bureau of
Fisheries and Aquatic Resources, to
revitalize the marine life in Manila Bay and
restock its waters with indigenous fish and
other aquatic animals.
Defendant DBM, to provide and set aside an
adequate budget solely for the purpose of
cleaning up and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish
structures and other nuisances that obstruct
the free flow of waters to the bay. These
nuisances discharge solid and liquid wastes
which eventually end up in Manila Bay. As
the construction and engineering arm of the
government, DPWH is ordered to actively
 participate in removing debris, such as
carcass of sunken vessels, and other non-
biodegradable garbage in the bay.
Defendant DOH, to closely supervise and
monitor the operations of septic and sludge
companies and require them to have proper
facilities for the treatment and disposal of
fecal sludge and sewage coming from septic
tanks.
Defendant DECS, to inculcate in the minds
and hearts of the people through education
the importance of preserving and protecting
the environment.
Defendant Philippine Coast Guard and the
PNP Maritime Group, to protect at all costs
the Manila Bay from all forms of illegal
fishing.
No pronouncement as to damages and
costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration
(LWUA), and PPA filed before the Court of Appeals
(CA) individual Notices of Appeal which were
eventually consolidated and docketed as CA-G.R. CV
No. 76528.
On the other hand, the DENR, Department of Public
Works and Highways (DPWH), Metropolitan Manila
Development Authority (MMDA), Philippine Coast
Guard (PCG), Philippine National Police (PNP)
Maritime Group, and five other executive departments
and agencies filed directly with this Court a petition for
review under Rule 45. The Court, in a Resolution of
December 9, 2002, sent the said petition to the CA for
consolidation with the consolidated appeals of
MWSS, LWUA, and PPA, docketed as CA-G.R. SP
No. 74944.
Petitioners, before the CA, were one in arguing in the
main that the pertinent provisions of the Environment
Code (PD 1152) relate only to the cleaning of specific
pollution incidents and do not cover cleaning in
general. And apart from raising concerns about the
lack of funds appropriated for cleaning purposes,
petitioners also asserted that the cleaning of the
Manila Bay is not a ministerial act which can be
compelled by mandamus.
The CA Sustained the RTC
By a Decision6 of September 28, 2005, the CA denied
petitioners’ appeal and affirmed the Decision of the
RTC in toto, stressing that the trial court’s decision did
not require petitioners to do tasks outside of their
usual basic functions under existing laws.7
Petitioners are now before this Court praying for the
allowance of their Rule 45 petition on the following
ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF
SUBSTANCE NOT HERETOFORE
PASSED UPON BY THE HONORABLE
COURT, I.E., IT AFFIRMED THE TRIAL
COURT’S DECISION DECLARING THAT
SECTION 20 OF [PD] 1152 REQUIRES
CONCERNED GOVERNMENT AGENCIES
TO REMOVE ALL POLLUTANTS SPILLED
AND DISCHARGED IN THE WATER SUCH
AS FECAL COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152
RELATE ONLY TO THE CLEANING OF
SPECIFIC POLLUTION INCIDENTS AND
[DO] NOT COVER CLEANING IN
GENERAL
II
THE CLEANING OR REHABILITATION OF
THE MANILA BAY IS NOT A MINISTERIAL
ACT OF PETITIONERS THAT CAN BE
COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections
17 and 20 of PD 1152 under the headings, Upgrading
of Water Quality and Clean-up Operations, envisage
a cleanup in general or are they limited only to the
cleanup of specific pollution incidents? And second,
can petitioners be compelled by mandamus to clean
up and rehabilitate the Manila Bay?
On August 12, 2008, the Court conducted and heard
the parties on oral arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of
mandamus under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the
execution of a ministerial duty.8 A ministerial duty is
one that "requires neither the exercise of official
discretion nor judgment."9 It connotes an act in which
nothing is left to the discretion of the person executing
it. It is a "simple, definite duty arising under conditions
admitted or proved to exist and imposed by
law."10 Mandamus is available to compel action, when
refused, on matters involving discretion, but not to
direct the exercise of judgment or discretion one way
or the other.
Petitioners maintain that the MMDA’s duty to take
measures and maintain adequate solid waste and
liquid disposal systems necessarily involves policy
evaluation and the exercise of judgment on the part of
the agency concerned. They argue that the MMDA, in
carrying out its mandate, has to make decisions,
including choosing where a landfill should be located
by undertaking feasibility studies and cost estimates,
all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the
statutory command is clear and that petitioners’ duty
to comply with and act according to the clear mandate
of the law does not require the exercise of discretion.
According to respondents, petitioners, the MMDA in
particular, are without discretion, for example, to
choose which bodies of water they are to clean up, or
which discharge or spill they are to contain. By the
same token, respondents maintain that petitioners are
bereft of discretion on whether or not to alleviate the
problem of solid and liquid waste disposal; in other
words, it is the MMDA’s ministerial duty to attend to
such services.
We agree with respondents.
First off, we wish to state that petitioners’ obligation to
perform their duties as defined by law, on one hand,
and how they are to carry out such duties, on the
other, are two different concepts. While the
implementation of the MMDA’s mandated tasks may
entail a decision-making process, the enforcement of
the law or the very act of doing what the law exacts to
be done is ministerial in nature and may be compelled
by mandamus. We said so in Social Justice Society v.
Atienza11 in which the Court directed the City of
Manila to enforce, as a matter of ministerial duty, its
Ordinance No. 8027 directing the three big local oil
players to cease and desist from operating their
business in the so-called "Pandacan Terminals" within
six months from the effectivity of the ordinance. But to
illustrate with respect to the instant case, the MMDA’s
duty to put up an adequate and appropriate sanitary
landfill and solid waste and liquid disposal as well as
other alternative garbage disposal systems is
ministerial, its duty being a statutory imposition. The
MMDA’s duty in this regard is spelled out in Sec. 3(c)
of Republic Act No. (RA) 7924 creating the MMDA.
This section defines and delineates the scope of the
MMDA’s waste disposal services to include:
Solid waste disposal and management which
include formulation and implementation of
policies, standards, programs and projects
for proper and sanitary waste disposal. It
shall likewise include the establishment
and operation of sanitary land fill and
related facilities and the implementation of
other alternative programs intended to
reduce, reuse and recycle solid waste.
(Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of
the Ecological Solid Waste Management Act (RA
9003) which prescribes the minimum criteria for the
establishment of sanitary landfills and Sec. 42 which
provides the minimum operating requirements that
each site operator shall maintain in the operation of a
sanitary landfill. Complementing Sec. 41 are Secs. 36
and 37 of RA 9003,12 enjoining the MMDA and local
government units, among others, after the effectivity
of the law on February 15, 2001, from using and
operating open dumps for solid waste and
disallowing, five years after such effectivity, the use of
controlled dumps.
The MMDA’s duty in the area of solid waste disposal,
as may be noted, is set forth not only in the
Environment Code (PD 1152) and RA 9003, but in its
charter as well. This duty of putting up a proper waste
disposal system cannot be characterized as
discretionary, for, as earlier stated, discretion
presupposes the power or right given by law to public
functionaries to act officially according to their
judgment or conscience.13 A discretionary duty is one
that "allows a person to exercise judgment and
choose to perform or not to perform."14 Any
suggestion that the MMDA has the option whether or
not to perform its solid waste disposal-related duties
ought to be dismissed for want of legal basis.
A perusal of other petitioners’ respective charters or
like enabling statutes and pertinent laws would yield
this conclusion: these government agencies are
enjoined, as a matter of statutory obligation, to
perform certain functions relating directly or indirectly
to the cleanup, rehabilitation, protection, and
preservation of the Manila Bay. They are precluded
from choosing not to perform these duties. Consider:
(1) The DENR, under Executive Order No. (EO)
192,15 is the primary agency responsible for the
conservation, management, development, and proper
use of the country’s environment and natural
resources. Sec. 19 of the Philippine Clean Water Act
of 2004 (RA 9275), on the other hand, designates the
DENR as the primary government agency responsible
for its enforcement and implementation, more
particularly over all aspects of water quality
management. On water pollution, the DENR, under
the Act’s Sec. 19(k), exercises jurisdiction "over all
aspects of water pollution, determine[s] its location,
magnitude, extent, severity, causes and effects and
other pertinent information on pollution, and [takes]
measures, using available methods and technologies,
to prevent and abate such pollution."
The DENR, under RA 9275, is also tasked to prepare
a National Water Quality Status Report, an Integrated
Water Quality Management Framework, and a 10-
year Water Quality Management Area Action Plan
which is nationwide in scope covering the Manila Bay
and adjoining areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.––The [DENR] shall
be the primary government agency
responsible for the implementation and
enforcement of this Act x x x unless
otherwise provided herein. As such, it shall
have the following functions, powers and
responsibilities:
a) Prepare a National Water Quality Status
report within twenty-four (24) months from
the effectivity of this Act: Provided, That the
Department shall thereafter review or revise
and publish annually, or as the need arises,
said report;
b) Prepare an Integrated Water Quality
Management Framework within twelve (12)
months following the completion of the status
report;
c) Prepare a ten (10) year Water Quality
Management Area Action Plan within 12
months following the completion of the
framework for each designated water
management area. Such action plan shall be
reviewed by the water quality management
area governing board every five (5) years or
as need arises.
The DENR has prepared the status report for the
period 2001 to 2005 and is in the process of
completing the preparation of the Integrated Water
Quality Management Framework.16 Within twelve (12)
months thereafter, it has to submit a final Water
Quality Management Area Action Plan.17 Again, like
the MMDA, the DENR should be made to accomplish
the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR
Secretary manifested that the DENR, with the
assistance of and in partnership with various
government agencies and non-government
organizations, has completed, as of December 2005,
the final draft of a comprehensive action plan with
estimated budget and time frame, denominated
as Operation Plan for the Manila Bay Coastal
Strategy, for the rehabilitation, restoration, and
rehabilitation of the Manila Bay.
The completion of the said action plan and even the
implementation of some of its phases should more
than ever prod the concerned agencies to fast track
what are assigned them under existing laws.
(2) The MWSS, under Sec. 3 of RA 6234,18 is vested
with jurisdiction, supervision, and control over all
waterworks and sewerage systems in the territory
comprising what is now the cities of Metro Manila and
several towns of the provinces of Rizal and Cavite,
and charged with the duty:
(g) To construct, maintain, and operate such
sanitary sewerages as may be necessary for
the proper sanitation and other uses of the
cities and towns comprising the System; x x
x
(3) The LWUA under PD 198 has the power of
supervision and control over local water districts. It
can prescribe the minimum standards and regulations
for the operations of these districts and shall monitor
and evaluate local water standards. The LWUA can
direct these districts to construct, operate, and furnish
facilities and services for the collection, treatment,
and disposal of sewerage, waste, and storm water.
Additionally, under RA 9275, the LWUA, as attached
agency of the DPWH, is tasked with providing
sewerage and sanitation facilities, inclusive of the
setting up of efficient and safe collection, treatment,
and sewage disposal system in the different parts of
the country.19 In relation to the instant petition, the
LWUA is mandated to provide sewerage and
sanitation facilities in Laguna, Cavite, Bulacan,
Pampanga, and Bataan to prevent pollution in the
Manila Bay.
(4) The Department of Agriculture (DA), pursuant to
the Administrative Code of 1987 (EO 292),20 is
designated as the agency tasked to promulgate and
enforce all laws and issuances respecting the
conservation and proper utilization of agricultural and
fishery resources. Furthermore, the DA, under the
Philippine Fisheries Code of 1998 (RA 8550), is, in
coordination with local government units (LGUs) and
other concerned sectors, in charge of establishing a
monitoring, control, and surveillance system to ensure
that fisheries and aquatic resources in Philippine
waters are judiciously utilized and managed on a
sustainable basis.21 Likewise under RA 9275, the DA
is charged with coordinating with the PCG and DENR
for the enforcement of water quality standards in
marine waters.22 More specifically, its Bureau of
Fisheries and Aquatic Resources (BFAR) under Sec.
22(c) of RA 9275 shall primarily be responsible for the
prevention and control of water pollution for the
development, management, and conservation of the
fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction
arm of the national government, is tasked under EO
29223 to provide integrated planning, design, and
construction services for, among others, flood control
and water resource development systems in
accordance with national development objectives and
approved government plans and specifications.
In Metro Manila, however, the MMDA is authorized by
Sec. 3(d), RA 7924 to perform metro-wide services
relating to "flood control and sewerage management
which include the formulation and implementation of
policies, standards, programs and projects for an
integrated flood control, drainage and sewerage
system."
On July 9, 2002, a Memorandum of Agreement was
entered into between the DPWH and MMDA, whereby
MMDA was made the agency primarily responsible for
flood control in Metro Manila. For the rest of the
country, DPWH shall remain as the implementing
agency for flood control services. The mandate of the
MMDA and DPWH on flood control and drainage
services shall include the removal of structures,
constructions, and encroachments built along rivers,
waterways, and esteros (drainages) in violation of RA
7279, PD 1067, and other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601,
or the Revised Coast Guard Law of 1974, and Sec. 6
of PD 979,24 or the Marine Pollution Decree of 1976,
shall have the primary responsibility of enforcing laws,
rules, and regulations governing marine pollution
within the territorial waters of the Philippines. It shall
promulgate its own rules and regulations in
accordance with the national rules and policies set by
the National Pollution Control Commission upon
consultation with the latter for the effective
implementation and enforcement of PD 979. It shall,
under Sec. 4 of the law, apprehend violators who:
a. discharge, dump x x x harmful substances
from or out of any ship, vessel, barge, or any
other floating craft, or other man-made
structures at sea, by any method, means or
manner, into or upon the territorial and inland
navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or
cause, suffer or procure to be thrown,
discharged, or deposited either from or out of
any ship, barge, or other floating craft or
vessel of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any
kind, any refuse matter of any kind or
description whatever other than that flowing
from streets and sewers and passing
therefrom in a liquid state into tributary of
any navigable water from which the same
shall float or be washed into such navigable
water; and
c. deposit x x x material of any kind in any
place on the bank of any navigable water or
on the bank of any tributary of any navigable
water, where the same shall be liable to be
washed into such navigable water, either by
ordinary or high tides, or by storms or floods,
or otherwise, whereby navigation shall or
may be impeded or obstructed or increase
the level of pollution of such water.
(7) When RA 6975 or the Department of the Interior
and Local Government (DILG) Act of 1990 was
signed into law on December 13, 1990, the PNP
Maritime Group was tasked to "perform all police
functions over the Philippine territorial waters and
rivers." Under Sec. 86, RA 6975, the police functions
of the PCG shall be taken over by the PNP when the
latter acquires the capability to perform such
functions. Since the PNP Maritime Group has not yet
attained the capability to assume and perform the
police functions of PCG over marine pollution, the
PCG and PNP Maritime Group shall coordinate with
regard to the enforcement of laws, rules, and
regulations governing marine pollution within the
territorial waters of the Philippines. This was made
clear in Sec. 124, RA 8550 or the Philippine Fisheries
Code of 1998, in which both the PCG and PNP
Maritime Group were authorized to enforce said law
and other fishery laws, rules, and regulations.25
(8) In accordance with Sec. 2 of EO 513, the PPA is
mandated "to establish, develop, regulate, manage
and operate a rationalized national port system in
support of trade and national
development."26 Moreover, Sec. 6-c of EO 513 states
that the PPA has police authority within the ports
administered by it as may be necessary to carry out
its powers and functions and attain its purposes and
objectives, without prejudice to the exercise of the
functions of the Bureau of Customs and other law
enforcement bodies within the area. Such police
authority shall include the following:
xxxx
b) To regulate the entry to, exit from, and
movement within the port, of persons and
vehicles, as well as movement within the
port of watercraft.27
Lastly, as a member of the International Marine
Organization and a signatory to the International
Convention for the Prevention of Pollution from Ships,
as amended by MARPOL 73/78,28 the Philippines,
through the PPA, must ensure the provision of
adequate reception facilities at ports and terminals for
the reception of sewage from the ships docking in
Philippine ports. Thus, the PPA is tasked to adopt
such measures as are necessary to prevent the
discharge and dumping of solid and liquid wastes and
other ship-generated wastes into the Manila Bay
waters from vessels docked at ports and apprehend
the violators. When the vessels are not docked at
ports but within Philippine territorial waters, it is the
PCG and PNP Maritime Group that have jurisdiction
over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to
put up and maintain adequate sanitary landfill and
solid waste and liquid disposal system as well as
other alternative garbage disposal systems. It is
primarily responsible for the implementation and
enforcement of the provisions of RA 9003, which
would necessary include its penal provisions, within
its area of jurisdiction.29
Among the prohibited acts under Sec. 48, Chapter VI
of RA 9003 that are frequently violated are dumping
of waste matters in public places, such as roads,
canals or esteros, open burning of solid waste,
squatting in open dumps and landfills, open dumping,
burying of biodegradable or non- biodegradable
materials in flood-prone areas, establishment or
operation of open dumps as enjoined in RA 9003, and
operation of waste management facilities without an
environmental compliance certificate.
Under Sec. 28 of the Urban Development and
Housing Act of 1992 (RA 7279), eviction or demolition
may be allowed "when persons or entities occupy
danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways,
and other public places such as sidewalks, roads,
parks and playgrounds." The MMDA, as lead agency,
in coordination with the DPWH, LGUs, and concerned
agencies, can dismantle and remove all structures,
constructions, and other encroachments built in
breach of RA 7279 and other pertinent laws along the
rivers, waterways, and esteros in Metro Manila. With
respect to rivers, waterways, and esteros in Bulacan,
Bataan, Pampanga, Cavite, and Laguna that
discharge wastewater directly or eventually into the
Manila Bay, the DILG shall direct the concerned
LGUs to implement the demolition and removal of
such structures, constructions, and other
encroachments built in violation of RA 7279 and other
applicable laws in coordination with the DPWH and
concerned agencies.
(10) The Department of Health (DOH), under Article
76 of PD 1067 (the Water Code), is tasked to
promulgate rules and regulations for the
establishment of waste disposal areas that affect the
source of a water supply or a reservoir for domestic or
municipal use. And under Sec. 8 of RA 9275, the
DOH, in coordination with the DENR, DPWH, and
other concerned agencies, shall formulate guidelines
and standards for the collection, treatment, and
disposal of sewage and the establishment and
operation of a centralized sewage treatment system.
In areas not considered as highly urbanized cities,
septage or a mix sewerage-septage management
system shall be employed.
In accordance with Sec. 7230 of PD 856, the Code of
Sanitation of the Philippines, and Sec. 5.1.131 of
Chapter XVII of its implementing rules, the DOH is
also ordered to ensure the regulation and monitoring
of the proper disposal of wastes by private sludge
companies through the strict enforcement of the
requirement to obtain an environmental sanitation
clearance of sludge collection treatment and disposal
before these companies are issued their
environmental sanitation permit.
(11) The Department of Education (DepEd), under the
Philippine Environment Code (PD 1152), is mandated
to integrate subjects on environmental education in its
school curricula at all levels.32 Under Sec. 118 of RA
8550, the DepEd, in collaboration with the DA,
Commission on Higher Education, and Philippine
Information Agency, shall launch and pursue a
nationwide educational campaign to promote the
development, management, conservation, and proper
use of the environment. Under the Ecological Solid
Waste Management Act (RA 9003), on the other
hand, it is directed to strengthen the integration of
environmental concerns in school curricula at all
levels, with an emphasis on waste management
principles.33
(12) The Department of Budget and Management
(DBM) is tasked under Sec. 2, Title XVII of the
Administrative Code of 1987 to ensure the efficient
and sound utilization of government funds and
revenues so as to effectively achieve the country’s
development objectives.34
One of the country’s development objectives is
enshrined in RA 9275 or the Philippine Clean Water
Act of 2004. This law stresses that the State shall
pursue a policy of economic growth in a manner
consistent with the protection, preservation, and
revival of the quality of our fresh, brackish, and
marine waters. It also provides that it is the policy of
the government, among others, to streamline
processes and procedures in the prevention, control,
and abatement of pollution mechanisms for the
protection of water resources; to promote
environmental strategies and use of appropriate
economic instruments and of control mechanisms for
the protection of water resources; to formulate a
holistic national program of water quality management
that recognizes that issues related to this
management cannot be separated from concerns
about water sources and ecological protection, water
supply, public health, and quality of life; and to
provide a comprehensive management program for
water pollution focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an
adequate budget to attain the noble objectives of RA
9275 in line with the country’s development
objectives.
All told, the aforementioned enabling laws and
issuances are in themselves clear, categorical, and
complete as to what are the obligations and mandate
of each agency/petitioner under the law. We need not
belabor the issue that their tasks include the cleanup
of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and
20 of the Environment Code encompass the cleanup
of water pollution in general, not just specific pollution
incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.––
Where the quality of water has deteriorated
to a degree where its state will adversely
affect its best usage, the government
agencies concerned shall take such
measures as may be necessary to upgrade
the quality of such water to meet the
prescribed water quality standards.
Section 20. Clean-up Operations.––It shall
be the responsibility of the polluter to
contain, remove and clean-up water pollution
incidents at his own expense. In case of his
failure to do so, the government agencies
concerned shall undertake containment,
removal and clean-up operations and
expenses incurred in said operations shall
be charged against the persons and/or
entities responsible for such pollution.
When the Clean Water Act (RA 9275) took effect, its
Sec. 16 on the subject, o, amended the counterpart
provision (Sec. 20) of the Environment Code (PD
1152). Sec. 17 of PD 1152 continues, however, to be
operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.––
Notwithstanding the provisions of Sections
15 and 26 hereof, any person who causes
pollution in or pollutes water bodies in
excess of the applicable and prevailing
standards shall be responsible to contain,
remove and clean up any pollution incident
at his own expense to the extent that the
same water bodies have been rendered unfit
for utilization and beneficial use: Provided,
That in the event emergency cleanup
operations are necessary and the polluter
fails to immediately undertake the same, the
[DENR] in coordination with other
government agencies concerned, shall
undertake containment, removal and
cleanup operations. Expenses incurred in
said operations shall be reimbursed by the
persons found to have caused such pollution
under proper administrative determination x
x x. Reimbursements of the cost incurred
shall be made to the Water Quality
Management Fund or to such other funds
where said disbursements were sourced.
As may be noted, the amendment to Sec. 20 of the
Environment Code is more apparent than real since
the amendment, insofar as it is relevant to this case,
merely consists in the designation of the DENR as
lead agency in the cleanup operations.
Petitioners contend at every turn that Secs. 17 and 20
of the Environment Code concern themselves only
with the matter of cleaning up in specific pollution
incidents, as opposed to cleanup in general. They
aver that the twin provisions would have to be read
alongside the succeeding Sec. 62(g) and (h), which
defines the terms "cleanup operations" and
"accidental spills," as follows:
g. Clean-up Operations [refer] to activities
conducted in removing the pollutants
discharged or spilled in water to restore it to
pre-spill condition.
h. Accidental Spills [refer] to spills of oil or
other hazardous substances in water that
result from accidents such as collisions and
groundings.
Petitioners proffer the argument that Secs. 17 and 20
of PD 1152 merely direct the government agencies
concerned to undertake containment, removal, and
cleaning operations of a specific polluted portion or
portions of the body of water concerned. They
maintain that the application of said Sec. 20 is limited
only to "water pollution incidents," which are situations
that presuppose the occurrence of specific, isolated
pollution events requiring the corresponding
containment, removal, and cleaning operations.
Pushing the point further, they argue that the
aforequoted Sec. 62(g) requires "cleanup operations"
to restore the body of water to pre-spill condition,
which means that there must have been a specific
incident of either intentional or accidental spillage of
oil or other hazardous substances, as mentioned in
Sec. 62(h).
As a counterpoint, respondents argue that petitioners
erroneously read Sec. 62(g) as delimiting the
application of Sec. 20 to the containment, removal,
and cleanup operations for accidental spills only.
Contrary to petitioners’ posture, respondents assert
that Sec. 62(g), in fact, even expanded the coverage
of Sec. 20. Respondents explain that without its Sec.
62(g), PD 1152 may have indeed covered only
pollution accumulating from the day-to-day operations
of businesses around the Manila Bay and other
sources of pollution that slowly accumulated in the
bay. Respondents, however, emphasize that Sec.
62(g), far from being a delimiting provision, in fact
even enlarged the operational scope of Sec. 20, by
including accidental spills as among the water
pollution incidents contemplated in Sec. 17 in relation
to Sec. 20 of PD 1152.
To respondents, petitioners’ parochial view on
environmental issues, coupled with their narrow
reading of their respective mandated roles, has
contributed to the worsening water quality of the
Manila Bay. Assuming, respondents assert, that
petitioners are correct in saying that the cleanup
coverage of Sec. 20 of PD 1152 is constricted by the
definition of the phrase "cleanup operations"
embodied in Sec. 62(g), Sec. 17 is not hobbled by
such limiting definition. As pointed out, the phrases
"cleanup operations" and "accidental spills" do not
appear in said Sec. 17, not even in the chapter where
said section is found.
Respondents are correct. For one thing, said Sec. 17
does not in any way state that the government
agencies concerned ought to confine themselves to
the containment, removal, and cleaning operations
when a specific pollution incident occurs. On the
contrary, Sec. 17 requires them to act even in the
absence of a specific pollution incident, as long as
water quality "has deteriorated to a degree where its
state will adversely affect its best usage." This
section, to stress, commands concerned government
agencies, when appropriate, "to take such measures
as may be necessary to meet the prescribed water
quality standards." In fine, the underlying duty to
upgrade the quality of water is not conditional on the
occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment
Code, as couched, indicates that it is properly
applicable to a specific situation in which the pollution
is caused by polluters who fail to clean up the mess
they left behind. In such instance, the concerned
government agencies shall undertake the cleanup
work for the polluters’ account. Petitioners’ assertion,
that they have to perform cleanup operations in the
Manila Bay only when there is a water pollution
incident and the erring polluters do not undertake the
containment, removal, and cleanup operations, is
quite off mark. As earlier discussed, the
complementary Sec. 17 of the Environment Code
comes into play and the specific duties of the
agencies to clean up come in even if there are no
pollution incidents staring at them. Petitioners, thus,
cannot plausibly invoke and hide behind Sec. 20 of
PD 1152 or Sec. 16 of RA 9275 on the pretext that
their cleanup mandate depends on the happening of a
specific pollution incident. In this regard, what the CA
said with respect to the impasse over Secs. 17 and 20
of PD 1152 is at once valid as it is practical. The
appellate court wrote: "PD 1152 aims to introduce a
comprehensive program of environmental protection
and management. This is better served by making
Secs. 17 & 20 of general application rather than
limiting them to specific pollution incidents."35
Granting arguendo that petitioners’ position thus
described vis-à-vis the implementation of Sec. 20 is
correct, they seem to have overlooked the fact that
the pollution of the Manila Bay is of such magnitude
and scope that it is well-nigh impossible to draw the
line between a specific and a general pollution
incident. And such impossibility extends to pinpointing
with reasonable certainty who the polluters are. We
note that Sec. 20 of PD 1152 mentions "water
pollution incidents" which may be caused by polluters
in the waters of the Manila Bay itself or by polluters in
adjoining lands and in water bodies or waterways that
empty into the bay. Sec. 16 of RA 9275, on the other
hand, specifically adverts to "any person who causes
pollution in or pollutes water bodies," which may refer
to an individual or an establishment that pollutes the
land mass near the Manila Bay or the waterways,
such that the contaminants eventually end up in the
bay. In this situation, the water pollution incidents are
so numerous and involve nameless and faceless
polluters that they can validly be categorized as
beyond the specific pollution incident level.
Not to be ignored of course is the reality that the
government agencies concerned are so
undermanned that it would be almost impossible to
apprehend the numerous polluters of the Manila Bay.
It may perhaps not be amiss to say that the
apprehension, if any, of the Manila Bay polluters has
been few and far between. Hence, practically nobody
has been required to contain, remove, or clean up a
given water pollution incident. In this kind of setting, it
behooves the Government to step in and undertake
cleanup operations. Thus, Sec. 16 of RA 9275,
previously Sec. 20 of PD 1152, covers for all intents
and purposes a general cleanup situation.
The cleanup and/or restoration of the Manila Bay is
only an aspect and the initial stage of the long-term
solution. The preservation of the water quality of the
bay after the rehabilitation process is as important as
the cleaning phase. It is imperative then that the
wastes and contaminants found in the rivers, inland
bays, and other bodies of water be stopped from
reaching the Manila Bay. Otherwise, any cleanup
effort would just be a futile, cosmetic exercise, for, in
no time at all, the Manila Bay water quality would
again deteriorate below the ideal minimum standards
set by PD 1152, RA 9275, and other relevant laws. It
thus behooves the Court to put the heads of the
petitioner-department-agencies and the bureaus and
offices under them on continuing notice about, and to
enjoin them to perform, their mandates and duties
towards cleaning up the Manila Bay and preserving
the quality of its water to the ideal level. Under what
other judicial discipline describes as "continuing
mandamus,"36 the Court may, under extraordinary
circumstances, issue directives with the end in view of
ensuring that its decision would not be set to naught
by administrative inaction or indifference. In India, the
doctrine of continuing mandamus was used to enforce
directives of the court to clean up the length of the
Ganges River from industrial and municipal
pollution.37
The Court can take judicial notice of the presence of
shanties and other unauthorized structures which do
not have septic tanks along the Pasig-Marikina-San
Juan Rivers, the National Capital Region (NCR)
(Parañaque-Zapote, Las Piñas) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-
Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna
De Bay, and other minor rivers and connecting
waterways, river banks, and esteros which discharge
their waters, with all the accompanying filth, dirt, and
garbage, into the major rivers and eventually the
Manila Bay. If there is one factor responsible for the
pollution of the major river systems and the Manila
Bay, these unauthorized structures would be on top of
the list. And if the issue of illegal or unauthorized
structures is not seriously addressed with sustained
resolve, then practically all efforts to cleanse these
important bodies of water would be for naught. The
DENR Secretary said as much.38
Giving urgent dimension to the necessity of removing
these illegal structures is Art. 51 of PD 1067 or the
Water Code,39 which prohibits the building of
structures within a given length along banks of rivers
and other waterways. Art. 51 reads:
The banks of rivers and streams and the
shores of the seas and lakes throughout
their entire length and within a zone of
three (3) meters in urban areas, twenty
(20) meters in agricultural areas and forty
(40) meters in forest areas, along their
margins, are subject to the easement of
public use in the interest of recreation,
navigation, floatage, fishing and salvage.
No person shall be allowed to stay in this
zonelonger than what is necessary for
recreation, navigation, floatage, fishing or
salvage or to build structures of any kind.
(Emphasis added.)
Judicial notice may likewise be taken of factories and
other industrial establishments standing along or near
the banks of the Pasig River, other major rivers, and
connecting waterways. But while they may not be
treated as unauthorized constructions, some of these
establishments undoubtedly contribute to the pollution
of the Pasig River and waterways. The DILG and the
concerned LGUs, have, accordingly, the duty to see
to it that non-complying industrial establishments set
up, within a reasonable period, the necessary waste
water treatment facilities and infrastructure to prevent
their industrial discharge, including their sewage
waters, from flowing into the Pasig River, other major
rivers, and connecting waterways. After such period,
non-complying establishments shall be shut down or
asked to transfer their operations.
At this juncture, and if only to dramatize the urgency
of the need for petitioners-agencies to comply with
their statutory tasks, we cite the Asian Development
Bank-commissioned study on the garbage problem in
Metro Manila, the results of which are embodied in
the The Garbage Book. As there reported, the
garbage crisis in the metropolitan area is as alarming
as it is shocking. Some highlights of the report:
1. As early as 2003, three land-filled
dumpsites in Metro Manila - the Payatas,
Catmon and Rodriquez dumpsites - generate
an alarming quantity of lead and leachate or
liquid run-off. Leachate are toxic liquids that
flow along the surface and seep into the
earth and poison the surface and
groundwater that are used for drinking,
aquatic life, and the environment.
2. The high level of fecal coliform confirms
the presence of a large amount of human
waste in the dump sites and surrounding
areas, which is presumably generated by
households that lack alternatives to
sanitation. To say that Manila Bay needs
rehabilitation is an understatement.
3. Most of the deadly leachate, lead and
other dangerous contaminants and possibly
strains of pathogens seeps untreated into
ground water and runs into the Marikina and
Pasig River systems and Manila Bay.40
Given the above perspective, sufficient sanitary
landfills should now more than ever be established as
prescribed by the Ecological Solid Waste
Management Act (RA 9003). Particular note should
be taken of the blatant violations by some LGUs and
possibly the MMDA of Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open
Dumps for Solid Waste.––No open dumps
shall be established and operated, nor any
 practice or disposal of solid waste by any
person, including LGUs which [constitute]
the use of open dumps for solid waste, be
allowed after the effectivity of this Act:
Provided, further that no controlled dumps
shall be allowed (5) years following the
effectivity of this Act. (Emphasis added.)
RA 9003 took effect on February 15, 2001 and the
adverted grace period of five (5) years which ended
on February 21, 2006 has come and gone, but no
single sanitary landfill which strictly complies with the
prescribed standards under RA 9003 has yet been set
up.
In addition, there are rampant and repeated violations
of Sec. 48 of RA 9003, like littering, dumping of waste
matters in roads, canals, esteros, and other public
places, operation of open dumps, open burning of
solid waste, and the like. Some sludge companies
which do not have proper disposal facilities simply
discharge sludge into the Metro Manila sewerage
system that ends up in the Manila Bay. Equally
unabated are violations of Sec. 27 of RA 9275, which
enjoins the pollution of water bodies, groundwater
pollution, disposal of infectious wastes from vessels,
and unauthorized transport or dumping into sea
waters of sewage or solid waste and of Secs. 4 and
102 of RA 8550 which proscribes the introduction by
human or machine of substances to the aquatic
environment including "dumping/disposal of waste
and other marine litters, discharge of petroleum or
residual products of petroleum of carbonaceous
materials/substances [and other] radioactive, noxious
or harmful liquid, gaseous or solid substances, from
any water, land or air transport or other human-made
structure."
In the light of the ongoing environmental degradation,
the Court wishes to emphasize the extreme necessity
for all concerned executive departments and agencies
to immediately act and discharge their respective
official duties and obligations. Indeed, time is of the
essence; hence, there is a need to set timetables for
the performance and completion of the tasks, some of
them as defined for them by law and the nature of
their respective offices and mandates.
The importance of the Manila Bay as a sea resource,
playground, and as a historical landmark cannot be
over-emphasized. It is not yet too late in the day to
restore the Manila Bay to its former splendor and
bring back the plants and sea life that once thrived in
its blue waters. But the tasks ahead, daunting as they
may be, could only be accomplished if those
mandated, with the help and cooperation of all civic-
minded individuals, would put their minds to these
tasks and take responsibility. This means that the
State, through petitioners, has to take the lead in the
preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad
hoc measures is over. Petitioners must transcend
their limitations, real or imaginary, and buckle down to
work before the problem at hand becomes
unmanageable. Thus, we must reiterate that different
government agencies and instrumentalities cannot
shirk from their mandates; they must perform their
basic functions in cleaning up and rehabilitating the
Manila Bay. We are disturbed by petitioners’ hiding
behind two untenable claims: (1) that there ought to
be a specific pollution incident before they are
required to act; and (2) that the cleanup of the bay is
a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to
radically transform and improve waste management.
It implements Sec. 16, Art. II of the 1987 Constitution,
which explicitly provides that 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.
So it was that in Oposa v. Factoran, Jr. the Court
stated that the right to a balanced and healthful
ecology need not even be written in the Constitution
for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of
transcendental importance with intergenerational
implications.41 Even assuming the absence of a
categorical legal provision specifically prodding
petitioners to clean up the bay, they and the men and
women representing them cannot escape their
obligation to future generations of Filipinos to keep
the waters of the Manila Bay clean and clear as
humanly as possible. Anything less would be a
betrayal of the trust reposed in them.
WHEREFORE, the petition is DENIED. The
September 28, 2005 Decision of the CA in CA-G.R.
CV No. 76528 and SP No. 74944 and the September
13, 2002 Decision of the RTC in Civil Case No. 1851-
99 are AFFIRMED but with MODIFICATIONS in view
of subsequent developments or supervening events in
the case. The fallo of the RTC Decision shall now
read:
WHEREFORE, judgment is hereby rendered
ordering the abovenamed defendant-
government agencies to clean up,
rehabilitate, and preserve Manila Bay, and
restore and maintain its waters to SB level
(Class B sea waters per Water Classification
Tables under DENR Administrative Order
No. 34 [1990]) to make them fit for
swimming, skin-diving, and other forms of
contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the
DENR as the primary agency responsible for the
conservation, management, development, and proper
use of the country’s environment and natural
resources, and Sec. 19 of RA 9275, designating the
DENR as the primary government agency responsible
for its enforcement and implementation, the DENR is
directed to fully implement its Operational Plan for the
Manila Bay Coastal Strategy for the rehabilitation,
restoration, and conservation of the Manila Bay at the
earliest possible time. It is ordered to call regular
coordination meetings with concerned government
departments and agencies to ensure the successful
implementation of the aforesaid plan of action in
accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the
Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,42 the DILG, in exercising
the President’s power of general supervision and its
duty to promulgate guidelines in establishing waste
management programs under Sec. 43 of the
Philippine Environment Code (PD 1152), shall direct
all LGUs in Metro Manila, Rizal, Laguna, Cavite,
Bulacan, Pampanga, and Bataan to inspect all
factories, commercial establishments, and private
homes along the banks of the major river systems in
their respective areas of jurisdiction, such as but not
limited to the Pasig-Marikina-San Juan Rivers, the
NCR (Parañaque-Zapote, Las Piñas) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other minor rivers and
waterways that eventually discharge water into the
Manila Bay; and the lands abutting the bay, to
determine whether they have wastewater treatment
facilities or hygienic septic tanks as prescribed by
existing laws, ordinances, and rules and regulations.
If none be found, these LGUs shall be ordered to
require non-complying establishments and homes to
set up said facilities or septic tanks within a
reasonable time to prevent industrial wastes, sewage
water, and human wastes from flowing into these
rivers, waterways, esteros, and the Manila Bay, under
pain of closure or imposition of fines and other
sanctions.
(3) As mandated by Sec. 8 of RA 9275,43 the MWSS
is directed to provide, install, operate, and maintain
the necessary adequate waste water treatment
facilities in Metro Manila, Rizal, and Cavite where
needed at the earliest possible time.
(4) Pursuant to RA 9275,44 the LWUA, through the
local water districts and in coordination with the
DENR, is ordered to provide, install, operate, and
maintain sewerage and sanitation facilities and the
efficient and safe collection, treatment, and disposal
of sewage in the provinces of Laguna, Cavite,
Bulacan, Pampanga, and Bataan where needed at
the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,45 the DA, through
the BFAR, is ordered to improve and restore the
marine life of the Manila Bay. It is also directed to
assist the LGUs in Metro Manila, Rizal, Cavite,
Laguna, Bulacan, Pampanga, and Bataan in
developing, using recognized methods, the fisheries
and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979,
and the PNP Maritime Group, in accordance with Sec.
124 of RA 8550, in coordination with each other, shall
apprehend violators of PD 979, RA 8550, and other
existing laws and regulations designed to prevent
marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 51346 and the
International Convention for the Prevention of
Pollution from Ships, the PPA is ordered to
immediately adopt such measures to prevent the
discharge and dumping of solid and liquid wastes and
other ship-generated wastes into the Manila Bay
waters from vessels docked at ports and apprehend
the violators.
(8) The MMDA, as the lead agency and implementor
of programs and projects for flood control projects and
drainage services in Metro Manila, in coordination
with the DPWH, DILG, affected LGUs, PNP Maritime
Group, Housing and Urban Development
Coordinating Council (HUDCC), and other agencies,
shall dismantle and remove all structures,
constructions, and other encroachments established
or built in violation of RA 7279, and other applicable
laws along the Pasig-Marikina-San Juan Rivers, the
NCR (Parañaque-Zapote, Las Piñas) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, and
connecting waterways and esteros in Metro Manila.
The DPWH, as the principal implementor of programs
and projects for flood control services in the rest of
the country more particularly in Bulacan, Bataan,
Pampanga, Cavite, and Laguna, in coordination with
the DILG, affected LGUs, PNP Maritime Group,
HUDCC, and other concerned government agencies,
shall remove and demolish all structures,
constructions, and other encroachments built in
breach of RA 7279 and other applicable laws along
the Meycauayan-Marilao-Obando (Bulacan) Rivers,
the Talisay (Bataan) River, the Imus (Cavite) River,
the Laguna De Bay, and other rivers, connecting
waterways, and esteros that discharge wastewater
into the Manila Bay.
In addition, the MMDA is ordered to establish,
operate, and maintain a sanitary landfill, as prescribed
by RA 9003, within a period of one (1) year from
finality of this Decision. On matters within its territorial
jurisdiction and in connection with the discharge of its
duties on the maintenance of sanitary landfills and like
undertakings, it is also ordered to cause the
apprehension and filing of the appropriate criminal
cases against violators of the respective penal
provisions of RA 9003,47 Sec. 27 of RA 9275 (the
Clean Water Act), and other existing laws on
pollution.

(9) The DOH shall, as directed by Art. 76 of PD 1067

and Sec. 8 of RA 9275, within one (1) year from
finality of this Decision, determine if all licensed septic
and sludge companies have the proper facilities for
the treatment and disposal of fecal sludge and
sewage coming from septic tanks. The DOH shall
give the companies, if found to be non-complying, a
reasonable time within which to set up the necessary
facilities under pain of cancellation of its
environmental sanitation clearance.

(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of

RA 8550, and Sec. 56 of RA 9003,49 the DepEd shall
integrate lessons on pollution prevention, waste
management, environmental protection, and like
subjects in the school curricula of all levels to
inculcate in the minds and hearts of students and,
through them, their parents and friends, the
importance of their duty toward achieving and
maintaining a balanced and healthful ecosystem in
the Manila Bay and the entire Philippine archipelago.

(11) The DBM shall consider incorporating an

adequate budget in the General Appropriations Act of
2010 and succeeding years to cover the expenses
relating to the cleanup, restoration, and preservation
of the water quality of the Manila Bay, in line with the
country’s development objective to attain economic
growth in a manner consistent with the protection,
preservation, and revival of our marine waters.

(12) The heads of petitioners-agencies MMDA,

DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP
Maritime Group, DILG, and also of MWSS, LWUA,
and PPA, in line with the principle of "continuing
mandamus," shall, from finality of this Decision, each
submit to the Court a quarterly progressive report of
the activities undertaken in accordance with this
Decision.

No costs.

SO ORDERED.
Case No. 013
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 196870 June 26, 2012
BORACAY FOUNDATION, INC., Petitioner,
vs.
THE PROVINCE OF AKLAN, REPRESENTED BY
GOVERNOR CARLITO S. MARQUEZ, THE
PHILIPPINE RECLAMATION AUTHORITY, AND
THE DENR-EMB (REGION VI), Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
In resolving this controversy, the Court took into
consideration that all the parties involved share
common goals in pursuit of certain primordial State
policies and principles that are enshrined in the
Constitution and pertinent laws, such as the
protection of the environment, the empowerment of
the local government units, the promotion of tourism,
and the encouragement of the participation of the
private sector. The Court seeks to reconcile the
respective roles, duties and responsibilities of the
petitioner and respondents in achieving these shared
goals within the context of our Constitution, laws and
regulations.
Nature of the Case
This is an original petition for the issuance of an
Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a
duly registered, non-stock domestic corporation. Its
primary purpose is "to foster a united, concerted and
environment-conscious development of Boracay
Island, thereby preserving and maintaining its culture,
natural beauty and ecological balance, marking the
island as the crown jewel of Philippine tourism, a
prime tourist destination in Asia and the whole
world."1 It counts among its members at least sixty
(60) owners and representatives of resorts, hotels,
restaurants, and similar institutions; at least five
community organizations; and several
environmentally-conscious residents and advocates.2
Respondent Province of Aklan (respondent Province)
is a political subdivision of the government created
pursuant to Republic Act No. 1414, represented by
Honorable Carlito S. Marquez, the Provincial
Governor (Governor Marquez).
Respondent Philippine Reclamation Authority
(respondent PRA), formerly called the Public Estates
Authority (PEA), is a government entity created by
Presidential Decree No. 1084,3 which states that one
of the purposes for which respondent PRA was
created was to reclaim land, including foreshore and
submerged areas. PEA eventually became the lead
agency primarily responsible for all reclamation
projects in the country under Executive Order No.
525, series of 1979. In June 2006, the President of
the Philippines issued Executive Order No. 543,
delegating the power "to approve reclamation projects
to PRA through its governing Board, subject to
compliance with existing laws and rules and further
subject to the condition that reclamation contracts to
be executed with any person or entity (must) go
through public bidding."4
Respondent Department of Environment and Natural
Resources – Environmental Management Bureau
(DENR-EMB), Regional Office VI (respondent DENR-
EMB RVI), is the government agency in the Western
Visayas Region authorized to issue environmental
compliance certificates regarding projects that require
the environment’s protection and management in the
region.5
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located
in the Western Visayas region of the Philippines and
one of the country’s most popular tourist destinations,
was declared a tourist zone and marine reserve in
1973 under Presidential Proclamation No. 1801.6 The
island comprises the barangays of Manoc-manoc,
Balabag, and Yapak, all within the municipality of
Malay, in the province of Aklan.7
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery
white-sand beaches which are the product of the
unique ecosystem dynamics of the area. The island
itself is known to come from the uplifted remnants of
an ancient reef platform. Its beaches, the sandy land
strip between the water and the area currently
occupied by numerous establishments, is the primary
draw for domestic and international tourists for its
color, texture and other unique characteristics.
Needless to state, it is the premier domestic and
international tourist destination in the Philippines.8
More than a decade ago, respondent Province built
the Caticlan Jetty Port and Passenger Terminal at
Barangay Caticlan to be the main gateway to
Boracay. It also built the corresponding Cagban Jetty
Port and Passenger Terminal to be the receiving end
for tourists in Boracay. Respondent Province operates
both ports "to provide structural facilities suited for
locals, tourists and guests and to provide safety and
security measures."9
In 2005, Boracay 2010 Summit was held and
participated in by representatives from national
government agencies, local government units (LGUs),
and the private sector. Petitioner was one of the
organizers and participants thereto. The Summit
aimed "to re-establish a common vision of all
stakeholders to ensure the conservation, restoration,
and preservation of Boracay Island" and "to develop
an action plan that [would allow] all sectors to work in
concert among and with each other for the long term
benefit and sustainability of the island and the
community."10 The Summit yielded a Terminal
Report11 stating that the participants had shared their
dream of having world-class land, water and air
infrastructure, as well as given their observations that
government support was lacking, infrastructure was
poor, and, more importantly, the influx of tourists to
Boracay was increasing. The Report showed that
there was a need to expand the port facilities at
Caticlan due to congestion in the holding area of the
existing port, caused by inadequate facilities, thus
tourists suffered long queues while waiting for the
boat ride going to the island.12
Respondent Province claimed that tourist arrivals to
Boracay reached approximately 649,559 in 2009 and
779,666 in 2010, and this was expected to reach a
record of 1 million tourist arrivals in the years to come.
Thus, respondent Province conceptualized the
expansion of the port facilities at Barangay Caticlan.13
The Sangguniang Barangay of Caticlan, Malay
Municipality, issued Resolution No. 13, s. 200814 on
April 25, 2008 stating that it had learned that
respondent Province had filed an application with the
DENR for a foreshore lease of areas along the
shorelines of Barangay Caticlan, and manifesting its
strong opposition to said application, as the proposed
foreshore lease practically covered almost all the
coastlines of said barangay, thereby technically
diminishing its territorial jurisdiction, once granted,
and depriving its constituents of their statutory right of
preference in the development and utilization of the
natural resources within its jurisdiction. The resolution
further stated that respondent Province did not
conduct any consultations with the Sangguniang
Barangay of Caticlan regarding the proposed
foreshore lease, which failure the Sanggunian
considered as an act of bad faith on the part of
respondent Province.15
On November 20, 2008, the Sangguniang
Panlalawigan of respondent Province approved
Resolution No. 2008-369,16 formally authorizing
Governor Marquez to enter into negotiations towards
the possibility of effecting self-liquidating and income-
producing development and livelihood projects to be
financed through bonds, debentures, securities,
collaterals, notes or other obligations as provided
under Section 299 of the Local Government Code,
with the following priority projects: (a)
renovation/rehabilitation of the Caticlan/Cagban
Passenger Terminal Buildings and Jetty Ports; and (b)
reclamation of a portion of Caticlan foreshore for
commercial purposes.17 This step was taken as
respondent Province’s existing jetty port and
passenger terminal was funded through bond
flotation, which was successfully redeemed and paid
ahead of the target date. This was allegedly cited as
one of the LGU’s Best Practices wherein respondent
Province was given the appropriate commendation.18
Respondent Province included the proposed
expansion of the port facilities at Barangay Caticlan in
its 2009 Annual Investment Plan,19 envisioned as its
project site the area adjacent to the existing jetty port,
and identified additional areas along the coastline of
Barangay Caticlan as the site for future project
expansion.20
Governor Marquez sent a letter to respondent PRA on
March 12, 200921 expressing the interest of
respondent Province to reclaim about 2.64 hectares
of land along the foreshores of Barangay Caticlan,
Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered
into an agreement with the Financial
Advisor/Consultant that won in the bidding process
held a month before, to conduct the necessary
feasibility study of the proposed project for the
Renovation/Rehabilitation of the Caticlan Passenger
Terminal Building and Jetty Port, Enhancement and
Recovery of Old Caticlan Coastline, and Reclamation
of a Portion of Foreshore for Commercial Purposes
(the Marina Project), in Malay, Aklan.22
Subsequently, on May 7, 2009, the Sangguniang
Panlalawigan of respondent Province issued
Resolution No. 2009–110,23 which authorized
Governor Marquez to file an application to reclaim the
2.64 hectares of foreshore area in Caticlan, Malay,
Aklan with respondent PRA.
Sometime in July 2009, the Financial
Advisor/Consultant came up with a feasibility study
which focused on the land reclamation of 2.64
hectares by way of beach enhancement and recovery
of the old Caticlan coastline for the rehabilitation and
expansion of the existing jetty port, and for its future
plans – the construction of commercial building and
wellness center. The financial component of the said
study was Two Hundred Sixty Million Pesos
(₱260,000,000.00). Its suggested financing scheme
was bond flotation.24
Meanwhile, the Sangguniang Bayan of the
Municipality of Malay expressed its strong opposition
to the intended foreshore lease application, through
Resolution No. 044,25 approved on July 22, 2009,
manifesting therein that respondent Province’s
foreshore lease application was for business
enterprise purposes for its benefit, at the expense of
the local government of Malay, which by statutory
provisions was the rightful entity "to develop, utilize
and reap benefits from the natural resources found
within its jurisdiction."26
In August 2009, a Preliminary Geohazard
Assessment27 for the enhancement/expansion of the
existing Caticlan Jetty Port and Passenger Terminal
through beach zone restoration and Protective Marina
Developments in Caticlan, Malay, Aklan was
completed.
Thereafter, Governor Marquez submitted an
Environmental Performance Report and Monitoring
Program (EPRMP)28 to DENR-EMB RVI, which he
had attached to his letter29 dated September 19, 2009,
as an initial step for securing an Environmental
Compliance Certificate (ECC). The letter reads in
part:
With the project expected to start its construction
implementation next month, the province hereby
assures your good office that it will give preferential
attention to and shall comply with whatever comments
that you may have on this EPRMP.30 (Emphasis
added.)
Respondent Province was then authorized to issue
"Caticlan Super Marina Bonds" for the purpose of
funding the renovation of the Caticlan Jetty Port and
Passenger Terminal Building, and the reclamation of
a portion of the foreshore lease area for commercial
purposes in Malay, Aklan through Provincial
Ordinance No. 2009-013, approved on September 10,
2009. The said ordinance authorized Governor
Marquez to negotiate, sign and execute agreements
in relation to the issuance of the Caticlan Super
Marina Bonds in the amount not exceeding
₱260,000,000.00.31
Subsequently, the Sangguniang Panlalawigan of the
Province of Aklan issued Provincial Ordinance No.
2009-01532on October 1, 2009, amending Provincial
Ordinance No. 2009-013, authorizing the bond
flotation of the Province of Aklan through Governor
Marquez to fund the Marina Project and appropriate
the entire proceeds of said bonds for the project, and
further authorizing Governor Marquez to negotiate,
sign and execute contracts or agreements pertinent to
the transaction.33
Within the same month of October 2009, respondent
Province deliberated on the possible expansion from
its original proposed reclamation area of 2.64
hectares to forty (40) hectares in order to maximize
the utilization of its resources and as a response to
the findings of the Preliminary Geohazard
Assessment study which showed that the recession
and retreat of the shoreline caused by coastal erosion
and scouring should be the first major concern in the
project site and nearby coastal area. The study
likewise indicated the vulnerability of the coastal zone
within the proposed project site and the nearby
coastal area due to the effects of sea level rise and
climate change which will greatly affect the social,
economic, and environmental situation of Caticlan
and nearby Malay coastal communities.34
In his letter dated October 22, 2009 addressed to
respondent PRA, Governor Marquez wrote:
With our substantial compliance with the requirements
under Administrative Order No. 2007-2 relative to our
request to PRA for approval of the reclamation of the
[proposed Beach Zone Restoration and Protection
Marine Development in Barangays Caticlan and
Manoc-Manoc] and as a result of our discussion
during the [meeting with the respondent PRA on
October 12, 2009], may we respectfully submit a
revised Reclamation Project Description embodying
certain revisions/changes in the size and location of
the areas to be reclaimed. x x x.
On another note, we are pleased to inform your Office
that the bond flotation we have secured with the Local
Government Unit Guarantee Corporation (LGUGC)
has been finally approved last October 14, 2009. This
will pave the way for the implementation of said
project. Briefly, the Province has been recognized by
the Bureau of Local Government Finance (BLGF) for
its capability to meet its loan obligations. x x x.
With the continued increase of tourists coming to
Boracay through Caticlan, the Province is venturing
into such development project with the end in view of
protection and/or restoring certain segments of the
shoreline in Barangays Caticlan (Caticlan side) and
Manoc-manoc (Boracay side) which, as reported by
experts, has been experiencing tremendous coastal
erosion.
For the project to be self-liquidating, however, we will
be developing the reclaimed land for commercial and
tourism-related facilities and for other complementary
uses.35 (Emphasis ours.)
Then, on November 19, 2009, the Sangguniang
Panlalawigan enacted Resolution No. 2009-
29936 authorizing Governor Marquez to enter into a
Memorandum of Agreement (MOA) with respondent
PRA in the implementation of the Beach Zone
Restoration and Protection Marina Development
Project, which shall reclaim a total of 40 hectares in
the areas adjacent to the jetty ports at Barangay
Caticlan and Barangay Manoc-manoc. The
Sangguniang Panlalawigan approved the terms and
conditions of the necessary agreements for the
implementation of the bond flotation of respondent
Province to fund the renovation/rehabilitation of the
existing jetty port by way of enhancement and
recovery of the Old Caticlan shoreline through
reclamation of an area of 2.64 hectares in the amount
of ₱260,000,000.00 on December 1, 2009.37
Respondent Province gave an initial presentation of
the project with consultation to the Sangguniang
Bayan of Malay38 on December 9, 2009.
Respondent PRA approved the reclamation project on
April 20, 2010 in its Resolution No. 4094 and
authorized its General Manager/Chief Executive
Officer (CEO) to enter into a MOA with respondent
Province for the implementation of the reclamation
project.39
On April 27, 2010, DENR-EMB RVI issued to
respondent Province ECC-R6-1003-096-7100 (the
questioned ECC) for Phase 1 of the Reclamation
Project to the extent of 2.64 hectares to be done
along the Caticlan side beside the existing jetty port. 40
On May 17, 2010, respondent Province entered into a
MOA41 with respondent PRA. Under Article III, the
Project was described therein as follows:
The proposed Aklan Beach Zone Restoration and
Protection Marina Development Project involves the
reclamation and development of approximately forty
(40) hectares of foreshore and offshore areas of the
Municipality of Malay x x x.
The land use development of the reclamation project
shall be for commercial, recreational and institutional
and other applicable uses.42 (Emphases supplied.)
It was at this point that respondent Province deemed
it necessary to conduct a series of what it calls
"information-education campaigns," which provided
the venue for interaction and dialogue with the public,
particularly the Barangay and Municipal officials of the
Municipality of Malay, the residents of Barangay
Caticlan and Boracay, the stakeholders, and the non-
governmental organizations (NGOs). The details of
the campaign are summarized as follows43 :
a. June 17, 2010 at Casa Pilar Beach
Resort, Boracay Island, Malay, Aklan;44
b. July 28, 2010 at Caticlan Jetty Port and
Passenger Terminal;45
c. July 31, 2010 at Barangay Caticlan
Plaza;46
d. September 15, 2010 at the Office of the
Provincial Governor with Municipal Mayor of
Malay – Mayor John P. Yap;47
e. October 12, 2010 at the Office of the
Provincial Governor with the Provincial
Development Council Executive
Committee;48 and
f. October 29, 2010 at the Office of the
Provincial Governor with Officials of LGU-
Malay and Petitioner.49
Petitioner claims that during the "public consultation
meeting" belatedly called by respondent Province on
June 17, 2010, respondent Province presented the
Reclamation Project and only then detailed the
actions that it had already undertaken, particularly:
the issuance of the Caticlan Super Marina Bonds; the
execution of the MOA with respondent PRA; the
alleged conduct of an Environmental Impact
Assessment (EIA) study for the reclamation project;
and the expansion of the project to forty (40) hectares
from 2.64 hectares.50
In Resolution No. 046, Series of 2010, adopted on
June 23, 2010, the Malay Municipality reiterated its
strong opposition to respondent Province’s project
and denied its request for a favorable endorsement of
the Marina Project.51
The Malay Municipality subsequently issued
Resolution No. 016, Series of 2010, adopted on
August 3, 2010, to request respondent PRA "not to
grant reclamation permit and notice to proceed to the
Marina Project of the [respondent] Provincial
Government of Aklan located at Caticlan, Malay,
Aklan."52
In a letter53 dated October 12, 2010, petitioner
informed respondent PRA of its opposition to the
reclamation project, primarily for the reason that,
based on the opinion of Dr. Porfirio M. Aliño, an
expert from the University of the Philippines Marine
Science Institute (UPMSI), which he rendered based
on the documents submitted by respondent Province
to obtain the ECC, a full EIA study is required to
assess the reclamation project’s likelihood of
rendering critical and lasting effect on Boracay
considering the proximity in distance, geographical
location, current and wind direction, and many other
environmental considerations in the area. Petitioner
noted that said documents had failed to deal with
coastal erosion concerns in Boracay. It also noted
that respondent Province failed to comply with certain
mandatory provisions of the Local Government Code,
particularly, those requiring the project proponent to
conduct consultations with stakeholders.
Petitioner likewise transmitted its Resolution No. 001,
Series of 2010, registering its opposition to the
reclamation project to respondent Province,
respondent PRA, respondent DENR-EMB, the
National Economic Development Authority Region VI,
the Malay Municipality, and other concerned
entities.54
Petitioner alleges that despite the Malay Municipality’s
denial of respondent Province’s request for a
favorable endorsement, as well as the strong
opposition manifested both by Barangay Caticlan and
petitioner as an NGO, respondent Province still
continued with the implementation of the Reclamation
Project.55
On July 26, 2010, the Sangguniang Panlalawigan of
respondent Province set aside Resolution No. 046, s.
2010, of the Municipality of Malay and manifested its
support for the implementation of the aforesaid project
through its Resolution No. 2010-022.56
On July 27, 2010, the MOA was confirmed by
respondent PRA Board of Directors under its
Resolution No. 4130. Respondent PRA wrote to
respondent Province on October 19, 2010, informing
the latter to proceed with the reclamation and
development of phase 1 of site 1 of its proposed
project. Respondent PRA attached to said letter its
Evaluation Report dated October 18, 2010.57
Petitioner likewise received a copy of respondent
PRA’s letter dated October 19, 2010, which
authorized respondent Province to proceed with
phase 1 of the reclamation project, subject to
compliance with the requirements of its Evaluation
Report. The reclamation project was described as:
"[A] seafront development involving reclamation of an
aggregate area of more or less, forty (40) hectares in
two (2) separate sites both in Malay Municipality,
Aklan Province. Site 1 is in Brgy. Caticlan with a total
area of 36.82 hectares and Site 2 in Brgy. Manoc-
Manoc, Boracay Island with a total area of 3.18
hectares. Sites 1 and 2 are on the opposite sides of
Tabon Strait, about 1,200 meters apart. x x
x." 58 (Emphases added.)
The Sangguniang Panlalawigan of Aklan, through
Resolution No. 2010-034,59 addressed the
apprehensions of petitioner embodied in its
Resolution No. 001, s. 2010, and supported the
implementation of the project. Said resolution stated
that the apprehensions of petitioner with regard to the
economic, social and political negative impacts of the
projects were mere perceptions and generalities and
were not anchored on definite scientific, social and
political studies.
In the meantime, a study was commissioned by the
Philippine Chamber of Commerce and Industry-
Boracay (PCCI-Boracay), funded by the Department
of Tourism (DOT) with the assistance of, among
others, petitioner. The study was conducted in
November 2010 by several marine biologists/experts
from the Marine Environmental Resources
Foundation (MERF) of the UPMSI. The study was
intended to determine the potential impact of a
reclamation project in the hydrodynamics of the strait
and on the coastal erosion patterns in the southern
coast of Boracay Island and along the coast of
Caticlan.60
After noting the objections of the respective LGUs of
Caticlan and Malay, as well as the apprehensions of
petitioner, respondent Province issued a notice to the
contractor on December 1, 2010 to commence with
the construction of the project.61
On April 4, 2011, the Sangguniang Panlalawigan of
Aklan, through its Committee on Cooperatives, Food,
Agriculture, and Environmental Protection and the
Committee on Tourism, Trade, Industry and
Commerce, conducted a joint committee hearing
wherein the study undertaken by the MERF-UPMSI
was discussed.62 In attendance were Mr. Ariel Abriam,
President of PCCI-Boracay, representatives from the
Provincial Government, and Dr. Cesar Villanoy, a
professor from the UPMSI. Dr. Villanoy said that the
subject project, consisting of 2.64 hectares, would
only have insignificant effect on the hydrodynamics of
the strait traversing the coastline of Barangay Caticlan
and Boracay, hence, there was a distant possibility
that it would affect the Boracay coastline, which
includes the famous white-sand beach of the island.63
Thus, on April 6, 2011, the Sangguniang
Panlalawigan of Aklan enacted Resolution No. 2011-
06564 noting the report on the survey of the channel
between Caticlan and Boracay conducted by the
UPMSI in relation to the effects of the ongoing
reclamation to Boracay beaches, and stating that Dr.
Villanoy had admitted that nowhere in their study was
it pointed out that there would be an adverse effect on
the white-sand beach of Boracay.
During the First Quarter Regular Meeting of the
Regional Development Council, Region VI (RDC-VI)
on April 16, 2011, it approved and supported the
subject project (covering 2.64 hectares) through RDC-
VI Resolution No. VI-26, series of 2011.65
Subsequently, Mr. Abriam sent a letter to Governor
Marquez dated April 25, 2011 stating that the study
conducted by the UPMSI confirms that the water flow
across the Caticlan-Boracay channel is primarily tide-
driven, therefore, the marine scientists believe that
the 2.64-hectare project of respondent Province
would not significantly affect the flow in the channel
and would unlikely impact the Boracay beaches.
Based on this, PCCI-Boracay stated that it was not
opposing the 2.64-hectare Caticlan reclamation
project on environmental grounds.66
On June 1, 2011, petitioner filed the instant Petition
for Environmental Protection Order/Issuance of the
Writ of Continuing Mandamus. On June 7, 2011, this
Court issued a Temporary Environmental Protection
Order (TEPO) and ordered the respondents to file
their respective comments to the petition.67
After receiving a copy of the TEPO on June 9, 2011,
respondent Province immediately issued an order to
the Provincial Engineering Office and the concerned
contractor to cease and desist from conducting any
construction activities until further orders from this
Court.
The petition is premised on the following grounds:
I.
The respondent Province, proponent of the
reclamation project, failed to comply with relevant
rules and regulations in the acquisition of an ECC.
A. The reclamation project is co-located
within environmentally critical areas requiring
the performance of a full, or programmatic,
environmental impact assessment.
B. Respondent Province failed to obtain the
favorable endorsement of the LGU
concerned.
C. Respondent Province failed to conduct
the required consultation procedures as
required by the Local Government Code.
D. Respondent Province failed to perform a
full environmental impact assessment as
required by law and relevant regulations.
II.
The reclamation of land bordering the strait between
Caticlan and Boracay shall adversely affect the frail
ecological balance of the area.68
Petitioner objects to respondent Province’s
classification of the reclamation project as single
instead of co-located, as "non-environmentally
critical," and as a mere "rehabilitation" of the existing
jetty port. Petitioner points out that the reclamation
project is on two sites (which are situated on the
opposite sides of Tabon Strait, about 1,200 meters
apart):
 36.82 hectares – Site 1, in Bgy. Caticlan
 3.18 hectares – Site 2, in Manoc-manoc,
Boracay Island69
Phase 1, which was started in December 2010
without the necessary permits,70 is located on the
Caticlan side of a narrow strait separating mainland
Aklan from Boracay. In the implementation of the
project, respondent Province obtained only an ECC to
conduct Phase 1, instead of an ECC on the entire 40
hectares. Thus, petitioner argues that respondent
Province abused and exploited the Revised
Procedural Manual for DENR Administrative Order
No. 30, Series of 2003 (DENR DAO 2003-
30)71 relating to the acquisition of an ECC by:
1. Declaring the reclamation project under
"Group II Projects-Non-ECP
(environmentally critical project) in ECA
(environmentally critical area) based on the
type and size of the area," and
2. Failing to declare the reclamation project
as a co-located project application which
would have required the Province to submit
a Programmatic Environmental Impact
Statement (PEIS)72 or Programmatic
Environmental [Performance] Report
Management Plan
(PE[P]RMP).73 (Emphases ours.)
Petitioner further alleges that the Revised Procedural
Manual (on which the classification above is based,
which merely requires an Environmental Impact
Statement [EIS] for Group II projects) is patently ultra
vires, and respondent DENR-EMB RVI committed
grave abuse of discretion because the laws on EIS,
namely, Presidential Decree Nos. 1151 and 1586, as
well as Presidential Proclamation No. 2146, clearly
indicate that projects in environmentally critical areas
are to be immediately considered environmentally
critical. Petitioner complains that respondent Province
applied for an ECC only for Phase 1; hence,
unlawfully
evading the requirement that co-located
projects74 within Environmentally Critical Areas
(ECAs) must submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province
fraudulently classified and misrepresented the project
as a Non-ECP in an ECA, and as a single project
instead of a co-located one. The impact assessment
allegedly performed gives a patently erroneous and
wrongly-premised appraisal of the possible
environmental impact of the reclamation project.
Petitioner contends that respondent Province’s choice
of classification was designed to avoid a
comprehensive impact assessment of the reclamation
project.
Petitioner further contends that respondent DENR-
EMB RVI willfully and deliberately disregarded its duty
to ensure that the environment is protected from
harmful developmental projects because it allegedly
performed only a cursory and superficial review of the
documents submitted by the respondent Province for
an ECC, failing to note that all the information and
data used by respondent Province in its application
for the ECC were all dated and not current, as data
was gathered in the late 1990s for the ECC issued in
1999 for the first jetty port. Thus, petitioner alleges
that respondent DENR-EMB RVI ignored the
environmental impact to Boracay, which involves
changes in the structure of the coastline that could
contribute to the changes in the characteristics of the
sand in the beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the
Caticlan side will unavoidably adversely affect the
Boracay side and notes that the declared objective of
the reclamation project is for the exploitation of
Boracay’s tourist trade, since the project is intended
to enhance support services thereto. But, petitioner
argues, the primary reason for Boracay’s popularity is
its white-sand beaches which will be negatively
affected by the project.
Petitioner alleges that respondent PRA had required
respondent Province to obtain the favorable
endorsement of the LGUs of Barangay Caticlan and
Malay Municipality pursuant to the consultation
procedures as required by the Local Government
Code.75 Petitioner asserts that the reclamation project
is in violation not only of laws on EIS but also of the
Local Government Code as respondent Province
failed to enter into proper consultations with the
concerned LGUs. In fact, the Liga ng mga Barangay-
Malay Chapter also expressed strong opposition
against the project.76
Petitioner cites Sections 26 and 27 of the Local
Government Code, which require consultations if the
project or program may cause pollution, climactic
change, depletion of non-renewable resources, etc.
According to petitioner, respondent Province ignored
the LGUs’ opposition expressed as early as 2008. Not
only that, respondent Province belatedly called for
public "consultation meetings" on June 17 and July
28, 2010, after an ECC had already been issued and
the MOA between respondents PRA and Province
had already been executed. As the petitioner saw it,
these were not consultations but mere "project
presentations."
Petitioner claims that respondent Province, aided and
abetted by respondents PRA and DENR-EMB,
ignored the spirit and letter of the Revised Procedural
Manual, intended to implement the various
regulations governing the Environmental Impact
Assessments (EIAs) to ensure that developmental
projects are in line with sustainable development of
natural resources. The project was conceptualized
without considering alternatives.
Further, as to its allegation that respondent Province
failed to perform a full EIA, petitioner argues that
while it is true that as of now, only the Caticlan side
has been issued an ECC, the entire project involves
the Boracay side, which should have been considered
a co-located project. Petitioner claims that any project
involving Boracay requires a full EIA since it is an
ECA. Phase 1 of the project will affect Boracay and
Caticlan as they are separated only by a narrow strait;
thus, it should be considered an ECP. Therefore, the
ECC and permit issued must be invalidated and
cancelled.
Petitioner contends that a study shows that the flow of
the water through a narrower channel due to the
reclamation project will likely divert sand transport off
the southwest part of Boracay, whereas the
characteristic coast of the Caticlan side of the strait
indicate stronger sediment transport.77 The white-sand
beaches of Boracay and its surrounding marine
environment depend upon the natural flow of the
adjacent waters.
Regarding its claim that the reclamation of land
bordering the strait between Caticlan and Boracay
shall adversely affect the frail ecological balance of
the area, petitioner submits that while the study
conducted by the MERF-UPMSI only considers the
impact of the reclamation project on the land, it is
undeniable that it will also adversely affect the already
frail ecological balance of the area. The effect of the
project would have been properly assessed if the
proper EIA had been performed prior to any
implementation of the project.
According to petitioner, respondent Province’s
intended purposes do not prevail over its duty and
obligation to protect the environment. Petitioner
believes that rehabilitation of the Jetty Port may be
done through other means.
In its Comment78 dated June 21, 2011, respondent
Province claimed that application for reclamation of
40 hectares is advantageous to the Provincial
Government considering that its filing fee would only
cost Php20,000.00 plus Value Added Tax (VAT)
which is also the minimum fee as prescribed under
Section 4.2 of Administrative Order No. 2007-2.79
Respondent Province considers the instant petition to
be premature; thus, it must necessarily fail for lack of
cause of action due to the failure of petitioner to fully
exhaust the available administrative remedies even
before seeking judicial relief. According to respondent
Province, the petition primarily assailed the decision
of respondent DENR-EMB RVI in granting the ECC
for the subject project consisting of 2.64 hectares and
sought the cancellation of the ECC for alleged failure
of respondent Province to submit proper
documentation as required for its issuance. Hence,
the grounds relied upon by petitioner can be
addressed within the confines of administrative
processes provided by law.
Respondent Province believes that under Section
5.4.3 of DENR Administrative Order No. 2003-30
(DAO 2003-30),80 the issuance of an ECC81 is an
official decision of DENR-EMB RVI on the application
of a project proponent.82It cites Section 6 of DENR
DAO 2003-30, which provides for a remedy available
to the party aggrieved by the final decision on the
proponent’s ECC applications.
Respondent Province argues that the instant petition
is anchored on a wrong premise that results to
petitioner’s unfounded fears and baseless
apprehensions. It is respondent Province’s contention
that its 2.64-hectare reclamation project is considered
as a "stand alone project," separate and independent
from the approved area of 40 hectares. Thus,
petitioner should have observed the difference
between the "future development plan" of respondent
Province from its "actual project" being undertaken.83
Respondent Province clearly does not dispute the fact
that it revised its original application to respondent
PRA from 2.64 hectares to 40 hectares. However, it
claims that such revision is part of its future plan, and
implementation thereof is "still subject to availability of
funds, independent scientific environmental study,
separate application of ECC and notice to proceed to
be issued by respondent PRA."84
Respondent Province goes on to claim that
"[p]etitioner’s version of the Caticlan jetty port
expansion project is a bigger project which is still at
the conceptualization stage. Although this project was
described in the Notice to Proceed issued by
respondent PRA to have two phases, 36.82 hectares
in Caticlan and 3.18 hectares in Boracay [Island,] it is
totally different from the [ongoing] Caticlan jetty port
expansion project."85
Respondent Province says that the Accomplishment
Report86 of its Engineering Office would attest that the
actual project consists of 2.64 hectares only, as
originally planned and conceptualized, which was
even reduced to 2.2 hectares due to some
construction and design modifications.
Thus, respondent Province alleges that from its
standpoint, its capability to reclaim is limited to 2.64
hectares only, based on respondent PRA’s Evaluation
Report87 dated October 18, 2010, which was in turn
the basis of the issuance of the Notice to Proceed
dated October 19, 2010, because the project’s
financial component is ₱260,000,000.00 only. Said
Evaluation Report indicates that the implementation of
the other phases of the project including site 2, which
consists of the other portions of the 40-hectare area
that includes a portion in Boracay, is still within the
10-year period and will depend largely on the
availability of funds of respondent Province.88
So, even if respondent PRA approved an area that
would total up to 40 hectares, it was divided into
phases in order to determine the period of its
implementation. Each phase was separate and
independent because the source of funds was also
separate. The required documents and requirements
were also specific for each phase. The entire
approved area of 40 hectares could be implemented
within a period of 10 years but this would depend
solely on the availability of funds.89
As far as respondent Province understands it,
additional reclamations not covered by the ECC,
which only approved 2.64 hectares, should undergo
another EIA. If respondent Province intends to
commence the construction on the other component
of the 40 hectares, then it agrees that it is mandated
to secure a new ECC.90
Respondent Province admits that it dreamt of a 40-
hectare project, even if it had originally planned and
was at present only financially equipped and legally
compliant to undertake 2.64 hectares of the project,
and only as an expansion of its old jetty port. 91
Respondent Province claims that it has complied with
all the necessary requirements for securing an ECC.
On the issue that the reclamation project is within an
ECA requiring the performance of a full or
programmatic EIA, respondent Province reiterates
that the idea of expanding the area to 40 hectares is
only a future plan. It only secured an ECC for 2.64
hectares, based on the limits of its funding and
authority. From the beginning, its intention was to
rehabilitate and expand the existing jetty port terminal
to accommodate an increasing projected traffic. The
subject project is specifically classified under DENR
DAO 2003-30 on its Project Grouping Matrix for
Determination of EIA Report Type considered as
Minor Reclamation Projects falling under Group II –
Non ECP in an ECA. Whether 2.64 or 40 hectares in
area, the subject project falls within this classification.
Consequently, respondent Province claims that
petitioner erred in considering the ongoing
reclamation project at Caticlan, Malay, Aklan, as co-
located within an ECA.
Respondent Province, likewise argues that the 2.64-
hectare project is not a component of the approved
40-hectare area as it is originally planned for the
expansion site of the existing Caticlan jetty port. At
present, it has no definite conceptual construction
plan of the said portion in Boracay and it has no
financial allocation to initiate any project on the said
Boracay portion.
Furthermore, respondent Province contends that the
present project is located in Caticlan while the alleged
component that falls within an ECA is in Boracay.
Considering its geographical location, the two sites
cannot be considered as a contiguous area for the
reason that it is separated by a body of water – a
strait that traverses between the mainland Panay
wherein Caticlan is located and Boracay. Hence, it is
erroneous to consider the two sites as a co-located
project within an ECA. Being a "stand alone project"
and an expansion of the existing jetty port,
respondent DENR-EMB RVI had required respondent
Province to perform an EPRMP to secure an ECC as
sanctioned by Item No. 8(b), page 7 of DENR DAO
2003-30.
Respondent Province contends that even if, granting
for the sake of argument, it had erroneously
categorized its project as Non-ECP in an ECA, this
was not a final determination. Respondent DENR-
EMB RVI, which was the administrator of the EIS
system, had the final decision on this matter. Under
DENR DAO 2003-30, an application for ECC, even for
a Category B2 project where an EPRMP is
conducted, shall be subjected to a review process.
Respondent DENR-EMB RVI had the authority to
deny said application. Its Regional Director could
either issue an ECC for the project or deny the
application. He may also require a more
comprehensive EIA study. The Regional Director
issued the ECC based on the EPRMP submitted by
respondent Province and after the same went through
the EIA review process.
Thus, respondent Province concludes that petitioner’s
allegation of this being a "co-located project" is
premature if not baseless as the bigger reclamation
project is still on the conceptualization stage. Both
respondents PRA and Province are yet to complete
studies and feasibility studies to embark on another
project.
Respondent Province claims that an ocular survey of
the reclamation project revealed that it had worked
within the limits of the ECC.92
With regard to petitioner’s allegation that respondent
Province failed to get the favorable endorsement of
the concerned LGUs in violation of the Local
Government Code, respondent Province contends
that consultation vis-à-vis the favorable endorsement
from the concerned LGUs as contemplated under the
Local Government Code are merely tools to seek
advice and not a power clothed upon the LGUs to
unilaterally approve or disapprove any government
projects. Furthermore, such endorsement is not
necessary for projects falling under Category B2
unless required by the DENR-EMB RVI, under
Section 5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007
no longer requires the issuance of permits and
certifications as a pre-requisite for the issuance of an
ECC. Respondent Province claims to have conducted
consultative activities with LGUs in connection with
Sections 26 and 27 of the Local Government Code.
The vehement and staunch objections of both the
Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of Malay, according to
respondent Province, were not rooted on its perceived
impact upon the people and the community in terms
of environmental or ecological balance, but due to an
alleged conflict with their "principal position to
develop, utilize and reap benefits from the natural
resources found within its jurisdiction."93 Respondent
Province argues that these concerns are not within
the purview of the Local Government Code.
Furthermore, the Preliminary Geohazard Assessment
Report and EPRMP as well as Sangguniang
Panlalawigan Resolution Nos. 2010-022 and 2010-
034 should address any environmental issue they
may raise.
Respondent Province posits that the spirit and intent
of Sections 26 and 27 of the Local Government Code
is to create an avenue for parties, the proponent and
the LGU concerned, to come up with a tool in
harmonizing its views and concerns about the project.
The duty to consult does not automatically require
adherence to the opinions during the consultation
process. It is allegedly not within the provisions to
give the full authority to the LGU concerned to
unilaterally approve or disapprove the project in the
guise of requiring the proponent of securing its
favorable endorsement. In this case, petitioner is
calling a halt to the project without providing an
alternative resolution to harmonize its position and
that of respondent Province.
Respondent Province claims that the EPRMP94 would
reveal that:
[T]he area fronting the project site is practically
composed of sand. Dead coral communities may be
found along the vicinity. Thus, fish life at the project
site is quite scarce due to the absence of marine
support systems like the sea grass beds and coral
reefs.
x x x [T]here is no coral cover at the existing Caticlan
jetty port. [From] the deepest point of jetty to the
shallowest point, there was no more coral patch and
the substrate is sandy. It is of public knowledge that
the said foreshore area is being utilized by the
residents ever since as berthing or anchorage site of
their motorized banca. There will be no possibility of
any coral development therein because of its
continuous utilization. Likewise, the activity of the
strait that traverses between the main land Caticlan
and Boracay Island would also be a factor of the coral
development. Corals [may] only be formed within the
area if there is scientific human intervention, which is
absent up to the present.
In light of the foregoing premise, it casts serious doubt
on petitioner’s allegations pertaining to the
environmental effects of Respondent-LGU’s 2.64
hectares reclamation project. The alleged
environmental impact of the subject project to the
beaches of Boracay Island remains unconfirmed.
Petitioner had unsuccessfully proven that the project
would cause imminent, grave and irreparable injury to
the community.95
Respondent Province prayed for the dissolution of the
TEPO, claiming that the rules provide that the TEPO
may be dissolved if it appears after hearing that its
issuance or continuance would cause irreparable
damage to the party or person enjoined, while the
applicant may be fully compensated for such
damages as he may suffer and subject to the posting
of a sufficient bond by the party or person enjoined.
Respondent Province contends that the TEPO would
cause irreparable damage in two aspects:
a. Financial dislocation and probable
bankruptcy; and
b. Grave and imminent danger to safety and
health of inhabitants of immediate area,
including tourists and passengers serviced
by the jetty port, brought about by the abrupt
cessation of development works.
As regards financial dislocation, the arguments of
respondent Province are summarized below:
1. This project is financed by bonds which
the respondent Province had issued to its
creditors as the financing scheme in funding
the present project is by way of credit
financing through bond flotation.
2. The funds are financed by a Guarantee
Bank – getting payment from bonds, being
sold to investors, which in turn would be paid
by the income that the project would realize
or incur upon its completion.
3. While the project is under construction,
respondent Province is appropriating a
portion of its Internal Revenue Allotment
(IRA) budget from the 20% development
fund to defray the interest and principal
amortization due to the Guarantee Bank.
4. The respondent Province’s IRA, regular
income, and/or such other revenues or
funds, as may be permitted by law, are being
used as security for the payment of the said
loan used for the project’s construction.
5. The inability of the subject project to earn
revenues as projected upon completion will
compel the Province to shoulder the full
amount of the obligation, starting from year
2012.
6. Respondent province is mandated to
assign its IRA, regular income and/or such
other revenues or funds as permitted by law;
if project is stopped, detriment of the public
welfare and its constituents.96
As to the second ground for the dissolution of the
TEPO, respondent Province argues:
1. Non-compliance with the guidelines of the
ECC may result to environmental hazards
most especially that reclaimed land if not
properly secured may be eroded into the
sea.
2. The construction has accomplished 65.26
percent of the project. The embankment that
was deposited on the project has no proper
concrete wave protection that might be
washed out in the event that a strong
typhoon or big waves may occur affecting
the strait and the properties along the project
site. It is already the rainy season and there
is a big possibility of typhoon occurrence.
3. If said incident occurs, the aggregates of
the embankment that had been washed out
might be transferred to the adjoining
properties which could affect its natural
environmental state.
4. It might result to the total alteration of the
physical landscape of the area attributing to
environmental disturbance.
5. The lack of proper concrete wave
protection or revetment would cause the total
erosion of the embankment that has been
dumped on the accomplished area.97
Respondent Province claims that petitioner will not
stand to suffer immediate, grave and irreparable injury
or damage from the ongoing project. The petitioner’s
perceived fear of environmental destruction brought
about by its erroneous appreciation of available data
is unfounded and does not translate into a matter of
extreme urgency. Thus, under the Rules of Procedure
on Environmental Cases, the TEPO may be
dissolved.
Respondent PRA filed its Comment98 on June 22,
2011. It alleges that on June 24, 2006, Executive
Order No. 543 delegated the power "to approve
reclamation projects to respondent PRA through its
governing Board, subject to compliance with existing
laws and rules and further subject to the condition that
reclamation contracts to be executed with any person
or entity (must) go through public bidding."
Section 4 of respondent PRA’s Administrative Order
No. 2007-2 provides for the approval process and
procedures for various reclamation projects to be
undertaken. Respondent PRA prepared an Evaluation
Report on November 5, 200999 regarding Aklan’s
proposal to increase its project to 40 hectares.
Respondent PRA contends that it was only after
respondent Province had complied with the
requirements under the law that respondent PRA,
through its Board of Directors, approved the proposed
project under its Board Resolution No. 4094.100 In the
same Resolution, respondent PRA Board authorized
the General Manager/CEO to execute a MOA with the
Aklan provincial government to implement the
reclamation project under certain conditions.
The issue for respondent PRA was whether or not it
approved the respondent Province’s 2.64-hectare
reclamation project proposal in willful disregard of
alleged "numerous irregularities" as claimed by
petitioner.101
Respondent PRA claims that its approval of the Aklan
Reclamation Project was in accordance with law and
its rules. Indeed, it issued the notice to proceed only
after Aklan had complied with all the requirements
imposed by existing laws and regulations. It further
contends that the 40 hectares involved in this project
remains a plan insofar as respondent PRA is
concerned. What has been approved for reclamation
by respondent PRA thus far is only the 2.64-hectare
reclamation project. Respondent PRA reiterates that it
approved this reclamation project after extensively
reviewing the legal, technical, financial,
environmental, and operational aspects of the
proposed reclamation.102
One of the conditions that respondent PRA Board
imposed before approving the Aklan project was that
no reclamation work could be started until respondent
PRA has approved the detailed engineering
plans/methodology, design and specifications of the
reclamation. Part of the required submissions to
respondent PRA includes the drainage design as
approved by the Public Works Department and the
ECC as issued by the DENR, all of which the Aklan
government must submit to respondent PRA before
starting any reclamation works.103 Under Article
IV(B)(3) of the MOA between respondent PRA and
Aklan, the latter is required to submit, apart from the
ECC, the following requirements for respondent
PRA’s review and approval, as basis for the issuance
of a Notice to Proceed (NTP) for Reclamation Works:
(a) Land-form plan with technical description
of the metes and bounds of the same land-
form;
(b) Final master development and land use
plan for the project;
(c) Detailed engineering studies, detailed
engineering design, plans and specification
for reclamation works, reclamation plans and
methodology, plans for the sources of fill
materials;
(d) Drainage plan vis-a-vis the land-form
approved by DPWH Regional Office to
include a cost effective and efficient drainage
system as may be required based on the
results of the studies;
(e) Detailed project cost estimates and
quantity take-off per items of work of the
rawland reclamation components, e.g.
reclamation containment structures and soil
consolidation;
(f) Organizational chart of the construction
arm, manning table, equipment schedule for
the project; and,
(g) Project timetable (PERT/CPM) for the
entire project construction period.104
In fact, respondent PRA further required respondent
Province under Article IV (B)(24) of the MOA to strictly
comply with all conditions of the DENR-EMB-issued
ECC "and/or comply with pertinent local and
international commitments of the Republic of the
Philippines to ensure environmental protection." 105
In its August 11, 2010 letter,106 respondent PRA
referred for respondent Province’s appropriate action
petitioner’s Resolution 001, series of 2010 and
Resolution 46, series of 2010, of the Sangguniang
Bayan of Malay. Governor Marquez wrote respondent
PRA107 on September 16, 2010 informing it that
respondent Province had already met with the
different officials of Malay, furnishing respondent PRA
with the copies of the minutes of such
meetings/presentations. Governor Marquez also
assured respondent PRA that it had complied with the
consultation requirements as far as Malay was
concerned.
Respondent PRA claims that in evaluating respondent
Province’s project and in issuing the necessary NTP
for Phase 1 of Site 1 (2.64 hectares) of the Caticlan
Jetty Port expansion and modernization, respondent
PRA gave considerable weight to all pertinent
issuances, especially the ECC issued by DENR-EMB
RVI.108 Respondent PRA stresses that its earlier
approval of the 40-hectare reclamation project under
its Resolution No. 4094, series of 2010, still requires a
second level of compliance requirements from the
proponent. Respondent Province could not possibly
begin its reclamation works since respondent PRA
had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of
the NTP to respondent Province for Phase 1 of Site 1,
it required the submission of the following pre-
construction documents:
(a) Land-Form Plan (with technical
description);
(b) Site Development Plan/Land Use Plan
including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering
Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.109
Respondent PRA claims that it was only after the
evaluation of the above submissions that it issued to
respondent Province the NTP, limited to the 2.64-
hectare reclamation project. Respondent PRA even
emphasized in its evaluation report that should
respondent Province pursue the other phases of its
project, it would still require the submission of an ECC
for each succeeding phases before the start of any
reclamation works.110
Respondent PRA, being the national government’s
arm in regulating and coordinating all reclamation
projects in the Philippines – a mandate conferred by
law – manifests that it is incumbent upon it, in the
exercise of its regulatory functions, to diligently
evaluate, based on its technical competencies, all
reclamation projects submitted to it for approval. Once
the reclamation project’s requirements set forth by law
and related rules have been complied with,
respondent PRA is mandated to approve the same.
Respondent PRA claims, "[w]ith all the foregoing
rigorous and detailed requirements submitted and
complied with by Aklan, and the attendant careful and
meticulous technical and legal evaluation by
respondent PRA, it cannot be argued that the
reclamation permit it issued to Aklan is ‘founded upon
numerous irregularities;’ as recklessly and baselessly
imputed by BFI."111
In its Comment112 dated July 1, 2011, respondent
DENR-EMB RVI asserts that its act of issuing the
ECC certifies that the project had undergone the
proper EIA process by assessing, among others, the
direct and indirect impact of the project on the
biophysical and human environment and ensuring
that these impacts are addressed by appropriate
environmental protection and enhancement
measures, pursuant to Presidential Decree No. 1586,
the Revised Procedural Manual for DENR DAO 2003-
30, and the existing rules and regulations.113
Respondent DENR-EMB RVI stresses that the
declaration in 1978 of several islands, which includes
Boracay as tourist zone and marine reserve under
Proclamation No. 1801, has no relevance to the
expansion project of Caticlan Jetty Port and
Passenger Terminal for the very reason that the
project is not located in the Island of Boracay, being
located in Barangay Caticlan, Malay, which is not a
part of mainland Panay. It admits that the site of the
subject jetty port falls within the ECA under
Proclamation No. 2146 (1981), being within the
category of a water body. This was why respondent
Province had faithfully secured an ECC pursuant to
the Revised Procedural Manual for DENR DAO 2003-
30 by submitting the necessary documents as
contained in the EPRMP on March 19, 2010, which
were the bases in granting ECC No. R6-1003-096-
7100 (amended) on April 27, 2010 for the expansion
of Caticlan Jetty Port and Passenger Terminal,
covering 2.64 hectares.114
Respondent DENR-EMB RVI claims that the issues
raised by the LGUs of Caticlan and Malay had been
considered by the DENR-Provincial Environment and
Natural Resources Office (PENRO), Aklan in the
issuance of the Order115dated January 26, 2010,
disregarding the claim of the Municipality of Malay,
Aklan of a portion of the foreshore land in Caticlan
covered by the application of the Province of Aklan;
and another Order of Rejection dated February 5,
2010 of the two foreshore applications, namely FLA
No. 060412-43A and FLA No. 060412-43B, of the
Province of Aklan.116
Respondent DENR-EMB RVI contends that the
supporting documents attached to the EPRMP for the
issuance of an ECC were merely for the expansion
and modernization of the old jetty port in Barangay
Caticlan covering 2.64 hectares, and not the 40-
hectare reclamation project in Barangay Caticlan and
Boracay. The previous letter of respondent Province
dated October 14, 2009 addressed to DENR-EMB
RVI Regional Executive Director, would show that the
reclamation project will cover approximately 2.6
hectares.117 This application for ECC was not officially
accepted due to lack of requirements or documents.
Although petitioner insists that the project involves 40
hectares in two sites, respondent DENR-EMB RVI
looked at the documents submitted by respondent
Province and saw that the subject area covered by
the ECC application and subsequently granted with
ECC-R6-1003-096-7100 consists only of 2.64
hectares; hence, respondent DENR-EMB RVI could
not comment on the excess area.118
Respondent DENR-EMB RVI admits that as regards
the classification of the 2.64-hectare reclamation
project under "Non ECP in ECA," this does not fall
within the definition of a co-located project because
the subject project is merely an expansion of the old
Caticlan Jetty Port, which had a previously issued
ECC (ECC No. 0699-1012-171 on October 12, 1999).
Thus, only an EPRMP, not a PEIS or PEPRMP, is
required.119
Respondent Province submitted to respondent
DENR-EMB RVI the following documents contained in
the EPRMP:
a. The Observations on the Floor Bottom
and its Marine Resources at the Proposed
Jetty Ports at Caticlan and Manok-manok,
Boracay, Aklan, conducted in 1999 by the
Bureau of Fisheries Aquatic Resources
(BFAR) Central Office, particularly in
Caticlan site, and
b. The Study conducted by Dr. Ricarte S.
Javelosa, Ph. D, Mines and Geosciences
Bureau (MGB), Central Office and Engr.
Roger Esto, Provincial Planning and
Development Office (PPDO), Aklan in 2009
entitled "Preliminary Geo-hazard
Assessment for the Enhancement of the
Existing Caticlan Jetty Port Terminal through
Beach Zone Restoration and Protective
Marina Development in Malay, Aklan."
Respondent DENR-EMB RVI claims that the above
two scientific studies were enough for it to arrive at a
best professional judgment to issue an amended ECC
for the Aklan Marina Project covering 2.64
hectares.120Furthermore, to confirm that the 2.64-
hectare reclamation has no significant negative
impact with the surrounding environment particularly
in Boracay, a more recent study was conducted, and
respondent DENR-EMB RVI alleges that "[i]t is very
important to highlight that the input data in the
[MERF- UPMSI] study utilized the [40-hectare]
reclamation and [200-meter] width seaward using the
tidal and wave modelling."121 The study showed that
the reclamation of 2.64 hectares had no effect to the
hydrodynamics of the strait between Barangay
Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits
and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to
the DENR Memorandum Circular No. 2007-08,
entitled "Simplifying the Requirements of ECC or CNC
Applications;" that the EPRMP was evaluated and
processed based on the Revised Procedural Manual
for DENR DAO 2003-30 which resulted to the
issuance of ECC-R6-1003-096-7100; and that the
ECC is not a permit per se but a planning tool for
LGUs to consider in its decision whether or not to
issue a local permit.122
Respondent DENR-EMB RVI concludes that in filing
this case, petitioner had bypassed and deprived the
DENR Secretary of the opportunity to review and/or
reverse the decision of his subordinate office, EMB
RVI pursuant to the Revised Procedural Manual for
DENR DAO 2003-30. There is no "extreme urgency
that necessitates the granting of Mandamus or
issuance of TEPO that put to balance between the life
and death of the petitioner or present grave or
irreparable damage to environment."123
After receiving the above Comments from all the
respondents, the Court set the case for oral
arguments on September 13, 2011.
Meanwhile, on September 8, 2011, respondent
Province filed a Manifestation and Motion124 praying
for the dismissal of the petition, as the province was
no longer pursuing the implementation of the
succeeding phases of the project due to its inability to
comply with Article IV B.2(3) of the MOA; hence, the
issues and fears expressed by petitioner had become
moot. Respondent Province alleges that the petition is
"premised on a serious misappreciation of the real
extent of the contested reclamation project" as
certainly the ECC covered only a total of 2,691 square
meters located in Barangay Caticlan, Malay, Aklan;
and although the MOA spoke of 40 hectares,
respondent Province’s submission of documents to
respondent PRA pertaining to said area was but the
first of a two-step process of approval. Respondent
Province claims that its failure to comply with the
documentary requirements of respondent PRA within
the period provided, or 120 working days from the
effectivity of the MOA, indicated its waiver to pursue
the remainder of the project.125 Respondent Province
further manifested:
Confirming this in a letter dated 12 August
2011,126 Governor Marquez informed respondent PRA
that the Province of Aklan is no longer "pursuing the
implementation of the succeeding phases of the
project with a total area of 37.4 hectares for our
inability to comply with Article IV B.2 (3) of the MOA;
hence, the existing MOA will cover only the project
area of 2.64 hectares."
In his reply-letter dated August 22,
2011,127 [respondent] PRA General Manager informed
Governor Marquez that the [respondent] PRA Board
of Directors has given [respondent] PRA the authority
to confirm the position of the Province of Aklan that
the "Aklan Beach Zone Restoration and Protection
Marine Development Project will now be confined to
the reclamation and development of the 2.64
hectares, more or less.
It is undisputed from the start that the coverage of the
Project is in fact limited to 2.64 hectares, as
evidenced by the NTP issued by respondent PRA.
The recent exchange of correspondence between
respondents Province of Aklan and [respondent] PRA
further confirms the intent of the parties all along.
Hence, the Project subject of the petition, without
doubt, covers only 2.64 and not 40 hectares as
feared. This completely changes the extent of the
Project and, consequently, moots the issues and
fears expressed by the petitioner.128 (Emphasis
supplied.)
Based on the above contentions, respondent
Province prays that the petition be dismissed as no
further justiciable controversy exists since the feared
adverse effect to Boracay Island’s ecology had
become academic all together.129
The Court heard the parties’ oral arguments on
September 13, 2011 and gave the latter twenty (20)
days thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and
Motion,130 which the Court received on April 2, 2012
stating that:
1. it had submitted the required documents
and studies to respondent DENR-EMB RVI
before an ECC was issued in its favor;
2. it had substantially complied with the
requirements provided under PRA
Administrative Order 2007-2, which
compliance caused respondent PRA’s Board
to approve the reclamation project; and
3. it had conducted a series of "consultative
[presentations]" relative to the reclamation
project before the LGU of Malay Municipality,
the Barangay Officials of Caticlan, and
stakeholders of Boracay Island.
Respondent Province further manifested that the
Barangay Council of Caticlan, Malay, Aklan enacted
on February 13, 2012 Resolution No. 003, series of
2012, entitled "Resolution Favorably Endorsing the
2.6 Hectares Reclamation/MARINA Project of the
Aklan Provincial Government at Caticlan
Coastline"131 and that the Sangguniang Bayan of the
Municipality of Malay, Aklan enacted Resolution No.
020, series of 2012, entitled "Resolution Endorsing
the 2.6 Hectares Reclamation Project of the Provincial
Government of Aklan Located at Barangay Caticlan,
Malay, Aklan."132
Respondent Province claims that its compliance with
the requirements of respondents DENR-EMB RVI and
PRA that led to the approval of the reclamation
project by the said government agencies, as well as
the recent enactments of the Barangay Council of
Caticlan and the Sangguniang Bayan of the
Municipality of Malay favorably endorsing the said
project, had "categorically addressed all the issues
raised by the Petitioner in its Petition dated June 1,
2011." Respondent Province prays as follows:
WHEREFORE, premises considered, it is most
respectfully prayed of this Honorable Court that after
due proceedings, the following be rendered:
1. The Temporary Environmental Protection
Order (TEPO) it issued on June 7, 2011 be
lifted/dissolved.
2. The instant petition be dismissed for being
moot and academic.
3. Respondent Province of Aklan prays for
such other reliefs that are just and equitable
under the premises. (Emphases in the
original.)
ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be
dismissed for having been rendered moot
and academic
 II. Whether or not the petition is premature
because petitioner failed to exhaust
administrative remedies before filing this
case
III. Whether or not respondent Province
failed to perform a full EIA as required by
laws and regulations based on the scope
and classification of the project
IV. Whether or not respondent Province
complied with all the requirements under the
pertinent laws and regulations
V. Whether or not there was proper, timely,
and sufficient public consultation for the
project
DISCUSSION
On the issue of whether or not the Petition should be
dismissed for having been rendered moot and
academic
Respondent Province claims in its Manifestation and
Motion filed on April 2, 2012 that with the alleged
favorable endorsement of the reclamation project by
the Sangguniang Barangay of Caticlan and the
Sangguniang Bayan of the Municipality of Malay, all
the issues raised by petitioner had already been
addressed, and this petition should be dismissed for
being moot and academic.
On the contrary, a close reading of the two LGUs’
respective resolutions would reveal that they are not
sufficient to render the petition moot and academic,
as there are explicit conditions imposed that must be
complied with by respondent Province. In Resolution
No. 003, series of 2012, of the Sangguniang
Barangay of Caticlan it is stated that "any vertical
structures to be constructed shall be subject for
barangay endorsement."133 Clearly, what the
barangay endorsed was the reclamation only, and not
the entire project that includes the construction of a
commercial building and wellness center, and other
tourism-related facilities. Petitioner’s objections, as
may be recalled, pertain not only to the reclamation
per se, but also to the building to be constructed and
the entire project’s perceived ill effects to the
surrounding environment.
Resolution No. 020, series of 2012, of the
Sangguniang Bayan of Malay134 is even more specific.
It reads in part:
WHEREAS, noble it seems the reclamation project to
the effect that it will generate scores of benefits for the
Local Government of Malay in terms of income and
employment for its constituents, but the fact cannot be
denied that the project will take its toll on the
environment especially on the nearby fragile island of
Boracay and the fact also remains that the project will
eventually displace the local transportation
operators/cooperatives;
WHEREAS, considering the sensitivity of the project,
this Honorable Body through the Committee where
this matter was referred conducted several
consultations/committee hearings with concerned
departments and the private sector specifically
Boracay Foundation, Inc. and they are one in its belief
that this Local Government Unit has never been
against development so long as compliance with the
law and proper procedures have been observed and
that paramount consideration have been given to the
environment lest we disturb the balance of nature to
the end that progress will be brought to naught;
WHEREAS, time and again, to ensure a healthy
intergovernmental relations, this August Body
requires no less than transparency and faithful
commitment from the Provincial Government of Aklan
in the process of going through these improvements
in the Municipality because it once fell prey to
infidelities in matters of governance;
WHEREAS, as a condition for the grant of this
endorsement and to address all issues and concerns,
this Honorable Council necessitates a sincere
commitment from the Provincial Government of Aklan
to the end that:
1. To allocate an office space to LGU-Malay
within the building in the reclaimed area;
2. To convene the Cagban and Caticlan
Jetty Port Management Board before the
resumption of the reclamation project;
3. That the reclamation project shall be
limited only to 2.6 hectares in Barangay
Caticlan and not beyond;
4. That the local transportation
operators/cooperatives will not be displaced;
and
5. The Provincial Government of Aklan
conduct a simultaneous comprehensive
study on the environmental impact of the
reclamation project especially during
Habagat and Amihan seasons and put in
place as early as possible mitigating
measures on the effect of the project to the
environment.
WHEREAS, having presented these stipulations,
failure to comply herewith will leave this August Body
no choice but to revoke this endorsement, hence
faithful compliance of the commitment of the
Provincial Government is highly appealed
for[.]135 (Emphases added.)
The Sangguniang Bayan of Malay obviously imposed
explicit conditions for respondent Province to comply
with on pain of revocation of its endorsement of the
project, including the need to conduct a
comprehensive study on the environmental impact of
the reclamation project, which is the heart of the
petition before us. Therefore, the contents of the two
resolutions submitted by respondent Province do not
support its conclusion that the subsequent favorable
endorsement of the LGUs had already addressed all
the issues raised and rendered the instant petition
moot and academic.
On the issue of failure to exhaust administrative
remedies
Respondents, in essence, argue that the present
petition should be dismissed for petitioner’s failure to
exhaust administrative remedies and even to observe
the hierarchy of courts. Furthermore, as the petition
questions the issuance of the ECC and the NTP, this
involves factual and technical verification, which are
more properly within the expertise of the concerned
government agencies.
Respondents anchor their argument on Section 6,
Article II of DENR DAO 2003-30, which provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC /
CNC applications may, within 15 days from receipt of
such decision, file an appeal on the following grounds:
a. Grave abuse of discretion on the part of
the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute
resolution procedures as a means to settle grievances
between proponents and aggrieved parties to avert
unnecessary legal action. Frivolous appeals shall not
be countenanced.
The proponent or any stakeholder may file an appeal
to the following:
Respondents argue that since there is an
administrative appeal provided for, then petitioner is
duty bound to observe the same and may not be
granted recourse to the regular courts for its failure to
do so.
We do not agree with respondents’ appreciation of the
applicability of the rule on exhaustion of administrative
remedies in this case. We are reminded of our ruling
in Pagara v. Court of Appeals,136 which summarized
our earlier decisions on the procedural requirement of
exhaustion of administrative remedies, to wit:
The rule regarding exhaustion of administrative
remedies is not a hard and fast rule. It is not
applicable (1) where the question in dispute is purely
a legal one, or (2) where the controverted act is
patently illegal or was performed without jurisdiction
or in excess of jurisdiction; or (3) where the
respondent is a department secretary, whose acts as
an alter ego of the President bear the implied or
assumed approval of the latter, unless actually
disapproved by him, or (4) where there are
circumstances indicating the urgency of judicial
intervention, - Gonzales vs. Hechanova, L-21897,
October 22, 1963, 9 SCRA 230; Abaya vs. Villegas,
L-25641, December 17, 1966, 18 SCRA; Mitra vs.
Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does
not provide a plain, speedy and adequate remedy,
(Cipriano vs. Marcelino, 43 SCRA 291), when there is
no due process observed (Villanos vs. Subido, 45
SCRA 299), or where the protestant has no other
recourse (Sta. Maria vs. Lopez, 31 SCRA
637).137 (Emphases supplied.)
As petitioner correctly pointed out, the appeal
provided for under Section 6 of DENR DAO 2003-30
is only applicable, based on the first sentence thereof,
if the person or entity charged with the duty to
exhaust the administrative remedy of appeal to the
appropriate government agency has been a party or
has been made a party in the proceedings wherein
the decision to be appealed was rendered. It has
been established by the facts that petitioner was
never made a party to the proceedings before
respondent DENR-EMB RVI. Petitioner was only
informed that the project had already been approved
after the ECC was already granted.138 Not being a
party to the said proceedings, it does not appear that
petitioner was officially furnished a copy of the
decision, from which the 15-day period to appeal
should be reckoned, and which would warrant the
application of Section 6, Article II of DENR DAO
2003-30.
Although petitioner was not a party to the proceedings
where the decision to issue an ECC was rendered, it
stands to be aggrieved by the decision,139 because it
claims that the reclamation of land on the Caticlan
side would unavoidably adversely affect the Boracay
side, where petitioner’s members own establishments
engaged in the tourism trade. As noted earlier,
petitioner contends that the declared objective of the
reclamation project is to exploit Boracay’s tourism
trade because the project is intended to enhance
support services thereto; however, this objective
would not be achieved since the white-sand beaches
for which Boracay is famous might be negatively
affected by the project. Petitioner’s conclusion is that
respondent Province, aided and abetted by
respondents PRA and DENR-EMB RVI, ignored the
spirit and letter of our environmental laws, and should
thus be compelled to perform their duties under said
laws.
The new Rules of Procedure for Environmental
Cases, A.M. No. 09-6-8-SC, provides a relief for
petitioner under the writ of continuing mandamus,
which is a special civil action that may be availed of
"to compel the performance of an act specifically
enjoined by law"140 and which provides for the
issuance of a TEPO "as an auxiliary remedy prior to
the issuance of the writ itself."141 The Rationale of the
said Rules explains the writ in this wise:
Environmental law highlights the shift in the focal-
point from the initiation of regulation by Congress to
the implementation of regulatory programs by the
appropriate government agencies.
Thus, a government agency’s inaction, if any, has
serious implications on the future of environmental
law enforcement. Private individuals, to the extent that
they seek to change the scope of the regulatory
process, will have to rely on such agencies to take the
initial incentives, which may require a judicial
component. Accordingly, questions regarding the
propriety of an agency’s action or inaction will need to
be analyzed.
This point is emphasized in the availability of the
remedy of the writ of mandamus, which allows for the
enforcement of the conduct of the tasks to which the
writ pertains: the performance of a legal
duty.142 (Emphases added.)
The writ of continuing mandamus "permits the court to
retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated
under the court’s decision" and, in order to do this,
"the court may compel the submission of compliance
reports from the respondent government agencies as
well as avail of other means to monitor compliance
with its decision."143
According to petitioner, respondent Province acted
pursuant to a MOA with respondent PRA that was
conditioned upon, among others, a properly-secured
ECC from respondent DENR-EMB RVI. For this
reason, petitioner seeks to compel respondent
Province to comply with certain environmental laws,
rules, and procedures that it claims were either
circumvented or ignored. Hence, we find that the
petition was appropriately filed with this Court under
Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.—
When any agency or instrumentality of the
government or officer thereof unlawfully neglects the
performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or
station in connection with the enforcement or violation
of an environmental law rule or regulation or a right
therein, or unlawfully excludes another from the use
or enjoyment of such right and there is no other plain,
speedy and adequate remedy in the ordinary course
of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts
with certainty, attaching thereto supporting evidence,
specifying that the petition concerns an environmental
law, rule or regulation, and praying that judgment be
rendered commanding the respondent to do an act or
series of acts until the judgment is fully satisfied, and
to pay damages sustained by the petitioner by reason
of the malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The
petition shall also contain a sworn certification of non-
forum shopping.
SECTION 2. Where to file the petition.—The petition
shall be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable
neglect or omission occurred or with the Court of
Appeals or the Supreme Court.
Petitioner had three options where to file this case
under the rule: the Regional Trial Court exercising
jurisdiction over the territory where the actionable
neglect or omission occurred, the Court of Appeals, or
this Court.
Petitioner had no other plain, speedy, or adequate
remedy in the ordinary course of law to determine the
questions of unique national and local importance
raised here that pertain to laws and rules for
environmental protection, thus it was justified in
coming to this Court.
Having resolved the procedural issue, we now move
to the substantive issues.
On the issues of whether, based on the scope and
classification of the project, a full EIA is required by
laws and regulations, and whether respondent
Province complied with all the requirements under the
pertinent laws and regulations
Petitioner’s arguments on this issue hinges upon its
claim that the reclamation project is misclassified as a
single project when in fact it is co-located. Petitioner
also questions the classification made by respondent
Province that the reclamation project is merely an
expansion of the existing jetty port, when the project
descriptions embodied in the different documents filed
by respondent Province describe commercial
establishments to be built, among others, to raise
revenues for the LGU; thus, it should have been
classified as a new project. Petitioner likewise cries
foul to the manner by which respondent Province
allegedly circumvented the documentary
requirements of the DENR-EMB RVI by the act of
connecting the reclamation project with its previous
project in 1999 and claiming that the new project is a
mere expansion of the previous one.
As previously discussed, respondent Province filed a
Manifestation and Motion stating that the ECC issued
by respondent DENR-EMB RVI covered an area of
2,691 square meters in Caticlan, and its application
for reclamation of 40 hectares with respondent PRA
was conditioned on its submission of specific
documents within 120 days. Respondent Province
claims that its failure to comply with said condition
indicated its waiver to pursue the succeeding phases
of the reclamation project and that the subject matter
of this case had thus been limited to 2.64 hectares.
Respondent PRA, for its part, declared through its
General Manager that the "Aklan Beach Zone
Restoration and Protection Marine Development
Project will now be confined to the reclamation and
development of the 2.64 hectares, more or less." 144
The Court notes such manifestation of respondent
Province. Assuming, however, that the area involved
in the subject reclamation project has been limited to
2.64 hectares, this case has not become moot and
academic, as alleged by respondents, because the
Court still has to check whether respondents had
complied with all applicable environmental laws, rules,
and regulations pertaining to the actual reclamation
project.
We recognize at this point that the DENR is the
government agency vested with delegated powers to
review and evaluate all EIA reports, and to grant or
deny ECCs to project proponents.145 It is the DENR
that has the duty to implement the EIS system. It
appears, however, that respondent DENR-EMB RVI’s
evaluation of this reclamation project was
problematic, based on the valid questions raised by
petitioner.
Being the administrator of the EIS System,
respondent DENR-EMB RVI’s submissions bear great
weight in this case. However, the following are the
issues that put in question the wisdom of respondent
DENR-EMB RVI in issuing the ECC:
1. Its approval of respondent Province’s
classification of the project as a mere
expansion of the existing jetty port in
Caticlan, instead of classifying it as a new
project;
2. Its classification of the reclamation project
as a single instead of a co-located project;
3. The lack of prior public consultations and
approval of local government agencies; and
4. The lack of comprehensive studies
regarding the impact of the reclamation
project to the environment.
The above issues as raised put in question the
sufficiency of the evaluation of the project by
respondent DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent
DENR-EMB RVI as the agency with the expertise and
authority to state whether this is a new project,
subject to the more rigorous environmental impact
study requested by petitioner, or it is a mere
expansion of the existing jetty port facility.
The second issue refers to the classification of the
project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of co-
located. Under the Revised Procedural Manual, the
"Summary List of Additional Non-Environmentally-
Critical Project (NECP) Types in ECAs Classified
under Group II" (Table I-2) lists "buildings, storage
facilities and other structures" as a separate item from
"transport terminal facilities." This creates the
question of whether this project should be considered
as consisting of more than one type of activity, and
should more properly be classified as "co-located,"
under the following definition from the same Manual,
which reads:
f) Group IV (Co-located Projects in either ECA or
NECA): A co-located project is a group of single
projects, under one or more proponents/locators,
which are located in a contiguous area and managed
by one administrator, who is also the ECC applicant.
The co-located project may be an economic zone or
industrial park, or a mix of projects within a
catchment, watershed or river basin, or any other
geographical, political or economic unit of area. Since
the location or threshold of specific projects within the
contiguous area will yet be derived from the EIA
process based on the carrying capacity of the project
environment, the nature of the project is called
"programmatic." (Emphasis added.)
Respondent DENR-EMB RVI should conduct a
thorough and detailed evaluation of the project to
address the question of whether this could be
deemed as a group of single projects (transport
terminal facility, building, etc.) in a contiguous area
managed by respondent Province, or as a single
project.
The third item in the above enumeration will be
discussed as a separate issue.
The answer to the fourth question depends on the
final classification of the project under items 1 and 3
above because the type of EIA study required under
the Revised Procedural Manual depends on such
classification.
The very definition of an EIA points to what was most
likely neglected by respondent Province as project
proponent, and what was in turn overlooked by
respondent DENR-EMB RVI, for it is defined as
follows:
An [EIA] is a ‘process that involves predicting and
evaluating the likely impacts of a project (including
cumulative impacts) on the environment during
construction, commissioning, operation and
abandonment. It also includes designing appropriate
preventive, mitigating and enhancement measures
addressing these consequences to protect the
environment and the community’s
welfare.146 (Emphases supplied.)
Thus, the EIA process must have been able to predict
the likely impact of the reclamation project to the
environment and to prevent any harm that may
otherwise be caused.
The project now before us involves reclamation of
land that is more than five times the size of the
original reclaimed land. Furthermore, the area prior to
construction merely contained a jetty port, whereas
the proposed expansion, as described in the EPRMP
submitted by respondent Province to respondent
DENR-EMB RVI involves so much more, and we
quote:
The expansion project will be constructed at the north
side of the existing jetty port and terminal that will
have a total area of 2.64 hectares, more or less, after
reclamation. The Phase 1 of the project construction
costing around ₱260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of
jetty port)
2. Reclamation - 13,500 sq m (buildable
area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building – 2,500 sq m
(1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and
water treatment sewerage system
8. Rehabilitation of existing jetty port and
terminal
xxxx
The succeeding phases of the project will consist of
[further] reclamation, completion of the commercial
center building, bay walk commercial strip, staff
building, ferry terminal, a cable car system and wharf
marina. This will entail an additional estimated cost of
₱785 million bringing the total investment requirement
to about ₱1.0 billion.147(Emphases added.)
As may be gleaned from the breakdown of the 2.64
hectares as described by respondent Province above,
a significant portion of the reclaimed area would be
devoted to the construction of a commercial building,
and the area to be utilized for the expansion of the
jetty port consists of a mere 3,000 square meters (sq.
m). To be true to its definition, the EIA report
submitted by respondent Province should at the very
least predict the impact that the construction of the
new buildings on the reclaimed land would have on
the surrounding environment. These new
constructions and their environmental effects were not
covered by the old studies that respondent Province
previously submitted for the construction of the
original jetty port in 1999, and which it re-submitted in
its application for ECC in this alleged expansion,
instead of conducting updated and more
comprehensive studies.
Any impact on the Boracay side cannot be totally
ignored, as Caticlan and Boracay are separated only
by a narrow strait. This becomes more imperative
because of the significant contributions of Boracay’s
white-sand beach to the country’s tourism trade,
which requires respondent Province to proceed with
utmost caution in implementing projects within its
vicinity.
We had occasion to emphasize the duty of local
government units to ensure the quality of the
environment under Presidential Decree No. 1586 in
Republic of the Philippines v. The City of
Davao,148 wherein we held:
Section 15 of Republic Act 7160, otherwise known as
the Local Government Code, defines a local
government unit as a body politic and corporate
endowed with powers to be exercised by it in
conformity with law. As such, it performs dual
functions, governmental and proprietary.
Governmental functions are those that concern the
health, safety and the advancement of the public
good or welfare as affecting the public generally.
Proprietary functions are those that seek to obtain
special corporate benefits or earn pecuniary profit and
intended for private advantage and benefit. When
exercising governmental powers and performing
governmental duties, an LGU is an agency of the
national government. When engaged in corporate
activities, it acts as an agent of the community in the
administration of local affairs.
Found in Section 16 of the Local Government Code is
the duty of the LGUs to promote the people’s right to
a balanced ecology. Pursuant to this, an LGU, like the
City of Davao, can not claim exemption from the
coverage of PD 1586. As a body politic endowed with
governmental functions, an LGU has the duty to
ensure the quality of the environment, which is the
very same objective of PD 1586.
xxxx
Section 4 of PD 1586 clearly states that "no person,
partnership or corporation shall undertake or operate
any such declared environmentally critical project or
area without first securing an Environmental
Compliance Certificate issued by the President or his
duly authorized representative." The Civil Code
defines a person as either natural or juridical. The
state and its political subdivisions, i.e., the local
government units are juridical persons. Undoubtedly
therefore, local government units are not excluded
from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said
law intends to implement the policy of the state to
achieve a balance between socio-economic
development and environmental protection, which are
the twin goals of sustainable development. The
above-quoted first paragraph of the Whereas clause
stresses that this can only be possible if we adopt a
comprehensive and integrated environmental
protection program where all the sectors of the
community are involved, i.e., the government and the
private sectors. The local government units, as part of
the machinery of the government, cannot therefore be
deemed as outside the scope of the EIS
system.149 (Emphases supplied.)
The Court chooses to remand these matters to
respondent DENR-EMB RVI for it to make a proper
study, and if it should find necessary, to require
respondent Province to address these environmental
issues raised by petitioner and submit the correct EIA
report as required by the project’s specifications. The
Court requires respondent DENR-EMB RVI to
complete its study and submit a report within a non-
extendible period of three months. Respondent
DENR-EMB RVI should establish to the Court in said
report why the ECC it issued for the subject project
should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of
national government agencies in the maintenance of
ecological balance, and requires them to secure prior
public consultation and approval of local government
units for the projects described therein.
In the case before us, the national agency involved is
respondent PRA. Even if the project proponent is the
local government of Aklan, it is respondent PRA
which authorized the reclamation, being the exclusive
agency of the government to undertake reclamation
nationwide. Hence, it was necessary for respondent
Province to go through respondent PRA and to
execute a MOA, wherein respondent PRA’s authority
to reclaim was delegated to respondent Province.
Respondent DENR-EMB RVI, regional office of the
DENR, is also a national government institution which
is tasked with the issuance of the ECC that is a
prerequisite to projects covered by environmental
laws such as the one at bar.
This project can be classified as a national project
that affects the environmental and ecological balance
of local communities, and is covered by the
requirements found in the Local Government Code
provisions that are quoted below:
Section 26. Duty of National Government Agencies in
the Maintenance of Ecological Balance. - It shall be
the duty of every national agency or government-
owned or controlled corporation authorizing or
involved in the planning and implementation of any
project or program that may cause pollution, climatic
change, depletion of non-renewable resources, loss
of crop land, rangeland, or forest cover, and extinction
of animal or plant species, to consult with the local
government units, nongovernmental organizations,
and other sectors concerned and explain the goals
and objectives of the project or program, its impact
upon the people and the community in terms of
environmental or ecological balance, and the
measures that will be undertaken to prevent or
minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project
or program shall be implemented by government
authorities unless the 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.
In Lina, Jr. v. Paño,150 we held that Section 27 of the
Local Government Code applies only to "national
programs and/or projects which are to be
implemented in a particular local community"151 and
that it should be read in conjunction with Section 26.
We held further in this manner:
Thus, the projects and programs mentioned in
Section 27 should be interpreted to mean projects
and programs whose effects are among those
enumerated in Section 26 and 27, to wit, those that:
(1) may cause pollution; (2) may bring about climatic
change; (3) may cause the depletion of non-
renewable resources; (4) may result in loss of crop
land, range-land, or forest cover; (5) may eradicate
certain animal or plant species from the face of the
planet; and (6) other projects or programs that may
call for the eviction of a particular group of people
residing in the locality where these will be
implemented. Obviously, none of these effects will be
produced by the introduction of lotto in the province of
Laguna.152 (Emphasis added.)
During the oral arguments held on September 13,
2011, it was established that this project as described
above falls under Section 26 because the commercial
establishments to be built on phase 1, as described in
the EPRMP quoted above, could cause pollution as it
could generate garbage, sewage, and possible toxic
fuel discharge.153
Our ruling in Province of Rizal v. Executive
Secretary154 is instructive:
We reiterated this doctrine in the recent case
of Bangus Fry Fisherfolk v. Lanzanas, where we held
that there was no statutory requirement for
the sangguniang bayan of Puerto Galera to approve
the construction of a mooring facility, as Sections 26
and 27 are inapplicable to projects which are not
environmentally critical.
Moreover, Section 447, which enumerates the
powers, duties and functions of the municipality,
grants the sangguniang bayan the power to, among
other things, "enact ordinances, approve resolutions
and appropriate funds for the general welfare of the
municipality and its inhabitants pursuant to Section 16
of th(e) Code." These include:
(1) Approving ordinances and passing
resolutions to protect the environment and
impose appropriate penalties for acts which
endanger the environment, such as
dynamite fishing and other forms of
destructive fishing, illegal logging and
smuggling of logs, smuggling of natural
resources products and of endangered
species of flora and fauna, slash and burn
farming, and such other activities which
result in pollution, acceleration of
eutrophication of rivers and lakes, or of
ecological imbalance; [Section 447 (1)(vi)]
(2) Prescribing reasonable limits and
restraints on the use of property within the
jurisdiction of the municipality, adopting a
comprehensive land use plan for the
municipality, reclassifying land within the
jurisdiction of the city, subject to the pertinent
provisions of this Code, enacting integrated
zoning ordinances in consonance with the
approved comprehensive land use plan,
subject to existing laws, rules and
regulations; establishing fire limits or zones,
particularly in populous centers; and
regulating the construction, repair or
modification of buildings within said fire limits
or zones in accordance with the provisions of
this Code; [Section 447 (2)(vi-ix)]
(3) Approving ordinances which shall ensure
the efficient and effective delivery of the
basic services and facilities as provided for
under Section 17 of this Code, and in
addition to said services and facilities,
…providing for the establishment,
maintenance, protection, and conservation of
communal forests and watersheds, tree
parks, greenbelts, mangroves, and other
similar forest development projects …and,
subject to existing laws, establishing and
providing for the maintenance, repair and
operation of an efficient waterworks system
to supply water for the inhabitants and
purifying the source of the water supply;
regulating the construction, maintenance,
repair and use of hydrants, pumps, cisterns
and reservoirs; protecting the purity and
quantity of the water supply of the
municipality and, for this purpose, extending
the coverage of appropriate ordinances over
all territory within the drainage area of said
water supply and within one hundred (100)
meters of the reservoir, conduit, canal,
aqueduct, pumping station, or watershed
used in connection with the water service;
and regulating the consumption, use or
wastage of water." [Section 447 (5)(i) & (vii)]
Under the Local Government Code, therefore, two
requisites must be met before a national project that
affects the environmental and ecological balance of
local communities can be implemented:
prior consultation with the affected local communities,
and prior approval of the project by the
appropriate sanggunian. Absent either of these
mandatory requirements, the project’s implementation
is illegal.155 (Emphasis added.)
Based on the above, therefore, prior consultations
and prior approval are required by law to have been
conducted and secured by the respondent Province.
Accordingly, the information dissemination conducted
months after the ECC had already been issued was
insufficient to comply with this requirement under the
Local Government Code. Had they been conducted
properly, the prior public consultation should have
considered the ecological or environmental concerns
of the stakeholders and studied measures alternative
to the project, to avoid or minimize adverse
environmental impact or damage. In fact, respondent
Province once tried to obtain the favorable
endorsement of the Sangguniang Bayan of Malay, but
this was denied by the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of
public hearing as part of the EIS review is mandatory
unless otherwise determined by EMB. For all other
undertakings, a public hearing is not mandatory
unless specifically required by EMB.
Proponents should initiate public consultations early
in order to ensure that environmentally relevant
concerns of stakeholders are taken into consideration
in the EIA study and the formulation of the
management plan. All public consultations and public
hearings conducted during the EIA process are to be
documented. The public hearing/consultation Process
report shall be validated by the EMB/EMB RD and
shall constitute part of the records of the EIA process.
(Emphasis supplied.)
In essence, the above-quoted rule shows that in
cases requiring public consultations, the same should
be initiated early so that concerns of stakeholders
could be taken into consideration in the EIA study. In
this case, respondent Province had already filed its
ECC application before it met with the local
government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no
permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to
the DENR Memorandum Circular No. 2007-08.
However, we still find that the LGC requirements of
consultation and approval apply in this case. This is
because a Memorandum Circular cannot prevail over
the Local Government Code, which is a statute and
which enjoys greater weight under our hierarchy of
laws.
Subsequent to the information campaign of
respondent Province, the Municipality of Malay and
the Liga ng mga Barangay-Malay Chapter still
opposed the project. Thus, when respondent Province
commenced the implementation project, it violated
Section 27 of the LGC, which clearly enunciates that
"[no] project or program shall be implemented by
government authorities unless the consultations
mentioned in Sections 2(c) and 26 hereof are
complied with, and prior approval of the sanggunian
concerned is obtained."
The lack of prior public consultation and approval is
not corrected by the subsequent endorsement of the
reclamation project by the Sangguniang Barangay of
Caticlan on February 13, 2012, and the Sangguniang
Bayan of the Municipality of Malay on February 28,
2012, which were both undoubtedly achieved at the
urging and insistence of respondent Province. As we
have established above, the respective resolutions
issued by the LGUs concerned did not render this
petition moot and academic.
It is clear that both petitioner and respondent Province
are interested in the promotion of tourism in Boracay
and the protection of the environment, lest they kill the
proverbial hen that lays the golden egg. At the
beginning of this decision, we mentioned that there
are common goals of national significance that are
very apparent from both the petitioner’s and the
respondents’ respective pleadings and memoranda.
The parties are evidently in accord in seeking to
uphold the mandate found in Article II, Declaration of
Principles and State Policies, of the 1987
Constitution, which we quote below:
SECTION 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.
xxxx
SECTION 20. The State recognizes the indispensable
role of the private sector, encourages private
enterprise, and provides incentives to needed
investments.
The protection of the environment in accordance with
the aforesaid constitutional mandate is the aim,
among others, of Presidential Decree No. 1586,
"Establishing an Environmental Impact Statement
System, Including Other Environmental Management
Related Measures and For Other Purposes," which
declared in its first Section that it is "the policy of the
State to attain and maintain a rational and orderly
balance between socio-economic growth and
environmental protection."
The parties undoubtedly too agree as to the
importance of promoting tourism, pursuant to Section
2 of Republic Act No. 9593, or "The Tourism Act of
2009," which reads:
SECTION 2. Declaration of Policy. – The State
declares tourism as an indispensable element of the
national economy and an industry of national interest
and importance, which must be harnessed as an
engine of socioeconomic growth and cultural
affirmation to generate investment, foreign exchange
and employment, and to continue to mold an
enhanced sense of national pride for all Filipinos.
(Emphasis ours.)
The primordial role of local government units under
the Constitution and the Local Government Code of
1991 in the subject matter of this case is also
unquestionable. The Local Government Code of 1991
(Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby
declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine
and meaningful local autonomy to enable them to
attain their fullest development as self-reliant
communities and make them more effective partners
in the attainment of national goals. Toward this end,
the State shall provide for a more responsive and
accountable local government structure instituted
through a system of decentralization whereby local
government units shall be given more powers,
authority, responsibilities, and resources. The process
of decentralization shall proceed from the national
government to the local government
units.156 (Emphases ours.)
As shown by the above provisions of our laws and
rules, the speedy and smooth resolution of these
issues would benefit all the parties. Thus, respondent
Province’s cooperation with respondent DENR-EMB
RVI in the Court-mandated review of the proper
classification and environmental impact of the
reclamation project is of utmost importance.
WHEREFORE, premises considered, the petition is
hereby PARTIALLY GRANTED.1âwphi1 The TEPO
issued by this Court is hereby converted into a writ of
continuing mandamus specifically as follows:
1. Respondent Department of Environment
and Natural Resources-Environmental
Management Bureau Regional Office VI
shall revisit and review the following matters:
a. its classification of the
reclamation project as a single
instead of a co-located project;
b. its approval of respondent
Province’s classification of the
project as a mere expansion of the
existing jetty port in Caticlan,
instead of classifying it as a new
project; and
c. the impact of the reclamation
project to the environment based on
new, updated, and comprehensive
studies, which should forthwith be
ordered by respondent DENR-EMB
RVI.
2. Respondent Province of Aklan shall
perform the following:
a. fully cooperate with respondent
DENR-EMB RVI in its review of the
reclamation project proposal and
submit to the latter the appropriate
report and study; and
b. secure approvals from local
government units and hold proper
consultations with non-
governmental organizations and
other stakeholders and sectors
concerned as required by Section
27 in relation to Section 26 of the
Local Government Code.
3. Respondent Philippine Reclamation
Authority shall closely monitor the
submission by respondent Province of the
requirements to be issued by respondent
DENR-EMB RVI in connection to the
environmental concerns raised by petitioner,
and shall coordinate with respondent
Province in modifying the MOA, if necessary,
based on the findings of respondent DENR-
EMB RVI.
4. The petitioner Boracay Foundation, Inc.
and the respondents The Province of Aklan,
represented by Governor Carlito S. Marquez,
The Philippine Reclamation Authority, and
The DENR-EMB (Region VI) are mandated
to submit their respective reports to this
Court regarding their compliance with the
requirements set forth in this Decision no
later than three (3) months from the date of
promulgation of this Decision.
5. In the meantime, the respondents, their
concerned contractor/s, and/or their agents,
representatives or persons acting in their
place or stead, shall immediately cease and
desist from continuing the implementation of
the project covered by ECC-R6-1003-096-
 7100 until further orders from this Court. For
this purpose, the respondents shall report
within five (5) days to this Court the status of
the project as of their receipt of this Decision,
copy furnished the petitioner.

This Decision is immediately executory.

SO ORDERED.
Case No. 014
EN BANC
G.R. No. 161872 April 13, 2004
REV. ELLY CHAVEZ PAMATONG,
ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed
his Certificate of Candidacy for President on
December 17, 2003. Respondent Commission on
Elections (COMELEC) refused to give due course to
petitioner’s Certificate of Candidacy in its Resolution
No. 6558 dated January 17, 2004. The decision,
however, was not unanimous since Commissioners
Luzviminda G. Tancangco and Mehol K. Sadain voted
to include petitioner as they believed he had parties or
movements to back up his candidacy.
On January 15, 2004, petitioner moved for
reconsideration of Resolution No.
6558. Petitioner’s Motion for Reconsideration was
docketed as SPP (MP) No. 04-001. The COMELEC,
acting on petitioner’s Motion for Reconsideration and
on similar motions filed by other aspirants for national
elective positions, denied the same under the aegis
of Omnibus Resolution No. 6604 dated February 11,
2004. The COMELEC declared petitioner and thirty-
five (35) others nuisance candidates who could not
wage a nationwide campaign and/or are not
nominated by a political party or are not supported by
a registered political party with a national
constituency. Commissioner Sadain maintained his
vote for petitioner. By then, Commissioner Tancangco
had retired.
In this Petition For Writ of Certiorari, petitioner seeks
to reverse the resolutions which were allegedly
rendered in violation of his right to "equal access to
opportunities for public service" under Section 26,
Article II of the 1987
Constitution,1 by limiting the number of qualified
candidates only to those who can afford to wage a
nationwide campaign and/or are nominated by
political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional
provisions on the electoral process and limited the
power of the sovereign people to choose their
leaders. The COMELEC supposedly erred in
disqualifying him since he is the most qualified among
all the presidential candidates, i.e., he possesses all
the constitutional and legal qualifications for the office
of the president, he is capable of waging a national
campaign since he has numerous national
organizations under his leadership, he also has the
capacity to wage an international campaign since he
has practiced law in other countries, and he has a
platform of government. Petitioner likewise attacks the
validity of the form for the Certificate of
Candidacy prepared by the COMELEC. Petitioner
claims that the form does not provide clear and
reasonable guidelines for determining the
qualifications of candidates since it does not ask for
the candidate’s bio-data and his program of
government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the
constitutional provision ensuring "equal access to
opportunities for public office" is the claim that there is
a constitutional right to run for or hold public office
and, particularly in his case, to seek the presidency.
There is none. What is recognized is merely a
privilege subject to limitations imposed by law.
Section 26, Article II of the Constitution neither
bestows such a right nor elevates the privilege to the
level of an enforceable right. There is nothing in the
plain language of the provision which suggests such a
thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of
Article II of the Constitution, entitled "Declaration of
Principles and State Policies." The provisions under
the Article are generally considered not self-
executing,2 and there is no plausible reason for
according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in
Article II, the provision does not contain any judicially
enforceable constitutional right but merely specifies a
guideline for legislative or executive action.3 The
disregard of the provision does not give rise to any
cause of action before the courts.4
An inquiry into the intent of the framers5 produces the
same determination that the provision is not self-
executory. The original wording of the present Section
26, Article II had read, "The State shall broaden
opportunities to public office and prohibit public
dynasties."6 Commissioner (now Chief Justice) Hilario
Davide, Jr. successfully brought forth an amendment
that changed the word "broaden" to the phrase
"ensure equal access," and the substitution of the
word "office" to "service." He explained his proposal in
this wise:
I changed the word "broaden" to "ENSURE
EQUAL ACCESS TO" because what is
important would be equal access to the
opportunity. If you broaden, it would
necessarily mean that the government
would be mandated to create as many
offices as are possible to accommodate
as many people as are also possible. That
is the meaning of broadening opportunities
to public service. So, in order that we
should not mandate the State to make the
government the number one employer
and to limit offices only to what may be
necessary and expedient yet offering
equal opportunities to access to it, I
change the word "broaden."7 (emphasis
supplied)
Obviously, the provision is not intended to compel the
State to enact positive measures that would
accommodate as many people as possible into public
office. The approval of the "Davide amendment"
indicates the design of the framers to cast the
provision as simply enunciatory of a desired policy
objective and not reflective of the imposition of a clear
State burden.
Moreover, the provision as written leaves much to be
desired if it is to be regarded as the source of positive
rights. It is difficult to interpret the clause as operative
in the absence of legislation since its effective means
and reach are not properly defined. Broadly written,
the myriad of claims that can be subsumed under this
rubric appear to be entirely open-ended.8 Words and
phrases such as "equal access," "opportunities," and
"public service" are susceptible to countless
interpretations owing to their inherent impreciseness.
Certainly, it was not the intention of the framers to
inflict on the people an operative but amorphous
foundation from which innately unenforceable rights
may be sourced.
As earlier noted, the privilege of equal access to
opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the
privilege to seek elective office are found in the
provisions9 of the Omnibus Election Code on
"Nuisance Candidates" and COMELEC Resolution
No. 645210 dated December 10, 2002 outlining the
instances wherein the COMELEC may motu
proprio refuse to give due course to or cancel
a Certificate of Candidacy.
As long as the limitations apply to everybody equally
without discrimination, however, the equal access
clause is not violated. Equality is not sacrificed as
long as the burdens engendered by the limitations are
meant to be borne by any one who is minded to file a
certificate of candidacy. In the case at bar, there is no
showing that any person is exempt from the
limitations or the burdens which they create.
Significantly, petitioner does not challenge the
constitutionality or validity of Section 69 of the
Omnibus Election Code and COMELEC Resolution
No. 6452 dated 10 December 2003. Thus, their
presumed validity stands and has to be accorded due
weight.
Clearly, therefore, petitioner’s reliance on the equal
access clause in Section 26, Article II of the
Constitution is misplaced.
The rationale behind the prohibition against nuisance
candidates and the disqualification of candidates who
have not evinced a bona fide intention to run for office
is easy to divine. The State has a compelling interest
to ensure that its electoral exercises are rational,
objective, and orderly. Towards this end, the State
takes into account the practical considerations in
conducting elections. Inevitably, the greater the
number of candidates, the greater the opportunities
for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the
election. These practical difficulties should, of course,
never exempt the State from the conduct of a
mandated electoral exercise. At the same time,
remedial actions should be available to alleviate these
logistical hardships, whenever necessary and proper.
Ultimately, a disorderly election is not merely a
textbook example of inefficiency, but a rot that erodes
faith in our democratic institutions. As the United
States Supreme Court held:
[T]here is surely an important state interest
in requiring some preliminary showing of a
significant modicum of support before
printing the name of a political organization
and its candidates on the ballot – the
interest, if no other, in avoiding confusion,
deception and even frustration of the
democratic [process].11
The COMELEC itself recognized these practical
considerations when it promulgated Resolution No.
6558 on 17 January 2004, adopting the study
Memorandum of its Law Department dated 11
January 2004. As observed in the
COMELEC’s Comment:
There is a need to limit the number of
candidates especially in the case of
candidates for national positions because
the election process becomes a mockery
even if those who cannot clearly wage a
national campaign are allowed to run. Their
 names would have to be printed in the
Certified List of Candidates, Voters
Information Sheet and the Official Ballots.
These would entail additional costs to the
government. For the official ballots in
automated counting and canvassing of
votes, an additional page would amount to
more or less FOUR HUNDRED FIFTY
MILLION PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow
those candidates to continue if they cannot
wage a decent campaign enough to project
the prospect of winning, no matter how
slim.12
The preparation of ballots is but one aspect that
would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws
provide various entitlements for candidates for public
office, such as watchers in every polling
place,13 watchers in the board of canvassers,14 or
even the receipt of electoral contributions.15Moreover,
there are election rules and regulations the
formulations of which are dependent on the number of
candidates in a given election.
Given these considerations, the ignominious nature of
a nuisance candidacy becomes even more galling.
The organization of an election with bona
fide candidates standing is onerous enough. To add
into the mix candidates with no serious intentions or
capabilities to run a viable campaign would actually
impair the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to
constitute a one-note joke. The poll body would be
bogged by irrelevant minutiae covering every step of
the electoral process, most probably posed at the
instance of these nuisance candidates. It would be a
senseless sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible
and orderly election, the State could exclude nuisance
candidates and need not indulge in, as the song goes,
"their trips to the moon on gossamer wings."
The Omnibus Election Code and COMELEC
Resolution No. 6452 are cognizant of the compelling
State interest to ensure orderly and credible elections
by excising impediments thereto, such as nuisance
candidacies that distract and detract from the larger
purpose. The COMELEC is mandated by the
Constitution with the administration of elections16 and
endowed with considerable latitude in adopting
means and methods that will ensure the promotion of
free, orderly and honest elections.17 Moreover, the
Constitution guarantees that only bona
fide candidates for public office shall be free from any
form of harassment and discrimination.18 The
determination of bona fidecandidates is governed by
the statutes, and the concept, to our mind is,
satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance
involved are, their proper application in the case of
the petitioner cannot be tested and reviewed by this
Court on the basis of what is now before it. The
assailed resolutions of the COMELEC do not direct
the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate.
This precludes the Court from reviewing at this
instance whether the COMELEC committed grave
abuse of discretion in disqualifying petitioner, since
such a review would necessarily take into account the
matters which the COMELEC considered in arriving at
its decisions.
Petitioner has submitted to this Court mere
photocopies of various documents purportedly
evincing his credentials as an eligible candidate for
the presidency. Yet this Court, not being a trier of
facts, can not properly pass upon the reproductions
as evidence at this level. Neither the COMELEC nor
the Solicitor General appended any document to their
respective Comments.
The question of whether a candidate is a nuisance
candidate or not is both legal and factual. The basis of
the factual determination is not before this Court.
Thus, the remand of this case for the reception of
further evidence is in order.
A word of caution is in order. What is at stake is
petitioner’s aspiration and offer to serve in the
government. It deserves not a cursory treatment but a
hearing which conforms to the requirements of due
process.
As to petitioner’s attacks on the validity of the form for
the certificate of candidacy, suffice it to say that the
form strictly complies with Section 74 of the Omnibus
Election Code. This provision specifically enumerates
what a certificate of candidacy should contain, with
the required information tending to show that the
candidate possesses the minimum qualifications for
the position aspired for as established by the
Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case
No. SPP (MP) No. 04-001 is hereby remanded to the
COMELEC for the reception of further evidence, to
determine the question on whether petitioner Elly
Velez Lao Pamatong is a nuisance candidate as
contemplated in Section 69 of the Omnibus Election
Code.
The COMELEC is directed to hold and complete the
reception of evidence and report its findings to this
Court with deliberate dispatch.

SO ORDERED
Case No. 015

PDF file
Case No. 016
EN BANC
April 18, 2017
G.R. No. 213948
KNIGHTS OF RIZAL, Petitioner.
vs.
DMCI HOMES, INC., DMCI PROJECT
DEVELOPERS, INC., CITY OF MANILA, NATIONAL
COMMISSION FOR CULTURE AND THE ARTS,
NATIONAL HISTORICAL COMMISSION OF THE
PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
Bury me in the ground, place a stone and a cross
over it.
My name, the date of my birth, and of my death.
Nothing more.
If you later wish to surround my grave with a fence,
you may do so.
No anniversaries. I prefer Paang Bundok.
- Jose Rizal
The Case
Before this Court is a Petition for Injunction, with
Applications for Temporary Restraining Order, Writ of
Preliminary Injunction, and Others 1 filed by the
Knights of Rizal (KOR) seeking, among others, for an
order to stop the construction of respondent DMCI
Homes, Inc. 's condominium development project
known as the Torre de Manila. In its Resolution dated
25 November 2014, the Court resolved to treat the
petition as one for mandamus. 2
The Facts
On 1 September 2011, DMCI Project Developers, Inc.
(DMCI-PDI) 3 acquired a 7,716.60-square meter lot in
the City of Manila, located near Taft Avenue, Ermita,
beside the former Manila Jai-Alai Building and
Adamson University.4The lot was earmarked for the
construction of DMCI-PDI's Torre de Manila
condominium project.
On 2 April 2012, DMCI-PDI secured its Barangay
Clearance to start the construction of its project. It
then obtained a Zoning Permit from the City of
Manila's City Planning and Development Office
(CPDO) on 19 June 2012.5
Then, on 5 July 2012, the City of Manila's Office of the
Building Official granted DMCI-PDI a Building Permit,
allowing it to build a "Forty Nine (49) Storey w/
Basement & 2 penthouse Level Res'l./Condominium"
on the property. 6
On 24 July 2012, the City Council of Manila issued
Resolution No. 121 enjoining the Office of the Building
Official to temporarily suspend the Building Permit of
DMCI-PDI, citing among others, that "the Torre de
Manila Condominium, based on their development
plans, upon completion, will rise up high above the
back of the national monument, to clearly dwarf the
statue of our hero, and with such towering heights,
would certainly ruin the line of sight of the Rizal
Shrine from the frontal Roxas Boulevard vantage
point[.]"7
Building Official Melvin Q. Balagot then sought the
opinion of the City of Manila's City Legal Officer on
whether he is bound to comply with Resolution No.
121.8 In his letter dated 12 September 2012, City
Legal Officer Renato G. Dela Cruz stated that there is
"no legal justification for the temporary suspension of
the Building Permit issued in favor of [DMCI-PDI]"
since the construction "lies outside the Luneta Park"
and is "simply too far to I be a repulsive distraction or
have an objectionable effect on the artistic and
historical significance" of the Rizal Monument. 9 He
also pointed out that "there is no showing that the
[area of subject property has been officially declared
as an anthropological or archeological area. Neither
has it ' been categorically designated by the National
Historical Institute as a heritage zone, a cultural
property, a historical landmark or even a national
treasure."
Subsequently, both the City of Manila and DMCI-PDI
sought the opinion or the National Historical
Commission of the Philippines (NHCP) on the matter.
In the letter10 dated 6 November 2012 from NHCP I
Chairperson Dr. Maria Serena I. Diokno addressed to
DMCI-PDI and the letter 11 dated 7 November 2012
from NHCP Executive Director III Ludovico D. Bado)f
addressed to then Manila Mayor Alfredo S. Lim, the
NHCP maintained that the Torre de Manila project
site is outside the boundaries of the Rizal f.ark and
well to the rear of the Rizal Monument, and thus,
cannot possibly obstruct the frontal view of the
National Monument.
On 26 November 2013, following an online petition
against the Torre de Manila project that garnered
about 7,800 signatures, the City Council of Manila
issued Resolution No. 146, reiterating its directive in
Resolution No. 121 1 enjoining the City of Manila's
building officials to temporarily suspend ~MCI-PDI's
Building Permit. 12
In a letter to Mayor Joseph Ejercito Estrada dated 18
December 2013, DMCI-PIDI President Alfredo R.
Austria sought clarification on the controversy
surrounding its Zoning Permit. He stated that since
the CPDO granted its Zoning Permit, DMCI-PDI
continued with the application for the Building Permit,
which was granted, and did not deem it necessary to
go through the process of appealing to the local
zoning board. He then expressed DMCI-PDI's
willingness to comply with the process if the City of
Manila deemed it necessary. 13
On 23 December 2013, the Manila Zoning Board of
Adjustments and Appeals (MZBAA) issued Zoning
Board Resolution No. 06, Series of
2013, 14 recommending the approval of DMCI-PDI's
application for variance. ;The MZBAA noted that the
Torre de Manila project "exceeds the prescribed
maximum Percentage of Land Occupancy (PLO) and
exceeds the prescribeµ Floor Area Ratio (FAR) as
stipulated in Article V, Section 17 of City Ordinance
No. 8119[.]" However, the MZBAA still recommended
the approval of the variance subject to the five
conditions set under the same resolution.
After some clarification sought by DMCI-PDI, the
MZBAA issued Zoning Board Resolution No. 06-A,
Series of 2013, 15 on 8 January 2014, amending
condition (c) in the earlier resolution. 16
On 16 January 2014, the City Council of Manila
issued Resolution No. 5, Series of 2014, 17 adopting
Zoning Board Resolution Nos. 06 and 06- A. The City
Council resolution states that "the City Council of
Manila find[ s] no cogent reason to deny and/or
reverse the aforesaid recommendation of the
[MZBAA] and hereby ratif[ies] and confirm[s] all
previously issued permits, licenses and approvals
issued by the City [Council] of Manila for Torre de
Manila[.]"
Arguments of the KOR
On 12 September 2014, the KOR, a "civic, patriotic,
cultural, nonpartisan, non-sectarian and non-profit
organization" 18 created under Republic Act No.
646, 19 filed a Petition for Injunction seeking a
temporary restraining I order, and later a permanent
injunction, against the construction of DMCIPDI's
Torre de Manila condominium project. The KOR
argues that the subject matter of the present suit is
one of "transcendental importance, paramount public
interest, of overarching significance to society, or with
far-reaching implication" involving the desecration of
the Rizal Monument.
The KOR asserts that the completed Torre de Manila
structure will "[stick] out like a sore thumb, [dwarf] all
surrounding buildings within a radius of two
kilometer/s" and "forever ruin the sightline of the Rizal
Monument in Luneta Park: Torre de Manila building
would loom at the back I and overshadow the entire
monument, whether up close or viewed from a
distance. ''20
Further, the KOR argues that the Rizal Monument, as
a National Treasure, is entitled to "full protection of
the law"21and the national government must abate the
act or activity that endangers the nation's cultural
heritage "even against the wishes of the local
government hosting it." 22
Next, the KOR contends that the project is a
nuisance per se23 because "[t]he despoliation of the
sight view of the Rizal Monument is a situation that
annoy's or offends the senses' of every Filipino who
honors the memory of the National Hero Jose Rizal. It
is a present, continuing, worsening and aggravating
status or condition. Hence, the PROJECT is a
nuisance per se. It deserves I to be abated
summarily, even without need of judicial proceeding.
"24
The KOR also claims that the Torre de Manila project
violates the NHCP's Guidelines on Monuments
Honoring National Heroes, Illustrious Filipinos and
Other Personages, which state that historic
monuments should assert a visual "dominance" over
its surroundings,25 as well as the country's
commitment under the International Charter for the
Conservation and Restoration of Monuments and
Sites, otherwise known as the Venice Charter. 26
Lastly, the KOR claims that the DMCI-PDI's
construction was commenced and continues in bad
faith, and is in violation of the City of Manila's zoning
ordinance. 27
Arguments of DMCI-PDI
In its Comment, DMCI-PDI argues that the KOR's
petition should be dismissed on the following grounds:
I.
THXS HONORABLE COURT HAS NO
JURISDICTION OVER THIS ACTION.
II.
KOR HAS NO LEGAL RIGHT OR INTEREST TO
FILE OR PR0SECUTE THIS ACTION.
III.
TORRE DE MANILA IS NOT A NUISANCE PER SE.
IV.
DMCI-PDI ACTED IN GOOD FAITH IN
CONSTRUCTING TORRE DE MANILA; AND
V.
KOR IS NOT ENTITLED TO A TEMPORARY
RESTRAINING ORPER AND/OR A WRIT OF
PRELIMINARY INJUNCTION. 28
First, DMCI-PDI asserts that the Court has no original
jurisdiction over actions for injunction.29 Even
assuming that the Court has concurrent jurisdiction,
DMCI-PDI maintains that the petition should still have
been filed with the Regional Trial Court under the
doctrine of hierarchy of courts and because the
petition involves questions of fact. 30
DMCI-PDI also contends that the KOR's petition is in
actuality an opposition' or appeal from the exemption
granted by the City of Manila's MZBAA, a matter
which is also not within the jurisdiction of the
Court. 31 DMCI-PDI claims that the proper forum
should be the MZBAA, and should the KOR fail there,
it should appeal the same to the Housing and Land
Use Regulatory Board (HLURB). 32
DMCI-PDI further argues that since the Rizal
Monument has been declared a National Treasure,
the power to issue a cease and desist order is lodged
with the "appropriate cultural agency" under Section
25 of Republic Act No. li0066 or the National Cultural
Heritage Act of 2009. 33 Moreover, DMCI-PDI asserts
that the KOR availed of the wrong remedy since an
action for injunction is not the proper remedy for
abatement of a nuisance. 34
Second, DMCI-PDI maintains that the KOR has no
standing to institute this proceeding because it is not
a real party in interest in this case. The purposes of
the KOR as a public corporation do not include the
preservation of the Rizal Monument as a cultural or
historical heritage site.35 The KOR has also not shown
that it suffered an actual or threatened injury as a
result of the alleged illegal conduct of the City of
Manila. If there is any injury to the KOR at all, the
same was caused by the private conduct of a private
entity and not the City of Manila. 36
Third, DMCI-PDI argues that the Torre de Manila is
not a nuisance per se. DMCI-PDI reiterates that it
obtained all the necessary permits, licenses,
clearances, and certificates for its construction. 37 It
also refutes the KOR's claim that the Torre de Manila
would dwarf all other structures around it; considering
that there are other tall buildings even closer to the
Rizal Monument itself, namely, the Eton Baypark
Tower at the corner of Roxas Boulevard and T.M.
Kalaw Street (29 storeys; 235 meters from the Rizal
Monument) and Sunview Palace at the corner of M.H.
Del Pilar and T.M. Kalaw Streets (42 storeys; 250
meters from the Rizal Monument). 38
Fourth, DMCI-PDI next argues that it did not act in
bad faith when it started construction of its Torre de
Manila project. Bad faith cannot be attributed to it
since it was within the "lawful exercise of [its]
rights." 39 The KOR failed to present any proof that
DMCI-PDI did not follow the proper procedure and
zoning restrictions of the City of Manila. Aside from
obtaining all the necessary permits from the
appropriate government agencies,40 DMCI-PDI also
sought clarification on its right to build on its site from
the Office of the City Legal Officer of Manila, the
Manila CPDO, and the NHCP.41 Moreover, even if the
KOR proffered such proof, the Court would be 1 in no
position to declare DMCI-PDI's acts as illegal since
the Court is not a trier of facts. 42
Finally, DMCI-PDI opposes the KOR's application for
a Temporary Restraining Order (TRO) and writ of
preliminary injunction. DMCI-PDI asserts that the
KOR has failed to establish "a clear and unmistakable
right to enjoin I the construction of Torre de Manila,
much less request its demolitior."43 DMCI-PDI further
argues that it "has complied with all the legal
requirements for the construction of Torre de Manila x
x x [and] has violated o right of KOR that must be
protected. Further, KOR stands to suffer o damage
because of its lack of direct pecuniary interest in this
petiti1 on. To grant the KOR's application for
injunctive relief would constitute an unjust taking of
property without due process of law. "44
Arguments of the City of Manila
In its Comment, the City of Manila argues that the writ
of mandamus cannot issue "considering that no
property or substantive rights whatsoever in favor of
[the KOR] is being affected or x x x entitled to judicial
protection[.]"45
The City of Manila also asserts that the "issuance and
revocation of a Building Permit undoubtedly fall under
the category of a discretionary act or duty performed
by the proper officer in light of his meticulous
appraisal and evaluation of the pertinent supporting
documents of the application in accordance with the
rules laid out under the National Building Code [and]
Presidential Decree No. 1096,"46 while the remedy of
mandamus is available only to compel the
performance of a ministerial duty. 47
Further, the City of Manila maintains that the
construction of the Torre de Manila did not violate any
existing law, since the "edifice [is] well behind (some
789 meters away) the line of sight of the Rizal
Monument."48 It adds that the City of Manila's
"prevailing Land Use and Zoning Ordinance
[Ordinance No. 8119] x xx allows an adjustment in
Floor Area Ratios thru the [MZBAA] subject to further
final approval of the City Council."49 The City Council
adopted the MZBAA's favorable: recommendation in
its Resolution No. 5, ratifying all the licenses and
permits issued to DMCI-PDI for its Torre de Manila
project.
In its Position Paper dated 15 July 2015, the City of
Manila admitted that the Zoning Permit issued to
DMCI-PDI was "in breach of certain provisions of City
Ordinance No. 8119."50 It maintained, however, 1 that
the deficiency is "procedural in nature and pertains
mostly td the failure of [DMCI-PDI] to comply with the
stipulations that allow an excess in the [FAR]
provisions." 51 Further, the City of Manila argued that
the MZBAA, when it recommended the allowance of
the project's variance, imposed certain conditions
upon the Torre de Manila project in order to mitigate
the possible adverse effects of an excess FAR. 52
The Issue
The issues raised by the parties can be summed up
into one main point: Can the Court issue a writ of
mandamus against the officials of the City of Manila to
stop the construction of DMCI-PDI's Torre de Manila
project?
The Court's Ruling
The petition for mandamus lacks merit and must be
dismissed.
There is no law prohibiting the construction of the
Torre de Manila.
In Manila Electric Company v. Public Service
Commission,53 the Court held that "what is not
expressly or impliedly prohibited by law may be
done, except when the act is contrary to morals,
customs and I public order." This principle is
fundamental in a democratic society, to protect the
weak against the strong, the minority against the
majority, and the individual citizen against the
government. In essence, this principle, which is the
foundation of a civilized society under the rule of law,
prescribes that the freedom to act can be curtailed
only through law. Without this principle, the rights,
freedoms, and civil liberties of citizens can be
arbitrarily and whimsically trampled upon by the
shifting passions of those who can spout the loudest,
or those who can gather the biggest crowd or the
most number of Internet trolls. In other
instances,54 the Court has allowed or upheld actions
that were not expressly prohibited by statutes when it
determined that these acts were not contrary to
morals, customs, and public order, or that upholding
the same would lead to a more equitable solution to
the controversy. However, it is the law itself - Articles
130655 and 1409(1)56 of the Civil Code - which
prescribes that acts not contrary to morals, good
customs, public order, or public policy are allowed if
also not contrary to law.
In this case, there is no allegation or proof that the
Torre de Manila project is "contrary to morals,
customs, and public order" or that it brings harm,
danger, or hazard to the community. On the contrary,
the City of Manila has determined that DMCI-PDI
complied with the standards set under the pertinent
laws and local ordinances to construct its Torre de
Manila project.
There is one fact that is crystal clear in this case.
There is no law prohibiting the construction of the
Torre de Manila due to its effect on
the background "view, vista, sightline, or setting" of
the Rizal Monument.
Specifically, Section 47 reads:
SEC. 47. Historical Preservation and Conservation
Standards. - Historic site and facilities shall be
conserved and preserved. These shall, to the extent
possible, be made accessible for the educational and
cultural enrichment of the general public.
The following shall guide the development of
historic sites and facilities:
1. Sites with historic buildings or places shall be
developed to conserve and enhance their heritage
values.
2. Historic sites and facilities shall be adaptively re-
used.
3. Any person who proposes to add, to alter, or
partially demolish a designated heritage property will
require the approval of the City Planning and
Development Office (CPDO) and shall be required to
prepare a heritage impact statement that will
demonstrate to the satisfaction of CPDO that the
proposal will not adversely impact the heritage
significance of the property and shall submit plans for
review by the CPDO in coordination with the National
Historical Institute (NHI).
4. Any proposed alteration and/or re-use of
designated heritage properties shall be evaluated
based on criteria established by the heritage
significance of the particular property or site.
5. Where an owner of a heritage property applies for
approval to demolish a designated heritage property
or properties, the owner shall be required to provide
evidence to satisfaction that demonstrates that
rehabilitation and re-use of the property is not viable.
6. Any designated heritage property which is to be
demolished or significantly altered shall be thoroughly
documented for archival purposes with! a history,
photographic records, and measured drawings, in
accordance with accepted heritage recording
guidelines, prior to demolition or alteration.
7. Residential and commercial infill in heritage areas
will be sensitive to the existing scale and pattern of
those areas, which maintains the existing landscape
and streetscape qualities of those areas, and which
does not result in the loss of any heritage resources.
8. Development plans shall ensure that parking
facilities (surface lots residential garages, stand-alone
parking garages and parking components as parts of
larger developments) are compatibly integrated into
heritage areas, and/or are compatible with adjacent
heritage resources.
9. Local utility companies (hydro, gas, telephone,
cable) shall be required to place metering equipment,
transformer boxes, power lines, conduit, equipment
boxes, piping, wireless telecommunication towers and
other utility equipment and devices in locations which
do not detract from the visual character of heritage
resources, and which do not have a negative impact
on its architectural integrity.
10. Design review approval shall be secured from the
CPDO for any alteration of the heritage property to
ensure that design guidelines and standards are met
and shall promote preservation and conservation of
the heritage property. (Emphasis supplied)
It is clear that the standards laid down in Section 47 of
Ordinance No. 8119 only serve as guides, as it
expressly states that "the following shall guide
the :development of historic sites and facilities."
A guide simply sets a direction 'or gives an instruction
to be followed by prope1iy owners and developers in
order to conserve and enhance a property's heritage
values.
On the other hand, Section 48 states:
SEC. 48. Site Performance Standards. - The City
considers it in the public interest that all projects are
designed and developed in a safe, efficient and
aesthetically pleasing manner. Site development shall
consider the environmental character and limitations
of the site and its adjacent properties. All project
elements shall be in complete harmony according to
good design principles and the subsequent
development must be visually pleasing as well as
efficiently functioning especially in relation to the
adjacent properties and bordering streets.
The design, construction, operation and maintenance
of every facility shall be in harmony with the existing
and intended character of its neighborhood. It shall
not change the essential character of the said area
but will be a substantial improvement to the value of
the properties in the neighborhood in particular and
the community in general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and
developed with1 regard to safety, efficiency and high
standards of design. The natural environmental
character of the site and its adjacent properties shall
be considered in the site development of each
building and facility.
2. The height and bulk of buildings and structures
shall be so designed that it does not impair the entry
of light and ventilation, cause the loss I of privacy
and/or create nuisances, hazards or inconveniences
to adjacent developments.
3. Abutments to adjacent properties shall not be
allowed without the neighbor's prior written consent
which shall be required by the City Planning and
Development Office (CPDO) prior to the granting of a
Zoning Permit (Locational Clearance).
4. The capacity of parking areas/lots shall be per the
minimum requirements of the National Building Code.
These shall be located, developed and landscaped in
order to enhance the aesthetic quality of the facility. In
no case, shall parking areas/lots encroach into street
rights-of-way and shall follow the Traffic Code as set
by the City.
5. Developments that attract a significant volume of
public modes of transportation, such as tricycles,
jeepneys, buses, etc., shall provide on-site parking for
the same. These shall also provide vehicular loading
and unloading bays so as street traffic flow will not be
impeded.
6. Buffers, silencers, mufflers, enclosures and other
noise-absorbing I materials shall be provided to all
noise and vibration-producing machinery. Noise levels
shall be maintained according to levels specified in
DENR DA9 No. 30 - Abatement of Noise and Other
Forms of Nuisance as Defined by Law.
7. Glare and heat from any operation or activity shall
not be radiated, seen or felt from any point beyond
the limits of the property.
8. No large commercial signage and/or pylon,
which will be detrimental to the skyline, shall be
allowed.
9. Design guidelines, deeds of restriction, property
management plans and other regulatory tools that will
ensure high quality developments shall be required
from developers of commercial subdivisions and
condominiums. These shall be submitted to the City
Planning and Development Office (CPDO) for review
and approval. (Emphasis supplied)
Se9tion 4 7 of Ordinance No. 8119 specifically
regulates the "development of historic sites and
facilities."Section 48 regulates "large commercial
signage and/or pylon." There is nothing in Sections
47 and 48 of Ordinance No. 8119 that disallows the
construction of a building outside the boundaries
of a historic site or facility, where such building may
affect the1 background of a historic site. In this case,
the Torre de Manila stands 870 meters outside and to
the rear of the Rizal Monument and "cannot possibly
obstruct the front view of the [Rizal]
Monument." 57 Likewise, ;the Torre de Manila is not in
an area that has been declared as an "anthropological
or archeological area" or in an area designated as a
heritage zone, cultural property, historical landmark,
or a national treasure by the NHCP. 58
Section 15, Article XIV of the Constitution, which
deals with the subject of arts and culture, provides
that "[t]he State shall conserve, promote and
popularize the nation's historical and cultural heritage
and resources x x x." Since this provision is not self-
executory, Congress passed laws dealing with the
preservation and conservation of our cultural heritage.
One such law is Republic Act No. 10066,59 or
the National Cultural Heritage Act of 2009, which
empowers the National Commission for Culture and
the Arts and other cultural agencies to issue a cease
and desist order "when the physical integrity of the
national cultural treasures or important cultural
properties [is] found to be in danger of destruction
or significant alteration from its original
state."60 This law declares that the State should
protect the "physical integrity" of the heritage property
or building if there is "danger of destruction or
significant alteration from its original state." Physical
integrity refers to the structure itself - how strong
and sound the structure is. The same law does not
mention that another project, building, or property,
not itself a heritage property or building, may be the
subject of a cease and desist order when it adversely
affects the background view, vista, or sightline of a
heritage property or building. Thus, Republic Act No.
10066 cannot apply to the Torre de Manila
condominium project.
Mandamus does not lie against the City of Manila.
The Constitution states that "[n]o person shall be
deprived of life, liberty or 1property without due
process of law x x x." 61 It is a fundamental principle
that no property shall be taken away from an
individual without due process, whether substantive or
procedural. The dispossession of property, or in this
case the stoppage of the construction of a building in
one's own property would violate substantive due
process.
The Rules on Civil Procedure are clear that
mandamus only issues when there is a clear legal
duty imposed upon the office or the officer sought to
be compelled to perform an act, and when the party
seeking mandamus has a clear legal right to the
performance of such act.
In the present case, nowhere is it found in Ordinance
No. 8119 or in any law, ordinance, or rule for that
matter, that the construction of a building outside the
Rizal Park is prohibited if the building is within the
background sightline or view of the Rizal Monument.
Thus, there is no legal duty on the part of the City of
Manila "to consider," in the words of the Dissenting
Opinion, "the standards set under Ordinance No.
8119" in relation to the applications of DMCI-PDI for
the Torre de Manila since under the ordinance these
standards can never be applied outside the
boundaries of Rizal Park. While the Rizal Park has
been declared a National Historical Site, the area
where Torre de Manila is being built is a privately-
owned property that is "not pap: of the Rizal Park that
has been declared as a National Heritage Site in
1095," and the Torre de Manila area is in fact "well-
beyond" the Rizal Park, according to NHCP
Chairperson Dr. Maria Serena I. Diokno. 62 Neither
has the area of the Torre de Manila been designated
as a "heritage zone, a cultural property, a historical
landmark or even a national treasure."63
Also, to declare that the City of Manila failed to
consider the standards under Ordinance No. 8119
would involve making a finding of fact. A finding lot
fact requires notice, hearing, and the submission of
evidence to ascertain compliance with the law or
regulation. In such a case, it is the Regional Trial
Court which has the jurisdiction to hear the case,
receive evidence, make a proper finding of fact, and
determine whether the Torre de Manila project
properly complied with the standards set by the
ordinance. In Meralco v. Public Service
Commission, 64 we held that it is the cardinal right of a
party in trials and administrative proceedings to be
heard, which includes the right of the party interested
or affected to present his own case and submit
evidence in support thereof and to have such
evidence presented considered by the proper court or
tribunal.
To compel the City of Manila to consider the
standards under Ordinance No. 8119 to the Torre de
Manila project will be an empty exercise since these
standards cannot apply outside of the Rizal Park -
and the Torre de Manila is outside the Rizal Park.
Mandamus will lie only if the officials
The KOR also invokes this Court's exercise of its
extraordinary certiorari power of review under Section
1, Article VIII65 of the Constitution. However, this
Court can only exercise its
extraordinary certiorari power if the City of Manila, in
issuing the required permits and licenses, gravely
abused its discretion amounting to lack or excess
of jurisdiction. Tellingly, neither the majority nor
minority opinion in this case has found that the City of
Manila committed grave abuse of discretion in issuing
the permits and licenses to DMCI-PDI. Thus, there is
no justification at all for this Court to exercise its
extraordinary certiorari power.
Moreover, the exercise of this Court's
extraordinary certiorari power is limited to actual
cases and controversies that necessarily involve a
violation of the Constitution or the determination of the
constitutionality or validity of a governmental act or
issuance. Specific violation of a statute that does not
raise the issue of constitutionality or validity of the
statute cannot, as a rule, be the subject of the Court's
direct exercise of its expanded certiorari power. Thus,
the KOR's recourse lies with other judicial remedies or
proceedings allowed under the Rules of Court.
In Association of Medical Clinics for Overseas
Workers, Inc. v. GCC Approved Medical Centers
Association, Inc., 66we held that in cases where the
question of constitutionality of a governmental action
is raised, the judicial power that the courts exercise is
likewise identified as the power of judicial review - the
power to review the constitutionality of the actions of
other branches of government. As a rule, as required
by the hierarchy of courts principle, these cases are
filed with the lowest court with jurisdiction over the
1subject matter. The judicial review that the courts
undertake requires:
1) there be an actual case or controversy calling for
the exercise of judicial power;
2) the person challenging the act must have
"standing" to challenge; he must have a personal and
substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement;
3) the question of constitutionality must be raised at
the earliest possible opportunity; and
4) the issue of constitutionality must be the
very lismota of the case.
The lower court's decision under the constitutional
scheme reaches the Supreme Court through the
appeal process, through a petition for review
on certiorari under Rule 45 of the Rules of Court.
In the present case, the KOR elevated this case
immediately to this Court in an original petition for
injunction which we later on treated as one for
mandamus under Rule 65. There is, however, no
clear legal duty on the City of Manila to consider the
provisions of Ordinance No. 8119 for applications for
permits to build outside the protected areas of the
Rizal Park. Even if there were such legal duty, the
determination of whether the City of .Manila failed to
abide by this legal duty would involve factual matters
which have not been admitted or established in this
case. Establishing factual matters is not within the
realm of this Court. Findings of fact are the province
of the trial courts.
There is no standard in Ordinance No. 8119 for
defining or determining the background sightline that
is supposed to be protected or that is part of the
"physical integrity" of the Rizal Monument. How far
should a building like the Torre de Manila be from the
Rizal Monument - one, two, three, four, or five
kilometers? Even the Solicitor General, during the
Oral Arguments, conceded that the ordinance does
not prescribe how sightline is determined, neither is
there any way to measure by metes and bounds
whether al construction that is not part of the
historic monument itself or is outside the
protected area can be said to violate the Rizal
Monument's physicalintegrity, except only to say
"when you stand in front of the Rizal Monument, there
can be no doubt that your view is marred and
impaired." This kind of a standard has no parameters
and can include a sightline or a construction as far as
the human eyes can see when standing in front of the
Rizal Monument. Obviously, this Court cannot apply
such a subjective and non-uniform standard that
adversely affects property rights several kilometers
away from a historical sight or facility.
The Dissenting Opinion claims that "the City, by
reason of a mistaken or erroneous construction of its
own Ordinance, had failed to consider its duties under
[Ordinance No. 8119] when it issued permits in DMCI-
PDI's favor." However, MZBAA Zoning Board
Resolution Nos. 06 and 06-A67 easily dispel this claim.
According to the resolutions, the City of Manila,
through the MZBAA, acted on DMCI-PDI's application
for variance under the powers and standards set forth
in Ordinance No. 8119.
Without further proof that the MZBAA acted
whimsically, capriciously, or arbitrarily in issuing said
resolution, the Court should respect MZBAA's
exercise of discretion. The Court cannot "substitute its
I judgment :for that of said officials who are in a better
position to consider and weigh the same in the light of
the authority specifically vested in them by
law." 68 Since the Court has "no supervisory power
over the proceedings I and actions of the
administrative departments of the government," it
"should not generally interfere with purely
administrative and discretionary functions.; 69 The
power of the Court in mandamus petitions does not
extend "to direct the exercise of judgment or
discretion in a particular way or the retraction or
reversal of an action already taken in the exercise
of either."70
Still, the Dissenting Opinion insists on directing the re-
evaluation by the City of Manila, through the CPDO,
of the permits previously issued in favor of the Torre
de Manila project to determine compliance with the
standards ]under Ordinance No. 8119. It also
declares that the circumstances in this case warrant
the prohacvice conversion of the proceedings in the
issuance of the permits into a "contested case"
necessitating notice and hearing with all the parties
involved.
Prohac vice means a specific decision does not
constitute a precedent because the decision is for the
specific case only, not to be followed in other cases.
A prohac vice decision violates statutory law - Article
8 of the Civil Code - which states that "judicial
decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the
Philippines." The decision of the Court in this case
cannot be prohac vice because by mandate bf the
law everydecision of the Court forms part of the legal
system of the Philippines. If another case comes up
with the same facts as the present case, that case
must be decided in the same way as this case to
comply with the constitutional mandate of equal
protection of the law. Thus, a prohac vice decision
also violates the equal protection clause of the
Constitution.
It is the policy of the courts not to interfere with the
discretionary executive acts of the executive branch
unless there is a clear showing of grave abuse of
discretion amounting to lack or excess of jurisdiction.
Mandamus does not lie against the legislative and
executive branches or their members acting in the
exercise of their official discretionary functions. This
emanates from the respect accorded by the judiciary
to said branches as co-equal entities under the
principle of separation of powers.
In De Castro v. Salas,71 we held that no rule of law is
better established than the one that provides that
mandamus will not issue to control the discretion of
an officer or a court when honestly exercised and
when such power and authority is not abused.
In exceptional cases, the Court has granted a prayer
for mandamus to compel action in matters involving
judgment and discretion, only "to act, but not to act
lone way or the other," 72 and only in cases where
there has been a clear showing of grave abuse of
discretion, manifest injustice, or palpable excess
of authority.73
In this case, there can be no determination by this
Court that the City of Manila had been negligent or
remiss in its duty under Ordinance No. 8119
considering that this determination will involve
questions of fact. DMCI- PDI had been issued the
proper permits and had secured all approvals and
licenses months before the actual construction began.
Even the KOR could not point to any law that
respondent City of Manila had violated and could only
point to declarations of policies by the NHCP and the
Venice Charter which do not constitute clear legal
bases for the issuance of a writ of mandam1s.
The Venice Charter is merely a codification of guiding
principles for the preservation and restoration of
ancient monuments, sites, and buildings. It brings I
together principles in the field of historical
conservation and restoration that have been
developed, agreed upon, and and laid down by
experts over the years. Each country, however,
remains "responsible for applying the plan within the
framework of its own culture and traditions."74
The Venice Charter is not a treaty and therefore does
not become enforceable as law. The Philippines is not
legally bound to follow its directive, as in fact, these
are not directives but mere guidelines - a set of the
best practices and techniques that have been proven
over the years to be the most effective in preserving
and restoring historical monuments, sites and
buildings.
The City of Manila concedes that DMCI-PDI's Zoning
Permit was granted without going through the process
under Ordinance No. 8119. However, the same was
properly rectified when, faced with mounting
opposition, DMCI-PDI itself sought clarification from
the City of Manila and immediately began complying
with the procedure for applying for a variance. The
MZBAA did subsequently recommend the approval of
the variance and the City Council of Manila approved
the same, ratifying the licenses and permits already
given to DMCI-PDI. Such ratification was well within
the right of the City Council of Manila. The City
Council of Manila could have denied the application
had it seen any reason to do so. Again, the ratification
is a function of the City Council of Manila, an exercise
of its discretion1 and well within the authority granted
it by law and the City's own Ordinance No. 8119.
JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is
uniform for the entire City of Manila, the FAR 4,
correct? ATTY. FLAMINIANO: I believe so, Your
Honor, it's FAR 4.
JUSTICE CARPIO: So it's FAR 4 for all residential
condominium complex or industrial projects.

The main purpose of zoning is the protection of public ATTY. FLAMINIANO: There might be, the FAR might
safety, health, convenience, and welfare. There is no be different when it comes to condominiums in
indication that the Torre de Manila project brings any commercial areas, Your Honor.
harm, danger, or hazard to the people in the
surrounding areas except that the building allegedly
poses an unsightly view on the taking of photos or the JUSTICE CARPIO: Yes, I'm talking of stand-alone ...
visual appreciation of the Rizal Monument by locals
and tourists. In fact, the Court must take the approval ATTY. FLAMINIANO: Yes, Your Honor.
of the MZBAA, and its subsequent ratification by the
City Council of Manila, as the duly authorized JUITICE CARPIO: ... residential condominiums...
exercise of discretion by the city officials. Great care
must be taken that the Court does not unduly tread
upon the local government's performance of its duties. ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.
It is not for this Court to dictate upon the other
branches bf the government how their discretion must JUSTICE CARPIO: And the percentage of land
be exercised so long as these branches do not occupancy is always 60 percent.
commit grave abuse of discretion amounting to lack or
excess of jurisdiction.
ATTY. FLAMINIANO: 60 percent correct, Your Honor.

Likewise, any violation of Ordinance No. 8119 must

JUSTICE CARPIO: Okay ... how many square meters
be determined in the proper case and before the
is this Torre de Manila?
proper forum. It is not within the power of this Court in
this case to make such determination. Without such
determination, this Court cannot simply declare that xxx
the City of Manila had failed to consider its duties
under Ordinance No. 8119 when it issued the permits ATTY. FLAMINIANO: The land area, Your Honor, it's
in DMCI-PDI's favor without making a finding of fact almost 5,000 ... 5,556.
how the City of Manila failed "to consider" its duties
with respect to areas outside the boundaries of the
JUSTICE CARPIO: So, it's almost half a hectare.
Rizal Park. In the first place, this Court has no
jurisdiction to make findings of fact in an original
action like this before this Court. Moreover the City of ATTY. FLAMINIANO: Yes, Your Honor.
Manila could not legally apply standards to sites
outside the area covered by the ordinance that JUSTICE CARPIO: And at FAR 4, it can only build up
prescribed the standards. With this, I taken in light of to 18 storeys, I mean at FAR 4, is that correct?
the lack of finding that there was grave abuse of
discretion I on the part of the City of Manila, there is
no basis to issue the writ of mandamus against the ATTY. FLAMINIANO: If the 60 percent of the lot...
City of Manila.
JUSTICE CARPIO: Yes, but that is a rule.
During the Oral Arguments, it was established that the
granting of a variance neither uncommon nor ATTY. FLAMINIANO: That is a rule, that's the rule,
irregular. On the contrary, current practice has made Your Honor.
granting of a variance the rule rather than the
exception: JUSTICE CARPIO: 60 percent of...

JUSTICE CARPIO: Let's go to Ordinance 8119. For ATTY. FLAMINIANO: Of the land area.
residential condominium that stand alone, in other
words not part of a commercial complex or an
industrial complex ... JUSTICE CARPIO: ... buildable, the rest not
buildable.
ATTY. FLAMINIANO: Yes, Your Honor.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: Okay, so if you look around here
in the City of Manila anywhere you go, you look at
stand alone residential condominium buildings...
ATTY. FLAMINIANO: There's a lot of them, Your
Honor.
JUSTICE CARPIO: It's always not FAR 4, it's more
than FAR 4.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And the buildable area is to the
edge of the property ...it's not 60 percent, correct?
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: So, if you look at all the ...
residential buildings in the last ten years, they
[have] all variances. They did not follow the
original FAR 4 or the 60 percent (of land
occupancy). Every residential building that stand
alone was a variance. ATTY. FLAMINIANO: That's
correct, Your Honor.
JUSTICE CARPIO: So the rule really in the City of
Manila is variance, and the exception which is
never followed is FAR 4.
ATTY. FLAMINIANO: FAR 4, it appears to be that
way, Your Honor.
xxxx
JUSTICE CARPIO: Every developer will have to
get a variance because it doesn't make sense to
follow FAR 4 because the land is so expensive
and if you can build only two storeys on a 1,000-
square meter lot, you will surely lose money,
correct? ATTY. FLAMINIANO: Exactly, Your
Honor. 75 (Emphasis supplied)
This, the MZBAA's grant of the variance cannot be
used as a basis to grant the mandamus petition
absent any clear finding that said act amo'1nted
to "grave abuse of discretion, manifest injustice,
or palpable excess of authority."
The KOR is Estopped from Questioning the
Torre de Manila Construction.
The KOR is now estopped from questioning the
construction of the Torre de Manila project. The KOR
itself came up with the idea to build a structure right
behind the Rizal Monument that would dwarf the Rizal
Monument.
In the mid-1950s, the Jose Rizal National Centennial
Commission (JRNCC) l formulated a plan to build an
Educational Center within the Rizal Park. In July
1955, the KOR proposed the inclusion of a national
theater on the site of the Educational Center. The
JRNCC adopted the proposal. The following[ year, a
law - Republic Act No. 142776 - authorized the
establishment of the Jose Rizal National Cultural
Shrine consisting of a national theater, a national
museum, and a national library on a single site. 77
To be built on the open space right behind the 12.7
meter high Rizal Monument were: the KOR's
proposed nationaltheater, standing 29.25 meters high
and 286 meters in distance from the Rizal Monument;
the nationallibrary, standing 25 .6 meters high and
180 meters in distance from the Rizal ;Monument,
with its rear along San Luis Street (now T.M. Kalaw
Street); and facing it, the nationalmuseum, at 19.5
meters high and 190 meters in I distance from the
Rizal Monument, with its back along P. Burgos
Street. 78
However, several sectors voiced their objections to
the construction for various reasons. Among them,
the need to preserve the open space of the park, the
high cost of construction, the desecration of the park's
hallowed grounds, and the fact that the proposed
cultural center including the 129.25 meter high
national theater proposed by the KOR would
dwarf the 12.7 meter high Rizal Monument. 79 The
JRNCC revised the plan and only the National Library
- which still stands today - was built. 80
According to the NHCP, the KOR even proposed to
build a Rizal Center on the park as recently as
2013.81 The proposal was disapproved by the NHCR
and the Department of Tourism.
Surely, as noble as the KOR's intentions were, its
proposed center would have dwarfed the Rizal
Monument with its size and proximity.
In contrast, the Torre de Manila is located well outside
the Rizal Park, and to the rear of the Rizal Monument
- approximately 870 meters from the Rizal Monument
and 3 0 meters from the edge of Rizal Park. 82
It is a basic principle that "one who seeks equity and
justice must come to court with clean hands.
"83 In Jenosa v. Delariarte, 84 the Court reiterated ,that
he who seeks equity must do equity, and he who
comes into equity must come with clean hands. This
"signifies that a litigant may be denied relief by a court
of equity on the ground that his conduct has been
inequitable, unfair and dishonest, or fraudulent, or
deceitful as to the controversy in issue. " 85Thus, the
KOR, having earlier proposed a national theater a
mere 286meters in distance from the back of the Rizal
Monument that would have dwarfed the Rizal
Monument, comes to this I Court with unclean hands.
It is now precluded from "seeking any equitable
refuge" 86 from the Court. The KOR's petition should
be dismissed on this ground alone.
Torre de Manila is Not a Nuisance Per Se.
In its petition, the KOR claims that the Torre de
Manila is a nuisance perse that deserves to be
summarily abated even without judicial
proceedings. 87 However, during the Oral Arguments,
counsel for the KOR argued that the KOR now
believes that the Torre de Manila is a nuisance
per accidens and not a nuisance perse. 88
Article 694 of the Civil Code defines a nuisance as
any act, omission, establishment, business, condition
of property, or anything else which: (1) injures or
endangers the health or safety of others; (2) annoys
or offends the senses; (3) shocks, defies or
disregards decency or morality; (4) obstructs or
interferes with the free passage of any public highway
or street, or any body of water; or (5) hinders or
impairs the use of property.
Thy Court recognizes two kinds of nuisances. The
first, nuisance perse, is on "recognized as a nuisance
under any and all circumstances, because it
constitutes a direct menace to public health or safety,
and, for that reason, may be abated summarily under
the undefined law of necessity." 89 The second,
nuisance peraccidens, is that which "depends upon
certain conditions and circumstances, and its
existence being a question of fact, it cannot be abated
without due hearing thereon in a tribunal authorized to
decide whether such a thing in law constitutes a
nuisance. "90
It can easily be gleaned that the Torre de Manila is
not a nuisance per se. The Torre de Manila project
cannot be considered as a "direct menace to I public
health or safety." Not only is a condominium project
commonplace in the City of Manila, DMCI-PDI has,
according to the proper government agencies,
complied with health and safety standards set by law.
DMCI-PDI has been granted the following permits and
clearances prior to starting the project: (1) Height
Clearance Permit from the Civil Aviation Authority of
the Philippines;91 (2) Development Permit from the
HLURB;92 (3) Zoning Certification from the
HLURB;93 (4) Certificate of Environmental
Compliance Commitment from the Environment
Management Bureau of the Department of
Environment and Natural Resources;94 (5) Barangay
Clearance95 (6) Zoning Permit;96 (7) Building
Permit;97 (8) and Electrical and Mechanical Permit.98
Later, DMCI-PDI also obtained the right to build under
a variance recommended by the MZBAA and granted
by the City Council of Manila. Thus, there can be no
doubt that the Torre de Manila project is not a
nuisance perse.
On the other hand, the KOR now claims that the Torre
de Manila is a nuisance peraccidens.
By definition, a nuisance peraccidens is determined
based on its surrounding conditions and
circumstances. These conditions and circumstances
must be well established, not merely alleged. The
Court cannot simply accept these conditions and
circumstances as established facts as the KOR would
have us do in this case. 99 The KOR itself concedes
that the question of whether the Torre de Manila is a
nuisance peraccidens is a question of fact. 100
The authority to decide when a nuisance exists is an
authority to find facts, to estimate their force, and to
apply rules of law to the case thus made. 101 1lhis
Court is no such authority. It is not a trier of facts. It
cannot simply take the allegations in the petition and
accept these as facts, more so in this case where
these allegations are contested by the respondents.
The task to receive and evaluate evidence is lodged
with the trial courts. The question, then, of whether
the Torre de Manila project is a
nuisance peraccidens must be settled after due
proceedings brought before the proper Regional Trial
Court. The KOR cannot circumvent the process in the
guise be protecting national culture and heritage.
The TRO must be lifted.
Injunctive reliefs are meant to preserve substantive
rights and prevent further injury102 until final
adjudication on the merits of the case. In the present
case, since the legal rights of the KOR are not well-
defined, clear, and certain, the petition for mandamus
must be dismissed and the TRO lifted.
The general rule is that courts will not disturb the
findings of I administrative agencies when they are
supported by substantial evidence. In this case,
DMCI-PDI already acquired vested rights in the
various permits, licenses, or even variances it had
applied for in order to build a 49-storey building which
is, and had been, allowed by the City of Manila's
zoning ordinance.
As we have time and again held, courts generally
hesitate to review discretionary decisions or actions of
administrative agencies in the absence of proof that
such decisions or actions were arrived at with grave
abuse of discretion amounting to lack or excess of
jurisdiction.
In JRS Business Corp. v. Montesa, 103 we held that
mandamus is the proper remedy if it could be shown
that there was neglect on the part of a tribunal in the
performance of an act which the law specifically
enjoins as a duty, or there was an unlawful exclusion
of a party from the use and enjoyment be a right to
which he is clearly entitled. Only specific legal rights
may be enforced by mandamus if they are clear and
certain. If the legal rights of th6 petitioner are not well-
defined, definite, clear, and certain, 104 the petition
must be dismissed. Stated otherwise, the writ never
issues in doubtful cases. It neither confers powers nor
imposes duties. It is simply a command to exercise a
power already possessed and to perform a duty
already imposed. 105
In sum, bearing in mind the Court does not intervene
in discretionary acts of the executive department in
the absence of grave abuse of discretion, 106 and
considering that mandamus may only be issued to
enforce a clear and certain legal right, 107 the present
special civil action for mandamus must be dismissed
and the TRO issued earlier must be lifted.
A FINAL WORD
It had been Rizal’s wish to die facing the rising sun. In
his Mi Ultimo Adios, the poem he left for his family the
night before he was executed, Rizal wrote:
Yo muero cuando veo que el cielo se colora
Y al fin anuncia el dia tras lobrego capuz 108
[Ako’y mamamatay, ngayong namamalas
na sa Silanganan ay namamanaag
yaong maligayang araw na sisikat
sa likod ng luksang nagtabing na ulap.] 109
Rizal never wanted his grave to be a burden to future
generations.
The letter never made it to his family and his wishes
were not carried out. The letter was discovered many
years later, in 1953. By then, his remains had been
entombed at the Rizal Monument, countless
anniversaries had been . celebrated, with memorials
and monuments built throughout the world.
Rizal's wish was unmistakable: to be buried without
pomp or pageantry; to the point of reaching oblivion or
obscurity in the future. 111 For Rizal's life was never
about fame or vainglory, but for the country he loved
dearly and for which he gave up his life.
The Rizal Monument is expressly against Rizal' s own
wishes. That Rizal's statue now stands facing West
towards Manila Bay, with Rizal's back to the East,
adds salt to the wound. If we continue the present
orientation of Rizal's statue, with Rizal facing West,
we would be like the Spanish captain who refused
Rizal's request to die facing the rising sun in the East.
On the other hand, if Rizal' s statue is made to face
East, as Rizal had desired when he was about to be
shot, the background - the blue sky above Manila Bay
- would forever be clear of obstruction, and we would
be faithful to Rizal's dying wish.
WHEREFORE, the petition for mandamus
is DISMISSED for lack of merit. The Temporary
Restraining Order issued by the Court on 16 June
2015 is LIFTED effective immediately.
SO ORDERED.

[I die just when I see the dawn break,

110
Through the gloom of night, to herald the day]

Yet at the point of his execution, he was made to

stand facing West towards Manila Bay, with his back
to the firing squad, like the traitor the colonial
government wished to portray him. He asked to face
his executioners, facing the East where the sun would
be rising since it was early morning, but the Spanish
captain did not allow it. As he was shot and a single
bullet struck his frail body, Rizal forced himself, with
his last remaining strength, to turn around to face the
East and thus he fell on his back with] his face to the
sky and the rising sun. Then, the Spanish captain
approached Rizal and finished him off with one pistol
shot to his head.

Before his death, Rizal wrote a letter to his family. He

asked for a simple tomb, marked with a cross and a
stone with only his name and the date of his birth and
death; no anniversary celebrations; and interment
at Paang Bundok(now, the Manila North Cemetery).
Case No. 017
EN BANC
January 31, 2017
G.R. No. 190431
BAYAN MUNA PARTY-LIST REPRESENTATIVE
SATUR C. OCAMPO, GABRIELA WOMEN'S
PARTY-LIST REPRESENTATIVE LIZA L. MAZA,
BAYAN MUNA PARTY-LIST REPRESENTATIVE
TEODORO A. CASINO, ANAKPAWIS PARTY-LIST
REPRESENTATIVE JOEL B. MAGLUNSOD,
PAGKAKAISA NG MGA SAMAHAN NG TSUPER
AT OPERATOR NATIONWIDE (PISTON),
represented by its SECRETARY GENERAL
GEORGE F. SAN MATEO, Petitioner
AUTOMOBILE ASSOCIATION OF THE
PHILIPPINES, GLICERIO M. MANZANO, JR., RAUL
M. CONSUNJI, and LYN C. BRONTE, Petitioner-in-
Intervention,
vs.
LEANDRO R. MENDOZA SECRETARY OF
DEPARTMENT OF TRANSPORTATION and
COMMUNICATIONS; ARTURO C. LOMIBAO,
CHIEF OF THE LAND TRANSPORTATION OFFICE,
and STRADCOM CORPORATION, Respondents
FEDERATION OF JEEPNEY OPERATORS and
DRIVERS ASSOCIATION OF THE PHILIPPINES
(FEJODAP) represented by ZENAIDA "MARANAN"
DE CASTRO, ALLIANCE OF TRANSPORT
OPERATORS and DRIVERS ASSOCIATIONS OF
THE PHILIPPINES (ALTODAP) represented by
MELENCIO "BOY" VARGAS, LAND
TRANSPORTATION ORGANIZATION OF THE
PHILIPPINES (LTOP) represented by ORLANDO
MARQUEZ, NTUTRANSPORTER represented by
ALEJO SAYASA, PASANG-MASDA NATIONWIDE,
INC., represented by ROBERTO "OBET" MARTIN,
ALLIANCE OF CONCERNED TRANSPORT
ORGANIZATIONS (ACTO) represented by EFREN
DE LUNA, Oppositors-Intervenors
DECISION
SERENO, CJ.:
This is a Petition for Certiorari and Prohibition under
Rule 65 with application for temporary restraining
order and/or preliminary injunction filed on 16
December 2009 by four party-list representatives and
taxpayers (with petitioners Ocampo and Maza also
suing as motor vehicle owners) and the Pagkakaisa
ng mga Samahan ng Tsuper at Operator Nationwide
(PISTON). The Petition seeks to annul and set aside
the Radio Frequency Identification (RFID) Project as
implemented by Department of Transportation and
Communications (DOTC) Circular No. 2009-06, Land
Transportation Office (LTO) Memorandum Circular
No. ACL-2009-1199, as well as the pertinent
Memorandum of Agreement (RFID MOA) dated 16
June 2009 entered into between DOTC, LTO and
Stradcom Corporation (Stradcom).
STATEMENT OF THE FACTS AND OF THE CASE
Background Facts
On 15 December 1997, DOTC/LTO awarded to
Stradcom a contract for the construction and
operation of an information technology structure
called the LTO IT Project Build-Own-Operate
Agreement (BOO Agreement), making Stradcom the
exclusive information technology provider of
DOTC/LTO.
The LTO IT Project is a long-term strategic plan to
modernize the land transportation systems. It covers
the development of a System Integrated Information
Technology Solution Infrastructure, which will
interconnect LTO's district offices nationwide, enable
online transaction processing and integrate its
mission critical business processes.1
On 26 September 2007, Stradcom presented to the
LTO the Radio Frequency Identification (RFID)
Project as an enhancement to the cmTent motor
vehicle registration system.2
Basically, RFID technology is an automatic
identification technology whereby digital data encoded
in an RFID tag or "smart label" are captured by a
reader using radio waves. Put simply, RFID is similar
to bar code technology, but uses radio waves to
capture data from tags, rather than optically scanning
the bar codes on a label.
In RFID technology, information is sent to and read
from RFID tags by a reader using radio waves. In
passive systems, an RFID Reader transmits an
energy field that "wakes up" the tag and provides the
power for the tag to respond to the reader.3 Data
collected from tags are then passed through
communication interfaces (cable or wireless) to host
computer systems in the same manner that data
scanned from bar code labels are captured and
passed to computer systems for interpretation,
storage, and action.
Generally, RFID systems comprise three main
components: (1) the RFID Tag, or transponder, which
is located on the object to be identified and is the data
carrier in the RFID system; (2) the RFID Reader or
transceiver, which may be able to both read data from
and write data to a transponder; and (3) the data
processing subsystem which utilizes the data
obtained from the transceiver in some useful manner.4
On 6 May 2009, the DOTC issued Circular No. 2009-
065 entitled Rules and Regulations on the
Implementation of the Radio Frequency Identification
Tag for All Motor Vehicles Required to be Registered
under the Land Transportation and Traffic Code, as
Amended (DOTC RFID Rules). The DOTC RFID
Rules state that the RFID Project covers the
"enhancement of the LTO IT Project's systems,
particularly its Motor Vehicle Registration System and
Law Enforcement and Traffic Adjudication System,"
as well as the integration of RFID technology into the
Private Emission Testing Center (PETC) system.
These rules required all motor vehicles to have an
RFID tag "as a prerequisite to registration or
reregistration."6 lt also provided that after 1 August
2009, no motor vehicle shall be permitted registration
without first having an RFID tag, for which a fee of
P350 shall be collected. In case of damage to or
destruction of the RFID tag, a new one shall be
attached upon payment of the same fee. RFID
readers shall be deployed to LTO District and
Extension Offices, PETCs, and motor vehicle
inspection centers.
On 16 June 2009, the RFID Memorandum of
Agreement (RFID MOA)7 was entered into between
DOTC/LTO and Stradcom. The RFID MOA provided
that fees due to Stradcom shall be collected and
deposited by the LTO in a government depository
bank account designated by and in the name of
Stradcom.8 Of the total amount of ₱350 to be
collected for each RFID tag, the base amount
exclusive of VAT was ₱312.50.
This ₱312.509 was broken down as follows: ₱20.43
shall be given to DOTC/LTO,10 P259.14 shall be due
to Stradcom,11 and P32.73 for each RFID Tag
payment shall go to the IT Training Fund to assist the
DOTC/LTO in improving its service to the public; and
this fund "shall be deposited in a p bank account
under the sole control" of Stradcom.12
On 7 August 2009, the LTO issued Memorandum
Circular No. ACL- 2009-1199,13 entitled
"Implementing Rules and Regulations for the Radio
Frequency Identification Tag for all Motor Vehicles
Required to be registered Under the Land
Transportation and Traffic Code, as Amended" (LTO
RFID IRR). The LTO RFID IRR provided that the
commencement date of RFID tagging shall be 1
October 2009. It also provided that the RFID Tag,
which has a shelf life of up to 10 years, is composed
of two portions: (1) Write Once, which would contain
the Unique ID (UID) number only and could not be
changed during the life of the RFID tag; and (2) Write
Many, which may save certain information that would
be made available to authorized personnel with the
use of the RFID Reader.14
The information which may be saved in the RFID Tag
includes the following: (1) motor vehicle file number,
(2) engine number, (3) chassis number, (4) plate
number, (5) motor vehicle type, (6) color, (7) make,
(8) series, (9) year model, (10) body type, (11) motor
vehicle classification, (12) franchise, (13) route, (14)
owner's name, (15) last registration date, (16) alarms
(settled and unsettled), and (17) other data deemed
necessary.15
In a letter dated 7 August 2009, 16 entitled
"Undertaking for the RFID Project" and addressed to
the LTO, Stradcom additionally undertook to (1)
provide a perfonnance bond of 1 % of the RFID fee
17 for every day of delay in the RFID tagging of a
motor vehicle resulting from the unavailability of stock
or inventory of the RFID Tag; (2) submit to the LTO a
regular month-end inventory report of RFID Tags and
Readers; (3) continuously maintain and/or source at
least two suppliers of RFID tags and readers; and (4)
mutually agree with DOTC/LTO to a just revenue
share that may be due to the government in the event
the database of the RFID system and/or the LTO IT
project is used by third parties in consideration of a
fee.
Because of various stakeholders' concerns and
requests, on 30 September 2009, the LTO issued
Memorandum Circular No. ACL-2009- 1220 deferring
the mandatory implementation of the RFID Project to
4 January 2010.
The Present Petition
On 16 December 2009, the present Petition was filed
with this Court on the following grounds:
I.
THE DOTC/LTO IN IMPLEMENTING THE RFID
PROJECT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION AND VIOLATED REPUBLIC
ACT 9184 AND REPUBLIC ACT NO. 6957.
II.
THE ASSAILED EXECUTIVE ISSUANCES ARE
UNCONSTITUTIONAL AS THE SAME WERE
ISSUED IN USURPATION OF THE LEGISLATIVE
POWER OF CONGRESS DUE TO THE ABSENCE
OF A LAW PROVIDING FOR THE INSTALLATION
OF RADIO FREQUENCY IDENTIFICATION TAG ON
ALL MOTOR VEHICLES AS A PRE-REQUISITE
FOR THE REGISTRATION OR RE-REGISTRATION
THEREOF.
III.
THE ASSAILED EXECUTIVE ISSUANCES ARE
UNCONSTITUTIONAL AS THE SAME FAIL TO
PRESENT COMPELLING INTEREST OR
INTERESTS AND ARE ABSENT OF SUFFICIENT
SAFEGUARDS AND WELL-DEFINED STANDARDS
TO PREVENT IMPERMISSIBLE INTRUSIONS ON
THE RIGHT TO PRIVACY.
Essentially, petitioners claim that, first, in
implementing the RFID Project, the DOTC/LTO
committed grave abuse of discretion amounting to
lack or excess of jurisdiction and violated Republic
Act No. (R.A.) 9184, or the Government Procurement
Reform Act; and R.A. 6954, as amended by R.A.
7718, or the Build Operate Transfer (BOT) Law. The
RFID Project was subject to competitive public
bidding, which it failed to undergo. Neither did it
undergo any of the processes required by the
Government Procurement
Reform Act for alternative methods of procurement.
The RFID Project is distinct from the existing BOO
Agreement between DOTC/LTO and Stradcom.
Hence, DOTC/LTO cannot justify the implementation
of the RFID Project on the basis thereof. The RFID
Project is not part of the BOO Agreement; otherwise,
the Project would have already been included in the
negotiation concluded in 1998 between LTO and
Stradcom. The RFID Project also entailed new or
additional costs that needed the approval of the
National Economic and Development Authority
(NEDA), as required under NEDA Circular No. 01-
2007 and as reiterated in NEDA Circular No. 01-
2008.18
Second, the assailed executive issuances are
unconstitutional for having been issued in usurpation
of the legislative power of Congress. The circulars cite
R.A. 4136 or the Land Transportation and Traffic
Code (LTTC) as the source of their authority. Section
4 of the LTTC gives the Commissioner the power "to
issue rules and regulations not in conflict with the
provisions of this Act, prescribing the procedure for x
x x the registration and re-registration of motor
vehicles x x x." However, the circulars added a
registration and re-registration requirement which is
not present in the LTTC. Thus, the imposition of a
mandatory installation of the RFID tag as a pre-
requisite for registration is beyond the authority
vested by the LTTC to the DOTC and the LTO.
Third, the assailed executive issuances are
unconstitutional, as they neither present compelling
interest nor contain sufficient safeguards and well-
defined standards to prevent impermissible intrusions
on the right to privacy. There is a potential for the
misuse of the data contained in the RFID tag,
especially because DOTC/LTO or Stradcom may
open the use of the database to third persons in
consideration of a fee.
Petitioners pray that an order be issued nullifying the
RFID Project; declaring the DOTC RFID Rules, LTO
RFID IRR and the RFID MOA as null and void; and
prohibiting and enjoining public respondents from the
implementation of the RFID Project.
Petitioners also sought the issuance of a TRO and/or
a Preliminary Injunction to restrain respondents from
implementing the RFID Project.
On 8 January 2010, Stradcom filed a Motion for
Leave to File Opposition to Petitioners' Application for
Temporary Restraining Order. In its Opposition, it
alleged that it was the BOT Law, and not the
Government Procurement Reform Act, that would
apply to the RFID Project. Bidding was not required,
because it was merely an enhancement or an
increase in scope of the existing LTO project, the
BOO Agreement. Only a "change order" was needed
to implement it, together with an "impact study"
investigating the price, timetable, statement of work,
specifications and relevant obligations under the
original contract. This is provided for under the
Information Technology and Electronic Commerce
Council (ITECC) Guidelines on the Preparation,
Review and Approval, and Implementation of
Information and Communications Technology (ICT)
Projects Proposed for Financing under R.A. 6957, as
amended by R.A. 7718 (ITECC Guidelines). The
Change Request Form for the RFID Project was
submitted to the Joint Change Control Board (JCCB)
and Joint Finance Committee of the LTO, which
recommended its approval.19
Stradcom alleges that NEDA Circular No. 01-2008
applies only to fees and charges imposed by
government agencies to recover the cost of services
they have rendered. The said NEDA circular does not
apply, since the RFID services will be provided, not by
government, but by Stradcom.
Stradcom argues that there is limited information to
be stored in the RFID Project, even less than the
proposed ID system in Kilusang Mayo Uno v. The
Director General,20 which National ID System had
been upheld by this Court. The RFID system will
contain only information that is already publicly
available; and the only difference from the National ID
System would be that, with the use of an RFID
Reader, the authorized user does not have to
physically go to the LTO to request the said
information. The RFID reader can only retrieve data
from a tagged vehicle within a 10-meter radius. The
limited scope and application of the RFID Project is
consistent with the LTO's continuing authority under
the LTTC to examine and inspect motor vehicles in
determining compliance with registration laws. The
Project also serves a sufficiently compelling state
interest by contributing to the overall efficiency of the
existing motor vehicle registration system. Finally, the
RFID Project falls well within the legislatively
delegated rule-making power of the DOTC, since the
DOTC/LTO has authority to issue validating tags and
stickers under Section 17 of the LTTC.
On 11 January 2010, several transport groups, led by
the Alliance of Concerned Transport Organizations
(ACTO) represented by Efren de Luna,21 filed an
Opposition-in-Intervention alleging that the RFID
Project would realize efficient and paperless
transactions and assist traffic law enforcers in
apprehending colorum operators and colorum
vehicles on the road. It would help in the automation
of transactions between the LTO and the Land
Transportation Franchising Regulatory Board
(LTFRB). Motor vehicle owners would be compelled
to physically bring their vehicles for smoke emission
testing, eliminating "no show" and "under the table"
deals. The RFID tag cost is the only possible injury to
petitioners; and this injury is not sufficiently grave and
irreparable to warrant the Court's issuance of a writ of
preliminary injunction, as it is in fact subject to
pecuniary estimation.
In its 12 January 2010 Resolution (Status Quo Ante
Order),22 the Court, among others, enjoined the
parties to "observe the status quo prevailing prior to
the implementation" of the RFID Project, "so as not to
render the present petition moot and academic and in
order to prevent serious damage as a result of the
implementation of the said circulars."23
On 27 January 2010, Oppositors-Intervenors ACTO,
et al. filed a Motion for Reconsideration24 of the Status
Quo Ante Order. On 29 January 2010, respondent
Stradcom also filed its Motion for
Reconsideration25 thereof.
On 2 February 2010, the Court issued a
Resolution26 denying the said motions for lack of
merit.
Stradcom 's Comment on the Petition
On 25 January 2010, respondent Stradcom filed its
Comment on the Petition. It claims that, first,
petitioner PISTON has no juridical personality to sue
because, as early as 29 September 2003, the
Securities and Exchange Commission (SEC) had
revoked PISTON's Certificate of Registration for
failure to comply with reportorial requirements.
Second, the RFID system is a mere enhancement of
the Motor Vehicle Registration System (MVRS),
Revenue Collection System (RCS) and Law
Enforcement and Traffic Adjudication System
(LETAS), which are core applications of the original
LTO IT Project. Thus, there is no need for a separate
bidding and NEDA approval. The RFID Project only
needed a "change order" request, pursuant to the
NEDA Board-approved ITECC Guidelines.
Further, the BOO Agreement and its variation are
governed by the BOT Law and its implementing rules
and regulations, as provided under Section 7(c) of
Executive Order No. (E.O.) 109-A27 dated 18
September 2003, contrary to petitioners' assertion
that it is R.A. 9184 that should apply.
Third, the questioned circulars are an exercise of a
valid delegation of rule-making power by the
legislature. E.O. 125-A28 dated 13 April 1987, which
was issued by then President Corazon Aquino in the
exercise of her legislative power, enumerated the
powers and functions of the DOTC, including the
following:
Sec. 1. Sections 5 xxx are hereby amended to read
as follows:
xxxx
(m) Establish and prescribe rules and regulations for
the inspection and registration of air and land
transportation facilities, such as motor vehicles,
trimobiles, railways and aircrafts;
xxxx
(o) Establish and prescribe the corresponding rules
and regulations for the enforcement of laws governing
land transportation, air transportation and postal
services, including the penalties for violations thereof,
and for the deputation of appropriate law enforcement
agencies in pursuance thereof;
LTO Chief Arturo Lomibao, who signed the assailed
LTO Memorandum Circular, was empowered to issue
the questioned LTO Memorandum Circular, as he
then occupied the position of Assistant Secretary.
Under Section 11, Chapter 2, Book IV of E.O. 292
(Administrative Code of 1987), the Assistant
Secretary shall perform such duties as may be
provided by law or assigned by the Secretary. In turn,
the promulgation of (previously Section 13) of LTTC.
RFID tags have basically the same function as that of
renewal stickers, so the DOTC/LTO had authority to
issue the questioned circulars implementing the RFID
program. Section 17 of the LTTC sets forth the policy
to be executed by the delegate, namely, the Director
of the LTO and his deputies, and provides a sufficient
standard by giving adequate guidelines or limitations
in the law to map out the boundaries of the delegate's
authority.
Fourth, the questioned circulars and MOA do not
violate petitioners' right to privacy. RFID tags have
limited range and memory, and they access only
publicly available registration information. The limited
scope and application of the RFID project are
consistent with the LTO's continuing authority under
the LTTC to examine and inspect motor vehicles in
determining compliance with registration rules.
The OSG 's Comment
On 11 February 2010, the Office of the Solicitor
General (OSG) filed its Comment on the Petition,
alleging as follows:
First, the DOTC/LTO, in implementing the RFID
Project, committed grave abuse of discretion
amounting to lack or excess of jurisdiction and
violated the Government Procurement Reform Act
and the BOT Law.
As an enhancement of the BOO Agreement
previously entered into by DOTC/LTO and Stradcom,
the RFID Project is not one of the allowed contract
variations under the BOT Law's IRR, which dispenses
with NEDA approval and public bidding. The RFID
MOA increases not only the scope and technology of
the MVRS under the BOO Agreement, but also the
fee that Stradcom may collect thereunder. However,
the fees due to Stradcom have been previously fixed
in the BOO Agreement. 29
While Section 12.11 of the 2006 Implementing Rules
and Regulations (IRR) of the BOT Law allow contract
variations, Section 2. 7 thereof also explicitly requires
prior approval from the approving board.30 The ITECC
Guidelines, which LTO/DOTC followed in respect of
the Change Order, are merely supplementary to the
existing BOT Law's IRR. The lTECC Guidelines
themselves acknowledge this in Section 1.2.1
thereof.31 These guidelines also recognize the
applicability of the BOT Law and the latter's
IRR in case of conflict or inconsistency.32 Thus, the
requirement of prior approval for any contract
variation prevails.
Second, despite the grave abuse of discretion by the
DOTC/LTO in implementing the RFID Project, the
assailed executive issuances are not by themselves
unconstitutional, as these were issued pursuant to
delegated quasi-legislative powers under the (1)
Administrative Code of 1987, particularly found in
Book IV, Title XV, Chapter 1, Sections 2 and 3(12);
and (2) the LTTC, particularly Chapter I, Article III,
Section 4. The DOTC is empowered to establish
transportation and communications programs, and
those powers have been so delegated for the good
and welfare of the people. The questioned circulars
complied with the requirements of publication and
hearing.
Third, the assailed executive issuances are not
unconstitutional and do not constitute a violation of
petitioners' right to privacy.
Eight days after filing its Comment, the OSG, in its
Manifestation dated 19 February 2010, attached the
20 January 2010 letter of the NEDA33 addressed to
DOTC Secretary Leandro Mendoza. The letter
concerned the DOTC's 28 October 2009 request for
acknowledgment and confirmation that the RFID
Project did not require NEDA approval. This DOTC
request was answered by NEDA in the affirmative.
NEDA observed that the RFID Project is merely a
technology enhancement of the original LTO IT
Project, particularly the MVRS. In part, the NEDA
letter also stated:
Under Section 10.10 of the Guidelines on the
Preparation, Review and Approval, and
Implementation of Information and Communications
Technology (JCT) Projects Proposed for Financing
Under Republic Act (RAJ No. 6957, as amended by
RA 7718, otherwise known as the "BuildOperate-
Transfer (BOT) Law," change in the project cost which
would entail an increase or decrease of more than
20% shall require approval by the ICC. Further, the
implementing agencies shall ensure that all proposed
changes in the project, other than those requiring ICC
approval, are reported to the ICC for its information.
Based on the documents submitted by your office, the
total change order cost for the RFID Project is PhPl
82.27 Million, or approximately fourteen percent
(14%) of the original cost (PhPl.39 Billion) of the LTO
IT Project approved by the ICC. Thus, it is within the
twenty percent (20%) threshold under said Section.
10.10 of the ICC Guidelines.
Accordingly, the RFID Project change order does not
require ICC approval but the same should be reported
to the ICC for its information. The NEDA Secretariat
shall be referring the RFID Project change order to
the ICC for its information.
As to the fees sought to be imposed by virtue of the
RFID Project Change Order, said fees are not within
the coverage of MC No. 137.s. 2007 and NEDA
Circular 01-2008 for the following reasons:
a) The tagging fee under the RFID Project is
governed by the LTO IT Project BOO Agreement. x x
x e) Further, said IRR does not impose sanctions to
b) MC No. 137, s. 2007 as implemented by the NEDA
Circular No. 01-2008 are applicable only to fees
aimed at recovering full administrative cost of services
rendered by departments, bureaus, commissions,
agencies, offices and instrumentalities of the national
government, including GOCCs, and not to those
imposed hy private proponents in projects
implemented under the BOT Law (i.e. LTO IT BOO
Project) intended to recover total investments.34
Nonetheless, and we find this point quite important in
this case, the NEDA Secretariat also expressed the
following "concerns/comments/suggestions" regarding
the RFID Project:
Duplication in Scope and Objective
a) DOTC/LTO should ensure that the RFID Project
does not have any duplication in scope and objective
with any similar projects like the Universal Motor
Vehicle Identification Card (UMVIC) project, which
also aims to enhance LTO's MVRS, considering that
the public would ultimately be bearing the cost of any
such projects. x xx
Acceptability and Public Interest
b) While it is noted that the RFID Project entails an
additional fee (i.e. one-time tagging fee) of PhP350.00
for motor vehicle owners, the reasonableness or lack
thereof should be established and made public,
including and more importantly the results of the
public consultation conducted, which is
constitutionally mandated and which may be taken as
indicators of social acceptability of the Project and as
measures of safeguarding public interest.
Security and Privacy
c) x x x [I]t is crucial for the integrity of the RFID
system that data protection be also the center of
interest and concern along with the informatio11
security of motor vehicle owners. The DOTC/LTO,
Lherefcire, has to impose security measures to guard
public interest arid privacy.
d) x x x [T]he IRR for the RFID Tag does not contain
provisions addressing threat sit1Mtions from the
perspective of the "passive party'' or the vehicle
owner. The owner of the registered ownc;· has no
control over the security of data stored on the tags,
whereby. privacy can be threatened by the "active
party" or the authorized personnel who has complete
control of
the data/information. x x x
"third parties" who may attack the RFID system in
order to gain unauthorized access to data, x x x.
Likewise, other security attacks such as jamming
transmitters to prevent communication between
readers and tags as well as other ways to impair the
correct functioning of the RFID system should be
taken into account.
f) x x x Section 5.1 of the said IRR provides that an
RFID tag is composed of two parts: (a) Write Once;
and (b) Read and Write Many. While modification of
data is intrinsically impossible on the Write Once
portion of the tag, it is opined that unauthorized
modification of the data encoded in the Read and
Write Many pmiion of the tag is possible, thus,
appropriate measures should be taken in order to
ensure security and mitigate such risk.
Technology Efficiency
g) x x x DOTC/LTO should undertake a
comprehensive technology assessment on the use of
RFID technology, propose possible counter-
strategies, and make implementation policy
considerations to mitigate such risks.
h) The operational efficiency of the RFID technology
should also be clearly established.x x x
Data Consistency
i) It is indicated that the RFID System will be
connected to the MVRS through an RFID utility
integrator. The LTO should ensure that the MVRS
database and the RFID System have a capability of
real-time updating so that the data will be consistent
at any point [in] time.
Upgrade
j) The proponent should ensure that the maintenance
of the system such as ICT infrastructures/facilities,
equipment, and software are all covered of (sic)
upgrading provisions due to the fast obsolescence of
ICT equipment and emerging new technologies.
Interconnecting concerned agencies
k) The Project aims to help on law enforcement (e.g.,
anticarnapping, overspeeding vehicles, and anti-
colorum) but the project proposal does not contain
details/procedures on how the RFID will attain such
objective. It is suggested that the Project be
connected to the existing systems of concerned
agencies (e.g. Philippine National Police, Metro
Manila Development Authority, Land Transportation
and Franchising Regulatory Board) so that the Project
will be fully utilized and realize this objective.
Comparison of rates/cost
l) x x x [A] comparative rates/costs of the tag of other
institutions/agencies of the same nature as the RFID
tags should be presented as r~ference in the
justification of such cost.35
On 23 February 2010, this Court noted the OSG's
Comment and, in view of the partly adverse position
of the OSG, required the DOTC to file a separate
Comment.
On 2 March 2010, this Court noted the OSG's
Manifestation.
AAP, et al. 's Intervention
On 10 March 2010, the Automobile Association of the
Philippines (AAP) represented by its president,
Augusto Lagman, Glicerio Manzano, Jr., Raul
Consunji, and Lyn Bronte filed an Entry of
Appearance with Urgent Motion for Leave to
Intervene and Admit Attached Petition for
Intervention. Manzano alleged therein that, as a motor
vehicle owner, he stood to be directly injured by the
implementation of the RFID project; Consunji and
Bronte claimed that they had already suffered injury
as a consequence of the implementation of the RFID
Project, since they were compelled to pay ₱350 for
the renewal of the registration of their respective
motor vehicles. AAP is allegedly the largest
association of private motor vehicle owners in the
country and has the standing to file the present
Petition.
AAP stated that the issuance and implementation by
the LTO of the LTO RFID IRR was an ultra vires
exercise of the latter's rule-making power, which was
limited to the issuance of rules and regulations on the
procedure for the registration and re-registration of
motor vehicles. The circular unduly infringed on motor
vehicle owners' right to property and privacy without
due process of law. The circular also violated
Presidential Memorandum Circular No. 137 dated 30
July 200736 and the BOT Law.
AAP noted that the receipt issued by the LTO upon
registration of a motor vehicle reflected no separate
RFID fee.37 Instead, the RFID fee was apparently
included in the "computerization fee." Since the
project imposes a fee, it is in effect a deprivation of a
property right. The Project also impinges on the right
to privacy, as there appear to be no safeguards to
prevent the abuse and misuse of the system.
The phrase "other data deemed necessary" in the
circular, following the list of data contained in the
RFID Tag, is a "catch-all" item. Allegedly, this phrase
virtually removes any limits on what information could
be stored in the RFID tag, increasing the possibility of
violation of the right to privacy. The circular also fails
to "delimit the persons who, the instances when, and
the purposes for which these information can be
accessed." The objectives of the memorandum
circular, particularly in Section 1.2,38are couched in an
open-ended enumeration of the purposes for which
the information accessed through the RFID system
may be used.
The AAP also alleges that the circular is defective,
because it merely provides that RFID readers shall be
capable of reading specific RFID tags through radio
frequency up to a "specified distance."39 The distance
is subject to adjustment to "comply with business
rules."40 By failing to specify the capacity of the
readers to track down the tags, the RFID system also
poses a threat to a person's liberty of abode and
travel, as the government may track down the
person's movement.
AAP's Entry of Appearance with Urgent Motion for
Leave to Intervene and Admit Attached Petition for
Intervention was noted by this Court, which then
required the parties to comment thereon.
The DOTC/LTO's Comment on the Petition
In their joint Comment dated 6 April 2010, the
DOTC/LTO addressed the NEDA comments on the
RFID Project:41
The Comment presented a tabular comparison
differentiating the Universal Motor Vehicle
Identification Card (UMVIC) Project42 and the RFID
Project in terms of legal basis, functionality,
technology, and implementation. This comparison
was to address the concern of NEDA that the
implementation of both projects may result in a
duplication of their scope, objectives, and services.
The Comment addressed the acceptability and public
interest concerns by stating that public consultations
on the RFID Project attended by major transport
groups were held on 11 February 2009 in Cebu City;
17 February 2009 in Metro Manila; and 29 September
2009 at the Bulwagang Romeo F. Edu, LTO, East
Avenue, Diliman, Quezon City. Some transport
leaders even sent LTO endorsement letters for the
RFID.
On the concerns regarding security and privacy, the
DOTC/LTO explained that, with respect to data
protection and security measures, when unauthorized
persons obtain access to and use of the RFID
Reader, they can read only the unique RFID number
(much like the plate number of a vehicle), which
would not have much use for them without access to
the LTO IT system database. Access to the LTO IT
system database is filtered through many layers of
security.
The DOTC/LTO explained that the LTO IT system is,
in turn, protected by a firewall. Access control is
defined at the application system layer. Access to the
database is confined only to authorized users and
applications. In case of any security compromise,
access by any user or application can easily be
revoked centrally. Where there is a read failure in
situations such as when jamming devices are used,
the processing switches back to vehicle identification
by using other physical identifiers like the plate
number. Anti-jamming devices must be deployed
across the country to significantly impact the
operational efficiency envisioned. No other data shall
be stored in the read-and-write portion of the RFID
tag. Additional vehicle data shall be accessed via a
request to the back-end database, which is protected
by extensive access controls.
On the concern regarding technology efficiency, the
DOTC/LTO said that Stradcom can continually work
with DOTC/LTO to assess the project in the light of
technology developments and fonnulate policies to
mitigate risks in the use of RFID.
On the observed need to ensure operational
efficiency, RFID readers have their own battery power
and can read tags even during brownouts or electrical
interruptions. Meanwhile, the Systems Management
Data Center is supported by redundant Universal
Power Source facilities, as well as redundant
generator units, to ensure continual operation despite
electrical interruptions.
On the concern regarding data consistency,
DOTC/LTO alleges that storing the vehicle data only
in the back-end database ensures consistency in
data. Apart from the necessity of the physical
presence of the vehicle at the LTO site during
registration, there are other data maintenance
transactions that are being undertaken to avoid any
data integrity issue. Infrastructure upgrade of the IT
system is required at least every five years under the
BOO Agreement.
On the recommendation to interconnect several
government agencies with the RFID System,
DOTC/LTO alleges that government agencies such
as LTFRB, Metropolitan Manila Development
Authority (MMDA) and the Philippine National Police
(PNP) may be allowed access to this facility "subject
to the necessary review and approval."43
On the Peed to compare rates/costs, DOTC/LTO
states that the onetime fee of ₱350, inclusive of
Value-Added Tax (VAT), covers the cost of not only
the tag (warranted to last for 10 years), but also the
cost of infrastructure, yearly operating costs, other
direct costs, and even the government's revenue
share. In comparison, the ePass for toll fees in the
South Luzon Expressway costs ₱2,700 with a ₱400
prepaid toll and a battery shelf life of three to five
years, while the EC tag for the North Luzon
Expressway costs ₱1,500.
Stradcom 's Comment on the Intervention and
Reply
On 26 April 2010, Stradcom filed its Comment44 on
the Petition-inIntervention of AAP, alleging that the
latter has failed to satisfy a requirement for
intervention in this case, because it has no direct and
immediate interest in the outcome. The members of
AAP are the ones who stand to be di1 ectly affected
by the decision in this case, and there is no showing
that the AAP is the one that would shoulder the cost
of the RFID payments of its members.
In its Reply (attached to its Motion for Leave to File
Reply to OSG's Comment dated 1 February 2010),
Stradcom alleges that Section 12.11 of the BOT
IRR45 is an enumeration of alternative conditions or
circumstances, any of which would allow contract
variation. The use of the disjunctive "or" signifies the
dissociation and independence of one thing from the
others enumerated. Thus, as long as there is no
fundamental change in the original contract, or there
is no additional government undertaking, a contract
may be allowed even if there is an increase in the
fees to be charged to facility users (i.e., motor vehicle
owners).
Stradcom argues that the RFID MOA does not vary
specific provisions in the BOO Agreement of the LTO
IT Project.1âwphi1 Also, the RFID Project is
consistent with the objectives of the LTO IT Project
and can exist well within the latter's scope.
Stradcom alleges that NEDA approval is not required
for the contract revision under Section 12.11, and that
the word "Approving Body" is not defined in the BOT
Law. Rather, the phrase refers to the entity authorized
to approve projects proposed under the said statute -
which is the original contractual arrangement - and
does not refer to contract variations. Otherwise, an
absurd situation would arise, in which every
contractual variation would be subject to public
bidding, since Section 5 of the BOT Law requires that
projects approved be subject to public bidding. As it
stands, the IRR of the BOT Law does not specify
which entity will approve contract variations. Instead,
it provides that the Approving Body may prescribe
detailed guidelines and procedures for the approval of
projects, as well as the requirements to be submitted
in support thereof. One of these guidelines adopted is
the ITECC Guidelines. Paragraph 10.11 of the ITECC
Guidelines provides that change orders shall be
subject to the final approval of the head of the
agency- in this case, the LTO.
On 6 September 2010, Stradcom filed a Motion for
Clarification Re: Status Quo Ante Order.46 On 23
September 2010, it filed a Supplement to its Motion
for Clarification.
On 11 January 2011, this Court issued a
Resolution,47 stating that the Status Quo Ante Order
does not contemplate the refund of the RFID fees
already paid for by motor vehicle owners during the
pendency of the present case.
THE COURT'S RULING
We find the Petition to be partly meritorious.
PROCEDURAL ISSUE
In its Comment, Stradcom raises the lack of
personality of PISTON to file the Petition, considering
that its Certificate of Registration with the SEC has
already been revoked as early as 2003.48 On this
score, Stradcom raises a valid point. Upon the
revocation of its registration, PISTON no longer
existed for all legal intents and purposes. Section 4,
Rule 8 of the Rules of Court states that the facts
showing the capacity of a party to sue must be
averred. No such fact was provided in the case at bar.
Hence, for failing to show that it is a juridical entity,
endowed by law with the capacity to bring suits in its
own name, PISTON is devoid of any legal capacity to
institute this action.
With respect to petitioner-in-intervention AAP,
Stradcom claims that it does not have the requisite
legal personality to intervene, as it does not allege
any injury to the organization. Rather, the injury, if
any, would be to its members who would be required
to pay the RFID fee. Stradcom claims that absent any
allegation that it is AAP that will shoulder the costs of
the RFID for the latter's members, AAP cannot
institute the present suit.
The 1997 Rules of Civil Procedure requires that every
action must be prosecuted or defended in the name of
the real party-in-interest, i.e., the party who stands to
be benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit.49 However,
despite its lack of interest, an association has the
legal personality to file a suit and represent its
members if the outcome of the case will affect their
vital interests. Similarly, an organization has the
standing to assert the concern of its constituents.50
In view thereof, we rule that AAP has the standing to
file the instant suit.
In any case, even if petitioners and petitioners-in-
intervention were not sufficiently clothed with legal
standing, in view of the transcendental importance to
the nation of the issues raised in this Petition and in
the succeeding pleadings, 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.51
SUBSTANTIVE ISSUES
A. The RFID MOA is a separate and distinct
contract from the BOO Agreement.
Contrary to the allegations of Stradcom,
the RFID MOA is a not a "mere
enhancement," but a substantial
amendment of the BOO Agreement. The
terms of the RFID MOA are beyond the
scope of the BOO Agreement.
In both ordinary and legal parlance, to '"enhance"
means to make greater in value or attractiveness. In
an unqualified sense, the word also means to
increase and comprehends any increase in
value.52However, to enhance something, such as a
contract or a project, entails an increase or
improvement of already existing components. It does
not contemplate the addition of new components
which result in an amendment or a modification of the
basic terms of the contract.
Under the BOO Agreement, the parties specifically
defined the scope of work to be provided to
DOTC/LTO by Stradcom as the contractor. This
scope is defined under Article 2 of the BOO
Agreement,53 which in tum refers to Annex "A"
thereof.54 Section 2.655 of Annex "A" provides:
2.6 SCOPE
Specifically, the LTO IT Project encompasses the
following:
 construction I customization of the following major
applications:
• motor vehicle registration
• drivers licensing
• law enforcement and adjudication • software

• revenue collection • networking products

• transpoii planning • special devices and other peripherals

• franchising of public utility vehicles  Provision of the following TT services:

• government and private sector information sharing • Project Management

 establishment of the LTO Data Warehouse which • Site Environment Planning and Preparation
includes the
• Total Systems Installation and Integration
following databases:
• Telecommunications Services
• Motor Vehicle Registry DB
• Business Process Reengineering
• Drivers' Licenses DB
• Education and Training
• Public Utility Franchise DB
• Facilities Management and Maintenance Support •
• Law Enforcement and Traffic Adjudication DB Systems Operations

• GIS Transport Planning DB • Information Systems Security

• Financial DB  Key Perfom1ance Indices (KPI):

• Administrative DB
Present Target

 Interconnection in the Information Highway to 1. Vehicle Registration 4-8 hrs 1 hr

support the networking requirements of the system to
cover the following offices: 2. License Issuance

- New/Changes 6 mos 5 days

• Central Office in Quezon City;
- Renewal 3 mos 1 day
• 15 Regional Offices; 3. Traffic Violation Adjudication 8 hrs 1 hr

• 214 District and Field Offices; 4. Information Query 3-15 days 15 mins

5. Tracking of Carnapped Vehicles 10% 80%

• Mobile Law Enforcement Units of LTO, MMDA, and
PNP-TMC
• All Facilities of other LTO service contractors; and
• DOTC Proper, other governmental agencies and the
private sector.
 supply, delivery, testing and installation of
appropriate computing products and other resources
relative to the implementation of the project on an
open client/server environment such as:
• hardware
On the other hand, the RFID System, as provided
under Article I, Section 1.1 of the RFID MOA, involves
the following components:
a. Integration of the RFID System into MV
Registration (for new vehicle) and Renewal (for old
vehicle) processes;
b. Integration of the RFID System into the PETC as
well as Motor Vehicle Inspection Station ("MVIS")
processes;
c. Deployment of RFID tags into motor vehicles
nationwide;
d. Deployment of RFID readers to district offices of
LTO and PETCs as well as MVIS; and,
e. Integration of the RFID System in the PETC IT
Provider's IT System and in the MVIS' IT System. 56
Clearly, the terms of the RFID MOA may not be
subsumed under the scope of the BOO Agreement so
as to be merely an enhancement of the latter. Instead,
there are significant amendments to the BOO
Agreement implemented by the RFID MOA, among
which are the following:
1. Workflow
Section 2.10 of Annex "A" of the BOO Agreement
provides for the workflow of motor vehicle
registration. 57 This workflow does not take into
account the implementation of the RFID Project. In
the Business Process Specification therefor submitted
by Stradcom to the DOTC/LT0,58 the new workflow for
new motor vehicle registration59 and renewal of
registration60 includes considerable additions to the
existing workflow.
2. Hardware Requirements
Section 2.14 of Annex "A" of the BOO Agreement
specifies the hardware requirements of the system to
be supplied by Stradcom. Among these requirements
are servers, workstations, notebook computers,
printers and plotters, document imaging system, data
backup system, hardware resources mappmg, an ar
ware networ ong strategy. 61
Undoubtedly, the addition of the RFID System will
significantly modify the hardware requirements
provided under the BOO Agreement. Under the RFID
MOA, Stradcom shall provide all the necessary
hardware and network equipment necessary for the
implementation, operation, and maintenance of the
RFID System. 62 In the Business Process
Specification for the RFID Project, the hardware
includes passive RFID Tags, Handheld/Mobile RFID
Readers, Fixed Readers with antenna, and
middleware.63Notably, these additional pieces of
hardware are completely new and different from the
existing ones already included under the BOO
Agreement. In no way can these be considered as
mere enhancements of the BOO Agreement.
3. Project Cost
Under Annex "A" of the BOO Agreement, the initial
development of the LTO IT Project is estimated at US
$44,543,017.64 Clearly, the RFID Project as proposed
in the RFID MOA will result in significant additional
project cost, considering the proposed new hardware
requirements, plus training costs and other incidental
expenses.
4. Obligations of the Parties
Even a brief perusal of the RFID MOA will show that
under its terms, the parties have obligated themselves
to perform additional functions that are not within the
scope of, nor are mere enhancements of, their
obligations under the BOO Agreement.65
Pertinently, the BOO Agreement itself states what
may be considered as an enhancement of the
contract, such as the improvement of the existing
hardware and workflow already provided therein.
Section 3.2.2. l 0 of Annex "A" of the BOO Agreement
specifically provides that any changes in or
amendment to the contract must refer only to those
components already included in the original bid:
3.2.2.10 Execution of Contract
xxxx
Right to Vary
If during the time of delivery/installation of any of the
computer hardware/equipment a newer version of the
same computer hardware/equipment/software
becomes available in the market, LTO reserves the
right to ask for a change in the model of any of the
computer hardware/equipment to be supplied without
any change in the cost. Such variations will only
be undertaken on the basis of the
equipment/products tendered and not for
anything that was not offered in the original
bid.66 (Emphasis supplied.)
To reiterate, the additions introduced by the RFID
MOA are those that were not offered in the original
bid and entailed changes in the original cost. Thus,
from the terms of the BOO Agreement itself, these are
not allowable variations.
Under the IRR of the BOT Law, the RFID
Project does not qualify as an allowable
contract variation of the BOO Agreement.
As a general rule, for contracts executed under the
BOT Law, the government agency and the project
proponent shall execute the draft contract as
approved.67 However, certain contract variations are
allowed, as long as they comply with the applicable
law at the time the RFID MOA was entered into.
Section 12.11 of the 2006 IRR of the BOT Law
provides:
SECTION 12.11 - CONTRACT VARIATION
Subject to the prior approval by the Approving Body,
upon recommendation by the Agency/LOU, a contract
variation may be allowed by the Agency/LOU,
Provided, that:
a. Except as may be allowed under a parametric
formula in the contract itself, there is no increase in
the agreed fees, tolls and charges or a decrease in
the Agency/LGU's revenue or profit share derived
from the project; or
b. There is no reduction in the scope of works or
performance standards, or fundamental change in the
contractual arrangement nor extension in the contract
term, except in cases of breach on the pai1 of the
Agency/LOU of its obligations under the contract; or
c. No additional Government Undertaking, or increase
in the finai1cial exposure of the Government under
the project; or d. Such is necessary due to an
unforeseeable event beyond the control of the parties.
Under no circumstances shall a Project Proponent
proceed to commence a proposed contract variation
unless approved by the Approving Body. Failure to
secure approval of the Approving Body shall render
the contract variation void.
In this case, however, the RFID MOA is not an
allowable contract variation, involving as it does an
increase in the agreed fees, tolls, and charges to be
exacted upon the public. As previously stated, the
RFID Project will entail an additional charge of ₱350
for every motor vehicle. This charge was not
contemplated in the original contract and is not an
increase allowed under the formula provided in Article
14 of the BOO Agreement.68 Further, as already
discussed, there is a fundamental change in the
contractual an-c:ngement between the parties. It
cannot be said either that this contract variation is
necessary due to an unforeseeable event beyond the
control of the parties.
To be a valid change order under the
ITECC Guidelines, the RFID MOA must
also comply with the BOT Law.
Stradcom claims that the RFID Project, as
implemented through the RFID MOA, complied with
the procedure set forth in the ITECC Guidelines for a
change order.
The ITECC Guidelines was adopted by the NEDA in
2003 and aims to speed up the use and application of
Information and Communications Technology (ICT) to
enhance overall governance by fmiher encouraging
wider and more active private sector participation in
the development and implementation of government
ICT projects pursuant to the BOT Law.69 As such, it
only serves to supplement existing implementing rules
and regulations on the BOT Law.
Section 10.11 of the ITECC Guidelines provides:
10.11 Change Order Procedure. Where the agency
or the project proponent see the need for any
change in scope and cost of the project, including
changes in the system hardware, software,
system interfaces, inputs, outputs, functionality
or in the way the ICT project is implemented as
described in the contract, provided it is not subject
to the approval of the ICC in accordance with Section.
10.10 hereof, the implementing agency or the project
proponent may at any time request and
recommend such change and propose an
amendment to the contract in accordance with the
following procedures: x x x
While Stradcom claims that it strictly followed the
change order procedure, still, such procedure
provided by the ITECC Guidelines may not be
interpreted in such a way that would contravene the
provisions of the BOT Law and public policy. In fact,
among the general guiding principles of the ITECC
Guidelines is the encouragement of healthy
competition and a level playing field among qualified
private sector proponents.70 ICT shall be used not
only as an instrument to promote greater
transparency and efficiency in government
operations, but also to help reduce if not eliminate
graft and corruption in government transactions.71
As will be discussed below, to allow the RFID MOA
upon a mere "change order," and without the benefit
of competitive public bidding, would create an
unequal playing field and would not alleviate
corruption in government transactions.
The increase in fees imposed by the
DOTC/LTO does not need NEDA approval.
Petitioners claim that since the RFID Project would
entail additional expenses to owners of motor
vehicles, the DOTC and LTO should have first
obtained NED A's approval, pursuant to NEDA
Circular No. 01-2008. On the other hand, Stradcom
claims that as a mere enhancement of the BOO
Agreement, the Project did not require NEDA
approval.
We note that NEDA Circular No. 01-2008 has since
been amended by NEDA Circular No. 01-2010,
issued on 11 August 2010. Section 2.2 of NEDA
Circular No. 01-2008, which provides the exceptions
to the NEDA approval requirement, has been
amended to include those fees imposed in projects
under the BOT Law, which are intended to recover
total investment. Notably, Circular No. 01-2010
provides that the amendment shall have retroactive
effect. Thus, a properly implemented RFID Project
under the BOT Law would fall under this category.
It thus appears that if the only change contemplated is
the increase in fees, then this factor alone would not
cause the need for NEDA approval.
In conclusion, while the RFID Project may possibly
be considered as an enhancement of the existing
LTO IT Project, requiring as it does an integration into
the existing motor vehicle registration system and
other database and information technology systems,
the RFID MOA is not an allowable "enhancement" or
variation of the existing BOO Agreement.
B. The RFID MOA is void for failure to undergo
competitive public bidding.
As a separate project, the RFID Project
should have undergone public bidding.
Section 5 of the BOT Law provides that upon the
approval of a project, a notice must be made inviting
all prospective project proponents to a competitive
public bidding. The public bidding must be conducted
under a two-envelope/two-stage system: the first
envelope to contain the technical proposal and the
second one to contain the financial proposal.
In this case, it is patently admitted by DOTC/L TO that
no public bidding was conducted on the RFID Project,
which was presented by Stradcom as a proposal that
would enhance the existing LTO IT Project.72
Neither does this case fall under the exception to the
rule on public bidding.73
The requirement of a public bidding is not an idle
ceremony. Public bidding is the policy and medium
adhered to in government procurement and
construction contracts. It is the accepted method for
arriving at a fair and reasonable price and ensures
that overpricing, favoritism and other anomalous
practices are eliminated or minimized. Public biddings
are intended to minimize occasions for corruption and
temptations to abuse discretion on the part of
government authorities when awarding contracts.74
The RFID MOA must, thus, be struck down by this
Court for failure to comply with the rules on public
bidding. There is no guarantee that the RFID fee that
will be charged to the public is a fair and reasonable
price, as it has not undergone public bidding.
Likewise, there is no guarantee that the public will be
receiving maximum benefits and quality services,
especially from the additional hardware, such as the
RFID tags and readers. These are to be procured by
Stradcom from its two suppliers,75 which have not
been identified and are not even parties to the RFID
MOA. On the other hand, Stradcom, which has been
awarded the exclusive right to develop and operate
the RFID system without having undergone
competitive public bidding, stands to earn
considerable amounts of revenue from the contract. In
fact, in just three months, the period when the RFID
Project was implemented prior to the issuance of
the Status Quo Ante Order by this Court, the LTO had
already generated ₱29,894,200 in RFID
Fees. 76 Clearly, the evils sought to be avoided by the
requirement of competitive public bidding are evident
in this case.
As a substantial amendment to the BOO
Agreement, there is a violation of public
policy and the BOT Law for failure to
execute the contract as contained in the
original bid.
Even if one were to follow Stradcom's argument that
the RFID MOA is not separate from the BOO
Agreement, still, its case would not prosper. The RFID
MOA is not so much a "mere enhancement" of the
BOO Agreement as it is a substantial amendment
thereof.
It goes without saying that any contract awarded as a
result of competitive public bidding must be executed
faithfully by the parties. We stressed the importance
of such adherence to the original contract in Agan v.
PIATC0,77 from which we quote:
Again, we brightline the principle that in public
bidding, bids are submitted in accord with the
prescribed terms, conditions and parameters laid
down by government and pursuant to the
requirements of the project bidded upon. In light of
these parameters, bidders formulate competing
proposals which are evaluated to determine the bid
most favorable to the government. Once the contract
based on the bid most favorable to the
government is awarded, all that is left to be done
by the parties is to execute the necessary
agreements and implement them. There can be no
substantial or material change to the parameters
of the project, including the essential terms and
conditions of the contract bidded upon, after the
contract award. If there were changes and the
contracts end up unfavorable to government, the
public bidding becomes a mockery and the
modified contracts must be struck
down. (Emphases supplied.)
Former Chief Justice Artemio Panganiban, in his
Separate Opinion in the main Decision
in Agan, 78 explained that the substantial amendment
of a contract previously bid out, without any public
bidding and after the bidding process has been
concluded, is violative of the public policy on public
biddings and the spirit and intent of the BOT Law. The
very rationale for public bidding is totally subverted by
the amendment of the contract for which the bidding
has 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.

Indeed, while the contract in Agan was amended after

public bidding, but prior to its execution, there is no
reason why the principle therein should not be
applicable where the contract is amended during its
execution as in this case.

In fact, not only is the public potentially injured by the

failure to conduct a public bidding, but so too are
other possible project proponents. As held
in Information Technology Foundation of the
Philippines v. COMELEC,79 the essence of public
bidding is, after all, an opportunity for fair competition
and a fair basis for the precise comparison of bids. In
common parlance, public bidding aims to "level the
playing field," which means that each bidder must bid
under the same conditions; and be subject to the
same gu~delines, requirements and limitations. The
purpose is for the best offer or lowest bid to be
determined, all other things being equal. Thus, to
permit a variance between the conditions under which
the bid is won and those under which the awarded
contract is complied with is contrary to the very
concept of public bidding.

As to the second and third issues raised by petitioners

assailing the constitutionality of the DOTC/L TO
issuances for being issued in usurpation of Congress'
legislative powers, and for violating the right to
privacy, it is unnecessary to rule on the same
considering the foregoing discussion declaring the
RFID MOA null and void for failure to undergo
competitive public bidding.

WHEREFORE, the Petition is PARTIALLY

GRANTED. The Radio Frequency Identification
Memorandum of Agreement dated 16 June 2009,
entered into by respondents Stradcom Corporation
and the Department of Transportation and
Communication/Land Transportation Office, is hereby
declared null and void.

The RFID fees collected during the implementation of

the RFID Project prior to the issuance of this
Court's Status Quo Ante Order are likewise ordered
refunded to the payors thereof.

SO ORDERED.
Case no. 018

Central Azucarera De Bais and Antonio Steven L.

Chan vs.Heirs of Zuelo Apostol??
C.
Case no. 001
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35645 May 22, 1985
UNITED STATES OF AMERICA, CAPT. JAMES E.
GALLOWAY, WILLIAM I. COLLINS and ROBERT
GOHIER, petitioners,
vs.
HON. V. M. RUIZ, Presiding Judge of Branch XV,
Court of First Instance of Rizal and ELIGIO DE
GUZMAN & CO., INC., respondents.
Sycip, Salazar, Luna & Manalo & Feliciano Law for
petitioners.
Albert, Vergara, Benares, Perias & Dominguez Law
Office for respondents.
ABAD SANTOS, J.:
This is a petition to review, set aside certain orders
and restrain the respondent judge from trying Civil
Case No. 779M of the defunct Court of First Instance
of Rizal.
The factual background is as follows:
At times material to this case, the United States of
America had a naval base in Subic, Zambales. The
base was one of those provided in the Military Bases
Agreement between the Philippines and the United
States.
Sometime in May, 1972, the United States invited the
submission of bids for the following projects
1. Repair offender system, Alava Wharf at the U.S.
Naval Station Subic Bay, Philippines.
2. Repair typhoon damage to NAS Cubi shoreline;
repair typhoon damage to shoreline revetment,
NAVBASE Subic; and repair to Leyte Wharf
approach, NAVBASE Subic Bay, Philippines.
Eligio de Guzman & Co., Inc. responded to the
invitation and submitted bids. Subsequent thereto, the
company received from the United States two
telegrams requesting it to confirm its price proposals
and for the name of its bonding company. The
company complied with the requests. [In its complaint,
the company alleges that the United States had
accepted its bids because "A request to confirm a
price proposal confirms the acceptance of a bid
pursuant to defendant United States' bidding
practices." (Rollo, p. 30.) The truth of this allegation
has not been tested because the case has not
reached the trial stage.]
In June, 1972, the company received a letter which
was signed by Wilham I. Collins, Director, Contracts
Division, Naval Facilities Engineering Command,
Southwest Pacific, Department of the Navy of the
United States, who is one of the petitioners herein.
The letter said that the company did not qualify to
receive an award for the projects because of its
previous unsatisfactory performance rating on a repair
contract for the sea wall at the boat landings of the
U.S. Naval Station in Subic Bay. The letter further
said that the projects had been awarded to third
parties. In the abovementioned Civil Case No. 779-M,
the company sued the United States of America and
Messrs. James E. Galloway, William I. Collins and
Robert Gohier all members of the Engineering
Command of the U.S. Navy. The complaint is to order
the defendants to allow the plaintiff to perform the
work on the projects and, in the event that specific
performance was no longer possible, to order the
defendants to pay damages. The company also
asked for the issuance of a writ of preliminary
injunction to restrain the defendants from entering into
contracts with third parties for work on the projects.
The defendants entered their special appearance for
the purpose only of questioning the jurisdiction of this
court over the subject matter of the complaint and the
persons of defendants, the subject matter of the
complaint being acts and omissions of the individual
defendants as agents of defendant United States of
America, a foreign sovereign which has not given her
consent to this suit or any other suit for the causes of
action asserted in the complaint." (Rollo, p. 50.)
Subsequently the defendants filed a motion to dismiss
the complaint which included an opposition to the
issuance of the writ of preliminary injunction. The
company opposed the motion. The trial court denied
the motion and issued the writ. The defendants
moved twice to reconsider but to no avail. Hence the
instant petition which seeks to restrain perpetually the
proceedings in Civil Case No. 779-M for lack of
jurisdiction on the part of the trial court.
The petition is highly impressed with merit.
The traditional rule of State immunity exempts a State
from being sued in the courts of another State without
its consent or waiver. This rule is a necessary
consequence of the principles of independence and
equality of States. However, the rules of International
Law are not petrified; they are constantly developing
and evolving. And because the activities of states
have multiplied, it has been necessary to distinguish
them-between sovereign and governmental acts (jure
imperii) and private, commercial and proprietary acts
(jure gestionis). The result is that State immunity now
extends only to acts jure imperil The restrictive
application of State immunity is now the rule in the
United States, the United Kingdom and other states in
western Europe. (See Coquia and Defensor Santiago,
Public International Law, pp. 207-209 [1984].)
The respondent judge recognized the restrictive
doctrine of State immunity when he said in his Order
denying the defendants' (now petitioners) motion: " A
distinction should be made between a strictly
governmental function of the sovereign state from its
private, proprietary or non- governmental acts (Rollo,
p. 20.) However, the respondent judge also said: "It is
the Court's considered opinion that entering into a
contract for the repair of wharves or shoreline is
certainly not a governmental function altho it may
partake of a public nature or character. As aptly
pointed out by plaintiff's counsel in his reply citing the
ruling in the case of Lyons, Inc., [104 Phil. 594
(1958)], and which this Court quotes with approval,
viz.:
It is however contended that when
a sovereign state enters into a
contract with a private person, the
state can be sued upon the theory
that it has descended to the level of
an individual from which it can be
implied that it has given its consent
to be sued under the contract. ...
xxx xxx xxx
We agree to the above contention,
and considering that the United
States government, through its
agency at Subic Bay, entered into a
contract with appellant for
stevedoring and miscellaneous
labor services within the Subic Bay
Area, a U.S. Naval Reservation, it is
evident that it can bring an action
before our courts for any
contractual liability that that political
entity may assume under the
contract. The trial court, therefore,
has jurisdiction to entertain this
case ... (Rollo, pp. 20-21.)
The reliance placed on Lyons by the respondent
judge is misplaced for the following reasons:
In Harry Lyons, Inc. vs. The United States of America,
supra, plaintiff brought suit in the Court of First
Instance of Manila to collect several sums of money
on account of a contract between plaintiff and
defendant. The defendant filed a motion to dismiss on
the ground that the court had no jurisdiction over
defendant and over the subject matter of the action.
The court granted the motion on the grounds that: (a)
it had no jurisdiction over the defendant who did not
give its consent to the suit; and (b) plaintiff failed to
exhaust the administrative remedies provided in the
contract. The order of dismissal was elevated to this
Court for review.
In sustaining the action of the lower court, this Court
said:
It appearing in the complaint that
appellant has not complied with the
procedure laid down in Article XXI
of the contract regarding the
prosecution of its claim against the
United States Government, or,
stated differently, it has failed to first
exhaust its administrative remedies
against said Government, the lower
court acted properly in dismissing
this case.(At p. 598.)
It can thus be seen that the statement in respect of
the waiver of State immunity from suit was purely
gratuitous and, therefore, obiter so that it has no value
as an imperative authority.
The restrictive application of State immunity is proper
only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a
State may be said to have descended to the level of
an individual and can thus be deemed to have tacitly
given its consent to be sued only when it enters into
business contracts. It does not apply where the
contract relates to the exercise of its sovereign
functions. In this case the projects are an integral part
of the naval base which is devoted to the defense of
both the United States and the Philippines,
indisputably a function of the government of the
highest order; they are not utilized for nor dedicated to
commercial or business purposes.
That the correct test for the application of State
immunity is not the conclusion of a contract by a State
but the legal nature of the act is shown in Syquia vs.
Lopez, 84 Phil. 312 (1949). In that case the plaintiffs
leased three apartment buildings to the United States
of America for the use of its military officials. The
plaintiffs sued to recover possession of the premises
on the ground that the term of the leases had expired.
They also asked for increased rentals until the
apartments shall have been vacated.
The defendants who were armed forces officers of the Case No. is dismissed. Costs against the private
United States moved to dismiss the suit for lack of respondent.
jurisdiction in the part of the court. The Municipal
Court of Manila granted the motion to dismiss;
sustained by the Court of First Instance, the plaintiffs
went to this Court for review on certiorari. In denying
the petition, this Court said:

On the basis of the foregoing

considerations we are of the belief
and we hold that the real party
defendant in interest is the
Government of the United States of
America; that any judgment for
back or Increased rentals or
damages will have to be paid not by
defendants Moore and Tillman and
their 64 co-defendants but by the
said U.S. Government. On the
basis of the ruling in the case of
Land vs. Dollar already cited, and
on what we have already stated,
the present action must be
considered as one against the U.S.
Government. It is clear hat the
courts of the Philippines including
the Municipal Court of Manila have
no jurisdiction over the present
case for unlawful detainer. The
question of lack of jurisdiction was
raised and interposed at the very
beginning of the action. The U.S.
Government has not , given its
consent to the filing of this suit
which is essentially against her,
though not in name. Moreover, this
is not only a case of a citizen filing a
suit against his own Government
without the latter's consent but it is
of a citizen filing an action against a
foreign government without said
government's consent, which
renders more obvious the lack of
jurisdiction of the courts of his
country. The principles of law
behind this rule are so elementary
and of such general acceptance
that we deem it unnecessary to cite
authorities in support thereof. (At p.
323.)

In Syquia,the United States concluded contracts with

private individuals but the contracts notwithstanding
the States was not deemed to have given or waived
its consent to be sued for the reason that the
contracts were for jure imperii and not for jure
gestionis.

WHEREFORE, the petition is granted; the questioned

orders of the respondent judge are set aside and Civil
Case No. 002
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-52179 April 8, 1991
MUNICIPALITY OF SAN FERNANDO, LA
UNION, petitioner
vs.
HON. JUDGE ROMEO N. FIRME, JUANA
RIMANDO-BANIÑA, IAUREANO BANIÑA, JR., SOR
MARIETA BANIÑA, MONTANO BANIÑA, ORJA
BANIÑA, AND LYDIA R. BANIÑA, respondents.
Mauro C. Cabading, Jr. for petitioner.
Simeon G. Hipol for private respondent.
MEDIALDEA, J.:
This is a petition for certiorari with prayer for the
issuance of a writ of preliminary mandatory injunction
seeking the nullification or modification of the
proceedings and the orders issued by the respondent
Judge Romeo N. Firme, in his capacity as the
presiding judge of the Court of First Instance of La
Union, Second Judicial District, Branch IV, Bauang,
La Union in Civil Case No. 107-BG, entitled "Juana
Rimando Baniña, et al. vs. Macario Nieveras, et al."
dated November 4, 1975; July 13, 1976; August
23,1976; February 23, 1977; March 16, 1977; July 26,
1979; September 7, 1979; November 7, 1979 and
December 3, 1979 and the decision dated October
10, 1979 ordering defendants Municipality of San
Fernando, La Union and Alfredo Bislig to pay, jointly
and severally, the plaintiffs for funeral expenses,
actual damages consisting of the loss of earning
capacity of the deceased, attorney's fees and costs of
suit and dismissing the complaint against the Estate
of Macario Nieveras and Bernardo Balagot.
The antecedent facts are as follows:
Petitioner Municipality of San Fernando, La Union is a
municipal corporation existing under and in
accordance with the laws of the Republic of the
Philippines. Respondent Honorable Judge Romeo N.
Firme is impleaded in his official capacity as the
presiding judge of the Court of First Instance of La
Union, Branch IV, Bauang, La Union. While private
respondents Juana Rimando-Baniña, Laureano
Baniña, Jr., Sor Marietta Baniña, Montano Baniña,
Orja Baniña and Lydia R. Baniña are heirs of the
deceased Laureano Baniña Sr. and plaintiffs in Civil
Case No. 107-Bg before the aforesaid court.
At about 7 o'clock in the morning of December 16,
1965, a collision occurred involving a passenger
jeepney driven by Bernardo Balagot and owned by
the Estate of Macario Nieveras, a gravel and sand
truck driven by Jose Manandeg and owned by
Tanquilino Velasquez and a dump truck of the
Municipality of San Fernando, La Union and driven by
Alfredo Bislig. Due to the impact, several passengers
of the jeepney including Laureano Baniña Sr. died as
a result of the injuries they sustained and four (4)
others suffered varying degrees of physical injuries.
On December 11, 1966, the private respondents
instituted a compliant for damages against the Estate
of Macario Nieveras and Bernardo Balagot, owner
and driver, respectively, of the passenger jeepney,
which was docketed Civil Case No. 2183 in the Court
of First Instance of La Union, Branch I, San Fernando,
La Union. However, the aforesaid defendants filed a
Third Party Complaint against the petitioner and the
driver of a dump truck of petitioner.
Thereafter, the case was subsequently transferred to
Branch IV, presided over by respondent judge and
was subsequently docketed as Civil Case No. 107-
Bg. By virtue of a court order dated May 7, 1975, the
private respondents amended the complaint wherein
the petitioner and its regular employee, Alfredo Bislig
were impleaded for the first time as defendants.
Petitioner filed its answer and raised affirmative
defenses such as lack of cause of action, non-
suability of the State, prescription of cause of action
and the negligence of the owner and driver of the
passenger jeepney as the proximate cause of the
collision.
In the course of the proceedings, the respondent
judge issued the following questioned orders, to wit:
(1) Order dated November 4, 1975
dismissing the cross-claim against Bernardo
Balagot;
(2) Order dated July 13, 1976 admitting the
Amended Answer of the Municipality of San
Fernando, La Union and Bislig and setting
the hearing on the affirmative defenses only
with respect to the supposed lack of
jurisdiction;
(3) Order dated August 23, 1976 deferring
there resolution of the grounds for the Motion
to Dismiss until the trial;
(4) Order dated February 23, 1977 denying
the motion for reconsideration of the order of
 July 13, 1976 filed by the Municipality and
Bislig for having been filed out of time;
(5) Order dated March 16, 1977 reiterating
the denial of the motion for reconsideration
of the order of July 13, 1976;
(6) Order dated July 26, 1979 declaring the
case deemed submitted for decision it
appearing that parties have not yet
submitted their respective memoranda
despite the court's direction; and
(7) Order dated September 7, 1979 denying
the petitioner's motion for reconsideration
and/or order to recall prosecution witnesses
for cross examination.
On October 10, 1979 the trial court rendered a
decision, the dispositive portion is hereunder quoted
as follows:
IN VIEW OF ALL OF (sic) THE
FOREGOING, judgment is hereby rendered
for the plaintiffs, and defendants Municipality
of San Fernando, La Union and Alfredo
Bislig are ordered to pay jointly and
severally, plaintiffs Juana Rimando-Baniña,
Mrs. Priscilla B. Surell, Laureano Baniña Jr.,
Sor Marietta Baniña, Mrs. Fe B. Soriano,
Montano Baniña, Orja Baniña and Lydia B.
Baniña the sums of P1,500.00 as funeral
expenses and P24,744.24 as the lost
expected earnings of the late Laureano
Baniña Sr., P30,000.00 as moral damages,
and P2,500.00 as attorney's fees. Costs
against said defendants.
The Complaint is dismissed as to defendants
Estate of Macario Nieveras and Bernardo
Balagot.
SO ORDERED. (Rollo, p. 30)
Petitioner filed a motion for reconsideration and for a
new trial without prejudice to another motion which
was then pending. However, respondent judge issued
another order dated November 7, 1979 denying the
motion for reconsideration of the order of September
7, 1979 for having been filed out of time.
Finally, the respondent judge issued an order dated
December 3, 1979 providing that if defendants
municipality and Bislig further wish to pursue the
matter disposed of in the order of July 26, 1979, such
should be elevated to a higher court in accordance
with the Rules of Court. Hence, this petition.
Petitioner maintains that the respondent judge
committed grave abuse of discretion amounting to
excess of jurisdiction in issuing the aforesaid orders
and in rendering a decision. Furthermore, petitioner
asserts that while appeal of the decision maybe
available, the same is not the speedy and adequate
remedy in the ordinary course of law.
On the other hand, private respondents controvert the
position of the petitioner and allege that the petition is
devoid of merit, utterly lacking the good faith which is
indispensable in a petition for certiorari and
prohibition. (Rollo, p. 42.) In addition, the private
respondents stress that petitioner has not considered
that every court, including respondent court, has the
inherent power to amend and control its process and
orders so as to make them conformable to law and
justice. (Rollo, p. 43.)
The controversy boils down to the main issue of
whether or not the respondent court committed grave
abuse of discretion when it deferred and failed to
resolve the defense of non-suability of the State
amounting to lack of jurisdiction in a motion to
dismiss.
In the case at bar, the respondent judge deferred the
resolution of the defense of non-suability of the State
amounting to lack of jurisdiction until trial. However,
said respondent judge failed to resolve such defense,
proceeded with the trial and thereafter rendered a
decision against the municipality and its driver.
The respondent judge did not commit grave abuse of
discretion when in the exercise of its judgment it
arbitrarily failed to resolve the vital issue of non-
suability of the State in the guise of the municipality.
However, said judge acted in excess of his jurisdiction
when in his decision dated October 10, 1979 he held
the municipality liable for the quasi-delict committed
by its regular employee.
The doctrine of non-suability of the State is expressly
provided for in Article XVI, Section 3 of the
Constitution, to wit: "the State may not be sued
without its consent."
Stated in simple parlance, the general rule is that the
State may not be sued except when it gives consent
to be sued. Consent takes the form of express or
implied consent.
Express consent may be embodied in a general law
or a special law. The standing consent of the State to
be sued in case of money claims involving liability
arising from contracts is found in Act No. 3083. A
special law may be passed to enable a person to sue
the government for an alleged quasi-delict, as in
Merritt v. Government of the Philippine Islands (34
Phil 311). (see United States of America v. Guinto,
G.R. No. 76607, February 26, 1990, 182 SCRA 644,
654.)
Consent is implied when the government enters into
business contracts, thereby descending to the level of
the other contracting party, and also when the State
files a complaint, thus opening itself to a counterclaim.
(Ibid)
Municipal corporations, for example, like provinces
and cities, are agencies of the State when they are
engaged in governmental functions and therefore
should enjoy the sovereign immunity from suit.
Nevertheless, they are subject to suit even in the
performance of such functions because their charter
provided that they can sue and be sued.
(Cruz, Philippine Political Law, 1987 Edition, p. 39)
A distinction should first be made between suability
and liability. "Suability depends on the consent of the
state to be sued, liability on the applicable law and the
established facts. The circumstance that a state is
suable does not necessarily mean that it is liable; on
the other hand, it can never be held liable if it does
not first consent to be sued. Liability is not conceded
by the mere fact that the state has allowed itself to be
sued. When the state does waive its sovereign
immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable." (United
States of America vs. Guinto, supra, p. 659-660)
Anent the issue of whether or not the municipality is
liable for the torts committed by its employee, the test
of liability of the municipality depends on whether or
not the driver, acting in behalf of the municipality, is
performing governmental or proprietary functions. As
emphasized in the case of Torio vs. Fontanilla (G. R.
No. L-29993, October 23, 1978. 85 SCRA 599, 606),
the distinction of powers becomes important for
purposes of determining the liability of the municipality
for the acts of its agents which result in an injury to
third persons.
Another statement of the test is given in City of
Kokomo vs. Loy, decided by the Supreme Court of
Indiana in 1916, thus:
Municipal corporations exist in a dual
capacity, and their functions are twofold. In
one they exercise the right springing from
sovereignty, and while in the performance of
the duties pertaining thereto, their acts are
political and governmental. Their officers and
agents in such capacity, though elected or
appointed by them, are nevertheless public
functionaries performing a public service,
and as such they are officers, agents, and
servants of the state. In the other capacity
the municipalities exercise a private,
proprietary or corporate right, arising from
their existence as legal persons and not as
public agencies. Their officers and agents in
the performance of such functions act in
behalf of the municipalities in their corporate
or individual capacity, and not for the state or
sovereign power." (112 N.E., 994-995) (Ibid,
pp. 605-606.)
It has already been remarked that municipal
corporations are suable because their charters grant
them the competence to sue and be sued.
Nevertheless, they are generally not liable for torts
committed by them in the discharge of governmental
functions and can be held answerable only if it can be
shown that they were acting in a proprietary capacity.
In permitting such entities to be sued, the State
merely gives the claimant the right to show that the
defendant was not acting in its governmental capacity
when the injury was committed or that the case
comes under the exceptions recognized by law.
Failing this, the claimant cannot recover. (Cruz, supra,
p. 44.)
In the case at bar, the driver of the dump truck of the
municipality insists that "he was on his way to the
Naguilian river to get a load of sand and gravel for the
repair of San Fernando's municipal streets." (Rollo, p.
29.)
In the absence of any evidence to the contrary, the
regularity of the performance of official duty is
presumed pursuant to Section 3(m) of Rule 131 of the
Revised Rules of Court. Hence, We rule that the
driver of the dump truck was performing duties or
tasks pertaining to his office.
We already stressed in the case of Palafox, et. al. vs.
Province of Ilocos Norte, the District Engineer, and
the Provincial Treasurer (102 Phil 1186) that "the
construction or maintenance of roads in which the
truck and the driver worked at the time of the accident
are admittedly governmental activities."
After a careful examination of existing laws and
jurisprudence, We arrive at the conclusion that the
municipality cannot be held liable for the torts
committed by its regular employee, who was then
engaged in the discharge of governmental functions.
Hence, the death of the passenger –– tragic and
deplorable though it may be –– imposed on the
municipality no duty to pay monetary compensation.
All premises considered, the Court is convinced that
the respondent judge's dereliction in failing to resolve
the issue of non-suability did not amount to grave
abuse of discretion. But said judge exceeded his
jurisdiction when it ruled on the issue of liability.
ACCORDINGLY, the petition is GRANTED and the
decision of the respondent court is hereby modified,
absolving the petitioner municipality of any liability in
favor of private respondents.

SO ORDERED.
Case No. 003
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as
Presiding Judge of the Regional Trial Court of
Makati, Branch 61 and STARBRIGHT SALES
ENTERPRISES, INC., respondents.
Padilla Law Office for petitioner.
Siguion Reyna, Montecillo & Ongsiako for private
respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the
Revised Rules of Court to reverse and set aside the
Orders dated June 20, 1991 and September 19, 1991
of the Regional Trial Court, Branch 61, Makati, Metro
Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of
petitioner to dismiss the complaint in Civil Case No.
90-183, while the Order dated September 19, 1991
denied the motion for reconsideration of the June
20,1991 Order.
Petitioner is the Holy See who exercises sovereignty
over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc.,
is a domestic corporation engaged in the real estate
business.
This petition arose from a controversy over a parcel of
land consisting of 6,000 square meters (Lot 5-A,
Transfer Certificate of Title No. 390440) located in the
Municipality of Parañaque, Metro Manila and
registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which
are covered by Transfer Certificates of Title Nos.
271108 and 265388 respectively and registered in the
name of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through
Msgr. Domingo A. Cirilos, Jr., acting as agent to the
sellers. Later, Licup assigned his rights to the sale to
private respondent.
In view of the refusal of the squatters to vacate the
lots sold to private respondent, a dispute arose as to
who of the parties has the responsibility of evicting
and clearing the land of squatters. Complicating the
relations of the parties was the sale by petitioner of
Lot 5-A to Tropicana Properties and Development
Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a
complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of the
three parcels of land, and specific performance and
damages against petitioner, represented by the Papal
Nuncio, and three other defendants: namely, Msgr.
Domingo A. Cirilos, Jr., the PRC and Tropicana (Civil
Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988,
Msgr. Cirilos, Jr., on behalf of petitioner and the PRC,
agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D
at the price of P1,240.00 per square meters; (2) the
agreement to sell was made on the condition that
earnest money of P100,000.00 be paid by Licup to
the sellers, and that the sellers clear the said lots of
squatters who were then occupying the same; (3)
Licup paid the earnest money to Msgr. Cirilos; (4) in
the same month, Licup assigned his rights over the
property to private respondent and informed the
sellers of the said assignment; (5) thereafter, private
respondent demanded from Msgr. Cirilos that the
sellers fulfill their undertaking and clear the property
of squatters; however, Msgr. Cirilos informed private
respondent of the squatters' refusal to vacate the lots,
proposing instead either that private respondent
undertake the eviction or that the earnest money be
returned to the latter; (6) private respondent
counterproposed that if it would undertake the eviction
of the squatters, the purchase price of the lots should
be reduced from P1,240.00 to P1,150.00 per square
meter; (7) Msgr. Cirilos returned the earnest money of
P100,000.00 and wrote private respondent giving it
seven days from receipt of the letter to pay the
original purchase price in cash; (8) private respondent
sent the earnest money back to the sellers, but later
discovered that on March 30, 1989, petitioner and the
PRC, without notice to private respondent, sold the
lots to Tropicana, as evidenced by two separate
Deeds of Sale, one over Lot 5-A, and another over
Lots 5-B and 5-D; and that the sellers' transfer
certificate of title over the lots were cancelled,
transferred and registered in the name of Tropicana;
(9) Tropicana induced petitioner and the PRC to sell
the lots to it and thus enriched itself at the expense of
private respondent; (10) private respondent
demanded the rescission of the sale to Tropicana and
the reconveyance of the lots, to no avail; and (11)
private respondent is willing and able to comply with
the terms of the contract to sell and has actually made
plans to develop the lots into a townhouse project, but
in view of the sellers' breach, it lost profits of not less
than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment
of the Deeds of Sale between petitioner and the PRC
on the one hand, and Tropicana on the other; (2) the
reconveyance of the lots in question; (3) specific
performance of the agreement to sell between it and
the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos
separately moved to dismiss the complaint —
petitioner for lack of jurisdiction based on sovereign
immunity from suit, and Msgr. Cirilos for being an
improper party. An opposition to the motion was filed
by private respondent.
On June 20, 1991, the trial court issued an order
denying, among others, petitioner's motion to dismiss
after finding that petitioner "shed off [its] sovereign
immunity by entering into the business contract in
question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for
reconsideration of the order. On August 30, 1991,
petitioner filed a "Motion for a Hearing for the Sole
Purpose of Establishing Factual Allegation for claim of
Immunity as a Jurisdictional Defense." So as to
facilitate the determination of its defense of sovereign
immunity, petitioner prayed that a hearing be
conducted to allow it to establish certain facts upon
which the said defense is based. Private respondent
opposed this motion as well as the motion for
reconsideration.
On October 1, 1991, the trial court issued an order
deferring the resolution on the motion for
reconsideration until after trial on the merits and
directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its
petition, petitioner invokes the privilege of sovereign
immunity only on its own behalf and on behalf of its
official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was
filed before us by the Department of Foreign Affairs,
claiming that it has a legal interest in the outcome of
the case as regards the diplomatic immunity of
petitioner, and that it "adopts by reference, the
allegations contained in the petition of the Holy See
insofar as they refer to arguments relative to its claim
of sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the
Department of Foreign Affairs. In compliance with the
resolution of this Court, both parties and the
Department of Foreign Affairs submitted their
respective memoranda.
II
A preliminary matter to be threshed out is the
procedural issue of whether the petition
for certiorari under Rule 65 of the Revised Rules of
Court can be availed of to question the order denying
petitioner's motion to dismiss. The general rule is that
an order denying a motion to dismiss is not
reviewable by the appellate courts, the remedy of the
movant being to file his answer and to proceed with
the hearing before the trial court. But the general rule
admits of exceptions, and one of these is when it is
very clear in the records that the trial court has no
alternative but to dismiss the complaint (Philippine
National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114
[1992]. In such a case, it would be a sheer waste of
time and energy to require the parties to undergo the
rigors of a trial.
The other procedural question raised by private
respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case
in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or
international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the
Foreign Office of the state where it is sued to convey
to the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the
process of "suggestion," where the foreign state or
the international organization sued in an American
court requests the Secretary of State to make a
determination as to whether it is entitled to immunity.
If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney
General to submit to the court a "suggestion" that the
defendant is entitled to immunity. In England, a similar
procedure is followed, only the Foreign Office issues
a certification to that effect instead of submitting a
"suggestion" (O'Connell, I International Law 130
[1965]; Note: Immunity from Suit of Foreign Sovereign
Instrumentalities and Obligations, 50 Yale Law
Journal 1088 [1941]).
In the Philippines, the practice is for the foreign
government or the international organization to first
secure an executive endorsement of its claim of
sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to
the courts varies. In International Catholic Migration
Commission v. Calleja, 190 SCRA 130 (1990), the
Secretary of Foreign Affairs just sent a letter directly
to the Secretary of Labor and Employment, informing
the latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity.
In World Health Organization v. Aquino, 48 SCRA 242
(1972), the Secretary of Foreign Affairs sent the trial
court a telegram to that effect. In Baer v. Tizon, 57
SCRA 1 (1974), the U.S. Embassy asked the
Secretary of Foreign Affairs to request the Solicitor
General to make, in behalf of the Commander of the
United States Naval Base at Olongapo City,
Zambales, a "suggestion" to respondent Judge. The
Solicitor General embodied the "suggestion" in a
Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign
Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of
petitioner. The Court allowed the said Department to
file its memorandum in support of petitioner's claim of
sovereign immunity.
In some cases, the defense of sovereign immunity
was submitted directly to the local courts by the
respondents through their private counsels (Raquiza
v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948];
United States of America v. Guinto, 182 SCRA 644
[1990] and companion cases). In cases where the
foreign states bypass the Foreign Office, the courts
can inquire into the facts and make their own
determination as to the nature of the acts and
transactions involved.
III
The burden of the petition is that respondent trial
court has no jurisdiction over petitioner, being a
foreign state enjoying sovereign immunity. On the
other hand, private respondent insists that the
doctrine of non-suability is not anymore absolute and
that petitioner has divested itself of such a cloak
when, of its own free will, it entered into a commercial
transaction for the sale of a parcel of land located in
the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-
suability, a brief look into its status as a sovereign
state is in order.
Before the annexation of the Papal States by Italy in
1870, the Pope was the monarch and he, as the Holy
See, was considered a subject of International Law.
With the loss of the Papal States and the limitation of
the territory under the Holy See to an area of 108.7
acres, the position of the Holy See in International
Law became controversial (Salonga and Yap, Public
International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the
Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See
over the Vatican City. It also recognized the right of
the Holy See to receive foreign diplomats, to send its
own diplomats to foreign countries, and to enter into
treaties according to International Law (Garcia,
Questions and Problems In International Law, Public
and Private 81 [1948]).
The Lateran Treaty established the statehood of the
Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of
guaranteeing to it indisputable sovereignty also in the
field of international relations" (O'Connell, I
International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is
difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers
even suggested that the treaty created two
international persons — the Holy See and Vatican
City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established
categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from
that in which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz, International
Law 37 [1991]). In a community of national states, the
Vatican City represents an entity organized not for
political but for ecclesiastical purposes and
international objects. Despite its size and object, the
Vatican City has an independent government of its
own, with the Pope, who is also head of the Roman
Catholic Church, as the Holy See or Head of State, in
conformity with its traditions, and the demands of its
mission in the world. Indeed, the world-wide interests
and activities of the Vatican City are such as to make
it in a sense an "international state" (Fenwick, supra.,
125; Kelsen, Principles of International Law 160
[1956]).
One authority wrote that the recognition of the Vatican
City as a state has significant implication — that it is
possible for any entity pursuing objects essentially
different from those pursued by states to be invested
with international personality (Kunz, The Status of the
Holy See in International Law, 46 The American
Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign
relations and enter into transactions as the Holy See
and not in the name of the Vatican City, one can
conclude that in the Pope's own view, it is the Holy
See that is the international person.
The Republic of the Philippines has accorded the
Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has
had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to
be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987
Constitution, we have adopted the generally accepted
principles of International Law. Even without this
affirmation, such principles of International Law are
deemed incorporated as part of the law of the land as
a condition and consequence of our admission in the
society of nations (United States of America v. Guinto,
182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign
immunity, each widely held and firmly established.
According to the classical or absolute theory, a
sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign.
According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state, but
not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487
[1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).
Some states passed legislation to serve as guidelines
for the executive or judicial determination when an act
may be considered as jure gestionis. The United
States passed the Foreign Sovereign Immunities Act
of 1976, which defines a commercial activity as "either
a regular course of commercial conduct or a particular
commercial transaction or act." Furthermore, the law
declared that the "commercial character of the activity
shall be determined by reference to the nature of the
course of conduct or particular transaction or act,
rather than by reference to its purpose." The
Canadian Parliament enacted in 1982 an Act to
Provide For State Immunity in Canadian Courts. The
Act defines a "commercial activity" as any particular
transaction, act or conduct or any regular course of
conduct that by reason of its nature, is of a
"commercial character."
The restrictive theory, which is intended to be a
solution to the host of problems involving the issue of
sovereign immunity, has created problems of its own.
Legal treatises and the decisions in countries which
follow the restrictive theory have difficulty in
characterizing whether a contract of a sovereign state
with a private party is an act jure gestionis or an
act jure imperii.
The restrictive theory came about because of the
entry of sovereign states into purely commercial
activities remotely connected with the discharge of
governmental functions. This is particularly true with
respect to the Communist states which took control of
nationalized business activities and international
trading.
This Court has considered the following transactions
by a foreign state with private parties as acts jure
imperii: (1) the lease by a foreign government of
apartment buildings for use of its military officers
(Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct
of public bidding for the repair of a wharf at a United
States Naval Station (United States of America v.
Ruiz, supra.); and (3) the change of employment
status of base employees (Sanders v. Veridiano, 162
SCRA 88 [1988]).
On the other hand, this Court has considered the
following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook
in the recreation center, consisting of three
restaurants, a cafeteria, a bakery, a store, and a
coffee and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the
general public (United States of America v. Rodrigo,
182 SCRA 644 [1990]); and (2) the bidding for the
operation of barber shops in Clark Air Base in
Angeles City (United States of America v. Guinto, 182
SCRA 644 [1990]). The operation of the restaurants
and other facilities open to the general public is
undoubtedly for profit as a commercial and not a
governmental activity. By entering into the
employment contract with the cook in the discharge of
its proprietary function, the United States government
impliedly divested itself of its sovereign immunity from
suit.
In the absence of legislation defining what activities
and transactions shall be considered "commercial"
and as constituting acts jure gestionis, we have to
come out with our own guidelines, tentative they may
be.
Certainly, the mere entering into a contract by a
foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign
state is engaged in the activity in the regular course of
business. If the foreign state is not engaged regularly
in a business or trade, the particular act or transaction
must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof,
then it is an act jure imperii, especially when it is not
undertaken for gain or profit.
As held in United States of America v. Guinto,
(supra):
 There is no question that the United
States of America, like any other
state, will be deemed to have
impliedly waived its non-suability if
it has entered into a contract in its
proprietary or private capacity. It is
only when the contract involves its
sovereign or governmental capacity
that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold
lands in the ordinary course of a real estate business,
surely the said transaction can be categorized as an
act jure gestionis. However, petitioner has denied that
the acquisition and subsequent disposal of Lot 5-A
were made for profit but claimed that it acquired said
property for the site of its mission or the Apostolic
Nunciature in the Philippines. Private respondent
failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from
the Archdiocese of Manila. The donation was made
not for commercial purpose, but for the use of
petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign
sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized
in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 20-22). This treaty was concurred in
by the Philippine Senate and entered into force in the
Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy
is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action
relating to private immovable property situated in the
territory of the receiving state which the envoy holds
on behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic
envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in
this case is the Holy See.
The decision to transfer the property and the
subsequent disposal thereof are likewise clothed with
a governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off
the same because the squatters living thereon made
it almost impossible for petitioner to use it for the
purpose of the donation. The fact that squatters have
occupied and are still occupying the lot, and that they
stubbornly refuse to leave the premises, has been
admitted by private respondent in its complaint (Rollo,
pp. 26, 27).
The issue of petitioner's non-suability can be
determined by the trial court without going to trial in
the light of the pleadings, particularly the admission of
private respondent. Besides, the privilege of
sovereign immunity in this case was sufficiently
established by the Memorandum and Certification of
the Department of Foreign Affairs. As the department
tasked with the conduct of the Philippines' foreign
relations (Administrative Code of 1987, Book IV, Title
I, Sec. 3), the Department of Foreign Affairs has
formally intervened in this case and officially certified
that the Embassy of the Holy See is a duly accredited
diplomatic mission to the Republic of the Philippines
exempt from local jurisdiction and entitled to all the
rights, privileges and immunities of a diplomatic
mission or embassy in this country (Rollo, pp. 156-
157). The determination of the executive arm of
government that a state or instrumentality is entitled
to sovereign or diplomatic immunity is a political
question that is conclusive upon the courts
(International Catholic Migration Commission v.
Calleja, 190 SCRA 130 [1990]). Where the plea of
immunity is recognized and affirmed by the executive
branch, it is the duty of the courts to accept this claim
so as not to embarrass the executive arm of the
government in conducting the country's foreign
relations (World Health Organization v. Aquino, 48
SCRA 242 [1972]). As in International Catholic
Migration Commission and in World Health
Organization, we abide by the certification of the
Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the
case and order the trial court to conduct a hearing to
establish the facts alleged by petitioner in its motion.
In view of said certification, such procedure would
however be pointless and unduly circuitous (Ortigas &
Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No.
109645, July 25, 1994).
IV
Private respondent is not left without any legal
remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a
person who feels aggrieved by the acts of a foreign
sovereign can ask his own government to espouse
his cause through diplomatic channels.
Private respondent can ask the Philippine
government, through the Foreign Office, to espouse
its claims against the Holy See. Its first task is to
persuade the Philippine government to take up with
the Holy See the validity of its claims. Of course, the
Foreign Office shall first make a determination of the
impact of its espousal on the relations between the
Philippine government and the Holy See
(Young, Remedies of Private Claimants Against
Foreign States, Selected Readings on Protection by
Law of Private Foreign Investments 905, 919 [1964]).
Once the Philippine government decides to espouse
the claim, the latter ceases to be a private cause.
According to the Permanent Court of International
Justice, the forerunner of the International Court of
Justice:

By taking up the case of one of its

subjects and by reporting to
diplomatic action or international
judicial proceedings on his behalf, a
State is in reality asserting its own
rights — its right to ensure, in the
person of its subjects, respect for
the rules of international law (The
Mavrommatis Palestine
Concessions, 1 Hudson, World
Court Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED

and the complaint in Civil Case No. 90-183 against
petitioner is DISMISSED.

SO ORDERED.
Case No. 004
FIRST DIVISION
G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG), petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian
Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow
ADB worker Joyce Cabal, he was charged before the
Metropolitan Trial Court (MeTC) of Mandaluyong City
with two counts of grave oral defamation docketed as
Criminal Cases Nos. 53170 and 53171. Petitioner
was arrested by virtue of a warrant issued by the
MeTC. After fixing petitioner's bail at P2,400.00 per
criminal charge, the MeTC released him to the
custody of the Security Officer of ADB. The next day,
the MeTC judge received an "office of protocol" from
the Department of Foreign Affairs (DFA) stating that
petitioner is covered by immunity from legal process
under Section 45 of the Agreement between the ADB
and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in
the country. Based on the said protocol
communication that petitioner is immune from suit, the
MeTC judge without notice to the prosecution
dismissed the two criminal cases. The latter filed a
motion for reconsideration which was opposed by the
DFA. When its motion was denied, the prosecution
filed a petition for certiorari and mandamus with the
Regional Trial Court (RTC) of Pasig City which set
aside the MeTC rulings and ordered the latter court to
enforce the warrant of arrest it earlier issued. After the
motion for reconsideration was denied, petitioner
elevated the case to this Court viaa petition for review
arguing that he is covered by immunity under the
Agreement and that no preliminary investigation was
held before the criminal cases were filed in
court.1âwphi1.nêt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face
the communication from the DFA that petitioner is
covered by any immunity. The DFA's determination
that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In
receiving ex-parte the DFA's advice and in motu
propio dismissing the two criminal cases without
notice to the prosecution, the latter's right to due
process was violated. It should be noted that due
process is a right of the accused as much as it is of
the prosecution. The needed inquiry in what capacity
petitioner was acting at the time of the alleged
utterances requires for its resolution evidentiary basis
that has yet to be presented at the proper time.1 At
any rate, it has been ruled that the mere invocation of
the immunity clause does not ipso facto result in the
dropping of the charges.2
Second, under Section 45 of the Agreement which
provides:
Officers and staff of the Bank including for
the purpose of this Article experts and
consultants performing missions for the Bank
shall enjoy the following privileges and
immunities:
a.) immunity from legal process with
respect to acts performed by them
in their official capacity except when
the Bank waives the immunity.
the immunity mentioned therein is not absolute, but
subject to the exception that the acts was done in
"official capacity." It is therefore necessary to
determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have
been given the chance to rebut the DFA protocol and
it must be accorded the opportunity to present its
controverting evidence, should it so desire.
Third, slandering a person could not possibly be
covered by the immunity agreement because our laws
do not allow the commission of a crime, such as
defamation, in the name of official duty.3 The
imputation of theft is ultra vires and cannot be part of
official functions. It is well-settled principle of law that
a public official may be liable in his personal private
capacity for whatever damage he may have caused
by his act done with malice or in bad faith or beyond
the scope of his authority or jurisdiction.4 It appears
that even the government's chief legal counsel, the
Solicitor General, does not support the stand taken by
petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic
Relations, a diplomatic agent, assuming petitioner is
such, enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating
to any professional or commercial activity exercised
by the diplomatic agent in the receiving state outside
his official functions.5 As already mentioned above,
the commission of a crime is not part of official duty.
Finally, on the contention that there was no
preliminary investigation conducted, suffice it to say
that preliminary investigation is not a matter of right in
cases cognizable by the MeTC such as the one at
bar.6 Being purely a statutory right, preliminary
investigation may be invoked only when specifically
granted by law.7 The rule on the criminal procedure is
clear that no preliminary investigation is required in
cases falling within the jurisdiction of the
MeTC.8 Besides the absence of preliminary
investigation does not affect the court's jurisdiction nor
does it impair the validity of the information or
otherwise render it defective.9
WHEREFORE, the petition is DENIED.
SO ORDERED.1âwphi1.nêt
Concurring Opinions
PUNO, J., concurring:
For resolution is the Motion for Reconsideration filed
by petitioner Jeffrey Liang of this Court's decision
dated January 28, 2000 which denied the petition for
review. We there held that: the protocol
communication of the Department of Foreign Affairs
to the effect that petitioner Liang is covered by
immunity is only preliminary and has no binding effect
in courts; the immunity provided for under Section
45(a) of the Headquarters Agreement is subject to the
condition that the act be done in an "official capacity";
that slandering a person cannot be said to have been
done in an "official capacity" and, hence, it is not
covered by the immunity agreement; under the
Vienna Convention on Diplomatic Relations, a
diplomatic agent, assuming petitioner is such, enjoys
immunity from criminal jurisdiction of the receiving
state except in the case of an action relating to any
professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his
official functions; the commission of a crime is not part
of official duty; and that a preliminary investigation is
not a matter of right in cases cognizable by the
Metropolitan Trial Court.
Petitioner's motion for reconsideration is anchored on
the following arguments:
1. The DFA's determination of immunity is a
political question to be made by the
executive branch of the government and is
conclusive upon the courts;
2. The immunity of international
organizations is absolute;
3. The immunity extends to all staff of the
Asian Development Bank (ADB);
4. Due process was fully accorded the
complainant to rebut the DFA protocol;
5. The decision of January 28, 2000
erroneously made a finding of fact on the
merits, namely, the slandering of a person
which prejudged petitioner's case before the
Metropolitan Trial Court (MTC)
Mandaluyong; and
6. The Vienna Convention on diplomatic
relations is not applicable to this case.
Petitioner contends that a determination of a person's
diplomatic immunity by the Department of Foreign
Affairs is a political question. It is solely within the
prerogative of the executive department and is
conclusive upon the courts. In support of his
submission, petitioner cites the following cases: WHO
vs. Aquino;1 International Catholic Migration
Commission vs. Calleja;2 The Holy See vs. Rosario,
Jr.;3 Lasco vs. United Nations;4 and DFA vs. NLRC.5
It is further contended that the immunity conferred
under the ADB Charter and the Headquarters
Agreement is absolute. It is designed to safeguard the
autonomy and independence of international
organizations against interference from any authority
external to the organizations. It is necessary to allow
such organizations to discharge their entrusted
functions effectively. The only exception to this
immunity is when there is an implied or express
waiver or when the immunity is expressly limited by
statute. The exception allegedly has no application to
the case at bar.
Petitioner likewise urges that the international
organization's immunity from local jurisdiction
empowers the ADB alone to determine what
constitutes "official acts" and the same cannot be
subject to different interpretations by the member
states. It asserts that the Headquarters Agreement
provides for remedies to check abuses against the
exercise of the immunity. Thus, Section 49 states that
the "Bank shall waive the immunity accorded to any
person if, in its opinion, such immunity would impede
the course of justice and the waiver would not
prejudice the purposes for which the immunities are
accorded." Section 51 allows for consultation between
the government and the Bank should the government
consider that an abuse has occurred. The same
section provides the mechanism for a dispute
settlement regarding, among others, issues of
interpretation or application of the agreement.
Petitioner's argument that a determination by the
Department of Foreign Affairs that he is entitled to
diplomatic immunity is a political question binding on
the courts, is anchored on the ruling enunciated in the
case of WHO, et al. vs. Aquino, et al.,6 viz:
"It is a recognized principle of international
law and under our system of separation of
powers that diplomatic immunity is
essentially a political question and courts
should refuse to look beyond a determination
by the executive branch of the government,
and where the plea of diplomatic immunity is
recognized and affirmed by the executive
branch of the government as in the case at
bar, it is then the duty of the courts to accept
the claim of immunity upon appropriate
suggestion by the principal law officer of the
government, the Solicitor General in this
case, or other officer acting under his
direction. Hence, in adherence to the settled
principle that courts may not so exercise
their jurisdiction by seizure and detention of
property, as to embarrass the executive arm
of the government in conducting foreign
relations, it is accepted doctrine that in such
cases the judicial department of the
government follows the action of the political
branch and will not embarrass the latter by
assuming an antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases
of International Catholic Migration Commission vs.
Calleja;7 The Holy See vs. Rosario, Jr.;8 Lasco vs.
UN;9 and DFA vs. NLRC.10
The case of WHO vs. Aquino involved the search and
seizure of personal effects of petitioner Leonce
Verstuyft, an official of the WHO. Verstuyft was
certified to be entitled to diplomatic immunity pursuant
to the Host Agreement executed between the
Philippines and the WHO.
ICMC vs. Calleja concerned a petition for certification
election filed against ICMC and IRRI. As international
organizations, ICMC and IRRI were declared to
possess diplomatic immunity. It was held that they are
not subject to local jurisdictions. It was ruled that the
exercise of jurisdiction by the Department of Labor
over the case would defeat the very purpose of
immunity, which is to shield the affairs of international
organizations from political pressure or control by the
host country and to ensure the unhampered
performance of their functions.
Holy See v. Rosario, Jr. involved an action for
annulment of sale of land against the Holy See, as
represented by the Papal Nuncio. The Court upheld
the petitioner's defense of sovereign immunity. It ruled
that where a diplomatic envoy is granted immunity
from the civil and administrative jurisdiction of the
receiving state over any real action relating to private
immovable property situated in the territory of the
receiving state, which the envoy holds on behalf of
the sending state for the purposes of the mission, with
all the more reason should immunity be recognized as
regards the sovereign itself, which in that case is the
Holy See.
In Lasco vs. United Nations, the United Nations
Revolving Fund for Natural Resources Exploration
was sued before the NLRC for illegal dismissal. The
Court again upheld the doctrine of diplomatic
immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal
case filed against the Asian Development Bank.
Pursuant to its Charter and the Headquarters
Agreement, the diplomatic immunity of the Asian
Development Bank was recognized by the Court.
It bears to stress that all of these cases pertain to the
diplomatic immunity enjoyed by international
organizations. Petitioner asserts that he is entitled to
the same diplomatic immunity and he cannot be
prosecuted for acts allegedly done in the exercise of
his official functions.
The term "international organizations" —
"is generally used to describe an
organization set up by agreement between
two or more states. Under contemporary
international law, such organizations are
endowed with some degree of international
legal personality such that they are capable
of exercising specific rights, duties and
powers. They are organized mainly as a
means for conducting general international
business in which the member states have
an interest."11
International public officials have been defined as:
". . . persons who, on the basis of an
international treaty constituting a particular
international community, are appointed by
this international community, or by an organ
of it, and are under its control to exercise, in
a continuous way, functions in the interest of
this particular international community, and
who are subject to a particular personal
status."12
"Specialized agencies" are international
organizations having functions in particular fields,
such as posts, telecommunications, railways,
canals, rivers, sea transport, civil aviation,
meteorology, atomic energy, finance, trade,
education and culture, health and refugees.13
Issues
1. Whether petitioner Liang, as an official of
an international organization, is entitled to
diplomatic immunity;
2. Whether an international official is immune
from criminal jurisdiction for all acts, whether
private or official;
3. Whether the authority to determine if an
act is official or private is lodged in the
courts;
4. Whether the certification by the
Department of Foreign Affairs that petitioner
is covered by immunity is a political question
that is binding and conclusive on the courts.
Discussion
I and it can be waived without prejudice to the
A perusal of the immunities provisions in various
international conventions and agreements will show
that the nature and degree of immunities vary
depending on who the recipient is. Thus:
1. Charter of the United Nations
"Article 105 (1): The Organization shall enjoy
in the territory of each of its Members such
privileges and immunities as are necessary
for the fulfillment of its purposes.
Article 105 (2): Representatives of the
Members of the United Nations and officials
of the Organization shall similarly enjoy such
privileges and immunities as are necessary
for the independent exercise of their
functions in connection with the
Organization."
2. Convention on the Privileges and
Immunities of the United Nations
"Section 2: The United Nations, its property
and assets wherever located and by
whomsoever held, shall enjoy immunity from
every form of legal process except insofar as
in any particular case it has expressly
waived its immunity. It is, however,
understood that no waiver of immunity shall
extend to any measure of execution.
xxx xxx xxx
Section 11 (a): Representatives of Members
to the principal and subsidiary organs of the
United Nations . . shall . . . enjoy . . .
immunity from personal arrest or detention
and from seizure of their personal baggage,
and, in respect of words spoken or written
and all acts done by them in their capacity as
representatives, immunity from legal process
of every kind.
xxx xxx xxx
Section 14: Privileges and immunities are
accorded to the representatives of Members
not for the personal benefit of the individuals
themselves, but in order to safeguard the
independent exercise of their functions in
connection with the United Nations.
Consequently, a Member not only has the
right but is under a duty to waive the
immunity of its representative in any case
where in the opinion of the Member the
immunity would impede the course of justice,
purpose for which the immunity is accorded.
xxx xxx xxx
Section 18 (a): Officials of the United Nations
shall be immune from legal process in
respect of words spoken or written and all
acts performed by them in their official
capacity.
xxx xxx xxx
Section 19: In addition to the immunities and
privileges specified in Section 18, the
Secretary-General and all Assistant
Secretaries-General shall be accorded in
respect of themselves, their spouses and
minor children, the privileges and
immunities, exemptions and facilities
accorded to diplomatic envoys, in
accordance with international law.
Section 20: Privileges and immunities are
granted to officials in the interest of the
United Nations and not for the personal
benefit of the individuals themselves. The
Secretary-General shall have the right and
the duty to waive the immunity of any official
in any case where, in his opinion, the
immunity would impede the course of justice
and can be waived without prejudice to the
interests of the United Nations.
xxx xxx xxx
Section 22: Experts . . . performing missions
for the United Nations . . . shall be accorded:
(a) immunity from personal arrest or
detention and from seizure of their personal
baggage; (b) in respect of words spoken or
written and acts done by them in the course
of the performance of their mission, immunity
from legal process of every kind."
3. Vienna Convention on Diplomatic
Relations
"Article 29: The person of a diplomatic agent
shall be inviolable. He shall not be liable to
any form of arrest or detention. The receiving
State shall treat him with due respect and
shall take all appropriate steps to prevent
any attack on his person, freedom, or dignity.
xxx xxx xxx
Article 31 (1): A diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity
from its civil and administrative jurisdiction,
except in certain cases.
xxx xxx xxx
Article 38 (1): Except in so far as additional
privileges and immunities may be granted by
the receiving State, a diplomatic agent who
is a national of or permanently a resident in
that State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of
official acts performed in the exercise of his
functions."
4. Vienna Convention on Consular Relations
"Article 41 (1): Consular officials shall not be
liable to arrest or detention pending trial,
except in the case of a grave crime and
pursuant to a decision by the competent
judicial authority.
xxx xxx xxx
Article 43 (1): Consular officers and consular
employees shall not be amenable to the
jurisdiction of the judicial or administrative
authorities of the receiving State in respect
of acts performed in the exercise of consular
functions.
Article 43 (2): The provisions of paragraph 1
of this Article shall not, however, apply in
respect of a civil action either: (a) arising out
of a contract concluded by a consular officer
or a consular employee in which he did not
contract expressly or impliedly as an agent
of the sending State; or (b) by a third party
for damage arising from an accident in the
receiving State caused by a vehicle, vessel
or aircraft."
5. Convention on the Privileges and
Immunities of the Specialized Agencies
"Section 4: The specialized agencies, their
property and assets, wherever located and
by whomsoever held, shall enjoy immunity
from every form of legal process except in so
far as in any particular case they have
expressly waived their immunity. It is,
however, understood that no waiver of
immunity shall extend to any measure of
execution.
Section 13 (a): Representatives of members
at meetings convened by a specialized
agency shall, while exercising their functions
and during their journeys to and from the
place of meeting, enjoy immunity from
personal arrest or detention and from seizure
of their personal baggage, and in respect of
words spoken or written and all acts done by
them in their official capacity, immunity from
legal process of every kind.
xxx xxx xxx
Section 19 (a): Officials of the specialized
agencies shall be immune from legal
process in respect of words spoken or
written and all acts performed by them in
their official capacity.
xxx xxx xxx
Section 21: In addition to the immunities and
privileges specified in sections 19 and 20,
the executive head of each specialized
agency, including a any official acting on his
behalf during his absence from duty, shall be
accorded in respect of himself, his spouse
and minor children, the privileges and
immunities, exemptions and facilities
accorded to diplomatic envoys, in
accordance with international law."
6. Charter of the ADB
"Article 50 (1): The Bank shall enjoy
immunity from every form of legal process,
except in cases arising out of or in
connection with the exercise of its powers to
borrow money, to guarantee obligations, or
to buy and sell or underwrite the sale of
securities, in which cases actions may be
brought against the Bank in a court of
competent jurisdiction in the territory of a
country in which the Bank has its principal or
a branch office, or has appointed an agent
for the purpose of accepting service or notice
of process, or has issued or guaranteed
securities.
xxx xxx xxx
Article 55 (i): All Governors, Directors,
alternates, officers and employees of the
Bank, including experts performing missions
for the Bank shall be immune from legal
process with respect to acts performed by
them in their official capacity, except when
the Bank waives the immunity."
7. ADB Headquarters Agreement
"Section 5: The Bank shall enjoy immunity
from every form of legal process, except in
cases arising out of or in connection with the
exercise of its powers to borrow money, to
guarantee obligations, or to buy and sell or
underwrite the sale of securities, in which
cases actions may be brought against the
Bank in a court of competent jurisdiction in
the Republic of the Philippines.
xxx xxx xxx
Section 44: Governors, other representatives
of Members, Directors, the President, Vice-
President and executive officers as may be
agreed upon between the Government and
the Bank shall enjoy, during their stay in the
Republic of the Philippines in connection
with their official duties with the Bank: (a)
immunity from personal arrest or detention
and from seizure of their personal baggage;
(b) immunity from legal process of every kind
in respect of words spoken or written and all
acts done by them in their official capacity;
and (c) in respect of other matters not
covered in (a) and (b) above, such other
immunities, exemptions, privileges and
facilities as are enjoyed by members of
diplomatic missions of comparable rank,
subject to corresponding conditions and
obligations.
Section 45 (a): Officers and staff of the Bank,
including for the purposes of this Article
experts and consultants performing missions
for the Bank, shall enjoy . . . immunity from
legal process with respect to acts performed
by them in their official capacity, except
when the Bank waives the immunity."
II
There are three major differences between diplomatic
and international immunities. Firstly, one of the
recognized limitations of diplomatic immunity is that
members of the diplomatic staff of a mission may be
appointed from among the nationals of the receiving
State only with the express consent of that State;
apart from inviolability and immunity from jurisdiction
in respect of official acts performed in the exercise of
their functions, nationals enjoy only such privileges
and immunities as may be granted by the receiving
State. International immunities may be specially
important in relation to the State of which the official is
a national. Secondly, the immunity of a diplomatic
agent from the jurisdiction of the receiving State does
not exempt him from the jurisdiction of the sending
State; in the case of international immunities there is
no sending State and an equivalent for the jurisdiction
of the Sending State therefore has to be found either
in waiver of immunity or in some international
disciplinary or judicial procedure. Thirdly, the effective
sanctions which secure respect for diplomatic
immunity are the principle of reciprocity and the
danger of retaliation by the aggrieved State;
international immunities enjoy no similar protection. 14
The generally accepted principles which are now
regarded as the foundation of international immunities
are contained in the ILO Memorandum, which
reduced them in three basic propositions, namely: (1)
that international institutions should have a status
which protects them against control or interference by
any one government in the performance of functions
for the effective discharge of which they are
responsible to democratically constituted international
bodies in which all the nations concerned are
represented; (2) that no country should derive any
financial advantage by levying fiscal charges on
common international funds; and (3) that the
international organization should, as a collectivity of
States Members, be accorded the facilities for the
conduct of its official business customarily extended
to each other by its individual member States. The
thinking underlying these propositions is essentially
institutional in character. It is not concerned with the
status, dignity or privileges of individuals, but with the
elements of functional independence necessary to
free international institutions from national control and
to enable them to discharge their responsibilities
impartially on behalf of all their members.15
III
Positive international law has devised three methods
of granting privileges and immunities to the personnel
of international organizations. The first is by simple
conventional stipulation, as was the case in the
Hague Conventions of 1899 and 1907. The second is
by internal legislation whereby the government of a
state, upon whose territory the international
organization is to carry out its functions, recognizes
the international character of the organization and
grants, by unilateral measures, certain privileges and
immunities to better assure the successful functioning
of the organization and its personnel. In this situation,
treaty obligation for the state in question to grant
concessions is lacking. Such was the case with the
Central Commission of the Rhine at Strasbourg and
the International Institute of Agriculture at Rome.
The third is a combination of the first two. In this third
method, one finds a conventional obligation to
recognize a certain status of an international
organization and its personnel, but the status is
described in broad and general terms. The specific
definition and application of those general terms are
determined by an accord between the organization
itself and the state wherein it is located. This is the
case with the League of Nations, the Permanent
Court of Justice, and the United Nations.16
The Asian Development Bank and its Personnel fall
under this third category.
There is a connection between diplomatic privileges
and immunities and those extended to international
officials. The connection consists in the granting, by
contractual provisions, of the relatively well-
established body of diplomatic privileges and
immunities to international functionaries. This
connection is purely historical. Both types of officials
find the basis of their special status in the necessity of
retaining functional independence and freedom from
interference by the state of residence. However, the
legal relationship between an ambassador and the
state to which he is accredited is entirely different
from the relationship between the international official
and those states upon whose territory he might carry
out his functions.17
The privileges and immunities of diplomats and those
of international officials rest upon different legal
foundations. Whereas those immunities awarded to
diplomatic agents are a right of the sending state
based on customary international law, those granted
to international officials are based on treaty or
conventional law. Customary international law places
no obligation on a state to recognize a special status
of an international official or to grant him jurisdictional
immunities. Such an obligation can only result from
specific treaty provisions.18
The special status of the diplomatic envoy is
regulated by the principle of reciprocity by which a
state is free to treat the envoy of another state as its
envoys are treated by that state. The juridical basis of
the diplomat's position is firmly established in
customary international law. The diplomatic envoy is
appointed by the sending State but it has to make
certain that the agreement of the receiving State has
been given for the person it proposes to accredit as
head of the mission to that State.19
The staff personnel of an international organization —
the international officials — assume a different
position as regards their special status. They are
appointed or elected to their position by the
organization itself, or by a competent organ of it; they
are responsible to the organization and their official
acts are imputed to it. The juridical basis of their
special position is found in conventional law,20 since
there is no established basis of usage or custom in
the case of the international official. Moreover, the
relationship between an international organization and
a member-state does not admit of the principle of
reciprocity,21 for it is contradictory to the basic
principle of equality of states. An international
organization carries out functions in the interest of
every member state equally. The international official
does not carry out his functions in the interest of any
state, but in serving the organization he serves,
indirectly, each state equally. He cannot be, legally,
the object of the operation of the principle of
reciprocity between states under such circumstances.
It is contrary to the principle of equality of states for
one state member of an international organization to
assert a capacity to extract special privileges for its
nationals from other member states on the basis of a
status awarded by it to an international organization. It
is upon this principle of sovereign equality that
international organizations are built.
It follows from this same legal circumstance that a
state called upon to admit an official of an
international organization does not have a capacity to
declare him persona non grata.
The functions of the diplomat and those of the
international official are quite different. Those of the
diplomat are functions in the national interest. The
task of the ambassador is to represent his state, and
its specific interest, at the capital of another state. The
functions of the international official are carried out in
the international interest. He does not represent a
state or the interest of any specific state. He does not
usually "represent" the organization in the true sense
of that term. His functions normally are administrative,
although they may be judicial or executive, but they
are rarely political or functions of representation, such
as those of the diplomat.
There is a difference of degree as well as of kind. The
interruption of the activities of a diplomatic agent is
likely to produce serious harm to the purposes for
which his immunities were granted. But the
interruption of the activities of the international official
does not, usually, cause serious dislocation of the
functions of an international secretariat.22
On the other hand, they are similar in the sense that
acts performed in an official capacity by either a
diplomatic envoy or an international official are not
attributable to him as an individual but are imputed to
the entity he represents, the state in the case of the
diplomat, and the organization in the case of the
international official.2
IV
Looking back over 150 years of privileges and
immunities granted to the personnel of international
organizations, it is clear that they were accorded a
wide scope of protection in the exercise of their
functions — The Rhine Treaty of 1804 between the
German Empire and France which provided "all the
rights of neutrality" to persons employed in regulating
navigation in the international interest; The Treaty of
Berlin of 1878 which granted the European
Commission of the Danube "complete independence
of territorial authorities" in the exercise of its functions;
The Covenant of the League which granted
"diplomatic immunities and privileges." Today, the age
of the United Nations finds the scope of protection
narrowed. The current tendency is to reduce
privileges and immunities of personnel of international
organizations to a minimum. The tendency cannot be
considered as a lowering of the standard but rather as
a recognition that the problem on the privileges and
immunities of international officials is new. The
solution to the problem presented by the extension of
diplomatic prerogatives to international functionaries
lies in the general reduction of the special position of
both types of agents in that the special status of each
agent is granted in the interest of function. The wide
grant of diplomatic prerogatives was curtailed
because of practical necessity and because the
proper functioning of the organization did not require
such extensive immunity for its officials. While the
current direction of the law seems to be to narrow the
prerogatives of the personnel of international
organizations, the reverse is true with respect to the
prerogatives of the organizations themselves,
considered as legal entities. Historically, states have
been more generous in granting privileges and
immunities to organizations than they have to the
personnel of these organizations.24
Thus, Section 2 of the General Convention on the
Privileges and Immunities of the United Nations states
that the UN shall enjoy immunity from every form of
legal process except insofar as in any particular case
it has expressly waived its immunity. Section 4 of the
Convention on the Privileges and Immunities of the
Specialized Agencies likewise provides that the
specialized agencies shall enjoy immunity from every
form of legal process subject to the same exception.
Finally, Article 50(1) of the ADB Charter and Section 5
of the Headquarters Agreement similarly provide that
the bank shall enjoy immunity from every form of legal
process, except in cases arising out of or in
connection with the exercise of its powers to borrow
money, to guarantee obligations, or to buy and sell or
underwrite the sale of securities.
The phrase "immunity from every form of legal
process" as used in the UN General Convention has
been interpreted to mean absolute immunity from a
state's jurisdiction to adjudicate or enforce its law by
legal process, and it is said that states have not
sought to restrict that immunity of the United Nations
by interpretation or amendment. Similar provisions
are contained in the Special Agencies Convention as
well as in the ADB Charter and Headquarters
Agreement. These organizations were accorded
privileges and immunities in their charters by
language similar to that applicable to the United
Nations. It is clear therefore that these organizations
were intended to have similar privileges and
immunities.25 From this, it can be easily deduced that
international organizations enjoy absolute immunity
similar to the diplomatic prerogatives granted to
diplomatic envoys.
Even in the United States this theory seems to be the
prevailing rule. The Foreign Sovereign Immunities Act
was passed adopting the "restrictive theory" limiting
the immunity of states under international law
essentially to activities of a kind not carried on by
private persons. Then the International Organizations
Immunities Act came into effect which gives to
designated international organizations the same
immunity from suit and every form of judicial process
as is enjoyed by foreign governments. This gives the
impression that the Foreign Sovereign Immunities Act
has the effect of applying the restrictive theory also to
international organizations generally. However, aside
from the fact that there was no indication in its
legislative history that Congress contemplated that
result, and considering that the Convention on
Privileges and Immunities of the United Nations
exempts the United Nations "from every form of legal
process," conflict with the United States obligations
under the Convention was sought to be avoided by
interpreting the Foreign Sovereign Immunities Act,
and the restrictive theory, as not applying to suits
against the United Nations.26
On the other hand, international officials are governed
by a different rule. Section 18(a) of the General
Convention on Privileges and Immunities of the
United Nations states that officials of the United
Nations shall be immune from legal process in
respect of words spoken or written and all acts
performed by them in their official capacity. The
Convention on Specialized Agencies carries exactly
the same provision. The Charter of the ADB provides
under Article 55(i) that officers and employees of the
bank shall be immune from legal process with respect
to acts performed by them in their official capacity
except when the Bank waives immunity. Section 45
(a) of the ADB Headquarters Agreement accords the
same immunity to the officers and staff of the bank.
There can be no dispute that international officials are
entitled to immunity only with respect to acts
performed in their official capacity, unlike international
organizations which enjoy absolute immunity.
Clearly, the most important immunity to an
international official, in the discharge of his
international functions, is immunity from local
jurisdiction. There is no argument in doctrine or
practice with the principle that an international official
is independent of the jurisdiction of the local
authorities for his official acts. Those acts are not his,
but are imputed to the organization, and without
waiver the local courts cannot hold him liable for
them. In strict law, it would seem that even the
organization itself could have no right to waive an
official's immunity for his official acts. This permits
local authorities to assume jurisdiction over an
individual for an act which is not, in the wider sense of
the term, his act at all. It is the organization itself, as a
juristic person, which should waive its own immunity
and appear in court, not the individual, except insofar
as he appears in the name of the organization.
Provisions for immunity from jurisdiction for official
acts appear, aside from the aforementioned treatises,
in the constitution of most modern international
organizations. The acceptance of the principle is
sufficiently widespread to be regarded as declaratory
of international law.27
V organization and the member states as provided in
What then is the status of the international official with
respect to his private acts?
Section 18 (a) of the General Convention has been
interpreted to mean that officials of the specified
categories are denied immunity from local jurisdiction
for acts of their private life and empowers local courts
to assume jurisdiction in such cases without the
necessity of waiver.28 It has earlier been mentioned
that historically, international officials were granted
diplomatic privileges and immunities and were thus
considered immune for both private and official acts.
In practice, this wide grant of diplomatic prerogatives
was curtailed because of practical necessity and
because the proper functioning of the organization did
not require such extensive immunity for its
officials. Thus, the current status of the law does not
maintain that states grant jurisdictional immunity to
international officials for acts of their private
lives.29 This much is explicit from the Charter and
Headquarters Agreement of the ADB which contain
substantially similar provisions to that of the General
Convention.
VI
Who is competent to determine whether a given act is
private or official?
This is an entirely different question. In connection
with this question, the current tendency to narrow the
scope of privileges and immunities of international
officials and representatives is most apparent. Prior to
the regime of the United Nations, the determination of
this question rested with the organization and its
decision was final. By the new formula, the state itself
tends to assume this competence. If the organization
is dissatisfied with the decision, under the provisions
of the General Convention of the United States, or the
Special Convention for Specialized Agencies, the
Swiss Arrangement, and other current dominant
instruments, it may appeal to an international tribunal
by procedures outlined in those instruments. Thus,
the state assumes this competence in the first
instance. It means that, if a local court assumes
jurisdiction over an act without the necessity of waiver
from the organization, the determination of the nature
of the act is made at the national level.30
It appears that the inclination is to place the
competence to determine the nature of an act as
private or official in the courts of the state concerned.
That the prevalent notion seems to be to leave to the
local courts determination of whether or not a given
act is official or private does not necessarily mean
that such determination is final. If the United Nations
questions the decision of the Court, it may invoke
proceedings for settlement of disputes between the
Section 30 of the General Convention. Thus, the
decision as to whether a given act is official or private
is made by the national courts in the first instance, but
it may be subjected to review in the international level
if questioned by the United Nations.31
A similar view is taken by Kunz, who writes that the
"jurisdiction of local courts without waiver for acts of
private life empowers the local courts to determine
whether a certain act is an official act or an act of
private life," on the rationale that since the
determination of such question, if left in the hands of
the organization, would consist in the execution, or
non-execution, of waiver, and since waiver is not
mentioned in connection with the provision granting
immunities to international officials, then the decision
must rest with local courts.32
Under the Third Restatement of the Law, it is
suggested that since an international official does not
enjoy personal inviolability from arrest or detention
and has immunity only with respect to official acts, he
is subject to judicial or administrative process and
must claim his immunity in the proceedings by
showing that the act in question was an official act.
Whether an act was performed in the individual's
official capacity is a question for the court in which a
proceeding is brought, but if the international
organization disputes the court's finding, the dispute
between the organization and the state of the forum is
to be resolved by negotiation, by an agreed mode of
settlement or by advisory opinion of the International
Court of Justice.33

Recognizing the difficulty that by reason of the right of

a national court to assume jurisdiction over private
acts without a waiver of immunity, the determination
of the official or private character of a particular act
may pass from international to national control, Jenks
proposes three ways of avoiding difficulty in the
matter. The first would be for a municipal court before
which a question of the official or private character of
a particular act arose to accept as conclusive in the
matter any claim by the international organization that
the act was official in character, such a claim being
regarded as equivalent to a governmental claim that a
particular act is an act of State. Such a claim would
be in effect a claim by the organization that the
proceedings against the official were a violation of the
jurisdictional immunity of the organization itself which
is unqualified and therefore not subject to delimitation
in the discretion of the municipal court.
The second would be for a court to accept as
conclusive in the matter a statement by the executive
government of the country where the matter arises
certifying the official character of the act.
The thirdwould be to have recourse to the procedure
of international arbitration. Jenks opines that it is
possible that none of these three solutions would be
applicable in all cases; the first might be readily
acceptable only in the clearest cases and the second
is available only if the executive government of the
country where the matter arises concurs in the view of
the international organization concerning the official
character of the act. However, he surmises that taken
in combination, these various possibilities may afford
the elements of a solution to the problem.34

One final point. The international official's immunity for

official acts may be likened to a consular official's
immunity from arrest, detention, and criminal or civil
process which is not absolute but applies only to acts
or omissions in the performance of his official
functions, in the absence of special agreement. Since
a consular officer is not immune from all legal
process, he must respond to any process and plead
and prove immunity on the ground that the act or
omission underlying the process was in the
performance of his official functions. The issue has
not been authoritatively determined, but apparently
the burden is on the consular officer to prove his
status as well as his exemption in the circumstances.
In the United States, the US Department of State
generally has left it to the courts to determine whether
a particular act was within a consular officer's official
duties.35
Case No. 005
EN BANC
G.R. No. 154705 June 26, 2003
THE REPUBLIC OF INDONESIA, HIS
EXCELLENCY AMBASSADOR SOERATMIN, and
MINISTER COUNSELLOR AZHARI
KASIM, Petitioners,
vs.
JAMES VINZON, doing business under the name
and style of VINZON TRADE AND
SERVICES, Respondent.
DECISION
AZCUNA, J:
This is a petition for review on certiorari to set aside
the Decision of the Court of Appeals dated May 30,
2002 and its Resolution dated August 16, 2002, in
CA-G.R. SP No. 66894 entitled "The Republic of
Indonesia, His Excellency Ambassador Soeratmin
and Minister Counselor Azhari Kasim v. Hon. Cesar
Santamaria, Presiding Judge, RTC Branch 145,
Makati City, and James Vinzon, doing business under
the name and style of Vinzon Trade and Services."
Petitioner, Republic of Indonesia, represented by its
Counsellor, Siti Partinah, entered into a Maintenance
Agreement in August 1995 with respondent James
Vinzon, sole proprietor of Vinzon Trade and Services.
The Maintenance Agreement stated that respondent
shall, for a consideration, maintain specified
equipment at the Embassy Main Building, Embassy
Annex Building and the Wisma Duta, the official
residence of petitioner Ambassador Soeratmin. The
equipment covered by the Maintenance Agreement
are air conditioning units, generator sets, electrical
facilities, water heaters, and water motor pumps. It is
likewise stated therein that the agreement shall be
effective for a period of four years and will renew itself
automatically unless cancelled by either party by
giving thirty days prior written notice from the date of
expiry.1
Petitioners claim that sometime prior to the date of
expiration of the said agreement, or before August
1999, they informed respondent that the renewal of
the agreement shall be at the discretion of the
incoming Chief of Administration, Minister Counsellor
Azhari Kasim, who was expected to arrive in February
2000. When Minister Counsellor Kasim assumed the
position of Chief of Administration in March 2000, he
allegedly found respondent’s work and services
unsatisfactory and not in compliance with the
standards set in the Maintenance Agreement. Hence,
the Indonesian Embassy terminated the agreement in
a letter dated August 31, 2000.2 Petitioners claim,
moreover, that they had earlier verbally informed
respondent of their decision to terminate the
agreement.
On the other hand, respondent claims that the
aforesaid termination was arbitrary and unlawful.
Respondent cites various circumstances which
purportedly negated petitioners’ alleged
dissatisfaction over respondent’s services: (a) in July
2000, Minister Counsellor Kasim still requested
respondent to assign to the embassy an additional
full-time worker to assist one of his other workers; (b)
in August 2000, Minister Counsellor Kasim asked
respondent to donate a prize, which the latter did, on
the occasion of the Indonesian Independence Day
golf tournament; and (c) in a letter dated August 22,
2000, petitioner Ambassador Soeratmin thanked
respondent for sponsoring a prize and expressed his
hope that the cordial relations happily existing
between them will continue to prosper and be
strengthened in the coming years.
Hence, on December 15, 2000, respondent filed a
complaint3 against petitioners docketed as Civil Case
No. 18203 in the Regional Trial Court (RTC) of
Makati, Branch 145. On February 20, 2001,
petitioners filed a Motion to Dismiss, alleging that the
Republic of Indonesia, as a foreign sovereign State,
has sovereign immunity from suit and cannot be sued
as a party-defendant in the Philippines. The said
motion further alleged that Ambassador Soeratmin
and Minister Counsellor Kasim are diplomatic agents
as defined under the Vienna Convention on
Diplomatic Relations and therefore enjoy diplomatic
immunity.4 In turn, respondent filed on March 20,
2001, an Opposition to the said motion alleging that
the Republic of Indonesia has expressly waived its
immunity from suit. He based this claim upon the
following provision in the Maintenance Agreement:
"Any legal action arising out of this Maintenance
Agreement shall be settled according to the laws of
the Philippines and by the proper court of Makati City,
Philippines."
Respondent’s Opposition likewise alleged that
Ambassador Soeratmin and Minister Counsellor
Kasim can be sued and held liable in their private
capacities for tortious acts done with malice and bad
faith.5
On May 17, 2001, the trial court denied herein
petitioners’ Motion to Dismiss. It likewise denied the
Motion for Reconsideration subsequently filed.
The trial court’s denial of the Motion to Dismiss was
brought up to the Court of Appeals by herein
petitioners in a petition for certiorari and prohibition.
Said petition, docketed as CA-G.R. SP No. 66894,
alleged that the trial court gravely abused its
discretion in ruling that the Republic of Indonesia
gave its consent to be sued and voluntarily submitted
itself to the laws and jurisdiction of Philippine courts
and that petitioners Ambassador Soeratmin and
Minister Counsellor Kasim waived their immunity from
suit.
On May 30, 2002, the Court of Appeals rendered its
assailed decision denying the petition for lack of
merit.6 On August 16, 2002, it denied herein
petitioners’ motion for reconsideration.7
Hence, this petition.
In the case at bar, petitioners raise the sole issue of
whether or not the Court of Appeals erred in
sustaining the trial court’s decision that petitioners
have waived their immunity from suit by using as its
basis the abovementioned provision in the
Maintenance Agreement.
The petition is impressed with merit.
International law is founded largely upon the
principles of reciprocity, comity, independence, and
equality of States which were adopted as part of the
law of our land under Article II, Section 2 of the 1987
Constitution.8 The rule that a State may not be sued
without its consent is a necessary consequence of the
principles of independence and equality of States. 9 As
enunciated in Sanders v. Veridiano II,10 the practical
justification for the doctrine of sovereign immunity is
that there can be no legal right against the authority
that makes the law on which the right depends. In the
case of foreign States, the rule is derived from the
principle of the sovereign equality of States, as
expressed in the maxim par in parem non habet
imperium. All states are sovereign equals and cannot
assert jurisdiction over one another.11 A contrary
attitude would "unduly vex the peace of nations." 12
The rules of International Law, however, are neither
unyielding nor impervious to change. The increasing
need of sovereign States to enter into purely
commercial activities remotely connected with the
discharge of their governmental functions brought
about a new concept of sovereign immunity. This
concept, the restrictive theory, holds that the immunity
of the sovereign is recognized only with regard to
public acts or acts jure imperii, but not with regard to
private acts or acts jure gestionis.13
In United States v. Ruiz,14 for instance, we held that
the conduct of public bidding for the repair of a wharf
at a United States Naval Station is an act jure imperii.
On the other hand, we considered as an act jure
gestionis the hiring of a cook in the recreation center
catering to American servicemen and the general
public at the John Hay Air Station in Baguio City,15 as
well as the bidding for the operation of barber shops
in Clark Air Base in Angeles City.16
Apropos the present case, the mere entering into a
contract by a foreign State with a private party cannot
be construed as the ultimate test of whether or not it
is an act jure imperii or jure gestionis. Such act is only
the start of the inquiry. Is the foreign State engaged in
the regular conduct of a business? If the foreign State
is not engaged regularly in a business or commercial
activity, and in this case it has not been shown to be
so engaged, the particular act or transaction must
then be tested by its nature. If the act is in pursuit of a
sovereign activity, or an incident thereof, then it is an
act jure imperii.17
Hence, the existence alone of a paragraph in a
contract stating that any legal action arising out of the
agreement shall be settled according to the laws of
the Philippines and by a specified court of the
Philippines is not necessarily a waiver of sovereign
immunity from suit. The aforesaid provision contains
language not necessarily inconsistent with sovereign
immunity. On the other hand, such provision may also
be meant to apply where the sovereign party elects to
sue in the local courts, or otherwise waives its
immunity by any subsequent act. The applicability of
Philippine laws must be deemed to include Philippine
laws in its totality, including the principle recognizing
sovereign immunity. Hence, the proper court may
have no proper action, by way of settling the case,
except to dismiss it.
Submission by a foreign state to local jurisdiction
must be clear and unequivocal. It must be given
explicitly or by necessary implication. We find no such
waiver in this case.
Respondent concedes that the establishment of a
diplomatic mission is a sovereign
function.1âwphi1 On the other hand, he argues that
the actual physical maintenance of the premises of
the diplomatic mission, such as the upkeep of its
furnishings and equipment, is no longer a sovereign
function of the State.18
We disagree. There is no dispute that the
establishment of a diplomatic mission is an act jure
imperii. A sovereign State does not merely establish a
diplomatic mission and leave it at that; the
establishment of a diplomatic mission encompasses
its maintenance and upkeep. Hence, the State may
enter into contracts with private entities to maintain
the premises, furnishings and equipment of the
embassy and the living quarters of its agents and
officials. It is therefore clear that petitioner Republic of
Indonesia was acting in pursuit of a sovereign activity
when it entered into a contract with respondent for the
upkeep or maintenance of the air conditioning units,
generator sets, electrical facilities, water heaters, and
water motor pumps of the Indonesian Embassy and
the official residence of the Indonesian ambassador.
Maintenance Agreement is not covered by the
exceptions provided in the abovementioned provision.
The Solicitor General believes that said act may fall
under subparagraph (c) thereof,20 but said provision
clearly applies only to a situation where the diplomatic
agent engages in any professional or commercial
activity outside official functions, which is not the case
herein.

The Solicitor General, in his Comment, submits the WHEREFORE, the petition is hereby GRANTED. The
view that, "the Maintenance Agreement was entered decision and resolution of the Court of Appeals in CA
into by the Republic of Indonesia in the discharge of G.R. SP No. 66894 are REVERSED and SET ASIDE
its governmental functions. In such a case, it cannot and the complaint in Civil Case No. 18203 against
be deemed to have waived its immunity from suit." As petitioners is DISMISSED.
to the paragraph in the agreement relied upon by
respondent, the Solicitor General states that it "was
not a waiver of their immunity from suit but a mere No costs.
stipulation that in the event they do waive their
immunity, Philippine laws shall govern the resolution SO ORDERED.
of any legal action arising out of the agreement and
the proper court in Makati City shall be the agreed
venue thereof.19

On the matter of whether or not petitioners

Ambassador Soeratmin and Minister Counsellor
Kasim may be sued herein in their private capacities,
Article 31 of the Vienna Convention on Diplomatic
Relations provides:

xxx

1. A diplomatic agent shall enjoy immunity from the

criminal jurisidiction of the receiving State. He shall
also enjoy immunity from its civil and administrative
jurisdiction, except in the case of:

(a) a real action relating to private

immovable property situated in the territory
of the receiving State, unless he holds it on
behalf of the sending State for the purposes
of the mission;

(b) an action relating to succession in which

the diplomatic agent is involved as executor,
administrator, heir or legatee as a private
person and not on behalf of the sending
State;

(c) an action relating to any professional or

commercial activity exercised by the
diplomatic agent in the receiving State
outside his official functions.

xxx

The act of petitioners Ambassador Soeratmin and

Minister Counsellor Kasim in terminating the
Case No. 006
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 161657 October 4, 2007
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
HON. VICENTE A. HIDALGO, in his capacity as
Presiding Judge of the Regional Trial Court of
Manila, Branch 37, CARMELO V. CACHERO, in his
capacity as Sheriff IV, Regional Trial Court of
Manila, and TARCILA LAPERAL
MENDOZA, Respondents.
DECISION
GARCIA, J.:
Via this verified petition for certiorari and prohibition
under Rule 65 of the Rules of Court, the Republic of
the Philippines ("Republic," for short), thru the Office
of the Solicitor General (OSG), comes to this Court to
nullify and set aside the decision dated August 27,
2003 and other related issuances of the Regional
Trial Court (RTC) of Manila, Branch 37, in its Civil
Case No. 99-94075. In directly invoking the Court’s
original jurisdiction to issue the extraordinary writs of
certiorari and prohibition, without challenge from any
of the respondents, the Republic gave as justification
therefor the fact that the case involves an over TWO
BILLION PESO judgment against the State, allegedly
rendered in blatant violation of the Constitution, law
and jurisprudence.
By any standard, the case indeed involves a colossal
sum of money which, on the face of the assailed
decision, shall be the liability of the national
government or, in fine, the taxpayers. This
consideration, juxtaposed with the constitutional and
legal questions surrounding the controversy, presents
special and compelling reasons of public interests
why direct recourse to the Court should be allowed,
as an exception to the policy on hierarchy of courts.
At the core of the litigation is a 4,924.60-square meter
lot once covered by Transfer Certificate of Title (TCT)
No. 118527 of the Registry of Deeds of Manila in the
name of the herein private respondent Tarcila Laperal
Mendoza (Mendoza), married to Perfecto Mendoza.
The lot is situated at No. 1440 Arlegui St., San
Miguel, Manila, near the Malacañang Palace
complex. On this lot, hereinafter referred to as
the Arlegui property, now stands the Presidential
Guest House which was home to two (2) former
Presidents of the Republic and now appears to be
used as office building of the Office of the President. 1
The facts:
Sometime in June 1999, Mendoza filed a suit with the
RTC of Manila for reconveyance and the
corresponding declaration of nullity of a deed of sale
and title against the Republic, the Register of Deeds
of Manila and one Atty. Fidel Vivar. In her complaint,
as later amended, docketed as Civil Case No. 99-
94075 and eventually raffled to Branch 35 of the
court, Mendoza essentially alleged being the owner of
the disputed Arlegui property which the Republic
forcibly dispossessed her of and over which the
Register of Deeds of Manila issued TCT No. 118911
in the name of the Republic.
Answering, the Republic set up, among other
affirmative defenses, the State’s immunity from suit.
The intervening legal tussles are not essential to this
narration. What is material is that in an Order of
March 17, 2000, the RTC of Manila, Branch 35,
dismissed Mendoza’s complaint. The court would also
deny, in another order dated May 12, 2000,
Mendoza’s omnibus motion for reconsideration. On a
petition for certiorari, however, the Court of Appeals
(CA), in CA-G.R. SP No. 60749, reversed the trial
court’s assailed orders and remanded the case to the
court a quo for further proceedings.2 On appeal, this
Court, in G.R. No. 155231, sustained the CA’s
reversal action.3
From Branch 35 of the trial court whose then
presiding judge inhibited himself from hearing the
remanded Civil Case No. 99-94075, the case was re-
raffled to Branch 37 thereof, presided by the
respondent judge.
On May 5, 2003, Mendoza filed a Motion for Leave of
Court to file a Third Amended Complaint with a copy
of the intended third amended complaint thereto
attached. In the May 16, 2003 setting to hear the
motion, the RTC, in open court and in the presence of
the Republic’s counsel, admitted the third amended
complaint, ordered the Republic to file its answer
thereto within five (5) days from May 16, 2003 and set
a date for pre-trial.
In her adverted third amended complaint for recovery
and reconveyance of the Arlegui property, Mendoza
sought the declaration of nullity of a supposed deed of
sale dated July 15, 1975 which provided the
instrumentation toward the issuance of TCT No.
118911 in the name of the Republic. And aside from
the cancellation of TCT No. 118911, Mendoza also
asked for the reinstatement of her TCT No.
118527.4 In the same third amended complaint,
Mendoza averred that, since time immemorial, she
and her predecessors-in-interest had been in peaceful
and adverse possession of the property as well as of
the owner’s duplicate copy of TCT No. 118527. Such
possession, she added, continued "until the first week
of July 1975 when a group of armed men
representing themselves to be members of the
Presidential Security Group [PSG] of the then
President Ferdinand E. Marcos, had forcibly entered
[her] residence and ordered [her] to turn over to them
her … Copy of TCT No. 118525 … and compelled her
and the members of her household to vacate the
same …; thus, out of fear for their lives, [she] handed
her Owner’s Duplicate Certificate Copy of TCT No.
118527 and had left and/or vacated the subject
property." Mendoza further alleged the following:
1. Per verification, TCT No. 118527 had
already been cancelled by virtue of a deed of
sale in favor of the Republic allegedly
executed by her and her deceased husband
on July 15, 1975 and acknowledged before
Fidel Vivar which deed was annotated at the
back of TCT No. 118527 under PE: 2035/T-
118911 dated July 28, 1975; and
2. That the aforementioned deed of sale is
fictitious as she (Mendoza) and her husband
have not executed any deed of conveyance
covering the disputed property in favor of the
Republic, let alone appearing before Fidel
Vivar.
Inter alia, she prayed for the following:
4. Ordering the … Republic to pay plaintiff
[Mendoza] a reasonable compensation or
rental for the use or occupancy of the subject
property in the sum of FIVE HUNDRED
THOUSAND (P500,000.00) PESOS a month
with a five (5%) per cent yearly increase,
plus interest thereon at the legal rate,
beginning July 1975 until it finally vacates
the same;
5. Ordering the … Republic to pay plaintiff’s
counsel a sum equivalent to TWENTY FIVE
(25%) PER CENT of the current value of the
subject property and/or whatever amount is
recovered under the premises; Further,
plaintiff prays for such other relief, just and
equitable under the premises.
On May 21, 2003, the Republic, represented by the
OSG, filed a Motion for Extension (With Motion for
Cancellation of scheduled pre-trial). In it, the Republic
manifested its inability to simply adopt its previous
answer and, accordingly, asked that it be given a
period of thirty (30) days from May 21, 2003 or
until June 20, 2003 within which to submit an
Answer.5 June 20, 2003 came and went, but no
answer was filed. On July 18, 2003 and again
on August 19, 2003, the OSG moved for a 30-day
extension at each instance. The filing of the last two
motions for extension proved to be an idle gesture,
however, since the trial court had meanwhile issued
an order6 dated July 7, 2003 declaring the petitioner
Republic as in default and allowing the private
respondent to present her evidence ex-parte.
The evidence for the private respondent, as plaintiff a
quo, consisted of her testimony denying having
executed the alleged deed of sale dated July 15, 1975
which paved the way for the issuance of TCT No.
118911. According to her, said deed is fictitious or
inexistent, as evidenced by separate certifications, the
first (Exh. "E"), issued by the Register of Deeds for
Manila and the second (Exh. "F"), by the Office of
Clerk of Court, RTC Manila. Exhibit "E"7states that a
copy of the supposed conveying deed cannot, despite
diligent efforts of records personnel, be located, while
Exhibit "F"8 states that Fidel Vivar was not a
commissioned notary public for and in the City of
Manila for the year 1975. Three other
witnesses9 testified, albeit their testimonies revolved
around the appraisal and rental values of the Arlegui
property.
Eventually, the trial court rendered a judgment by
default10 for Mendoza and against the Republic. To
the trial court, the Republic had veritably confiscated
Mendoza’s property, and deprived her not only of the
use thereof but also denied her of the income she
could have had otherwise realized during all the years
she was illegally dispossessed of the same.
Dated August 27, 2003, the trial court’s decision
dispositively reads as follows:
WHEREFORE, judgment is hereby rendered:
1. Declaring the deed of sale dated July 15,
1975, annotated at the back of [TCT] No.
118527 as PE:2035/T-118911, as non-
existent and/or fictitious, and, therefore, null
and void from the beginning;
2. Declaring that [TCT] No. 118911 of the
defendant Republic of the Philippines has no
basis, thereby making it null and void from
the beginning;
3. Ordering the defendant Register of Deeds
for the City of Manila to reinstate plaintiff
[Mendoza’s TCT] No. 118527;
4. Ordering the defendant Republic … to pay
just compensation in the sum of ONE
HUNDRED FORTY THREE MILLION SIX
HUNDRED THOUSAND
 (P143,600,000.00) PESOS, plus interest at
the legal rate, until the whole amount is paid
in full for the acquisition of the subject
property;
5. Ordering the plaintiff, upon payment of the
just compensation for the acquisition of her
property, to execute the necessary deed of
conveyance in favor of the defendant
Republic …; and, on the other hand,
directing the defendant Register of Deeds,
upon presentation of the said deed of
conveyance, to cancel plaintiff’s TCT No.
118527 and to issue, in lieu thereof, a new
Transfer Certificate of Title in favor of the
defendant Republic;
6. Ordering the defendant Republic … to pay
the plaintiff the sum of ONE BILLION FOUR
HUNDRED EIGHTY MILLION SIX
HUNDRED TWENTY SEVEN THOUSAND
SIX HUNDRED EIGHTY
EIGHT (P1,480,627,688.00) PESOS,
representing the reasonable rental for the
use of the subject property, the interest
thereon at the legal rate, and the opportunity
cost at the rate of three (3%) per cent per
annum, commencing July 1975 continuously
up to July 30, 2003, plus an additional
interest at the legal rate, commencing from
this date until the whole amount is paid in
full;
7. Ordering the defendant Republic … to pay
the plaintiff attorney’s fee, in an amount
equivalent to FIFTEEN (15%) PER CENT of
the amount due to the plaintiff.
With pronouncement as to the costs of suit.
SO ORDERED. (Words in bracket and emphasis
added.)
Subsequently, the Republic moved for, but was
denied, a new trial per order of the trial court of
October 7, 2003.11Denied also was its subsequent
plea for reconsideration.12 These twin denial orders
were followed by several orders and processes
issued by the trial court on separate dates as
hereunder indicated:
1. November 27, 2003 - - Certificate of
Finality declaring the August 27, 2003
decision final and executory.13
2. December 17, 2003 - - Order denying the
Notice of Appeal filed on November 27,
2003, the same having been filed beyond the
reglementary period.14
3. December 19, 2003 - - Order15 granting
the private respondent’s motion for
execution.
4. December 22, 2003 - - Writ of Execution.16
Hence, this petition for certiorari.
By Resolution17 of November 20, 2006, the case was
set for oral arguments. On January 22, 2007, when
this case was called for the purpose, both parties
manifested their willingness to settle the case
amicably, for which reason the Court gave them up to
February 28, 2007 to submit the compromise
agreement for approval. Following several approved
extensions of the February 28, 2007 deadline, the
OSG, on August 6, 2007, manifested that it is
submitting the case for resolution on the merits owing
to the inability of the parties to agree on an
acceptable compromise.
In this recourse, the petitioner urges the Court to
strike down as a nullity the trial court’s order declaring
it in default and the judgment by default that followed.
Sought to be nullified, too, also on the ground that
they were issued in grave abuse of discretion
amounting to lack or in excess of jurisdiction, are the
orders and processes enumerated immediately above
issued after the rendition of the default judgment.
Petitioner lists five (5) overlapping grounds for
allowing its petition. It starts off by impugning the
order of default and the judgment by default. To the
petitioner, the respondent judge committed serious
jurisdictional error when he proceeded to hear the
case and eventually awarded the private respondent
a staggering amount without so much as giving the
petitioner the opportunity to present its defense.
Petitioner’s posture is simply without merit.
Deprivation of procedural due process is obviously
the petitioner’s threshold theme. Due process, in its
procedural aspect, guarantees in the minimum the
opportunity to be heard.18 Grave abuse of discretion,
however, cannot plausibly be laid at the doorstep of
the respondent judge on account of his having issued
the default order against the petitioner, then
proceeding with the hearing and eventually rendering
a default judgment. For, what the respondent judge
did hew with what Section 3, Rule 9 of the Rules of
Court prescribes and allows in the event the
defending party fails to seasonably file a responsive
pleading. The provision reads:
SEC. 3. Default; declaration of.- If the defending party
fails to answer within the time allowed therefor, the
court shall, upon motion of the claiming party with
notice to the defending party, and proof of such
failure, declare the defending party in default.
Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his
pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence
….19
While the ideal lies in avoiding orders of default,20 the
policy of the law being to have every litigated case
tried on its full merits,21 the act of the respondent
judge in rendering the default judgment after an order
of default was properly issued cannot be struck down
as a case of grave abuse of discretion.
The term "grave abuse of discretion," in its juridical
sense, connotes capricious, despotic, oppressive or
whimsical exercise of judgment as is equivalent to
lack of jurisdiction.22 The abuse must be of such
degree as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law,
as where the power is exercised in a capricious
manner. The word "capricious," usually used in
tandem with "arbitrary," conveys the notion of willful
and unreasoning action.23
Under the premises, the mere issuance by the trial
court of the order of default followed by a judgment by
default can easily be sustained as correct and
doubtless within its jurisdiction. Surely, a disposition
directing the Republic to pay an enormous sum
without the trial court hearing its side does not,
without more, vitiate, on due procedural ground, the
validity of the default judgment. The petitioner may
have indeed been deprived of such hearing, but this
does not mean that its right to due process had been
violated. For, consequent to being declared in default,
the defaulting defendant is deemed to have waived
his right to be heard or to take part in the trial. The
handling solicitors simply squandered the Republic’s
opportunity to be heard. But more importantly, the law
itself imposes such deprivation of the right to
participate as a form of penalty against one unwilling
without justification to join issue upon the allegations
tendered by the plaintiff.
And going to another point, the petitioner would
ascribe jurisdictional error on the respondent judge for
denying its motion for new trial based on any or a mix
of the following factors, viz., (1) the failure to file an
answer is attributable to the negligence of the former
handling solicitor; (2) the meritorious nature of the
petitioner’s defense; and (3) the value of the property
involved.
The Court is not convinced. Even as the Court
particularly notes what the trial court had said on the
matter of negligence: that all of the petitioner’s
pleadings below bear at least three signatures, that of
the handling solicitor, the assistant solicitor and the
Solicitor General himself, and hence accountability
should go up all the way to the top of the totem pole
of authority, the cited reasons advanced by the
petitioner for a new trial are not recognized under
Section 1, Rule 37 of the Rules of Court for such
recourse.24 Withal, there is no cogent reason to
disturb the denial by the trial court of the motion for
new trial and the denial of the reiterative motion for
reconsideration.
Then, too, the issuance by the trial court of the Order
dated December 17, 200325 denying the petitioner’s
notice of appeal after the court caused the issuance
on November 27, 2003 of a certificate of finality of its
August 27, 2003 decision can hardly be described as
arbitrary, as the petitioner would have this Court
believe. In this regard, the Court takes stock of the
following key events and material dates set forth in
the assailed December 17, 2003 order, supra: (a) The
petitioner, thru the OSG, received on August 29,
2003 a copy of the RTC decision in this case, hence
had up to September 13, 2003, a Saturday, within
which to perfect an appeal; (b) On September 15,
2003, a Monday, the OSG filed its motion for new
trial, which the RTC denied, the OSG receiving a copy
of the order of denial on October 9, 2003; and (c) On
October 24, 2003, the OSG sought reconsideration of
the order denying the motion for new trial. The motion
for reconsideration was denied per Order dated
November 25, 2003, a copy of which the OSG
received on the same date.
Given the foregoing time perspective, what the trial
court wrote in its aforementioned impugned order of
December 17, 2003 merits approval:
In the case at bar, it is clear that the motion for new
trial filed on the fifteenth (15th) day after the decision
was received on August 29, 2003 was denied and the
moving party has only the remaining period from
notice of notice of denial within which to file a notice
of appeal. xxx
Accordingly, when defendants [Republic et al.] filed
their motion for new trial on the last day of the fifteen
day (15) prescribed for taking an appeal, which
motion was subsequently denied, they had one (1)
day from receipt of a copy of the order denying …
new trial within which to perfect [an] appeal …. Since
defendants had received a copy of the order denying
their motion for new trial on 09 October 2003,
reckoned from that date, they only have one (1) day
left within which to file the notice of appeal. But
instead of doing so, the defendants filed a motion for
reconsideration which was later declared by the Court
as pro forma motion in the Order dated 25
November 2003. The running of the prescriptive
period, therefore, can not be interrupted by a pro
forma motion. Hence the filing of the notice of appeal
on 27 November 2007 came much too late for by then
the judgment had already become final and
executory.26 (Words in bracket added; Emphasis in
the original.)
It cannot be over-emphasized at this stage that the
special civil action of certiorari is limited to resolving
only errors of jurisdiction; it is not a remedy to correct
errors of judgment. Hence, the petitioner’s lament,
partly covered by and discussed under the first
ground for allowing its petition, about the trial court
taking cognizance of the case notwithstanding private
respondent’s claim or action being barred by
prescription and/or laches cannot be considered
favorably. For, let alone the fact that an action for the
declaration of the inexistence of a contract, as here,
does not prescribe;27 that a void transfer of property
can be recovered by accion reivindicatoria;28 and that
the legal fiction of indefeasibility of a Torrens title
cannot be used as a shield to perpetuate fraud,29 the
trial court’s disinclination not to appreciate in favor of
the Republic the general principles of prescription or
laches constitutes, at best, errors of judgment not
correctable by certiorari.
The evidence adduced below indeed adequately
supports a conclusion that the Office of the President,
during the administration of then President Marcos,
wrested possession of the property in question and
somehow secured a certificate of title over it without a
conveying deed having been executed to legally
justify the cancellation of the old title (TCT No.
118527) in the name of the private respondent and
the issuance of a new one (TCT No. 118911) in the
name of petitioner Republic. Accordingly, granting
private respondent’s basic plea for recovery of the
Arlegui property, which was legally hers all along, and
the reinstatement of her cancelled certificate of title
are legally correct as they are morally right. While not
exactly convenient because the Office of the
President presently uses it for mix residence and
office purposes, restoring private respondent to her
possession of the Arlegui property is still legally and
physically feasible. For what is before us, after all, is a
registered owner of a piece of land who, during the
early days of the martial law regime, lost possession
thereof to the Government which appropriated the
same for some public use, but without going through
the legal process of expropriation, let alone paying
such owner just compensation.
The Court cannot, however, stop with just restoring
the private respondent to her possession and
ownership of her property. The restoration ought to be
complemented by some form of monetary
compensation for having been unjustly deprived of the
beneficial use thereof, but not, however, in the varying
amounts and level fixed in the assailed decision of the
trial court and set to be executed by the equally
assailed writ of execution. The Court finds the
monetary award set forth therein to be erroneous.
And the error relates to basic fundamentals of law as
to constitute grave abuse of discretion.
As may be noted, private respondent fixed the
assessed value of her Arlegui property at
₱2,388,990.00. And in the prayer portion of her third
amended complaint for recovery, she asked to be
restored to the possession of her property and that
the petitioner be ordered to pay her, as reasonable
compensation or rental use or occupancy thereof, the
sum of ₱500,000.00 a month, or ₱6 Million a year,
with a five percent (5%) yearly increase plus interest
at the legal rate beginning July 1975. From July 1975
when the PSG allegedly took over the subject
property to July 2003, a month before the trial court
rendered judgment, or a period of 28 years, private
respondent’s total rental claim would, per the OSG’s
computation, only amount to ₱371,440,426.00. In its
assailed decision, however, the trial court ordered the
petitioner to pay private respondent the total amount
of over ₱1.48 Billion or the mind-boggling amount
of ₱1,480,627,688.00, to be exact, representing the
reasonable rental for the property, the interest rate
thereon at the legal rate and the opportunity cost. This
figure is on top of the ₱143,600,000.00 which
represents the acquisition cost of the disputed
property. All told, the trial court would have the
Republic pay the total amount of about ₱1.624
Billion, exclusive of interest, for the taking of a
property with a declared assessed value of
₱2,388,900.00. This is not to mention the award of
attorney’s fees in an amount equivalent to 15% of the
amount due the private respondent.
In doing so, the respondent judge brazenly went
around the explicit command of Rule 9, Section 3(d)
of the Rules of Court30 which defines the extent of the
relief that may be awarded in a judgment by
default, i.e., only so much as has been
alleged and proved. The court acts in excess of
jurisdiction if it awards an amount beyond the claim
made in the complaint or beyond that proved by the
evidence.31 While a defaulted defendant may be said
to be at the mercy of the trial court, the Rules of Court
and certainly the imperatives of fair play see to it that
any decision against him must be in accordance with
law.32 In the abstract, this means that the judgment
must not be characterized by outrageous one-
sidedness, but by what is fair, just and equitable that
always underlie the enactment of a law.
Given the above perspective, the obvious question
that comes to mind is the level of compensation which
– for the use and occupancy of the Arlegui property -
would be fair to both the petitioner and the private
respondent and, at the same time, be within
acceptable legal bounds. The process of balancing
the interests of both parties is not an easy one. But
surely, the Arlegui property cannot possibly be
assigned, even perhaps at the present real estate
business standards, a monthly rental value of at least
₱500,000.00 or ₱6,000,000.00 a year, the amount
private respondent particularly sought and attempted
to prove. This asking figure is clearly unconscionable,
if not downright ridiculous, attendant circumstances
considered. To the Court, an award of ₱20,000.00 a
month for the use and occupancy of the Arlegui
property, while perhaps a little bit arbitrary, is
reasonable and may be granted pro hac
viceconsidering the following hard realities which the
Court takes stock of:
1. The property is relatively small in terms of
actual area and had an assessed value of
only P2,388,900.00;
2. What the martial law regime took over was
not exactly an area with a new and imposing
structure, if there was any; and
3. The Arlegui property had minimal rental
value during the relatively long martial law
years, given the very restrictive entry and
egress conditions prevailing at the vicinity at
that time and even after.
To be sure, the grant of monetary award is not without
parallel. In Alfonso v. Pasay City,33 a case where a
registered owner also lost possession of a piece of lot
to a municipality which took it for a public purposes
without instituting expropriation proceedings or paying
any compensation for the lot, the Court, citing Herrera
v. Auditor General,34ordered payment of just
compensation but in the form of interest when a return
of the property was no longer feasible.
The award of attorney’s fees equivalent to 15% of the
amount due the private respondent, as reduced
herein, is affirmed.
The assessment of costs of suit against the petitioner
is, however, nullified, costs not being allowed against
the Republic, unless otherwise provided by law.35
The assailed trial court’s issuance of the writ of
execution36 against government funds to satisfy its
money judgment is also nullified. It is basic that
government funds and properties may not be seized
under writs of execution or garnishment to satisfy
such judgments.37 Republic v. Palacio38 teaches that
a judgment against the State generally operates
merely to liquidate and establish the plaintiff’s claim in
the absence of express provision; otherwise, they can
not be enforced by processes of law.
Albeit title to the Arlegui property remains in the
name of the petitioner Republic, it is actually
the Office of the President which has beneficial
possession of and use over it since the 1975
takeover. Accordingly, and in accord with the
elementary sense of justice, it behooves that office to
make the appropriate budgetary arrangements
towards paying private respondent what is due her
under the premises. This, to us, is the right thing to
do. The imperatives of fair dealing demand no less.
And the Court would be remiss in the discharge of its
duties as dispenser of justice if it does not exhort the
Office of the President to comply with what, in law and
equity, is its obligation. If the same office will
undertake to pay its obligation with reasonable
dispatch or in a manner acceptable to the private
respondent, then simple justice, while perhaps
delayed, will have its day. Private respondent is in the
twilight of her life, being now over 90 years of
age.39 Any delay in the implementation of this
disposition would be a bitter cut.1âwphi1
WHEREFORE, the decision of the Regional Trial
Court of Manila dated August 27, 2003 insofar as it
nullified TCT No. 118911 of petitioner Republic of the
Philippines and ordered the Register of Deeds of
Manila to reinstate private respondent Tarcila L.
Mendoza’s TCT No. 118527, or to issue her a new
certificate of title is AFFIRMED. Should it be
necessary, the Register of Deeds of Manila shall
execute the necessary conveying deed to effect the
reinstatement of title or the issuance of a new title to
her.
It is MODIFIED in the sense that for the use and
occupancy of the Arlegui property, petitioner Republic
is ordered to pay private respondent the reasonable
amount of ₱20,000.00 a month beginning July 1975
until it vacates the same and the possession thereof
restored to the private respondent, plus an additional
interest of 6% per annum on the total amount due
upon the finality of this Decision until the same is fully
paid. Petitioner is further ordered to pay private
respondent attorney's fees equivalent to 15% of the
amount due her under the premises.
Accordingly, a writ of certiorari is hereby ISSUED in
the sense that:
1. The respondent court’s assailed decision
of August 27, 2003 insofar as it ordered the
petitioner Republic of the Philippines to pay
private respondent Tarcila L. Mendoza the
sum of One Billion Four Hundred Eighty
Million Six Hundred Twenty Seven Thousand
Six Hundred Eighty Eight Pesos
(₱1,480,627,688.00) representing the
purported rental use of the property in
question, the interest thereon and the
opportunity cost at the rate of 3% per annum
plus the interest at the legal rate added
thereon is nullified. The portion assessing
the petitioner Republic for costs of suit is
also declared null and void.
2. The Order of the respondent court dated
December 19, 2003 for the issuance of a writ
of execution and the Writ of Execution dated
 December 22, 2003 against government
funds are hereby declared null and void.
Accordingly, the presiding judge of the
respondent court, the private respondent,
their agents and persons acting for and in
their behalves are permanently enjoined
from enforcing said writ of execution.

However, consistent with the basic tenets of justice,

fairness and equity, petitioner Republic, thru
the Office of the President, is hereby strongly
enjoined to take the necessary steps, and, with
reasonable dispatch, make the appropriate budgetary
arrangements to pay private respondent Tarcila L.
Mendoza or her assigns the amount adjudged due
her under this disposition.

SO ORDERED.
Case No. 007
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 171182 August 23, 2012
UNIVERSITY OF THE PHILIPPINES, JOSE V.
ABUEVA, RAUL P. DE GUZMAN, RUBEN P.
ASPIRAS, EMMANUEL P. BELLO, WILFREDO P.
DAVID, CASIANO S. ABRIGO, and JOSEFINA R.
LICUANAN,Petitioners,
vs.
HON. AGUSTIN S. DIZON, his capacity as
Presiding Judge of the Regional Trial Court of
Quezon City, Branch 80, STERN BUILDERS, INC.,
and SERVILLANO DELA CRUZ, Respondents.
DECISION
BERSAMIN, J.:
Trial judges should not immediately issue writs of
execution or garnishment against the Government or
any of its subdivisions, agencies and instrumentalities
to enforce money judgments.1 They should bear in
mind that the primary jurisdiction to examine, audit
and settle all claims of any sort due from the
Government or any of its subdivisions, agencies and
instrumentalities pertains to the Commission on Audit
(COA) pursuant to Presidential Decree No. 1445
(Government Auditing Code of the Philippines).
The Case
On appeal by the University of the Philippines and its
then incumbent officials (collectively, the UP) is the
decision promulgated on September 16,
2005,2 whereby the Court of Appeals (CA) upheld the
order of the Regional Trial Court (RTC), Branch 80, in
Quezon City that directed the garnishment of public
funds amounting to ₱ 16,370,191.74 belonging to the
UP to satisfy the writ of execution issued to enforce
the already final and executory judgment against the
UP.
Antecedents
On August 30, 1990, the UP, through its then
President Jose V. Abueva, entered into a General
Construction Agreement with respondent Stern
Builders Corporation (Stern Builders), represented by
its President and General Manager Servillano dela
Cruz, for the construction of the extension building
and the renovation of the College of Arts and
Sciences Building in the campus of the University of
the Philippines in Los Baños (UPLB).3
In the course of the implementation of the contract,
Stern Builders submitted three progress billings
corresponding to the work accomplished, but the UP
paid only two of the billings. The third billing worth ₱
273,729.47 was not paid due to its disallowance by
the Commission on Audit (COA). Despite the lifting of
the disallowance, the UP failed to pay the billing,
prompting Stern Builders and dela Cruz to sue the UP
and its co-respondent officials to collect the unpaid
billing and to recover various damages. The suit,
entitled Stern Builders Corporation and Servillano R.
Dela Cruz v. University of the Philippines Systems,
Jose V. Abueva, Raul P. de Guzman, Ruben P.
Aspiras, Emmanuel P. Bello, Wilfredo P. David,
Casiano S. Abrigo, and Josefina R. Licuanan, was
docketed as Civil Case No. Q-93-14971 of the
Regional Trial Court in Quezon City (RTC).4
After trial, on November 28, 2001, the RTC rendered
its decision in favor of the plaintiffs,5 viz:
Wherefore, in the light of the foregoing, judgment is
hereby rendered in favor of the plaintiff and against
the defendants ordering the latter to pay plaintiff,
jointly and severally, the following, to wit:
1. ₱ 503,462.74 amount of the third billing,
additional accomplished work and retention
money
2. ₱ 5,716,729.00 in actual damages
3. ₱ 10,000,000.00 in moral damages
4. ₱ 150,000.00 and ₱ 1,500.00 per
appearance as attorney’s fees; and
5. Costs of suit.
SO ORDERED.
Following the RTC’s denial of its motion for
reconsideration on May 7, 2002,6 the UP filed a notice
of appeal on June 3, 2002.7 Stern Builders and dela
Cruz opposed the notice of appeal on the ground of
its filing being belated, and moved for the execution of
the decision. The UP countered that the notice of
appeal was filed within the reglementary period
because the UP’s Office of Legal Affairs (OLS) in
Diliman, Quezon City received the order of denial only
on May 31, 2002. On September 26, 2002, the RTC
denied due course to the notice of appeal for having
been filed out of time and granted the private
respondents’ motion for execution.8
The RTC issued the writ of execution on October 4,
2002,9 and the sheriff of the RTC served the writ of
execution and notice of demand upon the UP, through
its counsel, on October 9, 2002.10 The UP filed an
urgent motion to reconsider the order dated
September 26, 2002, to quash the writ of execution
dated October 4, 2002, and to restrain the
proceedings.11 However, the RTC denied the urgent
motion on April 1, 2003.12
On June 24, 2003, the UP assailed the denial of due
course to its appeal through a petition for certiorari in
the Court of Appeals (CA), docketed as CA-G.R. No.
77395.13
On February 24, 2004, the CA dismissed the petition
for certiorari upon finding that the UP’s notice of
appeal had been filed late,14 stating:
Records clearly show that petitioners received a copy
of the Decision dated November 28, 2001 and
January 7, 2002, thus, they had until January 22,
2002 within which to file their appeal. On January 16,
2002 or after the lapse of nine (9) days, petitioners
through their counsel Atty. Nolasco filed a Motion for
Reconsideration of the aforesaid decision, hence,
pursuant to the rules, petitioners still had six (6)
remaining days to file their appeal. As admitted by the
petitioners in their petition (Rollo, p. 25), Atty. Nolasco
received a copy of the Order denying their motion for
reconsideration on May 17, 2002, thus, petitioners still
has until May 23, 2002 (the remaining six (6) days)
within which to file their appeal. Obviously, petitioners
were not able to file their Notice of Appeal on May 23,
2002 as it was only filed on June 3, 2002.
In view of the said circumstances, We are of the belief
and so holds that the Notice of Appeal filed by the
petitioners was really filed out of time, the same
having been filed seventeen (17) days late of the
reglementary period. By reason of which, the decision
dated November 28, 2001 had already become final
and executory. "Settled is the rule that the perfection
of an appeal in the manner and within the period
permitted by law is not only mandatory but
jurisdictional, and failure to perfect that appeal
renders the challenged judgment final and executory.
This is not an empty procedural rule but is grounded
on fundamental considerations of public policy and
sound practice." (Ram’s Studio and Photographic
Equipment, Inc. vs. Court of Appeals, 346 SCRA 691,
696). Indeed, Atty. Nolasco received the order of
denial of the Motion for Reconsideration on May 17,
2002 but filed a Notice of Appeal only on June 3,
3003. As such, the decision of the lower court ipso
facto became final when no appeal was perfected
after the lapse of the reglementary period. This
procedural caveat cannot be trifled with, not even by
the High Court.15
The UP sought a reconsideration, but the CA denied
the UP’s motion for reconsideration on April 19,
2004.16
On May 11, 2004, the UP appealed to the Court by
petition for review on certiorari (G.R. No. 163501).
On June 23, 2004, the Court denied the petition for
review.17 The UP moved for the reconsideration of the
denial of its petition for review on August 29,
2004,18 but the Court denied the motion on October 6,
2004.19 The denial became final and executory on
November 12, 2004.20
In the meanwhile that the UP was exhausting the
available remedies to overturn the denial of due
course to the appeal and the issuance of the writ of
execution, Stern Builders and dela Cruz filed in the
RTC their motions for execution despite their previous
motion having already been granted and despite the
writ of execution having already issued. On June 11,
2003, the RTC granted another motion for execution
filed on May 9, 2003 (although the RTC had already
issued the writ of execution on October 4, 2002).21
On June 23, 2003 and July 25, 2003, respectively, the
sheriff served notices of garnishment on the UP’s
depository banks, namely: Land Bank of the
Philippines (Buendia Branch) and the Development
Bank of the Philippines (DBP), Commonwealth
Branch.22 The UP assailed the garnishment through
an urgent motion to quash the notices of
garnishment;23 and a motion to quash the writ of
execution dated May 9, 2003.24
On their part, Stern Builders and dela Cruz filed their
ex parte motion for issuance of a release order.25
On October 14, 2003, the RTC denied the UP’s
urgent motion to quash, and granted Stern Builders
and dela Cruz’s ex parte motion for issuance of a
release order.26
The UP moved for the reconsideration of the order of
October 14, 2003, but the RTC denied the motion on
November 7, 2003.27
On January 12, 2004, Stern Builders and dela Cruz
again sought the release of the garnished
funds.28 Despite the UP’s opposition,29 the RTC
granted the motion to release the garnished funds on
March 16, 2004.30 On April 20, 2004, however, the
RTC held in abeyance the enforcement of the writs of
execution issued on October 4, 2002 and June 3,
2003 and all the ensuing notices of garnishment,
citing Section 4, Rule 52, Rules of Court, which
provided that the pendency of a timely motion for
reconsideration stayed the execution of the
judgment.31
On December 21, 2004, the RTC, through respondent
Judge Agustin S. Dizon, authorized the release of the
garnished funds of the UP,32 to wit:
WHEREFORE, premises considered, there being no
more legal impediment for the release of the
garnished amount in satisfaction of the judgment
award in the instant case, let the amount garnished
be immediately released by the Development Bank of
the Philippines, Commonwealth Branch, Quezon City
in favor of the plaintiff.
SO ORDERED.
The UP was served on January 3, 2005 with the order
of December 21, 2004 directing DBP to release the
garnished funds.33
On January 6, 2005, Stern Builders and dela Cruz
moved to cite DBP in direct contempt of court for its
non-compliance with the order of release.34
Thereupon, on January 10, 2005, the UP brought a
petition for certiorari in the CA to challenge the
jurisdiction of the RTC in issuing the order of
December 21, 2004 (CA-G.R. CV No. 88125).35 Aside
from raising the denial of due process, the UP averred
that the RTC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling
that there was no longer any legal impediment to the
release of the garnished funds. The UP argued that
government funds and properties could not be seized
by virtue of writs of execution or garnishment, as held
in Department of Agriculture v. National Labor
Relations Commission,36 and citing Section 84 of
Presidential Decree No. 1445 to the effect that
"revenue funds shall not be paid out of any public
treasury or depository except in pursuance of an
appropriation law or other specific statutory authority;"
and that the order of garnishment clashed with the
ruling in University of the Philippines Board of
Regents v. Ligot-Telan37 to the effect that the funds
belonging to the UP were public funds.
On January 19, 2005, the CA issued a temporary
restraining order (TRO) upon application by the UP.38
On March 22, 2005, Stern Builders and dela Cruz
filed in the RTC their amended motion for sheriff’s
assistance to implement the release order dated
December 21, 2004, stating that the 60-day period of
the TRO of the CA had already lapsed.39 The UP
opposed the amended motion and countered that the
implementation of the release order be suspended.40
On May 3, 2005, the RTC granted the amended
motion for sheriff’s assistance and directed the sheriff
to proceed to the DBP to receive the check in
satisfaction of the judgment.41
The UP sought the reconsideration of the order of
May 3, 2005.42
On May 16, 2005, DBP filed a motion to consign the
check representing the judgment award and to
dismiss the motion to cite its officials in contempt of
court.43
On May 23, 2005, the UP presented a motion to
withhold the release of the payment of the judgment
award.44
On July 8, 2005, the RTC resolved all the pending
matters,45 noting that the DBP had already delivered
to the sheriff Manager’s Check No. 811941 for ₱
16,370,191.74 representing the garnished funds
payable to the order of Stern Builders and dela Cruz
as its compliance with the RTC’s order dated
December 21, 2004.46 However, the RTC directed in
the same order that Stern Builders and dela Cruz
should not encash the check or withdraw its amount
pending the final resolution of the UP’s petition for
certiorari, to wit:47
To enable the money represented in the check in
question (No. 00008119411) to earn interest during
the pendency of the defendant University of the
Philippines application for a writ of injunction with the
Court of Appeals the same may now be deposited by
the plaintiff at the garnishee Bank (Development Bank
of the Philippines), the disposition of the amount
represented therein being subject to the final outcome
of the case of the University of the Philippines et al.,
vs. Hon. Agustin S. Dizon et al., (CA G.R. 88125)
before the Court of Appeals.
Let it be stated herein that the plaintiff is not
authorized to encash and withdraw the amount
represented in the check in question and enjoy the
same in the fashion of an owner during the pendency
of the case between the parties before the Court of
Appeals which may or may not be resolved in
plaintiff’s favor.
With the end in view of seeing to it that the check in
question is deposited by the plaintiff at the
Development Bank of the Philippines (garnishee
bank), Branch Sheriff Herlan Velasco is directed to
accompany and/or escort the plaintiff in making the
deposit of the check in question.
SO ORDERED.
On September 16, 2005, the CA promulgated its
assailed decision dismissing the UP’s petition for
certiorari, ruling that the UP had been given ample
opportunity to contest the motion to direct the DBP to
deposit the check in the name of Stern Builders and
dela Cruz; and that the garnished funds could be the
proper subject of garnishment because they had been
already earmarked for the project, with the UP holding
the funds only in a fiduciary capacity,48 viz:
Petitioners next argue that the UP funds may not be
seized for execution or garnishment to satisfy the
judgment award. Citing Department of Agriculture vs.
NLRC, University of the Philippines Board of Regents
vs. Hon. Ligot-Telan, petitioners contend that UP
deposits at Land Bank and the Development Bank of
the Philippines, being government funds, may not be
released absent an appropriations bill from Congress.
The argument is specious. UP entered into a contract
with private respondents for the expansion and
renovation of the Arts and Sciences Building of its
campus in Los Baños, Laguna. Decidedly, there was
already an appropriations earmarked for the said
project. The said funds are retained by UP, in a
fiduciary capacity, pending completion of the
construction project.
We agree with the trial Court [sic]
observation on this score:
"4. Executive Order No. 109 (Directing all
National Government Agencies to Revert
Certain Accounts Payable to the Cumulative
Result of Operations of the National
Government and for Other Purposes)
Section 9. Reversion of Accounts Payable,
provides that, all 1995 and prior years
documented accounts payable and all
undocumented accounts regardless of the
year they were incurred shall be reverted to
the Cumulative Result of Operations of the
National Government (CROU). This shall
apply to accounts payable of all funds,
except fiduciary funds, as long as the
purpose for which the funds were created
have not been accomplished and accounts
payable under foreign assisted projects for
the duration of the said project. In this
regard, the Department of Budget and
Management issued Joint-Circular No. 99-6
4.0 (4.3) Procedural Guidelines which
provides that all accounts payable that
reverted to the CROU may be considered for
payment upon determination thru
administrative process, of the existence,
validity and legality of the claim. Thus, the
allegation of the defendants that considering
no appropriation for the payment of any
amount awarded to plaintiffs appellee the
funds of defendant-appellants may not be
seized pursuant to a writ of execution issued
by the regular court is misplaced. Surely
when the defendants and the plaintiff
entered into the General Construction of
Agreement there is an amount already
allocated by the latter for the said project
which is no longer subject of future
appropriation."49
After the CA denied their motion for reconsideration
on December 23, 2005, the petitioners appealed by
petition for review.
Matters Arising During the Pendency of the
Petition
On January 30, 2006, Judge Dizon of the RTC
(Branch 80) denied Stern Builders and dela Cruz’s
motion to withdraw the deposit, in consideration of the
UP’s intention to appeal to the CA,50 stating:
Since it appears that the defendants are intending to
file a petition for review of the Court of Appeals
resolution in CA-G.R. No. 88125 within the
reglementary period of fifteen (15) days from receipt
of resolution, the Court agrees with the defendants
stand that the granting of plaintiffs’ subject motion is
premature.
Let it be stated that what the Court meant by its Order
dated July 8, 2005 which states in part that the
"disposition of the amount represented therein being
subject to the final outcome of the case of the
University of the Philippines, et. al., vs. Hon. Agustin
S. Dizon et al., (CA G.R. No. 88125 before the Court
of Appeals) is that the judgment or resolution of said
court has to be final and executory, for if the same will
still be elevated to the Supreme Court, it will not attain
finality yet until the highest court has rendered its own
final judgment or resolution.51
However, on January 22, 2007, the UP filed
an Urgent Application for A Temporary Restraining
Order and/or A Writ of Preliminary
Injunction,52 averring that on January 3, 2007, Judge
Maria Theresa dela Torre-Yadao (who had meanwhile
replaced Judge Dizon upon the latter’s appointment to
the CA) had issued another order allowing Stern
Builders and dela Cruz to withdraw the deposit,53 to
wit:
It bears stressing that defendants’ liability for the
payment of the judgment obligation has become
indubitable due to the final and executory nature of
the Decision dated November 28, 2001. Insofar as the
payment of the [sic] judgment obligation is concerned,
the Court believes that there is nothing more the
defendant can do to escape liability. It is observed
that there is nothing more the defendant can do to
escape liability. It is observed that defendant U.P.
System had already exhausted all its legal remedies
to overturn, set aside or modify the decision (dated
November 28, 2001( rendered against it. The way the
Court sees it, defendant U.P. System’s petition before
the Supreme Court concerns only with the manner by
which said judgment award should be satisfied. It has
nothing to do with the legality or propriety thereof,
although it prays for the deletion of [sic] reduction of
the award of moral damages.
It must be emphasized that this Court’s finding, i.e.,
that there was sufficient appropriation earmarked for
the project, was upheld by the Court of Appeals in its
decision dated September 16, 2005. Being a finding
of fact, the Supreme Court will, ordinarily, not disturb
the same was said Court is not a trier of fact. Such
being the case, defendants’ arguments that there was
no sufficient appropriation for the payment of the
judgment obligation must fail.
While it is true that the former Presiding Judge of this
Court in its Order dated January 30, 2006 had stated
that:
Let it be stated that what the Court meant by its Order
dated July 8, 2005 which states in part that the
"disposition of the amount represented therein being
subject to the final outcome of the case of the
University of the Philippines, et. al., vs. Hon. Agustin
S. Dizon et al., (CA G.R. No. 88125 before the Court
of Appeals) is that the judgment or resolution of said
court has to be final and executory, for if the same will
still be elevated to the Supreme Court, it will not attain
finality yet until the highest court has rendered its own
final judgment or resolution.
it should be noted that neither the Court of Appeals
nor the Supreme Court issued a preliminary injunction
enjoining the release or withdrawal of the garnished
amount. In fact, in its present petition for review
before the Supreme Court, U.P. System has not
prayed for the issuance of a writ of preliminary
injunction. Thus, the Court doubts whether such writ
is forthcoming.
The Court honestly believes that if defendants’
petition assailing the Order of this Court dated
December 31, 2004 granting the motion for the
release of the garnished amount was meritorious, the
Court of Appeals would have issued a writ of
injunction enjoining the same. Instead, said appellate
court not only refused to issue a wit of preliminary
injunction prayed for by U.P. System but denied the
petition, as well.54
The UP contended that Judge Yadao thereby
effectively reversed the January 30, 2006 order of
Judge Dizon disallowing the withdrawal of the
garnished amount until after the decision in the case
would have become final and executory.
Although the Court issued a TRO on January 24,
2007 to enjoin Judge Yadao and all persons acting
pursuant to her authority from enforcing her order of
January 3, 2007,55 it appears that on January 16,
2007, or prior to the issuance of the TRO, she had
already directed the DBP to forthwith release the
garnished amount to Stern Builders and dela
Cruz; 56 and that DBP had forthwith complied with the
order on January 17, 2007 upon the sheriff’s service
of the order of Judge Yadao.57
These intervening developments impelled the UP to
file in this Court a supplemental petition on January
26, 2007,58alleging that the RTC (Judge Yadao)
gravely erred in ordering the immediate release of the
garnished amount despite the pendency of the
petition for review in this Court.
The UP filed a second supplemental petition59 after
the RTC (Judge Yadao) denied the UP’s motion for
the redeposit of the withdrawn amount on April 10,
2007,60 to wit:
This resolves defendant U.P. System’s Urgent Motion
to Redeposit Judgment Award praying that plaintiffs
be directed to redeposit the judgment award to DBP
pursuant to the Temporary Restraining Order issued
by the Supreme Court. Plaintiffs opposed the motion
and countered that the Temporary Restraining Order
issued by the Supreme Court has become moot and
academic considering that the act sought to be
restrained by it has already been performed. They
also alleged that the redeposit of the judgment award
was no longer feasible as they have already spent the
same.
It bears stressing, if only to set the record straight,
that this Court did not – in its Order dated January 3,
2007 (the implementation of which was restrained by
the Supreme Court in its Resolution dated January
24, 2002) – direct that that garnished amount "be
deposited with the garnishee bank (Development
Bank of the Philippines)". In the first place, there was
no need to order DBP to make such deposit, as the
garnished amount was already deposited in the
account of plaintiffs with the DBP as early as May 13,
2005. What the Court granted in its Order dated
January 3, 2007 was plaintiff’s motion to allow the
release of said deposit. It must be recalled that the
Court found plaintiff’s motion meritorious and, at that
time, there was no restraining order or preliminary
injunction from either the Court of Appeals or the
Supreme Court which could have enjoined the
release of plaintiffs’ deposit. The Court also took into
account the following factors:
a) the Decision in this case had long been
final and executory after it was rendered on
November 28, 2001;
b) the propriety of the dismissal of U.P.
System’s appeal was upheld by the
Supreme Court;
c) a writ of execution had been issued;
 d) defendant U.P. System’s deposit with
DBP was garnished pursuant to a lawful writ
of execution issued by the Court; and
e) the garnished amount had already been
turned over to the plaintiffs and deposited in
their account with DBP.
The garnished amount, as discussed in the Order
dated January 16, 2007, was already owned by the
plaintiffs, having been delivered to them by the
Deputy Sheriff of this Court pursuant to par. (c),
Section 9, Rule 39 of the 1997 Rules of Civil
Procedure. Moreover, the judgment obligation has
already been fully satisfied as per Report of the
Deputy Sheriff.
Anent the Temporary Restraining Order issued by the
Supreme Court, the same has become functus oficio,
having been issued after the garnished amount had
been released to the plaintiffs. The judgment debt
was released to the plaintiffs on January 17, 2007,
while the Temporary Restraining Order issued by the
Supreme Court was received by this Court on
February 2, 2007. At the time of the issuance of the
Restraining Order, the act sought to be restrained had
already been done, thereby rendering the said Order
ineffectual.
After a careful and thorough study of the arguments
advanced by the parties, the Court is of the
considered opinion that there is no legal basis to grant
defendant U.P. System’s motion to redeposit the
judgment amount. Granting said motion is not only
contrary to law, but it will also render this Court’s final
executory judgment nugatory. Litigation must end and
terminate sometime and somewhere, and it is
essential to an effective administration of justice that
once a judgment has become final the issue or cause
involved therein should be laid to rest. This doctrine of
finality of judgment is grounded on fundamental
considerations of public policy and sound practice. In
fact, nothing is more settled in law than that once a
judgment attains finality it thereby becomes
immutable and unalterable. It may no longer be
modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous
conclusion of fact or law, and regardless of whether
the modification is attempted to be made by the court
rendering it or by the highest court of the land.
WHEREFORE, premises considered, finding
defendant U.P. System’s Urgent Motion to Redeposit
Judgment Award devoid of merit, the same is hereby
DENIED.
SO ORDERED.
Issues
The UP now submits that:
I
THE COURT OF APPEALS COMMITTED GRAVE
ERROR IN DISMISSING THE PETITION,
ALLOWING IN EFFECT THE GARNISHMENT OF
UP FUNDS, WHEN IT RULED THAT FUNDS HAVE
ALREADY BEEN EARMARKED FOR THE
CONSTRUCTION PROJECT; AND THUS, THERE IS
NO NEED FOR FURTHER APPROPRIATIONS.
II
THE COURT OF APPEALS COMMITTED GRAVE
ERROR IN ALLOWING GARNISHMENT OF A
STATE UNIVERSITY’S FUNDS IN VIOLATION OF
ARTICLE XIV, SECTION 5(5) OF THE
CONSTITUTION.
III
IN THE ALTERNATIVE, THE UNIVERSITY INVOKES
EQUITY AND THE REVIEW POWERS OF THIS
HONORABLE COURT TO MODIFY, IF NOT
TOTALLY DELETE THE AWARD OF ₱ 10 MILLION
AS MORAL DAMAGES TO RESPONDENTS.
IV
THE RTC-BRANCH 80 COMMITTED GRAVE
ERROR IN ORDERING THE IMMEDIATE RELEASE
OF THE JUDGMENT AWARD IN ITS ORDER
DATED 3 JANUARY 2007 ON THE GROUND OF
EQUITY AND JUDICIAL COURTESY.
V
THE RTC-BRANCH 80 COMMITTED GRAVE
ERROR IN ORDERING THE IMMEDIATE RELEASE
OF THE JUDGMENT AWARD IN ITS ORDER
DATED 16 JANUARY 2007 ON THE GROUND THAT
PETITIONER UNIVERSITY STILL HAS A PENDING
MOTION FOR RECONSIDERATION OF THE
ORDER DATED 3 JANUARY 2007.
VI
THE RTC-BRANCH 80 COMMITTED GRAVE
ERROR IN NOT ORDERING THE REDEPOSIT OF
THE GARNISHED AMOUNT TO THE DBP IN
VIOLATION OF THE CLEAR LANGUAGE OF THE
SUPREME COURT RESOLUTION DATED 24
JANUARY 2007.
The UP argues that the amount earmarked for the
construction project had been purposely set aside
only for the aborted project and did not include
incidental matters like the awards of actual damages,
moral damages and attorney’s fees. In support of its
argument, the UP cited Article 12.2 of the General
Construction Agreement, which stipulated that no
deductions would be allowed for the payment of
claims, damages, losses and expenses, including
attorney’s fees, in case of any litigation arising out of
the performance of the work. The UP insists that the
CA decision was inconsistent with the rulings in
Commissioner of Public Highways v. San Diego61 and
Department of Agriculture v. NLRC62 to the effect that
government funds and properties could not be seized
under writs of execution or garnishment to satisfy
judgment awards.
Furthermore, the UP contends that the CA
contravened Section 5, Article XIV of the Constitution
by allowing the garnishment of UP funds, because the
garnishment resulted in a substantial reduction of the
UP’s limited budget allocated for the remuneration,
job satisfaction and fulfillment of the best available
teachers; that Judge Yadao should have exhibited
judicial courtesy towards the Court due to the
pendency of the UP’s petition for review; and that she
should have also desisted from declaring that the
TRO issued by this Court had become functus officio.
Lastly, the UP states that the awards of actual
damages of ₱ 5,716,729.00 and moral damages of ₱
10 million should be reduced, if not entirely deleted,
due to its being unconscionable, inequitable and
detrimental to public service.
In contrast, Stern Builders and dela Cruz aver that the
petition for review was fatally defective for its failure to
mention the other cases upon the same issues
pending between the parties (i.e., CA-G.R. No. 77395
and G.R No. 163501); that the UP was evidently
resorting to forum shopping, and to delaying the
satisfaction of the final judgment by the filing of its
petition for review; that the ruling in Commissioner of
Public Works v. San Diego had no application
because there was an appropriation for the project;
that the UP retained the funds allotted for the project
only in a fiduciary capacity; that the contract price had
been meanwhile adjusted to ₱ 22,338,553.25, an
amount already more than sufficient to cover the
judgment award; that the UP’s prayer to reduce or
delete the award of damages had no factual basis,
because they had been gravely wronged, had been
deprived of their source of income, and had suffered
untold miseries, discomfort, humiliation and sleepless
years; that dela Cruz had even been constrained to
sell his house, his equipment and the implements of
his trade, and together with his family had been
forced to live miserably because of the wrongful
actuations of the UP; and that the RTC correctly
declared the Court’s TRO to be already functus officio
by reason of the withdrawal of the garnished amount
from the DBP.
The decisive issues to be considered and passed
upon are, therefore:
(a) whether the funds of the UP were the proper
subject of garnishment in order to satisfy the
judgment award; and (b) whether the UP’s prayer for
the deletion of the awards of actual damages of ₱
5,716,729.00, moral damages of ₱ 10,000,000.00 and
attorney’s fees of ₱ 150,000.00 plus ₱ 1,500.00 per
appearance could be granted despite the finality of
the judgment of the RTC.
Ruling
The petition for review is meritorious.
I.
UP’s funds, being government funds,
are not subject to garnishment
The UP was founded on June 18, 1908 through Act
1870 to provide advanced instruction in literature,
philosophy, the sciences, and arts, and to give
professional and technical training to deserving
students.63 Despite its establishment as a body
corporate,64 the UP remains to be a "chartered
institution"65 performing a legitimate government
function. It is an institution of higher learning, not a
corporation established for profit and declaring any
dividends.66 In enacting Republic Act No. 9500 (The
University of the Philippines Charter of 2008),
Congress has declared the UP as the national
university67 "dedicated to the search for truth and
knowledge as well as the development of future
leaders."68
Irrefragably, the UP is a government
instrumentality,69 performing the State’s constitutional
mandate of promoting quality and accessible
education.70 As a government instrumentality, the UP
administers special funds sourced from the fees and
income enumerated under Act No. 1870 and Section
1 of Executive Order No. 714,71 and from the yearly
appropriations, to achieve the purposes laid down by
Section 2 of Act 1870, as expanded in Republic Act
No. 9500.72 All the funds going into the possession of
the UP, including any interest accruing from the
deposit of such funds in any banking institution,
constitute a "special trust fund," the disbursement of
which should always be aligned with the UP’s mission
and purpose,73 and should always be subject to
auditing by the COA.74
Presidential Decree No. 1445 defines a "trust fund" as
a fund that officially comes in the possession of an
agency of the government or of a public officer as
trustee, agent or administrator, or that is received for
the fulfillment of some obligation.75 A trust fund may
be utilized only for the "specific purpose for which the
trust was created or the funds received."76
The funds of the UP are government funds that are
public in character. They include the income accruing
from the use of real property ceded to the UP that
may be spent only for the attainment of its institutional
objectives.77 Hence, the funds subject of this action
could not be validly made the subject of the RTC’s
writ of execution or garnishment. The adverse
judgment rendered against the UP in a suit to which it
had impliedly consented was not immediately
enforceable by execution against the UP,78 because
suability of the State did not necessarily mean its
liability.79
A marked distinction exists between suability of the
State and its liability. As the Court succinctly stated in
Municipality of San Fernando, La Union v. Firme:80
A distinction should first be made between suability
and liability. "Suability depends on the consent of the
state to be sued, liability on the applicable law and the
established facts. The circumstance that a state is
suable does not necessarily mean that it is liable; on
the other hand, it can never be held liable if it does
not first consent to be sued. Liability is not conceded
by the mere fact that the state has allowed itself to be
sued. When the state does waive its sovereign
immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable.
Also, in Republic v. Villasor,81 where the issuance of
an alias writ of execution directed against the funds of
the Armed Forces of the Philippines to satisfy a final
and executory judgment was nullified, the Court said:
xxx The universal rule that where the State gives its
consent to be sued by private parties either by
general or special law, it may limit claimant’s action
"only up to the completion of proceedings anterior to
the stage of execution" and that the power of the
Courts ends when the judgment is rendered, since
government funds and properties may not be seized
under writs of execution or garnishment to satisfy
such judgments, is based on obvious considerations
of public policy. Disbursements of public funds must
be covered by the corresponding appropriation as
required by law. The functions and public services
rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds
from their legitimate and specific objects, as
appropriated by law.
The UP correctly submits here that the garnishment of
its funds to satisfy the judgment awards of actual and
moral damages (including attorney’s fees) was not
validly made if there was no special appropriation by
Congress to cover the liability. It was, therefore,
legally unwarranted for the CA to agree with the
RTC’s holding in the order issued on April 1, 2003
that no appropriation by Congress to allocate and set
aside the payment of the judgment awards was
necessary because "there (were) already an
appropriations (sic) earmarked for the said
project."82 The CA and the RTC thereby unjustifiably
ignored the legal restriction imposed on the trust
funds of the Government and its agencies and
instrumentalities to be used exclusively to fulfill the
purposes for which the trusts were created or for
which the funds were received except upon express
authorization by Congress or by the head of a
government agency in control of the funds, and
subject to pertinent budgetary laws, rules and
regulations.83
Indeed, an appropriation by Congress was required
before the judgment that rendered the UP liable for
moral and actual damages (including attorney’s fees)
would be satisfied considering that such monetary
liabilities were not covered by the "appropriations
earmarked for the said project." The Constitution
strictly mandated that "(n)o money shall be paid out of
the Treasury except in pursuance of an appropriation
made by law."84
II
COA must adjudicate private respondents’ claim
before execution should proceed
The execution of the monetary judgment against the
UP was within the primary jurisdiction of the COA.
This was expressly provided in Section 26 of
Presidential Decree No. 1445, to wit:
Section 26. General jurisdiction. - The authority and
powers of the Commission shall extend to and
comprehend all matters relating to auditing
procedures, systems and controls, the keeping of the
general accounts of the Government, the preservation
of vouchers pertaining thereto for a period of ten
years, the examination and inspection of the books,
records, and papers relating to those accounts; and
the audit and settlement of the accounts of all persons
respecting funds or property received or held by them
in an accountable capacity, as well as the
examination, audit, and settlement of all debts and
claims of any sort due from or owing to the
Government or any of its subdivisions, agencies and
instrumentalities. The said jurisdiction extends to all
government-owned or controlled corporations,
including their subsidiaries, and other self-governing
boards, commissions, or agencies of the Government,
and as herein prescribed, including non governmental
entities subsidized by the government, those funded
by donations through the government, those required
to pay levies or government share, and those for
which the government has put up a counterpart fund
or those partly funded by the government.
It was of no moment that a final and executory
decision already validated the claim against the UP.
The settlement of the monetary claim was still subject
to the primary jurisdiction of the COA despite the final
decision of the RTC having already validated the
claim.85 As such, Stern Builders and dela Cruz as the
claimants had no alternative except to first seek the
approval of the COA of their monetary claim.
On its part, the RTC should have exercised utmost
caution, prudence and judiciousness in dealing with
the motions for execution against the UP and the
garnishment of the UP’s funds. The RTC had no
authority to direct the immediate withdrawal of any
portion of the garnished funds from the depository
banks of the UP. By eschewing utmost caution,
prudence and judiciousness in dealing with the
execution and garnishment, and by authorizing the
withdrawal of the garnished funds of the UP, the RTC
acted beyond its jurisdiction, and all its orders and
issuances thereon were void and of no legal effect,
specifically: (a) the order Judge Yadao issued on
January 3, 2007 allowing Stern Builders and dela
Cruz to withdraw the deposited garnished amount; (b)
the order Judge Yadao issued on January 16, 2007
directing DBP to forthwith release the garnish amount
to Stern Builders and dela Cruz; (c) the sheriff’s report
of January 17, 2007 manifesting the full satisfaction of
the writ of execution; and (d) the order of April 10,
2007 deying the UP’s motion for the redeposit of the
withdrawn amount. Hence, such orders and
issuances should be struck down without exception.
Nothing extenuated Judge Yadao’s successive
violations of Presidential Decree No. 1445. She was
aware of Presidential Decree No. 1445, considering
that the Court circulated to all judges its
Administrative Circular No. 10-2000,86 issued on
October 25, 2000, enjoining them "to observe utmost
caution, prudence and judiciousness in the issuance
of writs of execution to satisfy money judgments
against government agencies and local government
units" precisely in order to prevent the circumvention
of Presidential Decree No. 1445, as well as of the
rules and procedures of the COA, to wit:
In order to prevent possible circumvention of the
rules and procedures of the Commission on
Audit, judges are hereby enjoined to observe
utmost caution, prudence and judiciousness in
the issuance of writs of execution to satisfy
money judgments against government agencies
and local government units.
Judges should bear in mind that in Commissioner of
Public Highways v. San Diego (31 SCRA 617, 625
1970), this Court explicitly stated:
"The universal rule that where the State gives its
consent to be sued by private parties either by
general or special law, it may limit claimant’s action
‘only up to the completion of proceedings anterior to
the stage of execution’ and that the power of the
Court ends when the judgment is rendered, since
government funds and properties may not be seized
under writs of execution or garnishment to satisfy
such judgments, is based on obvious considerations
of public policy. Disbursements of public funds must
be covered by the corresponding appropriation as
required by law. The functions and public services
rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds
from their legitimate and specific objects, as
appropriated by law.
Moreover, it is settled jurisprudence that upon
determination of State liability, the prosecution,
enforcement or satisfaction thereof must still be
pursued in accordance with the rules and
procedures laid down in P.D. No. 1445, otherwise
known as the Government Auditing Code of the
Philippines (Department of Agriculture v. NLRC,
227 SCRA 693, 701-02 1993 citing Republic vs.
Villasor, 54 SCRA 84 1973). All money claims
against the Government must first be filed with
the Commission on Audit which must act upon it
within sixty days. Rejection of the claim will
authorize the claimant to elevate the matter to the
Supreme Court on certiorari and in effect, sue the
State thereby (P.D. 1445, Sections 49-50).
However, notwithstanding the rule that government
properties are not subject to levy and execution
unless otherwise provided for by statute (Republic v.
Palacio, 23 SCRA 899 1968; Commissioner of Public
Highways v. San Diego, supra) or municipal
ordinance (Municipality of Makati v. Court of Appeals,
190 SCRA 206 1990), the Court has, in various
instances, distinguished between government funds
and properties for public use and those not held for
public use. Thus, in Viuda de Tan Toco v. Municipal
Council of Iloilo (49 Phil 52 1926, the Court ruled that
"where property of a municipal or other public
corporation is sought to be subjected to execution to
satisfy judgments recovered against such corporation,
the question as to whether such property is leviable or
not is to be determined by the usage and purposes for
which it is held." The following can be culled from
Viuda de Tan Toco v. Municipal Council of Iloilo:
1. Properties held for public uses – and generally
everything held for governmental purposes – are
not subject to levy and sale under execution
against such corporation. The same rule applies
to funds in the hands of a public officer and taxes
due to a municipal corporation.
2. Where a municipal corporation owns in its
proprietary capacity, as distinguished from its public
or government capacity, property not used or used for
a public purpose but for quasi-private purposes, it is
the general rule that such property may be seized and
sold under execution against the corporation.
3. Property held for public purposes is not subject to
execution merely because it is temporarily used for
private purposes. If the public use is wholly
abandoned, such property becomes subject to
execution.
This Administrative Circular shall take effect
immediately and the Court Administrator shall see to it
that it is faithfully implemented.
Although Judge Yadao pointed out that neither the CA
nor the Court had issued as of then any writ of
preliminary injunction to enjoin the release or
withdrawal of the garnished amount, she did not need
any writ of injunction from a superior court to compel
her obedience to the law. The Court is disturbed that
an experienced judge like her should look at public
laws like Presidential Decree No. 1445 dismissively
instead of loyally following and unquestioningly
implementing them. That she did so turned her court
into an oppressive bastion of mindless tyranny
instead of having it as a true haven for the seekers of
justice like the UP.
III
Period of appeal did not start without effective
service of decision upon counsel of record;
Fresh-period rule announced in
Neypes v. Court of Appeals
can be given retroactive application
The UP next pleads that the Court gives due course
to its petition for review in the name of equity in order
to reverse or modify the adverse judgment against it
despite its finality. At stake in the UP’s plea for equity
was the return of the amount of ₱ 16,370,191.74
illegally garnished from its trust funds. Obstructing the
plea is the finality of the judgment based on the
supposed tardiness of UP’s appeal, which the RTC
declared on September 26, 2002. The CA upheld the
declaration of finality on February 24, 2004, and the
Court itself denied the UP’s petition for review on that
issue on May 11, 2004 (G.R. No. 163501). The denial
became final on November 12, 2004.
It is true that a decision that has attained finality
becomes immutable and unalterable, and cannot be
modified in any respect,87 even if the modification is
meant to correct erroneous conclusions of fact and
law, and whether the modification is made by the
court that rendered it or by this Court as the highest
court of the land.88 Public policy dictates that once a
judgment becomes final, executory and unappealable,
the prevailing party should not be deprived of the
fruits of victory by some subterfuge devised by the
losing party. Unjustified delay in the enforcement of
such judgment sets at naught the role and purpose of
the courts to resolve justiciable controversies with
finality.89Indeed, all litigations must at some time end,
even at the risk of occasional errors.
But the doctrine of immutability of a final judgment
has not been absolute, and has admitted several
exceptions, among them: (a) the correction of clerical
errors; (b) the so-called nunc pro tunc entries that
cause no prejudice to any party; (c) void judgments;
and (d) whenever circumstances transpire after the
finality of the decision that render its execution unjust
and inequitable.90 Moreover, in Heirs of Maura So v.
Obliosca,91 we stated that despite the absence of the
preceding circumstances, the Court is not precluded
from brushing aside procedural norms if only to serve
the higher interests of justice and equity. Also, in
Gumaru v. Quirino State College,92 the Court nullified
the proceedings and the writ of execution issued by
the RTC for the reason that respondent state college
had not been represented in the litigation by the
Office of the Solicitor General.
We rule that the UP’s plea for equity warrants the
Court’s exercise of the exceptional power to disregard
the declaration of finality of the judgment of the RTC
for being in clear violation of the UP’s right to due
process.
Both the CA and the RTC found the filing on June 3,
2002 by the UP of the notice of appeal to be tardy.
They based their finding on the fact that only six days
remained of the UP’s reglementary 15-day period
within which to file the notice of appeal because the
UP had filed a motion for reconsideration on January
16, 2002 vis-à-vis the RTC’s decision the UP received
on January 7, 2002; and that because the denial of
the motion for reconsideration had been served upon
Atty. Felimon D. Nolasco of the UPLB Legal Office on
May 17, 2002, the UP had only until May 23, 2002
within which to file the notice of appeal.
The UP counters that the service of the denial of the
motion for reconsideration upon Atty. Nolasco was
defective considering that its counsel of record was
not Atty. Nolasco of the UPLB Legal Office but the
OLS in Diliman, Quezon City; and that the period of
appeal should be reckoned from May 31, 2002, the
date when the OLS received the order. The UP
submits that the filing of the notice of appeal on June
3, 2002 was well within the reglementary period to
appeal.
We agree with the submission of the UP.
Firstly, the service of the denial of the motion for
reconsideration upon Atty. Nolasco of the UPLB Legal
Office was invalid and ineffectual because he was
admittedly not the counsel of record of the UP. The
rule is that it is on the counsel and not the client that
the service should be made.93
That counsel was the OLS in Diliman, Quezon City,
which was served with the denial only on May 31,
2002. As such, the running of the remaining period of
six days resumed only on June 1, 2002,94 rendering
the filing of the UP’s notice of appeal on June 3, 2002
timely and well within the remaining days of the UP’s
period to appeal.
Verily, the service of the denial of the motion for
reconsideration could only be validly made upon the
OLS in Diliman, and no other. The fact that Atty.
Nolasco was in the employ of the UP at the UPLB
Legal Office did not render the service upon him
effective. It is settled that where a party has appeared
by counsel, service must be made upon such
counsel.95 Service on the party or the party’s
employee is not effective because such notice is not
notice in law.96 This is clear enough from Section 2,
second paragraph, of Rule 13, Rules of Court, which
explicitly states that: "If any party has appeared by
counsel, service upon him shall be made upon his
counsel or one of them, unless service upon the party
himself is ordered by the court. Where one counsel
appears for several parties, he shall only be entitled to
one copy of any paper served upon him by the
opposite side." As such, the period to appeal resumed
only on June 1, 2002, the date following the service
on May 31, 2002 upon the OLS in Diliman of the copy
of the decision of the RTC, not from the date when
the UP was notified.97
Accordingly, the declaration of finality of the judgment
of the RTC, being devoid of factual and legal bases, is
set aside.
Secondly, even assuming that the service upon Atty.
Nolasco was valid and effective, such that the
remaining period for the UP to take a timely appeal
would end by May 23, 2002, it would still not be
correct to find that the judgment of the RTC became
final and immutable thereafter due to the notice of
appeal being filed too late on June 3, 2002.
In so declaring the judgment of the RTC as final
against the UP, the CA and the RTC applied the rule
contained in the second paragraph of Section 3, Rule
41 of the Rules of Court to the effect that the filing of a
motion for reconsideration interrupted the running of
the period for filing the appeal; and that the period
resumed upon notice of the denial of the motion for
reconsideration. For that reason, the CA and the RTC
might not be taken to task for strictly adhering to the
rule then prevailing.
However, equity calls for the retroactive application in
the UP’s favor of the fresh-period rule that the Court
first announced in mid-September of 2005 through its
ruling in Neypes v. Court of Appeals,98 viz:
To standardize the appeal periods provided in the
Rules and to afford litigants fair opportunity to appeal
their cases, the Court deems it practical to allow a
fresh period of 15 days within which to file the notice
of appeal in the Regional Trial Court, counted from
receipt of the order dismissing a motion for a new trial
or motion for reconsideration.
The retroactive application of the fresh-period rule, a
procedural law that aims "to regiment or make the
appeal period uniform, to be counted from receipt of
the order denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final
order or resolution,"99 is impervious to any serious
challenge. This is because there are no vested rights
in rules of procedure.100 A law or regulation is
procedural when it prescribes rules and forms of
procedure in order that courts may be able to
administer justice.101 It does not come within the legal
conception of a retroactive law, or is not subject of the
general rule prohibiting the retroactive operation of
statues, but is given retroactive effect in actions
pending and undetermined at the time of its passage
without violating any right of a person who may feel
that he is adversely affected.
We have further said that a procedural rule that is
amended for the benefit of litigants in furtherance of
the administration of justice shall be retroactively
applied to likewise favor actions then pending, as
equity delights in equality.102 We may even relax
stringent procedural rules in order to serve substantial
justice and in the exercise of this Court’s equity
jurisdiction.103 Equity jurisdiction aims to do complete
justice in cases where a court of law is unable to
adapt its judgments to the special circumstances of a
case because of the inflexibility of its statutory or legal
jurisdiction.104
It is cogent to add in this regard that to deny the
benefit of the fresh-period rule to the UP would
amount to injustice and absurdity – injustice, because
the judgment in question was issued on November
28, 2001 as compared to the judgment in Neypes that
was rendered in 1998; absurdity, because parties
receiving notices of judgment and final orders issued
in the year 1998 would enjoy the benefit of the fresh-
period rule but the later rulings of the lower courts like
that herein would not.105
Consequently, even if the reckoning started from May
17, 2002, when Atty. Nolasco received the denial, the
UP’s filing on June 3, 2002 of the notice of appeal
was not tardy within the context of the fresh-period
rule. For the UP, the fresh period of 15-days counted
from service of the denial of the motion for
reconsideration would end on June 1, 2002, which
was a Saturday. Hence, the UP had until the next
working day, or June 3, 2002, a Monday, within which
to appeal, conformably with Section 1 of Rule 22,
Rules of Court, which holds that: "If the last day of the
period, as thus computed, falls on a Saturday, a
Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working
day."
 IV
Awards of monetary damages,
being devoid of factual and legal bases,
did not attain finality and should be deleted
Section 14 of Article VIII of the Constitution prescribes
that express findings of fact and of law should be
made in the decision rendered by any court, to wit:
Section 14. No decision shall be rendered by any
court without expressing therein clearly and distinctly
the facts and the law on which it is based.
No petition for review or motion for reconsideration of
a decision of the court shall be refused due course or
denied without stating the legal basis therefor.
Implementing the constitutional provision in civil
actions is Section 1 of Rule 36, Rules of Court, viz:
Section 1. Rendition of judgments and final orders. —
A judgment or final order determining the merits of the
case shall be in writing personally and directly
prepared by the judge, stating clearly and distinctly
the facts and the law on which it is based, signed by
him, and filed with the clerk of the court. (1a)
The Constitution and the Rules of Court apparently
delineate two main essential parts of a judgment,
namely: the body and the decretal portion. Although
the latter is the controlling part,106 the importance of
the former is not to be lightly regarded because it is
there where the court clearly and distinctly states its
findings of fact and of law on which the decision is
based. To state it differently, one without the other is
ineffectual and useless. The omission of either
inevitably results in a judgment that violates the letter
and the spirit of the Constitution and the Rules of
Court.
The term findings of fact that must be found in the
body of the decision refers to statements of fact, not
to conclusions of law.107 Unlike in pleadings where
ultimate facts alone need to be stated, the
Constitution and the Rules of Court require not only
that a decision should state the ultimate facts but also
that it should specify the supporting evidentiary facts,
for they are what are called the findings of fact.
The importance of the findings of fact and of law
cannot be overstated. The reason and purpose of the
Constitution and the Rules of Court in that regard are
obviously to inform the parties why they win or lose,
and what their rights and obligations are. Only thereby
is the demand of due process met as to the parties.
As Justice Isagani A. Cruz explained in Nicos
Industrial Corporation v. Court of Appeals:108
It is a requirement of due process that the parties to a
litigation be informed of how it was decided, with an
explanation of the factual and legal reasons that led to
the conclusions of the court. The court cannot simply
say that judgment is rendered in favor of X and
against Y and just leave it at that without any
justification whatsoever for its action. The losing party
is entitled to know why he lost, so he may appeal to a
higher court, if permitted, should he believe that the
decision should be reversed. A decision that does not
clearly and distinctly state the facts and the law on
which it is based leaves the parties in the dark as to
how it was reached and is especially prejudicial to the
losing party, who is unable to pinpoint the possible
errors of the court for review by a higher tribunal.
Here, the decision of the RTC justified the grant of
actual and moral damages, and attorney’s fees in the
following terse manner, viz:
xxx The Court is not unmindful that due to defendants’
unjustified refusal to pay their outstanding obligation
to plaintiff, the same suffered losses and incurred
expenses as he was forced to re-mortgage his house
and lot located in Quezon City to Metrobank (Exh.
"CC") and BPI Bank just to pay its monetary
obligations in the form of interest and penalties
incurred in the course of the construction of the
subject project.109
The statement that "due to defendants’ unjustified
refusal to pay their outstanding obligation to plaintiff,
the same suffered losses and incurred expenses as
he was forced to re-mortgage his house and lot
located in Quezon City to Metrobank (Exh. "CC") and
BPI Bank just to pay its monetary obligations in the
form of interest and penalties incurred in the course of
the construction of the subject project" was only a
conclusion of fact and law that did not comply with the
constitutional and statutory prescription. The
statement specified no detailed expenses or losses
constituting the ₱ 5,716,729.00 actual damages
sustained by Stern Builders in relation to the
construction project or to other pecuniary hardships.
The omission of such expenses or losses directly
indicated that Stern Builders did not prove them at all,
which then contravened Article 2199, Civil Code, the
statutory basis for the award of actual damages,
which entitled a person to an adequate compensation
only for such pecuniary loss suffered by him as he
has duly proved. As such, the actual damages
allowed by the RTC, being bereft of factual support,
were speculative and whimsical. Without the clear
and distinct findings of fact and law, the award
amounted only to an ipse dixit on the part of the
RTC,110 and did not attain finality.
There was also no clear and distinct statement of the
factual and legal support for the award of moral
damages in the substantial amount of ₱
10,000,000.00. The award was thus also speculative
and whimsical. Like the actual damages, the moral
damages constituted another judicial ipse dixit, the
inevitable consequence of which was to render the
award of moral damages incapable of attaining
finality. In addition, the grant of moral damages in that
manner contravened the law that permitted the
recovery of moral damages as the means to assuage
"physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar
injury."111 The contravention of the law was manifest
considering that Stern Builders, as an artificial person,
was incapable of experiencing pain and moral
sufferings.112 Assuming that in granting the substantial
amount of ₱ 10,000,000.00 as moral damages, the
RTC might have had in mind that dela Cruz had
himself suffered mental anguish and anxiety. If that
was the case, then the RTC obviously disregarded his
separate and distinct personality from that of Stern
Builders.113 Moreover, his moral and emotional
sufferings as the President of Stern Builders were not
the sufferings of Stern Builders. Lastly, the RTC
violated the basic principle that moral damages were
not intended to enrich the plaintiff at the expense of
the defendant, but to restore the plaintiff to his status
quo ante as much as possible. Taken together,
therefore, all these considerations exposed the
substantial amount of ₱ 10,000,000.00 allowed as
moral damages not only to be factually baseless and
legally indefensible, but also to be unconscionable,
inequitable and unreasonable.
Like the actual and moral damages, the ₱
150,000.00, plus ₱ 1,500.00 per appearance, granted
as attorney’s fees were factually unwarranted and
devoid of legal basis. The general rule is that a
successful litigant cannot recover attorney’s fees as
part of the damages to be assessed against the losing
party because of the policy that no premium should
be placed on the right to litigate.114 Prior to the
effectivity of the present Civil Code, indeed, such fees
could be recovered only when there was a stipulation
to that effect. It was only under the present Civil Code
that the right to collect attorney’s fees in the cases
mentioned in Article 2208115 of the Civil Code came to
be recognized.116 Nonetheless, with attorney’s fees
being allowed in the concept of actual
damages,117 their amounts must be factually and
legally justified in the body of the decision and not
stated for the first time in the decretal
portion.118 Stating the amounts only in the dispositive
portion of the judgment is not enough;119 a rendition of
the factual and legal justifications for them must also
be laid out in the body of the decision.120
That the attorney’s fees granted to the private
respondents did not satisfy the foregoing requirement
suffices for the Court to undo them.121 The grant was
ineffectual for being contrary to law and public policy,
it being clear that the express findings of fact and law
were intended to bring the case within the exception
and thereby justify the award of the attorney’s fees.
Devoid of such express findings, the award was a
conclusion without a premise, its basis being
improperly left to speculation and conjecture.122
Nonetheless, the absence of findings of fact and of
any statement of the law and jurisprudence on which
the awards of actual and moral damages, as well as
of attorney’s fees, were based was a fatal flaw that
invalidated the decision of the RTC only as to such
awards. As the Court declared in Velarde v. Social
Justice Society,123 the failure to comply with the
constitutional requirement for a clear and distinct
statement of the supporting facts and law "is a grave
abuse of discretion amounting to lack or excess of
jurisdiction" and that "(d)ecisions or orders issued in
careless disregard of the constitutional mandate are a
patent nullity and must be struck down as
void."124 The other item granted by the RTC (i.e., ₱
503,462.74) shall stand, subject to the action of the
COA as stated herein.
WHEREFORE, the Court GRANTS the petition for
review on certiorari; REVERSES and SETS
ASIDE the decision of the Court of Appeals under
review; ANNULS the orders for the garnishment of
the funds of the University of the Philippines and for
the release of the garnished amount to Stern Builders
Corporation and Servillano dela Cruz;
and DELETES from the decision of the Regional Trial
Court dated November 28, 2001 for being void only
the awards of actual damages of ₱ 5,716,729.00,
moral damages of ₱ 10,000,000.00, and attorney's
fees of ₱ 150,000.00, plus ₱ 1,500.00 per
appearance, in favor of Stern Builders Corporation
and Servillano dela Cruz.
The Court ORDERS Stem Builders Corporation and
Servillano dela Cruz to redeposit the amount of ₱
16,370,191.74 within 10 days from receipt of this
decision.
Costs of suit to be paid by the private respondents.
SO ORDERED.
Case No. 008
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 185572 February 7, 2012
CHINA NATIONAL MACHINERY & EQUIPMENT
CORP. (GROUP), Petitioner,
vs.
HON. CESAR D. SANTAMARIA, in his official
capacity as Presiding Judge of Branch 145,
Regional Trial Court of Makati City, HERMINIO
HARRY L. ROQUE, JR., JOEL R. BUTUYAN,
ROGER R. RAYEL, ROMEL R. BAGARES,
CHRISTOPHER FRANCISCO C. BOLASTIG,
LEAGUE OF URBAN POOR FOR ACTION (LUPA),
KILUSAN NG MARALITA SA MEYCAUAYAN
(KMM-LUPA CHAPTER), DANILO M. CALDERON,
VICENTE C. ALBAN, MERLYN M. VAAL, LOLITA S.
QUINONES, RICARDO D. LANOZO, JR.,
CONCHITA G. GOZO, MA. TERESA D. ZEPEDA,
JOSEFINA A. LANOZO, and SERGIO C. LEGASPI,
JR., KALIPUNAN NG DAMAYANG MAHIHIRAP
(KADAMAY), EDY CLERIGO, RAMMIL DINGAL,
NELSON B. TERRADO, CARMEN DEUNIDA, and
EDUARDO LEGSON, Respondents.
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari with Prayer
for the Issuance of a Temporary Restraining Order
(TRO) and/or Preliminary Injunction assailing the 30
September 2008 Decision and 5 December 2008
Resolution of the Court of Appeals (CA) in CA–G.R.
SP No. 103351.1
On 14 September 2002, petitioner China National
Machinery & Equipment Corp. (Group) (CNMEG),
represented by its chairperson, Ren Hongbin, entered
into a Memorandum of Understanding with the North
Luzon Railways Corporation (Northrail), represented
by its president, Jose L. Cortes, Jr. for the conduct of
a feasibility study on a possible railway line from
Manila to San Fernando, La Union (the Northrail
Project).2
On 30 August 2003, the Export Import Bank of China
(EXIM Bank) and the Department of Finance of the
Philippines (DOF) entered into a Memorandum of
Understanding (Aug 30 MOU), wherein China agreed
to extend Preferential Buyer’s Credit to the Philippine
government to finance the Northrail Project.3 The
Chinese government designated EXIM Bank as the
lender, while the Philippine government named the
DOF as the borrower.4 Under the Aug 30 MOU, EXIM
Bank agreed to extend an amount not exceeding USD
400,000,000 in favor of the DOF, payable in 20 years,
with a 5-year grace period, and at the rate of 3% per
annum.5
On 1 October 2003, the Chinese Ambassador to the
Philippines, Wang Chungui (Amb. Wang), wrote a
letter to DOF Secretary Jose Isidro Camacho (Sec.
Camacho) informing him of CNMEG’s designation as
the Prime Contractor for the Northrail Project.6
On 30 December 2003, Northrail and CNMEG
executed a Contract Agreement for the construction
of Section I, Phase I of the North Luzon Railway
System from Caloocan to Malolos on a turnkey basis
(the Contract Agreement).7 The contract price for the
Northrail Project was pegged at USD 421,050,000.8
On 26 February 2004, the Philippine government and
EXIM Bank entered into a counterpart financial
agreement – Buyer Credit Loan Agreement No. BLA
04055 (the Loan Agreement).9 In the Loan
Agreement, EXIM Bank agreed to extend Preferential
Buyer’s Credit in the amount of USD 400,000,000 in
favor of the Philippine government in order to finance
the construction of Phase I of the Northrail Project.10
On 13 February 2006, respondents filed a Complaint
for Annulment of Contract and Injunction with Urgent
Motion for Summary Hearing to Determine the
Existence of Facts and Circumstances Justifying the
Issuance of Writs of Preliminary Prohibitory and
Mandatory Injunction and/or TRO against CNMEG,
the Office of the Executive Secretary, the DOF, the
Department of Budget and Management, the National
Economic Development Authority and Northrail.11 The
case was docketed as Civil Case No. 06-203 before
the Regional Trial Court, National Capital Judicial
Region, Makati City, Branch 145 (RTC Br. 145). In the
Complaint, respondents alleged that the Contract
Agreement and the Loan Agreement were void for
being contrary to (a) the Constitution; (b) Republic Act
No. 9184 (R.A. No. 9184), otherwise known as the
Government Procurement Reform Act; (c)
Presidential Decree No. 1445, otherwise known as
the Government Auditing Code; and (d) Executive
Order No. 292, otherwise known as the Administrative
Code.12
RTC Br. 145 issued an Order dated 17 March 2006
setting the case for hearing on the issuance of
injunctive reliefs.13 On 29 March 2006, CNMEG filed
an Urgent Motion for Reconsideration of this
Order.14 Before RTC Br. 145 could rule thereon,
CNMEG filed a Motion to Dismiss dated 12 April
2006, arguing that the trial court did not have
jurisdiction over (a) its person, as it was an agent of
the Chinese government, making it immune from suit,
and (b) the subject matter, as the Northrail Project
was a product of an executive agreement.15
On 15 May 2007, RTC Br. 145 issued an Omnibus
Order denying CNMEG’s Motion to Dismiss and
setting the case for summary hearing to determine
whether the injunctive reliefs prayed for should be
issued.16 CNMEG then filed a Motion for
Reconsideration,17 which was denied by the trial court
in an Order dated 10 March 2008.18 Thus, CNMEG
filed before the CA a Petition for Certiorari with Prayer
for the Issuance of TRO and/or Writ of Preliminary
Injunction dated 4 April 2008.19
In the assailed Decision dated 30 September 2008,
the appellate court dismissed the Petition for
Certiorari.20Subsequently, CNMEG filed a Motion for
Reconsideration,21 which was denied by the CA in a
Resolution dated 5 December 2008.22 Thus, CNMEG
filed the instant Petition for Review on Certiorari dated
21 January 2009, raising the following issues: 23
Whether or not petitioner CNMEG is an agent of the
sovereign People’s Republic of China.
Whether or not the Northrail contracts are products of
an executive agreement between two sovereign
states.
Whether or not the certification from the Department
of Foreign Affairs is necessary under the foregoing
circumstances.
Whether or not the act being undertaken by petitioner
CNMEG is an act jure imperii.
Whether or not the Court of Appeals failed to avoid a
procedural limbo in the lower court.
Whether or not the Northrail Project is subject to
competitive public bidding.
Whether or not the Court of Appeals ignored the
ruling of this Honorable Court in the Neri case.
CNMEG prays for the dismissal of Civil Case No. 06-
203 before RTC Br. 145 for lack of jurisdiction. It
likewise requests this Court for the issuance of a TRO
and, later on, a writ of preliminary injunction to
restrain public respondent from proceeding with the
disposition of Civil Case No. 06-203.
The crux of this case boils down to two main issues,
namely:
1. Whether CNMEG is entitled to immunity,
precluding it from being sued before a local
court.
2. Whether the Contract Agreement is an
executive agreement, such that it cannot be
questioned by or before a local court.
First issue: Whether CNMEG is entitled to
immunity
This Court explained the doctrine of sovereign
immunity in Holy See v. Rosario,24 to wit:
There are two conflicting concepts of sovereign
immunity, each widely held and firmly established.
According to the classical or absolute theory, a
sovereign cannot, without its consent, be made a
respondent in the courts of another
sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is
recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to
private acts or acts jure gestionis. (Emphasis
supplied; citations omitted.)
xxx xxx xxx
The restrictive theory came about because of the
entry of sovereign states into purely commercial
activities remotely connected with the discharge of
governmental functions. This is particularly true with
respect to the Communist states which took control of
nationalized business activities and international
trading.
In JUSMAG v. National Labor Relations
Commission,25 this Court affirmed the Philippines’
adherence to the restrictive theory as follows:
The doctrine of state immunity from suit has
undergone further metamorphosis. The view evolved
that the existence of a contract does not, per se,
mean that sovereign states may, at all times, be sued
in local courts. The complexity of relationships
between sovereign states, brought about by their
increasing commercial activities, mothered a
more restrictive application of the doctrine.
xxx xxx xxx
As it stands now, the application of the doctrine of
immunity from suit has been restricted to sovereign or
governmental activities (jure imperii). The mantle of
state immunity cannot be extended to commercial,
private and proprietary acts (jure
gestionis).26 (Emphasis supplied.)
Since the Philippines adheres to the restrictive theory,
it is crucial to ascertain the legal nature of the act
involved – whether the entity claiming immunity
performs governmental, as opposed to proprietary,
functions. As held in United States of America v. Ruiz
–27
The restrictive application of State immunity is proper
only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a
State may be said to have descended to the level of
an individual and can thus be deemed to have tacitly
given its consent to be sued only when it enters into
business contracts. It does not apply where the
contract relates to the exercise of its sovereign
functions.28
A. CNMEG is engaged in a proprietary activity.
A threshold question that must be answered is
whether CNMEG performs governmental or
proprietary functions. A thorough examination of the
basic facts of the case would show that CNMEG is
engaged in a proprietary activity.
The parties executed the Contract Agreement for the
purpose of constructing the Luzon Railways, viz:29
WHEREAS the Employer (Northrail) desired to
construct the railways form Caloocan to Malolos,
section I, Phase I of Philippine North Luzon Railways
Project (hereinafter referred to as THE PROJECT);
AND WHEREAS the Contractor has offered to
provide the Project on Turnkey basis, including
design, manufacturing, supply, construction,
commissioning, and training of the Employer’s
personnel;
AND WHEREAS the Loan Agreement of the
Preferential Buyer’s Credit between Export-Import
Bank of China and Department of Finance of Republic
of the Philippines;
NOW, THEREFORE, the parties agree to sign this
Contract for the Implementation of the Project.
The above-cited portion of the Contract Agreement,
however, does not on its own reveal whether the
construction of the Luzon railways was meant to be a
proprietary endeavor. In order to fully understand the
intention behind and the purpose of the entire
undertaking, the Contract Agreement must not be
read in isolation. Instead, it must be construed in
conjunction with three other documents executed in
relation to the Northrail Project, namely: (a) the
Memorandum of Understanding dated 14 September
2002 between Northrail and CNMEG;30 (b) the letter of
Amb. Wang dated 1 October 2003 addressed to Sec.
Camacho;31 and (c) the Loan Agreement.32
1. Memorandum of Understanding dated 14
September 2002
The Memorandum of Understanding dated 14
September 2002 shows that CNMEG sought the
construction of the Luzon Railways as a proprietary
venture. The relevant parts thereof read:
WHEREAS, CNMEG has the financial capability,
professional competence and technical expertise to
assess the state of the [Main Line North (MLN)] and
recommend implementation plans as well as
undertake its rehabilitation and/or modernization;
WHEREAS, CNMEG has expressed interest in the
rehabilitation and/or modernization of the MLN from
Metro Manila to San Fernando, La Union passing
through the provinces of Bulacan, Pampanga, Tarlac,
Pangasinan and La Union (the ‘Project’);
WHEREAS, the NORTHRAIL CORP. welcomes
CNMEG’s proposal to undertake a Feasibility Study
(the "Study") at no cost to NORTHRAIL CORP.;
WHEREAS, the NORTHRAIL CORP. also welcomes
CNMEG’s interest in undertaking the Project with
Supplier’s Credit and intends to employ CNMEG as
the Contractor for the Project subject to compliance
with Philippine and Chinese laws, rules and
regulations for the selection of a contractor;
WHEREAS, the NORTHRAIL CORP. considers
CNMEG’s proposal advantageous to the Government
of the Republic of the Philippines and has therefore
agreed to assist CNMEG in the conduct of the
aforesaid Study;
xxx xxx xxx
II. APPROVAL PROCESS
2.1 As soon as possible after completion and
presentation of the Study in accordance with
Paragraphs 1.3 and 1.4 above and in compliance with
necessary governmental laws, rules, regulations and
procedures required from both parties, the parties
shall commence the preparation and negotiation of
the terms and conditions of the Contract (the
"Contract") to be entered into between them on the
implementation of the Project. The parties shall use
their best endeavors to formulate and finalize a
Contract with a view to signing the Contract within
one hundred twenty (120) days from CNMEG’s
presentation of the Study.33 (Emphasis supplied)
Clearly, it was CNMEG that initiated the undertaking,
and not the Chinese government. The Feasibility
Study was conducted not because of any diplomatic
gratuity from or exercise of sovereign functions by the
Chinese government, but was plainly a business
strategy employed by CNMEG with a view to securing
this commercial enterprise.
2. Letter dated 1 October 2003
That CNMEG, and not the Chinese government,
initiated the Northrail Project was confirmed by Amb.
Wang in his letter dated 1 October 2003, thus:
1. CNMEG has the proven competence and
capability to undertake the Project as
evidenced by the ranking of 42 given by the
ENR among 225 global construction
companies.
2. CNMEG already signed an MOU with the
North Luzon Railways Corporation last
September 14, 2000 during the visit of
Chairman Li Peng. Such being the case,
they have already established an initial
working relationship with your North Luzon
Railways Corporation. This would categorize
CNMEG as the state corporation within the
People’s Republic of China which initiated
our Government’s involvement in the Project.
3. Among the various state corporations of
the People’s Republic of China, only
CNMEG has the advantage of being fully
familiar with the current requirements of the
Northrail Project having already
accomplished a Feasibility Study which was
used as inputs by the North Luzon Railways
Corporation in the approvals (sic) process
required by the Republic of the
Philippines.34 (Emphasis supplied.)
Thus, the desire of CNMEG to secure the Northrail
Project was in the ordinary or regular course of its
business as a global construction company. The
implementation of the Northrail Project was intended
to generate profit for CNMEG, with the Contract
Agreement placing a contract price of USD
421,050,000 for the venture.35 The use of the term
"state corporation" to refer to CNMEG was only
descriptive of its nature as a government-owned
and/or -controlled corporation, and its assignment as
the Primary Contractor did not imply that it was acting
on behalf of China in the performance of the latter’s
sovereign functions. To imply otherwise would result
in an absurd situation, in which all Chinese
corporations owned by the state would be
automatically considered as performing governmental
activities, even if they are clearly engaged in
commercial or proprietary pursuits.
3. The Loan Agreement
CNMEG claims immunity on the ground that the Aug
30 MOU on the financing of the Northrail Project was
signed by the Philippine and Chinese governments,
and its assignment as the Primary Contractor meant
that it was bound to perform a governmental function
on behalf of China. However, the Loan Agreement,
which originated from the same Aug 30 MOU, belies
this reasoning, viz:
Article 11. xxx (j) Commercial Activity The execution
and delivery of this Agreement by the Borrower
constitute, and the Borrower’s performance of and
compliance with its obligations under this Agreement
will constitute, private and commercial acts done
and performed for commercial purposes under
the laws of the Republic of the Philippines and
neither the Borrower nor any of its assets is
entitled to any immunity or privilege (sovereign or
otherwise) from suit, execution or any other legal
process with respect to its obligations under this
Agreement, as the case may be, in any
jurisdiction. Notwithstanding the foregoing, the
Borrower does not waive any immunity with respect of
its assets which are (i) used by a diplomatic or
consular mission of the Borrower and (ii) assets of a
military character and under control of a military
authority or defense agency and (iii) located in the
Philippines and dedicated to public or governmental
use (as distinguished from patrimonial assets or
assets dedicated to commercial use). (Emphasis
supplied.)
(k) Proceedings to Enforce Agreement In any
proceeding in the Republic of the Philippines to
enforce this Agreement, the choice of the laws of the
People’s Republic of China as the governing law
hereof will be recognized and such law will be
applied. The waiver of immunity by the Borrower, the
irrevocable submissions of the Borrower to the non-
exclusive jurisdiction of the courts of the People’s
Republic of China and the appointment of the
Borrower’s Chinese Process Agent is legal, valid,
binding and enforceable and any judgment obtained
in the People’s Republic of China will be if introduced,
evidence for enforcement in any proceedings against
the Borrower and its assets in the Republic of the
Philippines provided that (a) the court rendering
judgment had jurisdiction over the subject matter of
the action in accordance with its jurisdictional rules,
(b) the Republic had notice of the proceedings, (c) the
judgment of the court was not obtained through
collusion or fraud, and (d) such judgment was not
based on a clear mistake of fact or law.36
Further, the Loan Agreement likewise contains this
express waiver of immunity:
15.5 Waiver of Immunity The Borrower irrevocably
and unconditionally waives, any immunity to which it
or its property may at any time be or become entitled,
whether characterized as sovereign immunity or
otherwise, from any suit, judgment, service of process
upon it or any agent, execution on judgment, set-off,
attachment prior to judgment, attachment in aid of
execution to which it or its assets may be entitled in
any legal action or proceedings with respect to this
Agreement or any of the transactions contemplated
hereby or hereunder. Notwithstanding the foregoing,
the Borrower does not waive any immunity in respect
of its assets which are (i) used by a diplomatic or
consular mission of the Borrower, (ii) assets of a
military character and under control of a military
authority or defense agency and (iii) located in the
Philippines and dedicated to a public or governmental
use (as distinguished from patrimonial assets or
assets dedicated to commercial use).37
Thus, despite petitioner’s claim that the EXIM Bank
extended financial assistance to Northrail because the
bank was mandated by the Chinese government, and
not because of any motivation to do business in the
Philippines,38 it is clear from the foregoing provisions
that the Northrail Project was a purely commercial
transaction.
Admittedly, the Loan Agreement was entered into
between EXIM Bank and the Philippine government,
while the Contract Agreement was between Northrail
and CNMEG. Although the Contract Agreement is
silent on the classification of the legal nature of the
transaction, the foregoing provisions of the Loan
Agreement, which is an inextricable part of the entire
undertaking, nonetheless reveal the intention of the
parties to the Northrail Project to classify the whole
venture as commercial or proprietary in character.
Thus, piecing together the content and tenor of the
Contract Agreement, the Memorandum of
Understanding dated 14 September 2002, Amb.
Wang’s letter dated 1 October 2003, and the Loan
Agreement would reveal the desire of CNMEG to
construct the Luzon Railways in pursuit of a purely
commercial activity performed in the ordinary course
of its business.
B. CNMEG failed to adduce evidence that it is
immune from suit under Chinese law.
Even assuming arguendo that CNMEG performs
governmental functions, such claim does not
automatically vest it with immunity. This view finds
support in Malong v. Philippine National Railways, in
which this Court held that "(i)mmunity from suit is
determined by the character of the objects for which
the entity was organized."39
In this regard, this Court’s ruling in Deutsche
Gesellschaft Für Technische Zusammenarbeit (GTZ)
v. CA40 must be examined. In Deutsche Gesellschaft,
Germany and the Philippines entered into a Technical
Cooperation Agreement, pursuant to which both
signed an arrangement promoting the Social Health
Insurance–Networking and Empowerment (SHINE)
project. The two governments named their respective
implementing organizations: the Department of Health
(DOH) and the Philippine Health Insurance
Corporation (PHIC) for the Philippines, and GTZ for
the implementation of Germany’s contributions. In
ruling that GTZ was not immune from suit, this Court
held:
The arguments raised by GTZ and the [Office of the
Solicitor General (OSG)] are rooted in several
indisputable facts. The SHINE project was
implemented pursuant to the bilateral agreements
between the Philippine and German governments.
GTZ was tasked, under the 1991 agreement, with the
implementation of the contributions of the German
government. The activities performed by GTZ
pertaining to the SHINE project are governmental in
nature, related as they are to the promotion of health
insurance in the Philippines. The fact that GTZ
entered into employment contracts with the private
respondents did not disqualify it from invoking
immunity from suit, as held in cases such as Holy See
v. Rosario, Jr., which set forth what remains valid
doctrine:
Certainly, the mere entering into a contract by a
foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign
state is engaged in the activity in the regular course of
business. If the foreign state is not engaged regularly
in a business or trade, the particular act or transaction
must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof,
then it is an act jure imperii, especially when it is not
undertaken for gain or profit.
Beyond dispute is the tenability of the comment points
(sic) raised by GTZ and the OSG that GTZ was not
performing proprietary functions notwithstanding its
entry into the particular employment contracts. Yet
there is an equally fundamental premise which GTZ
and the OSG fail to address, namely: Is GTZ, by
conception, able to enjoy the Federal Republic’s
immunity from suit?
The principle of state immunity from suit, whether a
local state or a foreign state, is reflected in Section 9,
Article XVI of the Constitution, which states that "the
State may not be sued without its consent." Who or
what consists of "the State"? For one, the doctrine is
available to foreign States insofar as they are sought
to be sued in the courts of the local State, necessary
as it is to avoid "unduly vexing the peace of nations."
If the instant suit had been brought directly against
the Federal Republic of Germany, there would be no
doubt that it is a suit brought against a State, and the
only necessary inquiry is whether said State had
consented to be sued. However, the present suit was
brought against GTZ. It is necessary for us to
understand what precisely are the parameters of the
legal personality of GTZ.
Counsel for GTZ characterizes GTZ as "the
implementing agency of the Government of the
Federal Republic of Germany," a depiction similarly
adopted by the OSG. Assuming that the
characterization is correct, it does not automatically
invest GTZ with the ability to invoke State
immunity from suit. The distinction lies in whether
the agency is incorporated or unincorporated.
xxx xxx xxx
State immunity from suit may be waived by general or
special law. The special law can take the form of the
original charter of the incorporated government
agency. Jurisprudence is replete with examples of
incorporated government agencies which were ruled
not entitled to invoke immunity from suit, owing to
provisions in their charters manifesting their consent
to be sued.
xxx xxx xxx
It is useful to note that on the part of the Philippine
government, it had designated two entities, the
Department of Health and the Philippine Health
Insurance Corporation (PHIC), as the implementing
agencies in behalf of the Philippines. The PHIC was
established under Republic Act No. 7875, Section 16
(g) of which grants the corporation the power "to sue
and be sued in court." Applying the previously cited
jurisprudence, PHIC would not enjoy immunity from
suit even in the performance of its functions
connected with SHINE, however, (sic) governmental
in nature as (sic) they may be.
Is GTZ an incorporated agency of the German
government? There is some mystery surrounding
that question. Neither GTZ nor the OSG go
beyond the claim that petitioner is "the
implementing agency of the Government of the
Federal Republic of Germany." On the other hand,
private respondents asserted before the Labor Arbiter
that GTZ was "a private corporation engaged in the
implementation of development projects." The Labor
Arbiter accepted that claim in his Order denying the
Motion to Dismiss, though he was silent on that point
in his Decision. Nevertheless, private respondents
argue in their Comment that the finding that GTZ was
a private corporation "was never controverted, and is
therefore deemed admitted." In its Reply, GTZ
controverts that finding, saying that it is a matter of
public knowledge that the status of petitioner GTZ is
that of the "implementing agency," and not that of a
private corporation.
In truth, private respondents were unable to adduce
any evidence to substantiate their claim that GTZ was
a "private corporation," and the Labor Arbiter acted
rashly in accepting such claim without explanation.
But neither has GTZ supplied any evidence
defining its legal nature beyond that of the bare
descriptive "implementing agency." There is no
doubt that the 1991 Agreement designated GTZ as
the "implementing agency" in behalf of the
German government. Yet the catch is that such
term has no precise definition that is responsive
to our concerns. Inherently, an agent acts in
behalf of a principal, and the GTZ can be said to
act in behalf of the German state. But that is as far
as "implementing agency" could take us. The
term by itself does not supply whether GTZ is
incorporated or unincorporated, whether it is
owned by the German state or by private
interests, whether it has juridical personality
independent of the German government or none
at all.
xxx xxx xxx
Again, we are uncertain of the corresponding
legal implications under German law surrounding
"a private company owned by the Federal
Republic of Germany." Yet taking the description
on face value, the apparent equivalent under
Philippine law is that of a corporation organized
under the Corporation Code but owned by the
Philippine government, or a government-owned or
controlled corporation without original charter.
And it bears notice that Section 36 of the
Corporate Code states that "[e]very corporation
incorporated under this Code has the power and
capacity x x x to sue and be sued in its corporate
name."
It is entirely possible that under German law, an entity
such as GTZ or particularly GTZ itself has not been
vested or has been specifically deprived the power
and capacity to sue and/or be sued. Yet in the
proceedings below and before this Court, GTZ has
failed to establish that under German law, it has
not consented to be sued despite it being owned
by the Federal Republic of Germany. We adhere to
the rule that in the absence of evidence to the
contrary, foreign laws on a particular subject are
presumed to be the same as those of the
Philippines, and following the most intelligent
assumption we can gather, GTZ is akin to a
governmental owned or controlled corporation
without original charter which, by virtue of the
Corporation Code, has expressly consented to be
sued. At the very least, like the Labor Arbiter and the
Court of Appeals, this Court has no basis in fact to
conclude or presume that GTZ enjoys immunity from
suit.41 (Emphasis supplied.)
Applying the foregoing ruling to the case at bar, it is
readily apparent that CNMEG cannot claim immunity
from suit, even if it contends that it performs
governmental functions. Its designation as the
Primary Contractor does not automatically grant it
immunity, just as the term "implementing agency" has
no precise definition for purposes of ascertaining
whether GTZ was immune from suit. Although
CNMEG claims to be a government-owned
corporation, it failed to adduce evidence that it has not
consented to be sued under Chinese law. Thus,
following this Court’s ruling in Deutsche Gesellschaft,
in the absence of evidence to the contrary, CNMEG is
to be presumed to be a government-owned and -
controlled corporation without an original charter. As a
result, it has the capacity to sue and be sued under
Section 36 of the Corporation Code.
C. CNMEG failed to present a certification from the
Department of Foreign Affairs.
In Holy See,42 this Court reiterated the oft-cited
doctrine that the determination by the Executive that
an entity is entitled to sovereign or diplomatic
immunity is a political question conclusive upon the
courts, to wit:
In Public International Law, when a state or
international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the
Foreign Office of the state where it is sued to convey
to the court that said defendant is entitled to immunity.
xxx xxx xxx
In the Philippines, the practice is for the foreign
government or the international organization to first
secure an executive endorsement of its claim of
sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to
the courts varies. In International Catholic Migration
Commission v. Calleja, 190 SCRA 130 (1990), the
Secretary of Foreign Affairs just sent a letter directly
to the Secretary of Labor and Employment, informing
the latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity.
In World Health Organization v. Aquino, 48 SCRA 242
(1972), the Secretary of Foreign Affairs sent the trial
court a telegram to that effect. In Baer v. Tizon, 57
SCRA 1 (1974), the U.S. Embassy asked the
Secretary of Foreign Affairs to request the Solicitor
General to make, in behalf of the Commander of the
United States Naval Base at Olongapo City,
Zambales, a "suggestion" to respondent Judge. The
Solicitor General embodied the "suggestion" in a
Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign
Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of
petitioner. The Court allowed the said Department to
file its memorandum in support of petitioner’s claim of
sovereign immunity.
In some cases, the defense of sovereign immunity
was submitted directly to the local courts by the
respondents through their private counsels (Raquiza
v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948];
United States of America v. Guinto, 182 SCRA 644
[1990] and companion cases). In cases where the
foreign states bypass the Foreign Office, the courts
can inquire into the facts and make their own
determination as to the nature of the acts and
transactions involved.43 (Emphasis supplied.)
The question now is whether any agency of the
Executive Branch can make a determination of
immunity from suit, which may be considered as
conclusive upon the courts. This Court, in Department
of Foreign Affairs (DFA) v. National Labor Relations
Commission (NLRC),44 emphasized the DFA’s
competence and authority to provide such necessary
determination, to wit:
The DFA’s function includes, among its other
mandates, the determination of persons and
institutions covered by diplomatic immunities, a
determination which, when challenge, (sic) entitles it
to seek relief from the court so as not to seriously
impair the conduct of the country's foreign relations.
The DFA must be allowed to plead its case whenever
necessary or advisable to enable it to help keep the
credibility of the Philippine government before the
international community. When international
agreements are concluded, the parties thereto are
deemed to have likewise accepted the responsibility
of seeing to it that their agreements are duly
regarded. In our country, this task falls principally of
(sic) the DFA as being the highest executive
department with the competence and authority to so
act in this aspect of the international
arena.45 (Emphasis supplied.)
Further, the fact that this authority is exclusive to the
DFA was also emphasized in this Court’s ruling in
Deutsche Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his
rulings, noted that it was imperative for petitioners to
secure from the Department of Foreign Affairs "a
certification of respondents’ diplomatic status and
entitlement to diplomatic privileges including immunity
from suits." The requirement might not necessarily be
imperative. However, had GTZ obtained such
certification from the DFA, it would have provided
factual basis for its claim of immunity that would, at
the very least, establish a disputable evidentiary
presumption that the foreign party is indeed immune
which the opposing party will have to overcome with
its own factual evidence. We do not see why GTZ
could not have secured such certification or
endorsement from the DFA for purposes of this case.
Certainly, it would have been highly prudential for
GTZ to obtain the same after the Labor Arbiter had
denied the motion to dismiss. Still, even at this
juncture, we do not see any evidence that the DFA,
the office of the executive branch in charge of our
diplomatic relations, has indeed endorsed GTZ’s
claim of immunity. It may be possible that GTZ tried,
but failed to secure such certification, due to the same
concerns that we have discussed herein.
Would the fact that the Solicitor General has
endorsed GTZ’s claim of State’s immunity from suit
before this Court sufficiently substitute for the DFA
certification? Note that the rule in public international
law quoted in Holy See referred to endorsement by
the Foreign Office of the State where the suit is filed,
such foreign office in the Philippines being the
Department of Foreign Affairs. Nowhere in the
Comment of the OSG is it manifested that the DFA
has endorsed GTZ’s claim, or that the OSG had
solicited the DFA’s views on the issue. The
arguments raised by the OSG are virtually the same
as the arguments raised by GTZ without any
indication of any special and distinct perspective
maintained by the Philippine government on the
issue. The Comment filed by the OSG does not
inspire the same degree of confidence as a
certification from the DFA would have
elicited.46 (Emphasis supplied.)
In the case at bar, CNMEG offers the Certification
executed by the Economic and Commercial Office of
the Embassy of the People’s Republic of China,
stating that the Northrail Project is in pursuit of a
sovereign activity.47Surely, this is not the kind of
certification that can establish CNMEG’s entitlement
to immunity from suit, as Holy See unequivocally
refers to the determination of the "Foreign Office of
the state where it is sued."
Further, CNMEG also claims that its immunity from
suit has the executive endorsement of both the OSG
and the Office of the Government Corporate Counsel
(OGCC), which must be respected by the courts.
However, as expressly enunciated in Deutsche
Gesellschaft, this determination by the OSG, or by the
OGCC for that matter, does not inspire the same
degree of confidence as a DFA certification. Even
with a DFA certification, however, it must be
remembered that this Court is not precluded from
making an inquiry into the intrinsic correctness of
such certification.
D. An agreement to submit any dispute to arbitration
may be construed as an implicit waiver of immunity
from suit.
In the United States, the Foreign Sovereign
Immunities Act of 1976 provides for a waiver by
implication of state immunity. In the said law, the
agreement to submit disputes to arbitration in a
foreign country is construed as an implicit waiver of
immunity from suit. Although there is no similar law in
the Philippines, there is reason to apply the legal
reasoning behind the waiver in this case.
The Conditions of Contract,48 which is an integral part
of the Contract Agreement,49 states:
33. SETTLEMENT OF DISPUTES AND
ARBITRATION
33.1. Amicable Settlement
Both parties shall attempt to amicably settle all
disputes or controversies arising from this Contract
before the commencement of arbitration.
33.2. Arbitration
All disputes or controversies arising from this Contract
which cannot be settled between the Employer and
the Contractor shall be submitted to arbitration in
accordance with the UNCITRAL Arbitration Rules at
present in force and as may be amended by the rest
of this Clause. The appointing authority shall be Hong
Kong International Arbitration Center. The place of
arbitration shall be in Hong Kong at Hong Kong
International Arbitration Center (HKIAC).
Under the above provisions, if any dispute arises
between Northrail and CNMEG, both parties are
bound to submit the matter to the HKIAC for
arbitration. In case the HKIAC makes an arbitral
award in favor of Northrail, its enforcement in the
Philippines would be subject to the Special Rules on
Alternative Dispute Resolution (Special Rules). Rule
13 thereof provides for the Recognition and
Enforcement of a Foreign Arbitral Award. Under Rules
13.2 and 13.3 of the Special Rules, the party to
arbitration wishing to have an arbitral award
recognized and enforced in the Philippines must
petition the proper regional trial court (a) where the
assets to be attached or levied upon is located; (b)
where the acts to be enjoined are being performed;
(c) in the principal place of business in the Philippines
of any of the parties; (d) if any of the parties is an
individual, where any of those individuals resides; or
(e) in the National Capital Judicial Region.
From all the foregoing, it is clear that CNMEG has
agreed that it will not be afforded immunity from suit.
Thus, the courts have the competence and jurisdiction
to ascertain the validity of the Contract Agreement.
Second issue: Whether the Contract Agreement is
an executive agreement
Article 2(1) of the Vienna Convention on the Law of
Treaties (Vienna Convention) defines a treaty as
follows:
[A]n international agreement concluded between
States in written form and governed by international
law, whether embodied in a single instrument or in
two or more related instruments and whatever its
particular designation.
In Bayan Muna v. Romulo, this Court held that an
executive agreement is similar to a treaty, except that
the former (a) does not require legislative
concurrence; (b) is usually less formal; and (c) deals
with a narrower range of subject matters.50
Despite these differences, to be considered an
executive agreement, the following three requisites
provided under the Vienna Convention must
nevertheless concur: (a) the agreement must be
between states; (b) it must be written; and (c) it must
governed by international law. The first and the third
requisites do not obtain in the case at bar.
A. CNMEG is neither a government nor a government
agency.
The Contract Agreement was not concluded between
the Philippines and China, but between Northrail and
CNMEG.51 By the terms of the Contract Agreement,
Northrail is a government-owned or -controlled
corporation, while CNMEG is a corporation duly
organized and created under the laws of the People’s
Republic of China.52 Thus, both Northrail and CNMEG
entered into the Contract Agreement as entities with
personalities distinct and separate from the Philippine
and Chinese governments, respectively.
APPLICABLE LAW AND GOVERNING LANGUAGE
The contract shall in all respects be read and
construed in accordance with the laws of the
Philippines.
The contract shall be written in English language. All
correspondence and other documents pertaining to
the Contract which are exchanged by the parties shall
be written in English language.
Since the Contract Agreement explicitly provides that
Philippine law shall be applicable, the parties have
effectively conceded that their rights and obligations
thereunder are not governed by international law.
It is therefore clear from the foregoing reasons that
the Contract Agreement does not partake of the
nature of an executive agreement. It is merely an
ordinary commercial contract that can be questioned
before the local courts.
WHEREFORE, the instant Petition is DENIED.
Petitioner China National Machinery & Equipment
Corp. (Group) is not entitled to immunity from suit,
and the Contract Agreement is not an executive
agreement. CNMEG’s prayer for the issuance of a
TRO and/or Writ of Preliminary Injunction is DENIED
for being moot and academic. This case is
REMANDED to the Regional Trial Court of Makati,
Branch 145, for further proceedings as regards the
validity of the contracts subject of Civil Case No. 06-
203.
No pronouncement on costs of suit.
SO ORDERED.

Neither can it be said that CNMEG acted as agent of

the Chinese government. As previously discussed,
the fact that Amb. Wang, in his letter dated 1 October
2003,53 described CNMEG as a "state corporation"
and declared its designation as the Primary
Contractor in the Northrail Project did not mean it was
to perform sovereign functions on behalf of China.
That label was only descriptive of its nature as a
state-owned corporation, and did not preclude it from
engaging in purely commercial or proprietary
ventures.

B. The Contract Agreement is to be governed by

Philippine law.

Article 2 of the Conditions of Contract,54 which under

Article 1.1 of the Contract Agreement is an integral
part of the latter, states:
Case No. 009
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of
Puerto Princesa D.D.; MOST REV. DEOGRACIAS
S. INIGUEZ, JR., Bishop-Emeritus of Caloocan,
FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA,
JR., Kalikasan-PNE, MARIA CAROLINA P.
ARAULLO, RENATO M. REYES, JR., Bagong
Alyansang Makabayan, HON. NERI JAVIER
COLMENARES, Bayan Muna Partylist, ROLAND G.
SIMBULAN, PH.D., Junk VF A Movement,
TERESITA R. PEREZ, PH.D., HON. RAYMOND V.
PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG,
PH. D., Agham, ELMER C. LABOG, Kilusang Mayo
Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE
ENRIQUE A. AFRICA, THERESA A. CONCEPCION,
MARY JOAN A. GUAN, NESTOR T. BAGUINON,
PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of
the US. 7th Fleet, MARK A. RICE in his capacity as
Commanding Officer of the USS Guardian,
PRESIDENT BENIGNO S. AQUINO III in his
capacity as Commander-in-Chief of the Armed
Forces of the Philippines, HON. ALBERT F. DEL
ROSARIO, Secretary, pepartment of Foreign
Affair.s, HON. PAQUITO OCHOA, JR.,
Executiv~.:Secretary, Office of the President, .
HON. VOLTAIRE T. GAZMIN, Secretary,
Department of National Defense, HON. RAMON
JESUS P. P AJE, Secretary, Department of
Environment and Natural Resoz!rces, VICE
ADMIRAL JOSE LUIS M. ALANO, Philippine Navy
Flag Officer in Command, Armed Forces of the
Philippines, ADMIRAL RODOLFO D. ISO RENA,
Commandant, Philippine Coast Guard,
COMMODORE ENRICO EFREN EVANGELISTA,
Philippine Coast Guard Palawan, MAJOR GEN.
VIRGILIO 0. DOMINGO, Commandant of Armed
Forces of the Philippines Command and LT. GEN.
TERRY G. ROBLING, US Marine Corps Forces.
Pacific and Balikatan 2013 Exercise Co-
Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of
Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7
of A.M. No. 09-6-8-SC, otherwise known as the Rules
of Procedure for Environmental Cases (Rules),
involving violations of environmental laws and
regulations in relation to the grounding of the US
military ship USS Guardian over the Tubbataha
Reefs.
Factual Background
The name "Tubbataha" came from the Samal
(seafaring people of southern Philippines) language
which means "long reef exposed at low tide."
Tubbataha is composed of two huge coral atolls - the
north atoll and the south atoll - and the Jessie
Beazley Reef, a smaller coral structure about 20
kilometers north of the atolls. The reefs of Tubbataha
and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of
Palawan.1
In 1988, Tubbataha was declared a National Marine
Park by virtue of Proclamation No. 306 issued by
President Corazon C. Aquino on August 11, 1988.
Located in the middle of Central Sulu Sea, 150
kilometers southeast of Puerto Princesa City,
Tubbataha lies at the heart of the Coral Triangle, the
global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United
Nations Educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site. It
was recognized as one of the Philippines' oldest
ecosystems, containing excellent examples of pristine
reefs and a high diversity of marine life. The 97,030-
hectare protected marine park is also an important
habitat for internationally threatened and endangered
marine species. UNESCO cited Tubbataha's
outstanding universal value as an important and
significant natural habitat for in situ conservation of
biological diversity; an example representing
significant on-going ecological and biological
processes; and an area of exceptional natural beauty
and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act
(R.A.) No. 10067,3 otherwise known as the
"Tubbataha Reefs Natural Park (TRNP) Act of 2009"
"to ensure the protection and conservation of the
globally significant economic, biological, sociocultural,
educational and scientific values of the Tubbataha
Reefs into perpetuity for the enjoyment of present and
future generations." Under the "no-take" policy, entry
into the waters of TRNP is strictly regulated and many
human activities are prohibited and penalized or fined,
including fishing, gathering, destroying and disturbing
the resources within the TRNP. The law likewise
created the Tubbataha Protected Area Management
Board (TPAMB) which shall be the sole policy-making
and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine
countermeasures ship of the US Navy. In December
2012, the US Embassy in the Philippines requested
diplomatic clearance for the said vessel "to enter and
exit the territorial waters of the Philippines and to
arrive at the port of Subic Bay for the purpose of
routine ship replenishment, maintenance, and crew
liberty."4 On January 6, 2013, the ship left Sasebo,
Japan for Subic Bay, arriving on January 13, 2013
after a brief stop for fuel in Okinawa, Japan.1âwphi1
On January 15, 2013, the USS Guardian departed
Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while
transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha
Reefs, about 80 miles east-southeast of Palawan. No
cine was injured in the incident, and there have been
no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander,
Vice Admiral Scott Swift, expressed regret for the
incident in a press statement.5 Likewise, US
Ambassador to the Philippines Harry K. Thomas, Jr.,
in a meeting at the Department of Foreign Affairs
(DFA) on February 4, "reiterated his regrets over the
grounding incident and assured Foreign Affairs
Secretazy Albert F. del Rosario that the United States
will provide appropriate compensation for damage to
the reef caused by the ship."6 By March 30, 2013, the
US Navy-led salvage team had finished removing the
last piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on
their behalf and in representation of their respective
sector/organization and others, including minors or
generations yet unborn, filed the present petition
agairtst Scott H. Swift in his capacity as Commander
of the US 7th Fleet, Mark A. Rice in his capacity as
Commanding Officer of the USS Guardian and Lt.
Gen. Terry G. Robling, US Marine Corps Forces,
Pacific and Balikatan 2013 Exercises Co-Director
("US respondents"); President Benigno S. Aquino III
in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines (AFP), DF A Secretary
Albert F. Del Rosario, Executive Secretary Paquito
Ochoa, Jr., Secretary Voltaire T. Gazmin (Department
of National Defense), Secretary Jesus P. Paje
(Department of Environment and Natural Resources),
Vice-Admiral Jose Luis M. Alano (Philippine Navy
Flag Officer in Command, AFP), Admiral Rodolfo D.
Isorena (Philippine Coast Guard Commandant),
Commodore Enrico Efren Evangelista (Philippine
Coast Guard-Palawan), and Major General Virgilio 0.
Domingo (AFP Commandant), collectively the
"Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and
post-salvaging operations of the USS Guardian cause
and continue to cause environmental damage of such
magnitude as to affect the provinces of Palawan,
Antique, Aklan, Guimaras, Iloilo, Negros Occidental,
Negros Oriental, Zamboanga del Norte, Basilan, Sulu,
and Tawi-Tawi, which events violate their
constitutional rights to a balanced and healthful
ecology. They also seek a directive from this Court for
the institution of civil, administrative and criminal suits
for acts committed in violation of environmental laws
and regulations in connection with the grounding
incident.
Specifically, petitioners cite the following violations
committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of
conservation fees (Section 21 ); obstruction of law
enforcement officer (Section 30); damages to the reef
(Section 20); and destroying and disturbing resources
(Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA)
which they want this Court to nullify for being
unconstitutional.
The numerous reliefs sought in this case are set forth
in the final prayer of the petition, to wit:
WHEREFORE, in view of the foregoing, Petitioners
respectfully pray that the Honorable Court: 1.
Immediately issue upon the filing of this petition a
Temporary Environmental Protection Order (TEPO)
and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting
on their behalf, to cease and desist all
operations over the Guardian grounding
incident;
b. Initially demarcating the metes and
bounds of the damaged area as well as an
additional buffer zone;
c. Order Respondents to stop all port calls
and war games under 'Balikatan' because of
the absence of clear guidelines, duties, and
liability schemes for breaches of those
duties, and require Respondents to assume
responsibility for prior and future
environmental damage in general, and
environmental damage under the Visiting
Forces Agreement in particular.
d. Temporarily define and describe allowable
activities of ecotourism, diving, recreation,
and limited commercial activities by fisherfolk
and indigenous communities near or around
the TRNP but away from the damaged site
and an additional buffer zone;
2. After summary hearing, issue a Resolution
extending the TEPO until further orders of
the Court;
3. After due proceedings, render a Decision
which shall include, without limitation:
a. Order Respondents Secretary of Foreign
Affairs, following the dispositive portion of
Nicolas v. Romulo, "to forthwith negotiate
with the United States representatives for the
appropriate agreement on [environmental
guidelines and environmental accountability]
under Philippine authorities as provided in
Art. V[] of the VFA ... "
b. Direct Respondents and appropriate
agencies to commence administrative, civil,
and criminal proceedings against erring
officers and individuals to the full extent of
the law, and to make such proceedings
public;
c. Declare that Philippine authorities may
exercise primary and exclusive criminal
jurisdiction over erring U.S. personnel under
the circumstances of this case;
d. Require Respondents to pay just and
reasonable compensation in the settlement
of all meritorious claims for damages caused
to the Tubbataha Reef on terms and
conditions no less severe than those
applicable to other States, and damages for
personal injury or death, if such had been
the case;
e. Direct Respondents to cooperate in
providing for the attendance of witnesses
and in the collection and production of
evidence, including seizure and delivery of
objects connected with the offenses related
to the grounding of the Guardian;
f. Require the authorities of the Philippines
and the United States to notify each other of
the disposition of all cases, wherever heard,
related to the grounding of the Guardian;
g. Restrain Respondents from proceeding
with any purported restoration, repair,
salvage or post salvage plan or plans,
including cleanup plans covering the
damaged area of the Tubbataha Reef absent
a just settlement approved by the Honorable
Court;
h. Require Respondents to engage in
stakeholder and LOU consultations in
accordance with the Local Government
Code and R.A. 10067;
i. Require Respondent US officials and their
representatives to place a deposit to the
TRNP Trust Fund defined under Section 17
of RA 10067 as a bona .fide gesture towards
full reparations;
j. Direct Respondents to undertake
measures to rehabilitate the areas affected
by the grounding of the Guardian in light of
Respondents' experience in the Port Royale
grounding in 2009, among other similar
grounding incidents;
k. Require Respondents to regularly publish
on a quarterly basis and in the name of
transparency and accountability such
environmental damage assessment,
valuation, and valuation methods, in all
stages of negotiation;
l. Convene a multisectoral technical working
group to provide scientific and technical
support to the TPAMB;
m. Order the Department of Foreign Affairs,
Department of National Defense, and the
Department of Environment and Natural
Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty
to consider whether their provisions allow for
the exercise of erga omnes rights to a
balanced and healthful ecology and for
damages which follow from any violation of
those rights;
n. Narrowly tailor the provisions of the
Visiting Forces Agreement for purposes of
protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in
Article V ("Criminal Jurisdiction") and Article
VI of the Visiting Forces Agreement
unconstitutional for violating equal protection
and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the
law of the land under Section 2, Article II, of
the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in
the Tubbataha Reefs in all other respects;
and
4. Provide just and equitable environmental
rehabilitation measures and such other
 reliefs as are just and equitable under the
premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their
comment8 to the petition, petitioners also filed a
motion for early resolution and motion to proceed ex
parte against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the
application for a TEPO and ocular inspection and
production orders, respondents assert that: ( 1) the
grounds relied upon for the issuance of a TEPO or
writ of Kalikasan have become fait accompli as the
salvage operations on the USS Guardian were
already completed; (2) the petition is defective in form
and substance; (3) the petition improperly raises
issues involving the VFA between the Republic of the
Philippines and the United States of America; and ( 4)
the determination of the extent of responsibility of the
US Government as regards the damage to the
Tubbataha Reefs rests exdusively with the executive
branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the
legal standing of petitioners to file the present petition.
Locus standi is "a right of appearance in a court of
justice on a given question."10 Specifically, it is "a
party's personal and substantial interest in a case
where he has sustained or will sustain direct injury as
a result" of the act being challenged, and "calls for
more than just a generalized grievance."11 However,
the rule on standing is a procedural matter which this
Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the
public interest so requires, such as when the subject
matter of the controversy is of transcendental
importance, of overreaching significance to society, or
of paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13we
recognized the "public right" of citizens to "a balanced
and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the
fundamental law." We declared that the right to a
balanced and healthful ecology need not be written in
the Constitution for it is assumed, like other civil and
polittcal rights guaranteed in the Bill of Rights, to exist
from the inception of mankind and it is an issue of
transcendental importance with intergenerational
implications.1âwphi1 Such right carries with it the
correlative duty to refrain from impairing the
environment.14
On the novel element in the class suit filed by the
petitioners minors in Oposa, this Court ruled that not
only do ordinary citizens have legal standing to sue
for the enforcement of environmental rights, they can
do so in representation of their own and future
generations. Thus:
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. 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 a:: well as future generations. Needless to
say, every generation has a responsibility to the next
to preserve that rhythm and harmony for the full
1:njoyment 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.15 (Emphasis supplied.)
The liberalization of standing first enunciated in
Oposa, insofar as it refers to minors and generations
yet unborn, is now enshrined in the Rules which
allows the filing of a citizen suit in environmental
cases. The provision on citizen suits in the Rules
"collapses the traditional rule on personal and direct
interest, on the principle that humans are stewards of
nature."16
Having settled the issue of locus standi, we shall
address the more fundamental question of whether
this Court has jurisdiction over the US respondents
who did not submit any pleading or manifestation in
this case.
The immunity of the State from suit, known also as
the doctrine of sovereign immunity or non-suability of
the State,17is expressly provided in Article XVI of the
1987 Constitution which states:
Section 3. The State may not be sued without its
consent.
In United States of America v. Judge Guinto,18 we
discussed the principle of state immunity from suit, as
follows:
The rule that a state may not be sued without its
consent, now · expressed in Article XVI, Section 3, of
the 1987 Constitution, is one of the generally
accepted principles of international law that we have
adopted as part of the law of our land under Article II,
Section 2. x x x.
Even without such affirmation, we would still be bound
by the generally accepted principles of international
law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such
principles are deemed incorporated in the law of
every civilized state as a condition and consequence
of its membership in the society of nations. Upon its
admission to such society, the state is automatically
obligated to comply with these principles in its
relations with other states.
As applied to the local state, the doctrine of state
immunity is based on the justification given by Justice
Holmes that ''there can be no legal right against the
authority which makes the law on which the right
depends." [Kawanakoa v. Polybank, 205 U.S. 349]
There are other practical reasons for the enforcement
of the doctrine. In the case of the foreign state sought
to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non
habet imperium. All states are sovereign equals and
cannot assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated
case, "unduly vex the peace of nations." [De Haber v.
Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits
against the state without its consent, it is also
applicable to complaints filed against officials of the
state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the
judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same,.
such as the appropriation of the amount needed to
pay the damages awarded against them, the suit
must be regarded as against the state itself although
it has not been formally impleaded. [Garcia v. Chief of
Staff, 16 SCRA 120] In such a situation, the state may
move to dismiss the comp.taint on the ground that it
has been filed without its consent.19 (Emphasis
supplied.)
Under the American Constitution, the doctrine is
expressed in the Eleventh Amendment which reads:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we
further expounded on the immunity of foreign states
from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts
of a foreign state is a long-standing rule of customary
international law then closely identified with the
personal immunity of a foreign sovereign from suit
and, with the emergence of democratic states, made
to attach not just to the person of the head of state, or
his representative, but also distinctly to the state itself
in its sovereign capacity. If the acts giving rise to a
suit arc those of a foreign government done by its
foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the
complaint could be barred by the immunity of the
foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect,
suing the state itself. The proscription is not accorded
for the benefit of an individual but for the State, in
whose service he is, under the maxim -par in parem,
non habet imperium -that all states are soverr~ign
equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the
judgment against an official would rec 1uire the state
itself to perform an affirmative act to satisfy the award,
such as the appropriation of the amount needed to
pay the damages decreed against him, the suit must
be regarded as being against the state itself, although
it has not been formally impleaded.21 (Emphasis
supplied.)
In the same case we also mentioned that in the case
of diplomatic immunity, the privilege is not an
immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is,
rather, an immunity from the exercise of territorial
jurisdiction.22
In United States of America v. Judge Guinto,23 one of
the consolidated cases therein involved a Filipino
employed at Clark Air Base who was arrested
following a buy-bust operation conducted by two
officers of the US Air Force, and was eventually
dismissed from his employment when he was
charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee
against the military officers, the latter moved to
dismiss the case on the ground that the suit was
against the US Government which had not given its
consent. The RTC denied the motion but on a petition
for certiorari and prohibition filed before this Court, we
reversed the RTC and dismissed the complaint. We
held that petitioners US military officers were acting in
the exercise of their official functions when they
conducted the buy-bust operation against the
complainant and thereafter testified against him at his
trial. It follows that for discharging their duties as
agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which
has not given its consent to be sued.
This traditional rule of State immunity which exempts
a State from being sued in the courts of another State
without the former's consent or waiver has evolved
into a restrictive doctrine which distinguishes
sovereign and governmental acts (Jure imperil") from
private, commercial and proprietary acts (Jure
gestionis). Under the restrictive rule of State
immunity, State immunity extends only to acts Jure
imperii. The restrictive application of State immunity is
proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its
commercial activities or economic affairs.24
In Shauf v. Court of Appeals,25 we discussed the
limitations of the State immunity principle, thus:
It is a different matter where the public official is made
to account in his capacity as such for acts contrary to
law and injurious to the rights of plaintiff. As was
clearly set forth by JustiGe Zaldivar in Director of the
Bureau of Telecommunications, et al. vs. Aligaen,
etc., et al. : "Inasmuch as the State authorizes only
legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the
State, and an action against the officials or officers by
one whose rights have been invaded or violated by
such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the
State from suit. In the same tenor, it has been said
that an action at law or suit in equity against a State
officer or the director of a State department on the
ground that, while claiming to act for the State, he
violates or invades the personal and property rights of
the plaintiff, under an unconstitutional act or under an
assumption of authority which he does not have, is
not a suit against the State within the constitutional
provision that the State may not be sued without its
consent." The rationale for this ruling is that the
doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter.
They state that the doctrine of immunity from suit will
not apply and may not be invoked where the public
official is being sued in his private and personal
capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the
government is removed the moment they are sued in
their individual capacity. This situation usually arises
where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled
principle of law that a public official may be liable in
his personal private capacity for whatever damage he
may have caused by his act done with malice and in
bad faith, or beyond the scope of his authority or
jurisdiction.26 (Emphasis supplied.) In this case, the
US respondents were sued in their official capacity as
commanding officers of the US Navy who had control
and supervision over the USS Guardian and its crew.
The alleged act or omission resulting in the
unfortunate grounding of the USS Guardian on the
TRNP was committed while they we:re performing
official military duties. Considering that the
satisfaction of a judgment against said officials will
require remedial actions and appropriation of funds by
the US government, the suit is deemed to be one
against the US itself. The principle of State immunity
therefore bars the exercise of jurisdiction by this Court
over the persons of respondents Swift, Rice and
Robling.
During the deliberations, Senior Associate Justice
Antonio T. Carpio took the position that the conduct of
the US in this case, when its warship entered a
restricted area in violation of R.A. No. 10067 and
caused damage to the TRNP reef system, brings the
matter within the ambit of Article 31 of the United
Nations Convention on the Law of the Sea
(UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as
extensions of their flag State, Art. 31 of the UNCLOS
creates an exception to this rule in cases where they
fail to comply with the rules and regulations of the
coastal State regarding passage through the latter's
internal waters and the territorial sea.
According to Justice Carpio, although the US to date
has not ratified the UNCLOS, as a matter of long-
standing policy the US considers itself bound by
customary international rules on the "traditional uses
of the oceans" as codified in UNCLOS, as can be
gleaned from previous declarations by former
Presidents Reagan and Clinton, and the US judiciary
in the case of United States v. Royal Caribbean
Cruise Lines, Ltd.27
The international law of the sea is generally defined
as "a body of treaty rules arid customary norms
governing the uses of the sea, the exploitation of its
resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international
law, regulating the relations of states with respect to
the uses of the oceans."28 The UNCLOS is a
multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was
ratified by the Philippines in 1984 but came into force
on November 16, 1994 upon the submission of the
60th ratification.
The UNCLOS is a product of international negotiation
that seeks to balance State sovereignty (mare
clausum) and the principle of freedom of the high
seas (mare liberum).29 The freedom to use the world's
marine waters is one of the oldest customary
principles of international law.30 The UNCLOS gives
to the coastal State sovereign rights in varying
degrees over the different zones of the sea which are:
1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone, and 5) the high
seas. It also gives coastal States more or less
jurisdiction over foreign vessels depending on where
the vessel is located.31
Insofar as the internal waters and territorial sea is
concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of
international law. Such sovereignty extends to the air
space over the territorial sea as well as to its bed and
subsoil.32
In the case of warships,33 as pointed out by Justice
Carpio, they continue to enjoy sovereign immunity
subject to the following exceptions:
Article 30
Non-compliance by warships with the laws and
regulations of the coastal State
If any warship does not comply with the laws and
regulations of the coastal State concerning passage
through the territorial sea and disregards any request
for compliance therewith which is made to it, the
coastal State may require it to leave the territorial sea
immediately.
Article 31
Responsibility of the flag State for damage caused by
a warship
or other government ship operated for non-
commercial purposes
The flag State shall bear international responsibility
for any loss or damage to the coastal State resulting
from the non-compliance by a warship or other
government ship operated for non-commercial
purposes with the laws and regulations of the coastal
State concerning passage through the territorial sea
or with the provisions of this Convention or other rules
of international law.
Article 32
Immunities of warships and other government ships
operated for non-commercial purposes
With such exceptions as are contained in subsection
A and in articles 30 and 31, nothing in this Convention
affects the immunities of warships and other
government ships operated for non-commercial
purposes. (Emphasis supplied.) A foreign warship's
unauthorized entry into our internal waters with
resulting damage to marine resources is one situation
in which the above provisions may apply. But what if
the offending warship is a non-party to the UNCLOS,
as in this case, the US?
An overwhelming majority - over 80% -- of nation
states are now members of UNCLOS, but despite this
the US, the world's leading maritime power, has not
ratified it.
While the Reagan administration was instrumental in
UNCLOS' negotiation and drafting, the U.S.
delegation ultimately voted against and refrained from
signing it due to concerns over deep seabed mining
technology transfer provisions contained in Part XI. In
a remarkable, multilateral effort to induce U.S.
membership, the bulk of UNCLOS member states
cooperated over the succeeding decade to revise the
objection.able provisions. The revisions satisfied the
Clinton administration, which signed the revised Part
XI implementing agreement in 1994. In the fall of
1994, President Clinton transmitted UNCLOS and the
Part XI implementing agreement to the Senate
requesting its advice and consent. Despite consistent
support from President Clinton, each of his
successors, and an ideologically diverse array of
stakeholders, the Senate has since withheld the
consent required for the President to internationally
bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations
Committee (SFRC) during the 108th and 110th
Congresses, its progress continues to be hamstrung
by significant pockets of political ambivalence over
U.S. participation in international institutions. Most
recently, 111 th Congress SFRC Chairman Senator
John Kerry included "voting out" UNCLOS for full
Senate consideration among his highest priorities.
This did not occur, and no Senate action has been
taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy
statement given by President Reagan on March 10,
1983 that the US will "recognize the rights of the
other , states in the waters off their coasts, as
reflected in the convention [UNCLOS], so long as the
rights and freedom of the United States and others
under international law are recognized by such
coastal states", and President Clinton's reiteration of
the US policy "to act in a manner consistent with its
[UNCLOS] provisions relating to traditional uses of the
oceans and to encourage other countries to do
likewise." Since Article 31 relates to the "traditional
uses of the oceans," and "if under its policy, the US
'recognize[s] the rights of the other states in the
waters off their coasts,"' Justice Carpio postulates that
"there is more reason to expect it to recognize the
rights of other states in their internal waters, such as
the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio
emphasizes that "the US' refusal to join the UN CLOS
was centered on its disagreement with UN CLOS'
regime of deep seabed mining (Part XI) which
considers the oceans and deep seabed commonly
owned by mankind," pointing out that such "has
nothing to do with its [the US'] acceptance of
customary international rules on navigation."
It may be mentioned that even the US Navy Judge
Advocate General's Corps publicly endorses the
ratification of the UNCLOS, as shown by the following
statement posted on its official website:
The Convention is in the national interest of the
United States because it establishes stable maritime
zones, including a maximum outer limit for territorial
seas; codifies innocent passage, transit passage, and
archipelagic sea lanes passage rights; works against
"jurisdictiomtl creep" by preventing coastal nations
from expanding their own maritime zones; and
reaffirms sovereign immunity of warships, auxiliaries
anJ government aircraft.
xxxx
Economically, accession to the Convention would
support our national interests by enhancing the ability
of the US to assert its sovereign rights over the
resources of one of the largest continental shelves in
the world. Further, it is the Law of the Sea Convention
that first established the concept of a maritime
Exclusive Economic Zone out to 200 nautical miles,
and recognized the rights of coastal states to
conserve and manage the natural resources in this
Zone.35
We fully concur with Justice Carpio's view that non-
membership in the UNCLOS does not mean that the
US will disregard the rights of the Philippines as a
Coastal State over its internal waters and territorial
sea. We thus expect the US to bear "international
responsibility" under Art. 31 in connection with the
USS Guardian grounding which adversely affected
the Tubbataha reefs. Indeed, it is difficult to imagine
that our long-time ally and trading partner, which has
been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from
its obligation to compensate the damage caused by
its warship while transiting our internal waters. Much
less can we comprehend a Government exercising
leadership in international affairs, unwilling to comply
with the UNCLOS directive for all nations to cooperate
in the global task to protect and preserve the marine
environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as
appropriate, on a regional basis, directly or through
competent international organizations, in formulating
and elaborating international rules, standards and
recommended practices and procedures consistent
with this Convention, for the protection and
preservation of the marine environment, taking into
account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the
present controversy is beyond dispute. Although the
said treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating
the.latter's territorial sea, the flag States shall be
required to leave the territorial '::;ea immediately if
they flout the laws and regulations of the Coastal
State, and they will be liable for damages caused by
their warships or any other government vessel
operated for non-commercial purposes under Article
31.
Petitioners argue that there is a waiver of immunity
from suit found in the VFA. Likewise, they invoke
federal statutes in the US under which agencies of the
US have statutorily waived their immunity to any
action. Even under the common law tort claims,
petitioners asseverate that the US respondents are
liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment
of United States troops and personnel visiting the
Philippines to promote "common security interests"
between the US and the Philippines in the region. It
provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the
United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel
and aircraft, importation and exportation of
equipment, materials and supplies.36 The invocation
of US federal tort laws and even common law is thus
improper considering that it is the VF A which governs
disputes involving US military ships and crew
navigating Philippine waters in pursuance of the
objectives of the agreement.
As it is, the waiver of State immunity under the VF A
pertains only to criminal jurisdiction and not to special
civil actions such as the present petition for issuance
of a writ of Kalikasan. In fact, it can be inferred from
Section 17, Rule 7 of the Rules that a criminal case
against a person charged with a violation of an
environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a
petition for the issuance of the writ of kalikasan shall
not preclude the filing of separate civil, criminal or
administrative actions.
In any case, it is our considered view that a ruling on
the application or non-application of criminal
jurisdiction provisions of the VF A to US personnel
who may be found responsible for the grounding of
the USS Guardian, would be premature and beyond
the province of a petition for a writ of Kalikasan. We
also find it unnecessary at this point to determine
whether such waiver of State immunity is indeed
absolute. In the same vein, we cannot grant damages
which have resulted from the violation of
environmental laws. The Rules allows the recovery of
damages, including the collection of administrative
fines under R.A. No. 10067, in a separate civil suit or
that deemed instituted with the criminal action
charging the same violation of an environmental
law.37
Section 15, Rule 7 enumerates the reliefs which may
be granted in a petition for issuance of a writ of
Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the
time the petition is submitted for decision, the court
shall render judgment granting or denying the
privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the
following:
(a) Directing respondent to permanently
cease and desist from committing acts or
neglecting the performance of a duty in
violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official,
govemment agency, private person or entity
to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official,
government agency, private person or entity
to monitor strict compliance with the decision
and orders of the court;
(d) Directing the respondent public official,
government agency, or private person or
entity to make periodic reports on the
execution of the final judgment; and
(e) Such other reliefs which relate to the right
of the people to a balanced and healthful
ecology or to the protection, preservation,
rehabilitation or restoration of the
environment, except the award of damages
to individual petitioners. (Emphasis
supplied.)
We agree with respondents (Philippine officials) in
asserting that this petition has become moot in the
sense that the salvage operation sought to be
enjoined or restrained had already been
accomplished when petitioners sought recourse from
this Court. But insofar as the directives to Philippine
respondents to protect and rehabilitate the coral reef
stn icture and marine habitat adversely affected by
the grounding incident are concerned, petitioners are
entitled to these reliefs notwithstanding the
completion of the removal of the USS Guardian from
the coral reef. However, we are mindful of the fact
that the US and Philippine governments both
expressed readiness to negotiate and discuss the
matter of compensation for the damage caused by the
USS Guardian. The US Embassy has also declared it
is closely coordinating with local scientists and
experts in assessing the extent of the damage and
appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental
cases is not proscribed by the Rules. As can be
gleaned from the following provisions, mediation and
settlement are available for the consideration of the
parties, and which dispute resolution methods are
encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-
trial conference, the court shall inquire from the
parties if they have settled the dispute; otherwise, the
court shall immediately refer the parties or their
counsel, if authorized by their clients, to the Philippine
Mediation Center (PMC) unit for purposes of
mediation. If not available, the court shall refer the
case to the clerk of court or legal researcher for
mediation.
Mediation must be conducted within a non-extendible
period of thirty (30) days from receipt of notice of
referral to mediation.
The mediation report must be submitted within ten
(10) days from the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the
court will schedule the continuance of the pre-trial.
Before the scheduled date of continuance, the court
may refer the case to the branch clerk of court for a
preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The
judge shall put the parties and their counsels under
oath, and they shall remain under oath in all pre-trial
conferences.
The judge shall exert best efforts to persuade the
parties to arrive at a settlement of the dispute. The
judge may issue a consent decree approving the
agreement between the parties in accordance with
law, morals, public order and public policy to protect
the right of the people to a balanced and healthful
ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to
make the parties to agree to compromise or settle in
accordance with law at any stage of the proceedings
before rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in
2009 when a guided-missile cruiser, the USS Port
Royal, ran aground about half a mile off the Honolulu
Airport Reef Runway and remained stuck for four
days. After spending $6.5 million restoring the coral
reef, the US government was reported to have paid
the State of Hawaii $8.5 million in settlement over
coral reef damage caused by the grounding.38
To underscore that the US government is prepared to
pay appropriate compensation for the damage caused
by the USS Guardian grounding, the US Embassy in
the Philippines has announced the formation of a US
interdisciplinary scientific team which will "initiate
discussions with the Government of the Philippines to
review coral reef rehabilitation options in Tubbataha,
based on assessments by Philippine-based marine
scientists." The US team intends to "help assess
damage and remediation options, in coordination with
the Tubbataha Management Office, appropriate
Philippine government entities, non-governmental
organizations, and scientific experts from Philippine
universities."39
rehabilitation measures through diplomatic channels.
Resolution of these issues impinges on our relations
with another State in the context of common security
interests under the VFA. It is settled that "[t]he
conduct of the foreign relations of our government is
committed by the Constitution to the executive and
legislative-"the political" --departments of the
government, and the propriety of what may be done in
the exercise of this political power is not subject to
judicial inquiry or decision."40
On the other hand, we cannot grant the additional
reliefs prayed for in the petition to order a review of
the VFA and to nullify certain immunity provisions
thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v.
Exec. Sec. Zamora,41 the VFA was duly concurred in
by the Philippine Senate and has been recognized as
a treaty by the United States as attested and certified
by the duly authorized representative of the United
States government. The VF A being a valid and
binding agreement, the parties are required as a
matter of international law to abide by its terms and
provisions.42 The present petition under the Rules is
not the proper remedy to assail the constitutionality of
its provisions. WHEREFORE, the petition for the
issuance of the privilege of the Writ of Kalikasan is
hereby DENIED.
No pronouncement as to costs.
SO ORDERED.

A rehabilitation or restoration program to be

implemented at the cost of the violator is also a major
relief that may be obtained under a judgment
rendered in a citizens' suit under the Rules, viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the

court may grant to the plaintiff proper reliefs which
shall include the protection, preservation or
rehabilitation of the environment and the payment of
attorney's fees, costs of suit and other litigation
expenses. It may also require the violator to submit a
program of rehabilitation or restoration of the
environment, the costs of which shall be borne by the
violator, or to contribute to a special trust fund for that
purpose subject to the control of the court.1âwphi1

In the light of the foregoing, the Court defers to the

Executive Branch on the matter of compensation and
Case No. 010
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 179334 April 21, 2015
SECRETARY OF THE DEPARTMENT OF PUBLIC
WORKS AND HIGHWAYS and DISTRICT
ENGINEER CELESTINO R.
CONTRERAS, Petitioners,
vs.
SPOUSES HERACLEO and RAMONA
TECSON, Respondents.
RESOLUTION
PERALTA, J.:
For resolution is the Motion for Reconsideration1 filed
by respondents-movants spouses Heracleo and
Ramona Tecson imploring the Court to take a second
look at its July 1, 2013 Decision, the dispositive
portion of which reads:
WHEREFORE, premises considered, the petition is
PARTIALLY GRANTED. The Court of Appeals
Decision dated July 31, 2007 in CAG.R. CV No.
77997 is MODIFIED, in that the valuation of the
subject property owned by respondents shall be
P0.70 instead of ₱1,500.00 per square meter, with
interest at six percent (6%) per annum from the date
of taking in 1940 instead of March 17, 1995, until full
payment.2
In view of the contrasting opinions of the members of
the Third Division on the instant motion, and the
transcendental importance of the issue raised herein,
the members of the Third Division opted to refer the
issue to the En Banc for resolution.
For a proper perspective, we briefly state the factual
background of the case.
In 1940, the Department of Public Works and
Highways (DPWH) took respondents-movants'
subject property without the benefit of expropriation
proceedings for the construction of the MacArthur
Highway. In a letter dated December 15,
1994,respondents-movants demanded the payment
of the fair market value of the subject parcel of land.
Celestino R. Contreras (Contreras), then District
Engineer of the First Bulacan Engineering District of
the DPWH, offered to pay for the subject land at the
rate of Seventy Centavos (P0.70) per square meter,
per Resolution of the Provincial Appraisal Committee
(PAC) of Bulacan. Unsatisfied with the offer,
respondents-movants demanded the return of their
property, or the payment of compensation at the
current fair market value.3 Hence, the complaint for
recovery of possession with damages filed by
respondents-movants. Respondents-movants were
able to obtain favorable decisions in the Regional
Trial Court (RTC) and the Court of Appeals (CA), with
the subject property valued at One Thousand Five
Hundred Pesos (₱1,500.00) per square meter, with
interest at six percent (6%) per annum.
Petitioners thus elevated the matter to this Court in a
petition for review on certiorari. The only issue
resolved by the Court in the assailed decision is the
amount of just compensation which respondents-
movants are entitled to receive from the government
for the taking of their property. Both the RTC and the
CA valued the property at One Thousand Five
Hundred Pesos (₱1,500.00) per square meter, plus
six percent (6%) interest from the time of the filing of
the complaint until full payment. We, however, did not
agree with both courts and ruled instead that just
compensation should be based on the value of the
property at the time of taking in 1940, which is
Seventy Centavos (P0.70) per square meter.4 In
addition, and by way of compensation, we likewise
awarded an interest of six percent (6%) per annum
from 1940 until full payment.5
Aggrieved, respondents-movants hereby move for the
reconsideration of said decision on the following
grounds:
A. THE HONORABLE COURT MAY LOOK
INTO THE "JUSTNESS" OF THE
MISERABLE AMOUNT OF
COMPENSATION BEING AWARDED TO
THE HEREIN RESPONDENTS; and
B. THE HONORABLE COURT MAY
SETTLE FOR A HAPPY MIDDLE GROUND
IN THE NAME OF DOCTRINAL PRECISION
AND SUBSTANTIAL JUSTICE.6
Citing the views of Justices Presbitero J. Velasco, Jr.
and Marvic Mario Victor F. Leonen in their Dissenting
and Concurring Opinion and Separate Opinion,
respectively, respondents-movants insist that gross
injustice will result if the amount that will be awarded
today will be based simply on the value of the
property at the time of the actual taking. Hence, as
proposed by Justice Leonen, they suggest that a
happy middle ground be achieved by meeting the
need for doctrinal precision and the thirst for
substantial justice.7
We maintain our conclusions in the assailed July 1,
2013 Decision with modification on the amount of
interest awarded, as well as the additional grant of
exemplary damages and attorney's fees.
At the outset, it should be stressed that the matter of
the validity of the State's exercise of the power of
eminent domain has long been settled. In fact, in our
assailed decision, We have affirmed the ruling of the
CA that the pre-trial order issued on May 17, 2001
has limited the issues as follows: (1) whether or not
the respondents-movants are entitled to just
compensation; (2) whether or not the valuation would
be based on the corresponding value at the time of
the taking or at the time of the filing of the action; and
(3) whether or not the respondents-movants are
entitled to damages.8 Moreover, it was held that for
failure of respondents-movants to question the lack of
expropriation proceedings for a long period of time,
they are deemed to have waived and are estopped
from assailing the power of the government to
expropriate or the public use for which the power was
exercised.9 What is, therefore, left for determination in
the instant Motion for Reconsideration, in accordance
with our Decision dated July 1, 2013, is the propriety
of the amount awarded to respondents as just
compensation.
At this juncture, We hold that the reckoning date for
property valuation in determining the amount of just
compensation had already been addressed and
squarely answered in the assailed decision. To be
sure, the justness of the award had been taken into
consideration in arriving at our earlier conclusion.
We have in the past been confronted with the same
issues under similar factual and procedural
circumstances. We find no reason to depart from the
doctrines laid down in the earlier cases as we
adopted in the assailed decision. In this regard, we
reiterate the doctrines laid down in the cases
of Forfom Development Corporation (Forfom) v.
Philippine National Railways (PNR),10 Eusebio v.
Luis,11 Manila International Airport Authority v.
Rodriguez,12 and Republic v. Sarabia.13
In Forfom, PNR entered the property of Forfom in
January 1973 for railroad tracks, facilities and
appurtenances for use of the Carmona Commuter
Service without initiating expropriation proceedings. In
1990, Forfom filed a complaint for recovery of
possession of real property and/or damages against
PNR. In Eusebio, respondent's parcel of land was
taken in 1980 by the City of Pasig and used as a
municipal road without the appropriate expropriation
proceedings. In1996, respondent filed a complaint for
reconveyance and/or damages against the city
government and the mayor. In MIAA, in the early
1970s, petitioner implemented expansion programs
for its runway, necessitating the acquisition and
occupation of some of the properties surrounding its
premises. As to respondent's property, no
expropriation proceedings were initiated. In 1997,
respondent initiated a case for accion
reivindicatoriawith damages against petitioner. In
Republic, sometime in 1956, the Air Transportation
Office (ATO) took possession and control of a portion
of a lot situated in Aklan, registered in the name of
respondent, without initiating expropriation
proceedings. Several structures were erected
thereon, including the control tower, the Kalibo crash
fire rescue station, the Kalibo airport terminal, and the
Headquarters of the PNP Aviation Security Group. In
1995,several stores and restaurants were constructed
on the remaining portion of the lot. In 1997,
respondent filed a complaint for recovery of
possession with damages against the storeowners
wherein ATO intervened claiming that the
storeowners were its lessees.
These cases stemmed from similar background, that
is, government took control and possession of the
subject properties for public use without initiating
expropriation proceedings and without payment of just
compensation; while the landowners failed for a long
period of time to question such government act and
later instituted actions for recovery of possession with
damages. In these cases, the Court has uniformly
ruled that the fair market value of the property at the
time of taking is controlling for purposes of computing
just compensation.
In Forfom, the payment of just compensation was
reckoned from the time of taking in 1973;
in Eusebio, the Court fixed the just compensation by
determining the value of the property at the time of
taking in 1980; in MIAA, the value of the lot at the time
of taking in 1972 served as basis for the award of
compensation to the owner; and, in Republic,the
Court was convinced that the taking occurred in 1956
and was thus the basis in fixing just compensation.
As in the aforementioned cases, just compensation
due respondents-movants in this case should,
therefore, be fixed not as of the time of payment but
at the time of taking in 1940 which is Seventy
Centavos (P0.70) per square meter, and not One
Thousand Five Hundred Pesos (₱1,500.00) per
square meter, as valued by the RTC and CA.
While disparity in the above amounts is obvious and
may appear inequitable to respondents-movants as
they would be receiving such outdated valuation after
a very long period, it should be noted that the purpose
of just compensation is not to reward the owner for
the property taken but to compensate him for the loss
thereof. As such, the true measure of the property, as
upheld by a plethora of cases, is the market value at
the time of the taking, when the loss resulted. This
principle was plainly laid down in Apo Fruits
Corporation and Hijo Plantation, Inc. v. Land Bank of
the Philippines,14 to wit:
x x x In Land Bank of the Philippines v. Orilla, a
valuation case under our agrarian reform law, this
Court had occasion to state:
Constitutionally, "just compensation" is the sum
equivalent to the market value of the property, broadly
described as the price fixed by the seller in open
market in the usual and ordinary course of legal
action and competition, or the fair value of the
property as between the one who receives and the
one who desires to sell, it being fixed at the time of
the actual taking by the government. Just
compensation is defined as the full and fair
equivalent of the property taken from its owner by
the expropriator. It has been repeatedly stressed
by this Court that the true measure is not the
taker's gain but the owner's loss. The word "just" is
used to modify the meaning of the word
"compensation" to convey the idea that the
equivalent to be given for the property to be taken
shall be real, substantial, full and
ample. [Emphasis supplied.]15
Indeed, the State is not obliged to pay premium to the
property owner for appropriating the latter's property;
it is only bound to make good the loss sustained by
the landowner, with due consideration of the
circumstances availing at the time the property was
taken. More, the concept of just compensation does
not imply fairness to the property owner alone.
Compensation must also be just to the public, which
ultimately bears the cost of expropriation.16
Notwithstanding the foregoing, we recognize that the
owner's loss is not only his property but also its
income-generating potential.17 Thus, when property is
taken, full compensation of its value must immediately
be paid to achieve a fair exchange for the property
and the potential income lost.18 Accordingly, in Apo,
we held that the rationale for imposing the interest is
to compensate the petitioners for the income they
would have made had they been properly
compensated for their properties at the time of the
taking.19 Thus:
We recognized in Republic v. Court of Appeals the
need for prompt payment and the necessity of the
payment of interest to compensate for any delay in
the payment of compensation for property already
taken. We ruled in this case that:
The constitutional limitation of "just compensation" is
considered to be the sum equivalent to the market
value of the property, broadly described to be the
price fixed by the seller in open market in the usual
and ordinary course of legal action and competition or
the fair value of the property as between one who
receives, and one who desires to sell, i[f] fixed at the
time of the actual taking by the government. Thus, if
property is taken for public use before
compensation is deposited with the court having
jurisdiction over the case, the final compensation
must include interest[s] on its just value to be
computed from the time the property is taken to
the time when compensation is actually paid or
deposited with the court. In fine, between the
taking of the property and the actual payment,
legal interest[s] accrue in order to place the owner
in a position as good as (but not better than) the
position he was in before the taking
occurred.[Emphasis supplied]20
In other words, the just compensation due to the
landowners amounts to an effective forbearance on
the part of the State-a proper subject of interest
computed from the time the property was taken until
the full amount of just compensation is paid-in order
to eradicate the issue of the constant variability of the
value of the currency over time.21 In the Court's own
words:
The Bulacan trial court, in its 1979 decision, was
correct in imposing interests on the zonal value of the
property to be computed from the time petitioner
instituted condemnation proceedings and "took" the
property in September 1969. This allowance of
interest on the amount found to be the value of
the property as of the time of the taking
computed, being an effective forbearance, at 12%
per annum should help eliminate the issue of the
constant fluctuation and inflation of the value of
the currency over time x x x.22
On this score, a review of the history of the pertinent
laws, rules and regulations, as well as the issuances
of the Central Bank (CB)or Bangko Sentral ng
Pilipinas (BSP)is imperative in arriving at the proper
amount of interest to be awarded herein.
On May 1, 1916, Act No. 265523 took effect
prescribing an interest rate of six percent (6%) or
such rate as may be prescribed by the Central Bank
Monetary Board (CB-MB)for loans or forbearance of
money, in the absence of express stipulation as to
such rate of interest, to wit:
Section 1. The rate of interest for the loan or
forbearance of any money goods, or credits and the
rate allowed in judgments, in the absence of express
contract as to such rate of interest, shall be six per
centum per annum or such rate as may be
prescribed by the Monetary Board of the Central
Bank of the Philippines for that purpose in
accordance with the authority hereby granted.
Sec. 1-a. The Monetary Board is hereby authorized to
prescribe the maximum rate or rates of interest for the
loan or renewal thereof or the forbearance of any
money, goods or credits, and to change such rate or
rates whenever warranted by prevailing economic and
social conditions.
In the exercise of the authority herein granted, the
Monetary Board may prescribe higher maximum rates
for loans of low priority, such as consumer loans or
renewals thereof as well as such loans made by
pawnshops finance companies and other similar
credit institutions although the rates prescribed for
these institutions need not necessarily be uniform.
The Monetary Board is also authorized to prescribe
different maximum rate or rates for different types of
borrowings, including deposits and deposit
substitutes, or loans of financial intermediaries.24
Under the aforesaid law, any amount of interest paid
or stipulated to be paid in excess of that fixed by law
is considered usurious, therefore unlawful.25
On July 29, 1974, the CB-MB, pursuant to the
authority granted to it under the aforequoted
provision, issued Resolution No. 1622.1âwphi1 On
even date, Circular No. 416 was issued, implementing
MB Resolution No. 1622, increasing the rate of
interest for loans and forbearance of money to twelve
percent (12%) per annum, thus:
By virtue of the authority granted to it under Section 1
of Act No. 2655, as amended, otherwise known as the
"Usury Law," the Monetary Board, in its Resolution
No. 1622 dated July 29, 1974, has prescribed that the
rate of interest for the loan or forbearance of any
money, goods or credits and the rate allowed in
judgments, in the absence of express contract as
to such rate of interest, shall be twelve per cent
(12%) per annum.26
The foregoing rate was sustained in CB Circular No.
90527 which took effect on December 22, 1982,
particularly Section 2 thereof, which states:
Sec. 2. The rate of interest for the loan or forbearance
of any money, goods or credits and the rate allowed
in judgments, in the absence of express contract as to
such rate of interest, shall continue to be twelve per
cent (12%) per annum.28
Recently, the BSP Monetary Board (BSP-MB),in its
Resolution No. 796 dated May 16, 2013, approved
the amendment of Section 2 of Circular No. 905,
Series of 1982, and accordingly, issued Circular No.
799, Series of 2013, effective July 1, 2013, the
pertinent portion of which reads:
The Monetary Board, in its Resolution No. 796 dated
16 May 2013, approved the following revisions
governing the rate of interest in the absence of
stipulation in loan contracts, thereby amending
Section 2 of Circular No. 905, Series of 1982:
Section 1. The rate of interest for the loan or
forbearance of any money, goods or credits and
the rate allowed in judgments, in the absence of
an express contract as to such rate of interest,
shall be six percent (6%) per annum.
Section 2. In view of the above, Subsection X305.1 of
the Manual of Regulations for Banks and Sections
4305Q.1, 4305S.3 and 4303P.1 of the Manual of
Regulations for Non-Bank Financial Institutions are
hereby amended accordingly.
This Circular shall take effect on 01 July 2013.29
Accordingly, the prevailing interest rate for loans and
forbearance of money is six percent (6%) per annum,
in the absence of an express contract as to such rate
of interest.
In summary, the interest rates applicable to loans and
forbearance of money, in the absence of an express
contract as to such rate of interest, for the period of
1940 to present are as follows:
It is important to note, however, that interest shall be
compounded at the time judicial demand is made
pursuant to Article 221230 of the Civil Code of the
Philippines, and sustained in Eastern Shipping Lines
v. Court of Appeals,31then later on in Nacar v. Gallery
Frames,32 save for the reduction of interest rate to 6%
for loans or forbearance of money, thus:
1. When the obligation is breached, and it consists in
the payment of a sum of money, i.e., a loan or
forbearance of money, the interest due should be
that which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legal
interest from the time it is judicially demanded. In
the absence of stipulation, the rate of interest shall be
6% per annum to be computed from default, i.e., from
judicial or extrajudicial demand under and subject to
the provisions of Article 1169 of the Civil Code.33
Applying the foregoing law and jurisprudence,
respondents-movants are entitled to interest in the
amount of One Million Seven Hundred Eighteen
Thousand Eight Hundred Forty-Eight Pesos and
Thirty-Two Centavos (₱1,718,848.32) as of computed to the market value of the property at the
September 30, 2014,34 computed as follows: time of taking signifies the real, substantial, full and
ample value of the property. Verily, the same
constitutes due compliance with the constitutional
January 1, 194035 to July P 10,553.4937 mandate on eminent domain and serves as a basic
28, 1974 measure of fairness. In addition to the foregoing
interest, additional compensation shall be awarded to
July 29, 1974 to March 26,126.3138
respondents-movants by way of exemplary damages
16, 1995
and attorney's fees in view of the government's taking
March 17, 199536to June 232,070.3339 without the benefit of expropriation proceedings. As
30, 2013 held in Eusebio v. Luis,42 an irregularity in an
expropriation proceeding cannot ensue without
July 1, 2013 to 250,098.1940 consequence. Thus, the Court held that the
September 30, 2014 government agency's illegal occupation of the owner's
property for a very long period of time surely resulted
in pecuniary loss to the owner, to wit:
Market Value of the P 518,848.32
Property at the time of However, in taking respondents' property without the
taking including interest benefit of expropriation proceedings and without
payment of just compensation, the City of Pasig
clearly acted in utter disregard of respondents'
proprietary rights. Such conduct cannot be
Market value of the
countenanced by the Court. For said illegal taking,
property at the time of
the City of Pasig should definitely be held liable
taking including interest P 518,848.32
for damages to respondents. Again, in Manila
Add: Exemplary damages 1,000.000.00 International Airport Authority v. Rodriguez, the Court
held that the government agency's illegal occupation
Attorney's fees 200,000.00 of the owner's property for a very long period of time
surely resulted in pecuniary loss to the owner. The
Total Amount of Interest Court held as follows:
due to Respondents- ₱1,718,848.16
Movants as of September
30, 2014 Such pecuniary loss entitles him to adequate
compensation in the form of actual or
compensatory damages, which in this case
should be the legal interest (6%) on the value of
the land at the time of taking, from said point up
to full payment by the MIAA. This is based on the
Considering that respondents-movants only resorted
principle that interest "runs as a matter of law and
to judicial demand for the payment of the fair market
follows from the right of the landowner to be placed in
value of the land on March 17, 1995, it is only then
as good position as money can accomplish, as of the
that the interest earned shall itself earn interest.
date of the taking."

Lastly, from finality of the Court's Resolution on

reconsideration until full payment, the total amount
due to respondents-movants shall earn a straight six
percent (6%) legal interest, pursuant to Circular No.
799 and the case of Nacar. Such interest is imposed
by reason of the Court's decision and takes the nature
of a judicial debt.
Clearly, the award of interest on the value of the land
at the time of taking in 1940 until full payment is
adequate compensation to respondents-movants for
the deprivation of their property without the benefit of
expropriation proceedings. Such interest, however
meager or enormous it may be, cannot be inequitable
and unconscionable because it resulted directly from
the application of law and jurisprudence-standards
that have taken into account fairness and equity
insetting the interest rates due for the use or
forbearance of money.41 Thus, adding the interest
The award of interest renders unwarranted the
grant of back rentals as extended by the courts
below. In Republic v. Lara, et al., the Court ruled that
the indemnity for rentals is inconsistent with a
property owner's right to be paid legal interest on the
value of the property, for if the condemn or is to pay
the compensation due to the owners from the time of
the actual taking of their property, the payment of
such compensation is deemed to retro act to the
actual taking of the property; and, hence, there is no
basis for claiming rentals from the time of actual
taking. More explicitly, the Court held in Republic v.
Garcellano that:
The uniform rule of this Court, however, is that
this compensation must be, not in the form of
rentals, but by way of 'interest from the date that
the company [or entity] exercising the right of
eminent domain take possession of the
condemned lands, and the amounts granted by
the court shall cease to earn interest only from
the moment they are paid to the owners or
deposited in court x x x.
xxxx
For more than twenty (20) years, the MIAA occupied
the subject lot without the benefit of expropriation
proceedings and without the MIAA exerting efforts to
ascertain ownership of the lot and negotiating with
any of the owners of the property. To our mind, these
are wanton and irresponsible acts which should
be suppressed and corrected. Hence, the award of
exemplary damages and attorneys fees is in
order. However, while Rodriguez is entitled to such
exemplary damages and attorney's fees, the award
granted by the courts below should be equitably
reduced. We hold that Rodriguez is entitled only
to ₱200,000.00 as exemplary damages, and
attorney's fees equivalent to one percent (1%) of the
amount due.43
Similarly, in Republic v. CA,44 We held that the failure
of the government to initiate an expropriation
proceeding to the prejudice of the landowner may be
corrected with the awarding of exemplary damages,
attorney's fees and costs of litigation. Thus:
The Court will not award attorney's fees in light of
respondent's choice not to appeal the CA Decision
striking down the award. However, we find it proper
to award temperate and exemplary damages in
light of NIA's misuse of its power of eminent
domain. Any arm of the State that exercises the
delegated power of eminent domain must wield that
power with circumspection and utmost regard for
procedural requirements. A government
instrumentality that fails to observe the constitutional
guarantees of just compensation and due process
abuses the authority delegated to it, and is liable to
the property owner for damages.
Temperate or moderate damages may be recovered if
pecuniary loss has been suffered but the amount
cannot be proved with certainty from the nature of the
case.1âwphi1 Here, the trial and appellate courts
found that the owners were unable to plant palay on
96,655 square meters of the Property for an
unspecified period during and after NIA's construction
of the canals in 1972. The passage of time, however,
has made it impossible to determine these losses with
any certainty. NIA also deprived the owners of the
Property of possession of a substantial portion of their
land since 1972. Considering the particular
circumstances of this case, an award of ₱150,000 as
temperate damages is reasonable.
NIA's irresponsible exercise of its eminent domain
powers also deserves censure. For more than three
decades, NIA has been charging irrigation fees from
respondent and other landowners for the use of the
canals built on the Property, without reimbursing
respondent a single cent for the loss and damage.
NIA exhibits a disturbingly cavalier attitude towards
respondent's property rights, rights to due process of
law and to equal protection of the laws. Worse, this is
not the first time NIA has disregarded the rights of
private property owners by refusing to pay just
compensation promptly. To dissuade NIA from
continuing this practice and to set an example for
other agencies exercising eminent domain powers,
NIA is directed to pay respondent exemplary
damages of ₱250,000.45
Applying the aforequoted doctrines to the present
case, considering that respondents-movants were
deprived of beneficial ownership over their property
for more than seventy (70) years without the benefit of
a timely expropriation proceedings, and to serve as a
deterrent to the State from failing to institute such
proceedings within the prescribed period under the
law, a grant of exemplary damages in the amount of
One Million Pesos (₱1,000,000.00) is fair and
reasonable. Moreover, an award for attorney's fees in
the amount of Two Hundred Thousand Pesos
(₱200,000.00) in favor of respondents-movants is in
order.
In sum, respondents-movants shall be entitled to an
aggregate amount of One Million Seven Hundred
Eighteen Thousand Eight Hundred Forty-Eight
Pesos and Thirty-Two Centavos (₱1,718,848.32) as
just compensation as of September 30, 2014,
computed as follows:
Market value of the P 518,848.32
property at the time
of taking in 1940 including
interest
Add: Exemplary Damages 1,000,000.00
Attorney's fees 200,000.00
Total Amount due to
Respondents-
movants as of September
30, 2014 ₱1,718,848.32
This Court is not unaware that at present, stringent
laws and rules are put in place to ensure that owners
of real property acquired for national government
infrastructure projects are promptly paid just
compensation. Specifically, Section 4 of Republic Act
No. 8974 (R.A. 8974),46 which took effect on
November 26, 2000, provides sufficient guidelines for
implementing an expropriation proceeding, to wit:
Section 4. Guidelines for Expropriation Proceedings. -
Whenever it is necessary to acquire real property for
the right-of-way or location for any national
government infrastructure project through
expropriation, the appropriate implementing agency
shall initiate the expropriation proceedings before the
proper court under the following guidelines:
(a) Upon the filing of the complaint, and after
due notice to the defendant, the
implementing agency shall immediately pay
the owner of the property the amount
equivalent to the sum of (1) one hundred
percent (100%) of the value of the property
based on the current relevant zonal valuation
of the Bureau of Internal Revenue (BIR); and
(2) the value of the improvements and/or
structures as determined under Section 7
hereof;
(b) In provinces, cities, municipalities and
other areas where there is no zonal
valuation, the BIR is hereby mandated within
the period of sixty (60) days from the date of
the expropriation case, to come up with a
zonal valuation for said area; and
(c) In case the completion of a government
infrastructure project is of utmost urgency
and importance, and there is no existing
valuation of the area concerned, the
implementing agency shall immediately pay
the owner of the property its proffered value
taking into consideration the standards
prescribed in Section 5 hereof.
Upon compliance with the guidelines
abovementioned, the court shall immediately issue to
the implementing agency an order to take possession
of the property and start the implementation of the
project.
Before the court can issue a Writ of Possession, the
implementing agency shall present to the court a
certificate of availability of funds from the proper
official concerned.
In the event that the owner of the property contests
the implementing agency's proffered value, the court
shall determine the just compensation to be paid the
owner within sixty (60) days from the date of filing of
the expropriation case. When the decision of the court
becomes final and executory, the implementing
agency shall pay the owner the difference between
the amount already paid and the just compensation
as determined by the court.
Failure to comply with the foregoing directives shall
subject the government official or employee
concerned to administrative, civil and/or criminal
sanctions, thus:
Section 11. Sanctions. - Violation of any provisions of
this Act shall subject the government official or
employee concerned to appropriate administrative,
civil and/or criminal sanctions, including suspension
and/or dismissal from the government service and
forfeiture of benefits. While the foregoing provisions,
being substantive in nature or disturbs substantive
rights, cannot be retroactively applied to the present
case, We trust that this established mechanism will
surely deter hasty acquisition of private properties in
the future without the benefit of immediate payment of
the value of the property in accordance with Section 4
of R.A. 8974. This effectively addresses J. Velasco's
concerns that sustaining our earlier rulings on the
matter would be licensing the government to dispense
with constitutional requirements in taking private
properties. Moreover, any gap on the procedural
aspect of the expropriation proceedings will be
remedied by the aforequoted provisions.
In effect, R.A. 8974 enshrines a new approach
towards eminent domain that reconciles the inherent
unease attending expropriation proceedings with a
position of fundamental equity.47
Despite the foregoing developments, however, We
emphasize that the government's failure, to initiate the
necessary expropriation proceedings prior to actual
taking cannot simply invalidate the State's exercise of
its eminent domain power, given that the property
subject of expropriation is indubitably devoted for
public use, and public policy imposes upon the public
utility the obligation to continue its services to the
public. To hastily nullify said expropriation in the guise
of lack of due process would certainly diminish or
weaken one of the State's inherent powers, the
ultimate objective of which is to serve the greater
good. Thus, the non-filing of the case for expropriation
will not necessarily lead to the return of the property
to the landowner. What is left to the landowner is the
right of compensation.48
All told, We hold that putting to rest the issue on the
validity of the exercise of eminent domain is neither
tantamount to condoning the acts of the DPWH in
disregarding the property rights of respondents-
movants nor giving premium to the government's
failure to institute an expropriation proceeding. This
Court had steadfastly adhered to the doctrine that its
first and fundamental duty is the application of the law
according to its express terms, interpretation being
called for only when such literal application is
impossible.49 To entertain other formula for computing
just compensation, contrary to those established by
law and jurisprudence, would open varying
interpretation of economic policies - a matter which
this Court has no competence to take cognizance of.
Time and again, we have held that no process of
interpretation or construction need be resorted to
where a provision of law peremptorily calls for
application.50 Equity and equitable principles only
come into full play when a gap exists in the law and
jurisprudence.51 As we have shown above,
established rulings of this Court are in place for full
application to the case at bar, hence, should be
upheld.

WHEREFORE, the motion for reconsideration is

hereby DENIED for lack of merit.

SO ORDERED.
Case No. 011
SECOND DIVISION
June 29, 2016
G.R. No. 206484
DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS (DOTC), Petitioner,
vs.
SPOUSES VICENTE ABECINA and MARIA
CLEOFE ABECINA, Respondents.
DECISION
BRION, J.:
This petition for review on certiorari seeks to reverse
and set aside the March 20, 2013 decision of the
Court of Appeals (CA) in CA-G.R. CV No.
93795 1 affirming the decision of the Regional Trial
Court (RTC) of Daet, Camarines Norte, Branch 39,
in Civil Case No. 7355.2The RTC ordered the
Department of Transportation and
Communications (DOTC) to vacate the respondents'
properties and to pay them actual and moral
damages.
ANTECEDENTS
Respondent spouses Vicente and Maria Cleofe
Abecina (respondents/spouses Abecina) are the
registered owners of five parcels of land in Sitio Paltik,
Barrio Sta. Rosa, Jose Panganiban, Camarines
Norte.
The properties are covered by Transfer Certificates of
Title (TCT) Nos. T-25094, T-25095, T-25096, T-
25097, and T-25098.3
In February 1993, the DOTC awarded Digitel
Telecommunications Philippines, Inc. (Digitel) a
contract for the management, operation,
maintenance, and development of a Regional
Telecommunications Development
Project (RTDP) under the National Telephone
Program, Phase I, Tranche 1 (NTPI-1).4
The DOTC and Digitel subsequently entered into
several Facilities Management Agreements (FMA) for
Digitel to manage, operate, maintain, and develop the
RTDP and NTPI-1 facilities comprising local
telephone exchange lines in various municipalities in
Luzon. The FMAs were later converted into Financial
Lease Agreements (FLA) in 1995.
Later on, the municipality of Jose Panganiban,
Camarines Norte, donated a one thousand two
hundred (1,200) square-meter parcel of land to the
DOTC for the implementation of the RDTP in the
municipality. However, the municipality erroneously
included portions of the respondents’ property in the
donation. Pursuant to the FLAs, Digitel constructed a
telephone exchange on the property which
encroached on the properties of the respondent
spouses.5
Sometime in the mid-1990s, the spouses Abecina
discovered Digitel’s occupation over portions of their
properties. They required Digitel to vacate their
properties and pay damages, but the latter refused,
insisting that it was occupying the property of the
DOTC pursuant to their FLA.
On April 29, 2003, the respondent spouses sent a
final demand letter to both the DOTC and Digitel to
vacate the premises and to pay unpaid rent/damages
in the amount of one million two hundred thousand
pesos (₱1,200,000.00). Neither the DOTC nor Digitel
complied with the demand.
On September 3, 2003, the respondent spouses filed
an accion publiciana complaint 6 against the DOTC
and Digitel for recovery of possession and damages.
The complaint was docketed as Civil Case No. 7355.
In its answer, the DOTC claimed immunity from suit
and ownership over the subject
properties.7 Nevertheless, during the pre-trial
conference, the DOTC admitted that the Abecinas
were the rightful owners of the properties and opted to
rely instead on state immunity from suit.8
On March 12, 2007, the respondent spouses and
Digitel executed a Compromise Agreement and
entered into a Contract of Lease. The RTC rendered
a partial decision and approved the Compromise
Agreement on March 22, 2007.9
On May 20, 2009, the RTC rendered its decision
against the DOTC.10 It brushed aside the defense of
state immunity. Citing Ministerio v. Court of First
Instance11and Amigable v. Cuenca,12it held that
government immunity from suit could not be used as
an instrument to perpetuate an injustice on a citizen.13
The RTC held that as the lawful owners of the
properties, the respondent spouses enjoyed the right
to use and to possess them – rights that were violated
by the DOTC’s unauthorized entry, construction, and
refusal to vacate. The RTC (1) ordered the
Department – as a builder in bad faith – to forfeit the
improvements and vacate the properties; and (2)
awarded the spouses with ₱1,200,000.00 as actual
damages, ₱200,000.00 as moral damages, and
₱200,000.00 as exemplary damages plus attorney’s
fees and
costs of suit.
The DOTC elevated the case to the CA arguing: (1)
that the RTC never acquired jurisdiction over it due to
state immunity from suit; (2) that the suit against it
should have been dismissed after the spouses
Abecina and Digitel executed a compromise
agreement; and (3) that the RTC erred in awarding
actual, moral, and exemplary damages against
it.14 The appeal was docketed as CA-G.R. CV No.
93795.
On March 20, 2013, the CA affirmed the RTC’s
decision but deleted the award of exemplary
damages. The CA upheld the RTC’s jurisdiction over
cases for accion publiciana where the assessed value
exceeds ₱20,000.00.15 It likewise denied the DOTC’s
claim of state immunity from suit, reasoning that the
DOTC removed its cloak of immunity after entering
into a proprietary contract – the Financial Lease
Agreement with Digitel.16 It also adopted the RTC’s
position that state immunity cannot be used to defeat
a valid claim for compensation arising from an
unlawful taking without the proper expropriation
proceedings.17 The CA affirmed the award of actual
and moral damages due to the DOTC’s neglect to
verify the perimeter of the telephone exchange
construction but found no valid justification for the
award of exemplary damages.18
On April 16, 2013, the DOTC filed the present petition
for review on certiorari.
THE PARTIES’ ARGUMENTS
The DOTC asserts that its Financial Lease
Agreement with Digitel was entered into in pursuit of
its governmental functions to promote and develop
networks of communication systems.19 Therefore, it
cannot be interpreted as a waiver of state immunity.
The DOTC also maintains that while it was regrettable
that the construction of the telephone exchange
erroneously encroached on portions of the
respondent’s properties, the RTC erred in ordering
the return of the property. 20 It argues that while the
DOTC, in good faith and in the performance of its
mandate, took private property without formal
expropriation proceedings, the taking was
nevertheless an exercise of eminent domain.21
Citing the 2007 case of Heirs of Mateo Pidacan v. Air
Transportation Office (ATO),22the Department prays
that instead of allowing recovery of the property, the
case should be remanded to the RTC for
determination of just compensation.
On the other hand, the respondents counter that the
state immunity cannot be invoked to perpetrate an
injustice against its citizens.23 They also maintain that
because the subject properties are titled, the DOTC is
a builder in bad faith who is deemed to have lost the
improvements it introduced.24 Finally, they
differentiate their case from Heirs of Mateo Pidacan v.
ATO because Pidacan originated from a complaint for
payment of the value of the property and rentals while
their case originated from a complaint for recovery of
possession and damages.25
OUR RULING
We find no merit in the petition.
The State may not be sued without its consent.26 This
fundamental doctrine stems from the principle that
there can be no legal right against the authority which
makes the law on which the right depends.27 This
generally accepted principle of law has been explicitly
expressed in both the 197328 and the present
Constitutions.
But as the principle itself implies, the doctrine of state
immunity is not absolute. The State may waive its
cloak of immunity and the waiver may be made
expressly or by implication.
Over the years, the State’s participation in economic
and commercial activities gradually expanded beyond
its sovereign function as regulator and
governor.1âwphi1 The evolution of the State’s
activities and degree of participation in commerce
demanded a parallel evolution in the traditional rule of
state immunity. Thus, it became necessary to
distinguish between the State’s sovereign and
governmental acts (jure imperii) and its private,
commercial, and proprietary acts (jure
gestionis). Presently, state immunity restrictively
extends only to acts jure imperii while acts jure
gestionis are considered as a waiver of immunity.29
The Philippines recognizes the vital role of information
and communication in nation building.30 As a
consequence, we have adopted a policy environment
that aspires for the full development of
communications infrastructure to facilitate the flow of
information into, out of, and across the country.31 To
this end, the DOTC has been mandated with the
promotion, development, and regulation of
dependable and coordinated networks of
communication.32
The DOTC encroached on the respondents’
properties when it constructed the local telephone
exchange in Daet, Camarines Norte. The exchange
was part of the RTDP pursuant to the National
Telephone Program. We have no doubt that when the
DOTC constructed the encroaching structures and
subsequently entered into the FLA with Digitel for
their maintenance, it was carrying out a sovereign
function. Therefore, we agree with the DOTC’s
contention that these are acts jure imperii that fall
within the cloak of state immunity.
However, as the respondents repeatedly pointed out,
this Court has long established in Ministerio v
CFI,33 Amigable v. Cuenca, 34the 2010 case Heirs of
Pidacan v. ATO, 35and more recently in Vigilar v.
Aquino36that the doctrine of state immunity cannot
serve as an instrument for perpetrating an injustice to
a citizen.
The Constitution identifies the limitations to the
awesome and near-limitless powers of the State.
Chief among these limitations are the principles that
no person shall be deprived of life, liberty, or property
without due process of law and that private property
shall not be taken for public use without just
compensation.37 These limitations are enshrined in no
less than the Bill of Rights that guarantees the citizen
protection from abuse by the State.
Consequently, our laws38 require that the State’s
power of eminent domain shall be exercised through
expropriation proceedings in court. Whenever private
property is taken for public use, it becomes the
ministerial duty of the concerned office or agency to
initiate expropriation proceedings. By necessary
implication, the filing of a complaint for expropriation
is a waiver of State immunity.
If the DOTC had correctly followed the regular
procedure upon discovering that it had encroached on
the respondents’ property, it would have initiated
expropriation proceedings instead of insisting on its
immunity from suit. The petitioners would not have
had to resort to filing its complaint for reconveyance.
As this Court said in Ministerio:
It is unthinkable then that precisely because there
was a failure to abide by what the law requires, the
government would stand to benefit. It is just as
important, if not more so, that there be fidelity to legal
norms on the part of officialdom if the rule of law were
to be maintained. It is not too much to say that when
the government takes any property for public use,
which is conditioned upon the payment of just
compensation, to be judicially ascertained, it
makes manifest that it submits to the jurisdiction
of a court. There is no thought then that the doctrine
of immunity from suit could still be appropriately
invoked. 39 [emphasis supplied]
We hold, therefore, that the Department’s entry into
and taking of possession of the respondents’ property
amounted to an implied waiver of its governmental
immunity from suit.
We also find no merit in the DOTC’s contention that
the RTC should not have ordered the reconveyance
of the respondent spouses’ property because the
property is being used for a vital governmental
function, that is, the operation and maintenance of a
safe and efficient communication system.40
The exercise of eminent domain requires a genuine
necessity to take the property for public use and the
consequent payment of just compensation. The
property is evidently being used for a public purpose.
However, we also note that the respondent spouses
willingly entered into a lease agreement with Digitel
for the use of the subject properties.
If in the future the factual circumstances should
change and the respondents refuse to continue the
lease, then the DOTC may initiate expropriation
proceedings. But as matters now stand, the
respondents are clearly willing to lease the property.
Therefore, we find no genuine necessity for the DOTC
to actually take the property at this point.
Lastly, we find that the CA erred when it affirmed the
RTC's decision without deleting the forfeiture of the
improvements made by the DOTC through Digitel.
Contrary to the RTC's findings, the DOTC was not a
builder in bad faith when the improvements were
constructed. The CA itself found that the
Department's encroachment over the respondents'
properties was a result of a mistaken implementation
of the donation from the municipality of Jose
Panganiban.41
Good faith consists in the belief of the builder that the
land he is building on is his and [of] his ignorance of
any defect or flaw in his title.42 While the DOTC later
realized its error and admitted its encroachment over
the respondents' property, there is no evidence that it
acted maliciously or in bad faith when the construction
was done.
Article 52743 of the Civil Code presumes good faith.
Without proof that. the Department's mistake was
made in bad faith, its construction is presumed to
have been made in good faith. Therefore, the
forfeiture of the improvements in favor of the
respondent spouses is unwarranted.
WHEREFORE, we hereby DENY the petition for lack
of merit. The May 20, 2009 decision of the Regional
Trial Court in Civil Case No. 7355, as modified by the
March 20, 2013 decision of the Court of Appeals
in CA-G.R. CV No. 93795, is AFFIRMED with
further MODIFICATION that the forfeiture of the
improvements made by the DOTC in favor of the
respondents is DELETED. No costs.

SO ORDERED.

Case No. 012

Case No. 013

G.R NO. 207132

PDF file
Case No. 014
THIRD DIVISION
January 17, 2018
G.R. No. 190289
THE CITY OF BACOLOD, HON. MAYOR EVELIO R.
LEONARDIA, ATTY. ALLAN L. ZAMORA and
ARCH. LEMUEL D. REYNALDO, in their personal
capacities and in their capacities as Officials of
the City of Bacolod, Petitioners
vs.
PHUTURE VISIONS CO., INC., Respondent
DECISION
VELASCO, JR., J.:
Nature of the Case
Before the Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court of
the Decision1 dated February 27, 2009 and the
Resolution2 dated October 27, 2009 of the Court of
Appeals (CA) in CAG. R. SP No. 03322. The assailed
rulings reversed the dismissal of respondent's Petition
for Mandamus and Damages with Prayer for Issuance
of a Temporary Mandatory Order and/or Writ of
Preliminary Mandatory Injunction (Petition for
Mandamus and Damages) by the Regional Trial Court
of Bacolod City, Branch 49.3
The Facts
The instant case stems from the Petition for
Mandamus and Damages filed by respondent Phuture
Visions Co., Inc. (Phuture) on March 5, 2007 against
petitioners City of Bacolod, Hon. Mayor Evelio R.
Leonardia, Atty. Allan L. Zamora (now deceased) and
Arch. Lemuel D. Reynaldo. In the Petition for
Mandamus and Damages, Phuture alleged the
following:
Phuture was incorporated in 2004. In May 2005, its
Articles of Incorporation (AOI) was amended to,
among others, include the operation of lotto betting
stations and/or other gaming outlets as one of its
secondary purposes. Eventually, it applied with the
Philippine Amusement and Gaming Corporation (P
AGCOR) for an authority to operate bingo games at
the SM City Bacolod Mall (SM Bacolod), as well as
with SM Prime Holdings (SM Prime) for the lease of a
space in the said building. Phuture was issued a
provisional Grant of Authority (GOA) on December 5,
2006 by P AGCOR, subject to compliance with certain
requirements, and received an Award Notice from SM
Prime on January 10, 2007.4
Thereafter, Phuture processed, completed and
submitted to the Permits and Licensing Division of the
City Mayor of Bacolod City its Application for Permit to
Engage in Business, Trade or Occupation to operate
bingo games at SM Bacolod and paid the fees
therefor. It was then issued a claim slip for its permit
on February 19, 2007, which was to be claimed on
March 16, 2007.5 In the meantime, Phuture further
amended its AOI on February 27, 2007 to reflect its
engagement in bingo operations as its primary
purpose.
Phuture commenced bingo operations at SM Bacolod
on March 2, 2007, prior to the issuance of the actual
hard copy of the mayor's permit. However, at around
6:10 a.m. of March 3, 2007, respondent learned that
its bingo outlet was padlocked by agents of the Office
of the City Legal Officer and that a copy of a Closure
Order dated March 2, 2007 was posted at the
entrance of the bingo outlet.6
Phuture claimed that the closure of its bingo outlet at
SM Bacolod is tainted with malice and bad faith and
that petitioners did not have the legal authority to shut
down said bingo operations, especially since
PAGCOR itself had already issued a provisional GOA
in its favor.
On March 7, 2007, the RTC conducted a summary
hearing to determine the sufficiency of the form and
substance of the application for the issuance of a
temporary mandatory order and/or preliminary
mandatory injunction to remove the padlock installed
at respondent's place of business at SM Bacolod and
allow it to conduct unhampered bingo operations.7 In
the course of the summary hearing, specifically on
March 9, 2007, petitioners released in open court to
respondent's counsel the hard copy of the Mayor's
Permit dated February 19, 2007 which indicated the
kind of business allowed is "Professional Services,
Band/Entertainment Services." Phuture's counsel,
however, refused to receive the same, protesting that
it was not the Mayor's Permit which respondent had
applied for.8
On March 19, 2007, petitioners filed their Comment
and Answer with Counterclaim, denying the
allegations set forth in the Petition for Mandamus and
Damages and presenting a slightly different set of
facts,9 as follows:
On January 10, 2007, Phuture applied for the renewal
of its mayor's permit with "professional services,
band/entertainment services" as its declared line of
business, providing the address of the business as
"RH Building, 26 Lacson Street, Barangay 5" instead
of SM Bacolod where respondent's bingo operations
was located.10
Upon submission of the requirements on February 19,
2007 and while the application was being processed,
Phuture was issued a "claim slip" for it to claim the
actual mayor's permit on March 16, 2007 if the
requirements were found to be in order.11 However,
petitioners found discrepancies in Phuture's submitted
requirements, wherein the application form was
notarized earlier than the amendment of its AOI to
reflect the company's primary purpose for bingo
operations. Aside from this, respondent failed to pay
the necessary permit fee/assessment fee under the
applicable tax ordinances of the City of Bacolod.12
Also, without waiting for the release of the mayor's
permit, respondent started the operation of its bingo
outlet at SM Bacolod. This prompted the former City
Legal Officer, Atty. Allan Zamora, to issue a Closure
Order dated March 2, 2007, pursuant to City Tax
Ordinance No. 93- 001, Series of 1993,13 which
declares unlawful for any person to operate any
business in the City of Bacolod without first obtaining
a permit therefor from the City Mayor and paying the
necessary permit fee and other charges to the City
Treasurer.
The Closure Order was presented by petitioners'
representative to respondent's lawyers to negotiate a
possible peaceful solution before its implementation.
However, respondent simply ignored the information
relayed to them and thus, at around 6:00 a.m. on
March 3, 2007, the Composite Enforcement Unit
under the Office of the City Legal Officer implemented
the Closure Order.14
Petitioners contended that the claim slip so heavily
relied upon by respondent was a mere oversight or
human error of the City Government's employee who
processed the same, who was likewise duped by the
tampered entries that respondent's application was for
a permit for bingo operations when, in tn1th, it was
only for the renewal of a previously-issued permit
albeit for a different line of business, i.e., "professional
services, band/entertainment services."15
Ruling of the Regional Trial Court
In a Decision16 dated March 20, 2007, the R TC
denied the prayer for the issuance of a temporary
mandatory order and dismissed the case for lack of
merit, to wit:
In view of the foregoing disquisitions, it follows that
the prayer for issuance of a temporary mandatory
order prayed for must be denied.
WHEREFORE, in the light of all the foregoing
discussions, the instant petition is ordered
DISMISSED for lack of merit, without prejudice to
filing an application of a Mayor's Permit specifically for
bingo operation. Respondents' counterclaim is
ordered DISMISSED, without prejudice to filing
appropriate action with a court of competent
jurisdiction.
Without pronouncement as to costs.
SO ORDERED.17
Phuture filed an Urgent Motion for Partial
Reconsideration on April 2, 2007, but the same was
denied by the RTC in its Order dated September 6,
2007.18 Thus, respondent elevated the matter to the
CA on appeal.19
Ruling of the Court of Appeals
In the assailed Decision dated February 27, 2009, the
CA partially granted the appeal by affirming the trial
court's denial of the application for a temporary
mandatory order but reversing the dismissal of the
suit for damages and ordering the case to be
reinstated and remanded to the court of origin for
further proceedings. The dispositive portion of the
assailed Decision reads:
WHEREFORE, based on the foregoing premises, the
appeal is PARTLY GRANTED. The Decision of
Branch 49 of the Regional Trial Court of Bacolod City
dated 20 March 2007 and Order dated 06 September
2007, denying the application for a Temporary
Mandatory Order is AFFIRMED. The dismissal of the
main action is REVERSED and is hereby
REINSTATED and REMANDED to the court of origin
for further proceedings.
SO ORDERED.20
The CA pronounced that the issue of whether the
RTC erred in dismissing the prayer for temporary
mandatory order for the removal of the padlock
allegedly installed illegally at respondent's place of
business at SM Bacolod, as well as the prayer
ordering petitioners to allow respondent to conduct
unhampered bingo operations during the pendency of
the case, had already been rendered moot since, with
the onset of another year, it was necessary to apply
for another business permit with the Mayor's Office.21
Nevertheless, the CA proceeded to rule on the issue
on whether the closure of respondent's bingo
operations at SM Bacolod was effected in a manner
consistent with law. While it ruled that the Mayor's
power to issue licenses and permits is discretionary,
and thus, cannot be compelled by mandamus, it
found that respondent was not given due notice and
hearing as to the closure of its business
establishment at SM Bacolod. Based on the CA's
finding on the manner by which the closure of the
bingo operations was effected, it concluded that
respondent was denied its proprietary right without
due process of law. Accordingly, the CA ordered the
case to be reinstated and remanded to the RTC to
determine if damages should be awarded.22
Petitioners timely interposed a Motion for
Reconsideration,23 protesting the CA's order to
remand the case to the R TC for trial on the aspect of
damages. The CA, however, maintained its position,
issuing the now assailed Resolution. Agggrieved,
petitioners brought the matter before this Court
through the present recourse.
The Petition
Petitioners again limit their argument to the CA's order
to remand the case to the R TC for trial on the aspect
of damages. According to petitioners, hearing the
action for damages effectively violates the City's
immunity from suit since respondent had not yet
obtained the consent of the City Government of
Bacolod to be included in the claim for damages.
They also argue that the other petitioners, the City
Mayor and other officials impleaded, are similarly
immune from suit since the acts they performed were
within their lawful duty and functions.24 Moreover,
petitioners maintain that they were merely performing
governmental or sovereign acts and exercised their
legal rights and duties to implement the provisions of
the City Ordinance.25 Finally, petitioners contend that
the assailed Decision contained inconsistencies such
that the CA declared mandamus to be an
inappropriate remedy, yet allowed the case for
damages to prosper.26
In its Comment,27 respondent Phuture argues that the
grounds raised by petitioners should not be
considered since these were only invoked for the first
time on appeal. Aside from this, respondent asserts
that the case for damages should proceed since
petitioners allegedly caused the illegal closure of its
bingo outlet without proper notice and hearing and
with obvious discrimination.
In their Reply to the Comment dated August 26, 2010,
petitioners oppose respondent's arguments, saying
that the issues they raised in the instant petition
cannot be considered as having been raised for the
first time since they are intertwined and bear
relevance and close relation to the issues resolved by
the trial court. They further reiterate that they cannot
be held liable for damages since they were merely
performing governmental or sovereign acts in the
issuance of a mayor's permit. Thus, they argue that
whatever damages that respondent may have
incurred belong to the concept of damnum absque
injuria for which the law provides no remedy.28
The Issues
Stripped of the verbiage, the sole issue in this case is
whether petitioners can be made liable to pay
respondent damages.
The Court's Ruling
The petition is meritorious.
Petitioners have not given their
consent to be sued
The principle of immunity from suit is embodied in
Section 3, Article XVI of the 1987 Philippine
Constitution which states that "[t]he State cannot be
sued without its consent." The purpose behind this
principle is to prevent the loss of governmental
efficiency as a result of the time and energy it would
require to defend itself against lawsuits.29 The State
and its political subdivisions are open to suit only
when they consent to it.
Consent may be express or implied, such as when
the government exercises its proprietary functions, or
where such is embodied in a general or special
law.30 In the present case, respondent sued
petitioners for the latter's refusal to issue a mayor's
permit for bingo operations and for closing its
business on account of the lack of such permit.
However, while the authority of city mayors to issue or
grant licenses and business permits is granted by the
Local Government Code (LGC),31 which also vests
local government units with corporate powers, one of
which is the power to sue and be sued, this Court has
held that the power to issue or grant licenses and
business permits is not an exercise of the
government's proprietary function. Instead, it is in an
exercise of the police power of the State, ergo a
governmental act. This is clearly elucidated by the
Court in Acebedo Optical Company, Inc. v. The
Honorable Court of Appeals:32
The Court of Appeals erred in adjudging subject
business permit as having been issued by respondent
City Mayor in the performance of proprietary functions
of Iligan City. As hereinabove elaborated upon, the
issuance of business licenses and permits by a
municipality or city is essentially regulatory in nature.
The authority, which devolved upon local government
units to issue or grant such licenses or permits, is
essentially in the exercise of the police power of the
State within the contemplation of the general welfare
clause of the Local Government Code. (emphasis
supplied)
No consent to be sued and be liable for damages can
thus be implied from the mere conferment and
exercise of the power to issue business permits and
licences. Accordingly, there is merit in petitioners'
argument that they cannot be sued by respondent
since the City's consent had not been secured for this
purpose. This is notwithstanding petitioners' failure to
raise this exculpatory defense at the first instance
before the trial court or even before the appellate
court.
As this Court has repeatedly held, waiver of immunity
from suit, being in derogation of sovereignty, will not
be lightly inferred.33 Moreover, it deserves mentioning
that the City of Bacolod as a government agency or
instrumentality cannot be estopped by the omission,
mistake or error of its officials or agents.34 Estoppel
does not also lie against the government or any of its
agencies arising from unauthorized or illegal acts of
public officers.35 Hence, we cannot hold petitioners
estopped from invoking their immunity from suit on
account of having raised it only for the first time on
appeal. On this score, Justice Barredo's Opinion
in Insurance Co. of North America v. Osaka Shosen
Kaisha36 is particularly illuminating:
x x x [T]he real reason why, from the procedural point
of view, a suit against the state filed without its
consent must be dismissed is because, necessarily,
any such complaint cannot state a cause of action,
since, as the above decision confirms, "there can be
no legal right as against the authority that makes the
law on which the right depends." x x x
The question that arises now is, may failure to state a
cause of action be alleged as a ground of dismissal
for the first-time on appeal?
xxx
x x x The requirement that this defense should be
raised at the trial is only to give the plaintiff a chance
to cure the defect of his complaint, but if, as in this
case, the lack of consent of the state cannot be cured
because it is a matter of judicial notice that there is no
law allowing the present suit, (only Congress that can
give such consent) the reason for the rule cannot
obtain, hence it is clear that such non-suability may
be raised even on appeal. After all, the record on
appeal can be examined to find out if the consent of
the state is alleged in the complaint.
xxxx
x x x It is plain, however, that as far as the date is
concerned, this rule of waiver cannot apply, for the
simple reason that in the case of the state as already
stated, the waiver may not be made by anyone other
than Congress, so any appearance in any form made
on its behalf would be ineffective and invalid if not
authorized by a law duly passed by Congress.
Besides, the state has to act thru subalterns who are
not always prepared to act in the premises with the
necessary capability, and instances there can be
when thru ignorance, negligence or malice, the
interest of the state may not be properly protected
because of the erroneous appearance made on its
behalf by a government lawyer or some other officer,
hence, as a matter of public policy, the law must be
understood as insulating the state from such
undesirable contingencies and leaving it free to
invoke its sovereign attributes at any time and at any
stage of a judicial proceeding, under the principle that
the mistakes and ommissions of its officers do not
bind it.
Petitioners are not liable for damages
As to the primary issue of whether petitioners are
liable to respondent for damages, respondent Phuture
alleged that petitioners are guilty of surreptitiously
padlocking its SM bingo outlet in a "patently arbitrary,
whimsical, capricious, oppressive, irregular, immoral
and shamelessly politically motivated" manner and
with clear discrimination since the majority owners of
the company are the sons of petitioner Mayor
Leonardia's political rival, then Congressman Monico
Puentevella.37 Such contention is clearly but non
sequitur, grounded as it is in pure conjecture.
Sticking closely to the facts, it is best to recapitulate
that while the CA ruled that respondent was not given
due notice and hearing as to the closure of its
business establishment at SM Bacolod, it
nevertheless remanded the issue of the award of
damages to the trial court for further proceedings.
Such action would only be an exercise in futility, as
the trial court had already ruled in its September 6,
2007 Decision that respondent Phuture had no right
and/or authority to operate bingo games at SM
Bacolod because it did not have a Business Permit
and has not paid assessment for bingo operation.
Thus, it held that petitioners acted lawfully in stopping
respondent's bingo operation on March 2, 2007 and
closing its establishment for lack of any business
permit.
The trial court further found that the Mayor's Office
had already decided and released a Business Permit
for "Professional Services, Band/Entertainment
Services" dated January 19, 2007 to respondent,
which cannot reasonably expect to receive a Mayor's
Permit for "Bingo Operations" unless and until it files a
new application for bingo operations, submit the
necessary requirements therefor, and pay the
corresponding assessment.38
Aside from this, the R TC had also found that
respondent's reliance on the GOA issued by
PAGCOR, the SM Award Notice, and the
"questionable" Claim Slip and Application paper
tainted with alteration/falsification did not appear to be
a right that is clear and unmistakable. From this, the
trial court concluded that the right being claimed by
respondent to operate bingo games at SM Bacolod
was, at the very least, doubtful.39
Based on the above observations made by the trial
court, it appears that respondent had no clear and
unmistakable legal right to operate its bingo
operations at the onset. Respondent failed to
establish that it had duly applied for the proper permit
for bingo operations with the Office of the Mayor and,
instead, merely relied on the questionable claim stub
to support its claim. The trial court also found that the
application form submitted by respondent pertained to
a renewal of respondent's business for "Professional
Services, Band/Entertainment Services" located at
"RH Bldg., 26th Lacson St." and not at SM Bacolod.
These factual findings by the trial court belie
respondent's claim that it had the right to operate its
bingo operations at SM Bacolod.
Certainly, respondent's claim that it had applied for a
license for bingo operations is questionable since, as
it had admitted in its Petition for Mandamus and
Damages, the primary purpose in its AOI was only
amended to reflect bingo operations on February 14,
2007 or more than a month after it had supposedly
applied for a license for bingo operations with the
Office of the Mayor. It is settled that a judicial
admission is binding on the person who makes it, and
absent any showing that it was made through
palpable mistake, no amount of rationalization can
offset such admission.40 This admission clearly casts
doubt on respondent's so-called right to operate its
business of bingo operations.
Petitioners, in ordering the closure of respondent's
bingo operations, were exercising their duty to
implement laws and ordinances which include the
local government's authority to issue licenses and
permits for business operations in the city. This
authority is granted to them as a delegated exercise
of the police power of the State. It must be
emphasized that the nature of bingo operations is a
form of gambling; thus, its operation is a mere
privilege which could not only be regulated, but may
also very well be revoked or closed down when public
interests so require.41 In this jurisdiction, we adhere to
the principle that injury alone does not give
respondent the right to recover damages, but it must
also have a right of action for the legal wrong inflicted
by petitioners. In order that the law will give redress
for an act causing damage, there must be damnum et
injuria that act must be not only hurtful, but wrongful.
The case of The Orchard Golf & Country Club, Inc., et
al. v. Ernesto V Yu and
Manuel C. Yuhico,42 citing Spouses Custodio v. Court
of Appeals,43 is instructive, to wit:
x x [T]he mere fact that the plaintiff suffered losses
does not give rise to a right to recover damages. To
warrant the recovery of damages, there must be both
a right of action for a legal wrong inflicted by the
defendant, and damage resulting to the plaintiff
therefrom. Wrong without damage, or damage without
wrong, does not constitute a cause of action, since
damages are merely part of the remedy allowed for
the injury caused by a breach or wrong.
xxxx
In order that a plaintiff may maintain an action for the
injuries of which he complains, he must establish that
such injuries resulted from a breach of duty which the
defendant owed to the plaintiff - a concurrence of
injury to the plaintiff and legal responsibility by the
person causing it. The underlying basis for the award
of tort damages is the premise that an individual was
injured in contemplation of law. Thus, there must first
be the breach of some duty and the imposition of
liability for that breach before damages may be
awarded; it is not sufficient to state that there should
be tort liability merely because the plaintiff suffered
some pain and suffering.
xxxx
In other words, in order that the law will give redress
for an act causing damage, that act must be not only
hurtful, but wrongful.1âwphi1 There must be damnum
et injuria. If, as may happen in many cases, a person
sustains actual damage, that is, harm or loss to his
person or property, without sustaining any legal injury,
that is, an act or omission which the law does not
deem an injury, the damage is regarded as damnum
absque injuria.
Considering that respondent had no legal right to
operate the bingo operations at the outset, then it is
not entitled to the damages which it is demanding
from petitioners.
WHEREFORE, the petition is hereby GRANTED. The
Decision dated February 27, 2009 and the Resolution
dated October 27, 2009 of the Court of Appeals in
CA-G.R. SP No. 03322 are
hereby ANNULLED and SET ASIDE. The Decision
dated March 20, 2007 of the Regional Trial Court of
Bacolod City, Branch 49 is hereby REINSTATED.
SO ORDERED.
D.
Case No. 001
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127255 August 14, 1997
JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN
HENRY R. OSMEÑA, WIGBERTO E. TAÑADA, AND
RONALDO B. ZAMORA, petitioner,
vs.
JOSE DE VENECIA, RAUL DAZA, RODOLFO
ALBANO, THE EXECUTIVE SECRETARY, THE
SECRETARY OF FINANCE, AND THE
COMMISSIONER OF INTERNAL
REVENUE, respondents.
MENDOZA, J.:
This is a petition for certiorari and/or prohibition
challenging the validity of Republic Act No. 8240,
which amends certain provisions of the National
Internal Revenue Code by imposing so-called "sin
taxes" (actually specific taxes) on the manufacture
and sale of beer and cigarettes.
Petitioners are members of the House of
Representatives. They brought this suit against
respondents Jose de Venecia, Speaker of the House
of Representatives, Deputy Speaker Raul Daza,
Majority Leader Rodolfo Albano, the Executive
Secretary, the Secretary of Finance, and the
Commissioner of Internal Revenue, charging violation
of the rules of the House which petitioners claim are
"constitutionally mandated" so that their violation is
tantamount to a violation of the Constitution.
The law originated in the House of Representatives
as H. No. 7198. This bill was approved on third
reading on September 12, 1996 and transmitted on
September 16, 1996 to the Senate which approved it
with certain amendments on third reading on
November 17, 1996. A bicameral conference
committee was formed to reconcile the disagreeing
provisions of the House and Senate versions of the
bill.
The bicameral conference committee submitted its
report to the House at 8 a.m. on November 21, 1996.
At 11:48 a.m., after a recess, Rep. Exequiel Javier,
chairman of the Committee on Ways and Means,
proceeded to deliver his sponsorship speech, after
which he was interpellate. Rep. Rogelio Sarmiento
was first to interpellate. He was interrupted when Rep.
Arroyo moved to adjourn for lack of quorum. Rep.
Antonio Cuenco objected to the motion and asked for
a head count. After a roll call, the Chair (Deputy
Speaker Raul Daza) declared the presence of a
quorum.1 Rep. Arroyo appealed the ruling of the
Chair, but his motion was defeated when put to a
vote. The interpellation of the sponsor thereafter
proceeded.
Petitioner Rep. Joker Arroyo registered to interpellate.
He was fourth in the order, following Rep. Rogelio
Sarmiento, Rep. Edcel C. Lagman and Rep. Enrique
Garcia. In the course of his interpellation, Rep. Arroyo
announced that he was going to raise a question on
the quorum, although until the end of his interpellation
he never did. What happened thereafter is shown in
the following transcript of the session on November
21, 1996 of the House of Representatives, as
published by Congress in the newspaper issues of
December 5 and 6, 1996:
MR. ALBANO. MR. Speaker, I move that we
now approved and ratify the conference
committee report.
THE DEPUTY SPEAKER (Mr. Daza). Any
objection to the motion?
MR. ARROYO. What is that, Mr. Speaker?
THE DEPUTY SPEAKER (Mr. Daza). There
being none, approved.
(Gavel)
MR. ARROYO. No, no, no, wait a minute,
Mr. Speaker, I stood up. I want to know what
is the question that the Chair asked the
distinguished sponsor.
THE DEPUTY SPEAKER (Mr. Daza). The
session is suspended for one minute.
(It was 3:01 p.m.)
(3:40 p.m., the session was resumed)
THE DEPUTY SPEAKER (Mr. Daza). The
session is resumed.
MR. ALBANO. Mr. Speaker, I move to
adjourn until four o'clock, Wednesday, next
week.
 THE DEPUTY SPEAKER (Mr. Daza). The
session is adjourned until four o'clock,
Wednesday, next week.
(It was 3:40 p.m.)
On the same day, the bill was signed by the Speaker
of the House of Representatives and the President of
the Senate and certified by the respective secretaries
of both Houses of Congress as having been finally
passed by the House of Representatives and by the
Senate on November 21, 1996. The enrolled bill was
signed into law by President Fidel V. Ramos on
November 22, 1996.
Petitioners claim that there are actually four different
version of the transcript of this portion of Rep.
Arroyo's interpellation: (1) the transcript of audio-
sound recording of the proceedings in the session hall
immediately after the session adjourned at 3:40 p.m.
on November 21, 1996, which petitioner Rep. Edcel
C. Lagman obtained from he operators of the sound
system; (2) the transcript of the proceedings from
3:00 p.m. to 3:40 p.m. of November 21, 1996, as
certified by the Chief of the Transcription Division on
November 21, 1996, also obtained by Rep. Lagman;
(3) the transcript of the proceedings from 3:00 p.m. to
3:40 p.m. of November 21, 1996 as certified by the
Chief of the Transcription Division on November 28,
1996, also obtained by Rep. Lagman; and (4) the
published version abovequoted. According to
petitioners, the four versions differ on three points, to
wit: (1) in the audio-sound recording the word
"approved," which appears on line 13 in the three
other versions, cannot be heard; (2) in the transcript
certified on November 21, 1996 the world "no" on line
17 appears only once, while in the other versions it is
repeated three times; and (3) the published version
does not contain the sentence "(Y)ou better prepare
for a quorum because I will raise the question of the
quorum," which appears in the other versions.
Petitioners' allegations are vehemently denied by
respondents. However, there is no need to discuss
this point as petitioners have announced that, in order
to expedite the resolution of this petition, they admit,
without conceding, the correctness of the transcripts
relied upon by the respondents. Petitioners agree that
for purposes of this proceeding the word "approved"
appears in the transcripts.
Only the proceedings of the House of
Representatives on the conference committee report
on H. No. 7198 are in question. Petitioners' principal
argument is that R.A. No. 8240 is null and void
because it was passed in violation of the rules of the
House; that these rules embody the "constitutional
mandate" in Art. VI, §16(3) that "each House may
determine the rules of its proceedings" and that,
consequently, violation of the House rules is a
violation of the Constitution itself. They contend that
the certification of Speaker De Venecia that the law
was properly passed is false and spurious.
More specifically, petitioners charge that (1) in
violation of Rule VIII, §35 and Rule XVII, §103 of the
rules of the House, 2 the Chair, in submitting the
conference committee report to the House, did not
call for the years or nays,but simply asked for its
approval by motion in order to prevent petitioner
Arroyo from questioning the presence of a quorum;
(2) in violation of Rule XIX, §112, 3 the Chair
deliberately ignored Rep. Arroyo's question, "What is
that . . . Mr. Speaker?" and did not repeat Rep.
Albano's motion to approve or ratify; (3) in violation of
Rule XVI, §97,4 the Chair refused to recognize Rep.
Arroyo and instead proceeded to act on Rep. Albano's
motion and afterward declared the report approved;
and (4) in violation of Rule XX, §§121-122, Rule XXI,
§123, and Rule XVIII, §109, 5the Chair suspended the
session without first ruling on Rep. Arroyo's question
which, it is alleged, is a point of order or a privileged
motion. It is argued that Rep. Arroyo's query should
have been resolved upon the resumption of the
session on November 28, 1996, because the
parliamentary situation at the time of the adjournment
remained upon the resumption of the session.
Petitioners also charge that the session was hastily
adjourned at 3:40 p.m. on November 21, 1996 and
the bill certified by Speaker Jose De Venecia to
prevent petitioner Rep. Arroyo from formally
challenging the existence of a quorum and asking for
a reconsideration.
Petitioners urge the Court not to feel bound by the
certification of the Speaker of the House that the law
had been properly passed, considering the Court's
power under Art. VIII, §1 to pass on claims of grave
abuse of discretion by the other departments of the
government, and they ask for a reexamination
of Tolentino v. Secretary of Finance, 6which affirmed
the conclusiveness of an enrolled bill, in view of the
changed membership of the Court.
The Solicitor General filed a comment in behalf of all
respondents. In addition, respondent De Venecia filed
a supplemental comment. Respondents' defense is
anchored on the principle of separation of powers and
the enrolled bill doctrine. They argue that the Court is
not the proper forum for the enforcement of the rules
of the House and that there is no justification for
reconsidering the enrolled bill doctrine. Although the
Constitution provides in Art. VI, §16(3) for the
adoption by each House of its rules of proceedings,
enforcement of the rules cannot be sought in the
courts except insofar as they implement constitutional
requirements such as that relating to three readings
on separate days before a bill may be passed. At all
events, respondents contend that, in passing the bill
which became R.A. No. 8240, the rules of the House,
as well as parliamentary precedents for approval of
conference committee reports on mere motion, were
faithfully observed.
In his supplemental comment, respondent De
Venecia denies that his certification of H. No. 7198 is
false and spurious and contends that under the
journal entry rule, the judicial inquiry sought by the
petitioners is barred. Indeed, Journal No. 39 of the
House of Representatives, covering the sessions of
November 20 and 21, 1996, shows that "On Motion of
Mr. Albano, there being no objection, the Body
approved the Conference Committee Report on
House Bill No. 7198." 7 This Journal was approved on
December 2, 1996 over the lone objection of
petitioner Rep. Lagman. 8
After considering the arguments of the parties, the
Court finds no ground for holding that Congress
committed a grave abuse of discretion in enacting
R.A. No. 8240. This case is therefore dismissed.
First. It is clear from the foregoing facts that what is
alleged to have been violated in the enactment of
R.A. No. 8240 are merely internal rules of procedure
of the House rather than constitutional requirements
for the enactment of a law, i.e., Art. VI, §§26-27.
Petitioners do not claim that there was no quorum but
only that, by some maneuver allegedly in violation of
the rules of the House, Rep. Arroyo was effectively
prevented from questioning the presence of a
quorum.
Petitioners contend that the House rules were
adopted pursuant to the constitutional provision that
"each House may determine the rules of its
proceedings" 9 and that for this reason they are
judicially enforceable. To begin with, this contention
stands the principle on its head. In the decided
cases, 10 the constitutional provision that "each House
may determine the rules of its proceedings" was
invoked by parties, although not successfully,
precisely to support claims of autonomy of the
legislative branch to conduct its business free from
interference by courts. Here petitioners cite the
provision for the opposite purpose of invoking judicial
review.
But the cases, both here and abroad, in varying forms
of expression, all deny to the courts the power to
inquire into allegations that, in enacting a law, a
House of Congress failed to comply with its own rules,
in the absence of showing that there was a violation
of a constitutional provision or the rights of private
individuals. In Osmeña v.Pendatun, 11 it was held: "At
any rate, courts have declared that 'the rules adopted
by deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body
adopting them.' And it has been said that
'Parliamentary rules are merely procedural, and with
their observance, the courts have no concern. They
may be waived or disregarded by the legislative body.'
Consequently, 'mere failure to conform to
parliamentary usage will not invalidate the action
(taken by a deliberative body) when the requisite
number of members have agreed to a particular
measure.'"
In United States v. Ballin, Joseph & Co., 12 the rules
was stated thus: "The Constitution empowers each
house to determine its rules of proceedings. It may
not by its rules ignore constitutional restraints or
violate fundamental rights, and there should be a
reasonable relation between the mode or method of
proceeding established by the rule and the result
which is sought to be attained. But within these
limitations all matters of method are open to the
determination of the House, and it is no impeachment
of the rule to say that some other way would be
better, more accurate, or even more just. It is no
objection to the validity of a rule that a different one
has been prescribed and in force for a length of
time. The power to make rules is not one which once
exercised is exhausted. It is a continuous power,
always subject to be exercised by the House, and
within the limitations suggested, absolute and beyond
the challenge of any other body or tribunal."
In Crawford v. Gilchrist, 13 it was held: "The provision
that each House shall determine the rules of its
proceedings does not restrict the power given to a
mere formulation of standing rules, or to the
proceedings of the body in ordinary legislative
matters; but in the absence of constitutional restraints,
and when exercised by a majority of a constitutional
quorum, such authority extends to a determination of
the propriety and effect of any action as it is taken by
the body as it proceeds in the exercise of any power,
in the transaction of any business, or in the
performance of any duty conferred upon it by the
Constitution."
In State ex rel. City Loan & Savings
Co. v. Moore, 14 the Supreme Court of Ohio stated:
"The provision for reconsideration is no part of the
Constitution and is therefore entirely within the control
of the General Assembly. Having made the rule, it
should be regarded, but a failure to regard it is not the
subject-matter of judicial inquiry. It has been decided
by the courts of last resort of many states, and also by
the United States Supreme Court, that a legislative
act will not be declared invalid for noncompliance with
rules."
In State v. Savings Bank, 15 the Supreme Court of
Errors of Connecticut declared itself as follows: "The
Constitution declares that each house shall determine
the rules of its own proceedings and shall have all
powers necessary for a branch of the Legislature of a
free and independent state. Rules of proceedings are
the servants of the House and subject to its
authority. This authority may be abused, but when the
House has acted in a matter clearly within its power, it
would be an unwarranted invasion of the
independence of the legislative department for the
court to set aside such action as void because it may
think that the House has misconstrued or departed
from its own rules of procedure."
In McDonald v. State, 16 the Wisconsin Supreme
Court held: "When it appears that an act was so
passed, no inquiry will be permitted to ascertain
whether the two houses have or have not complied
strictly with their own rules in their procedure upon the
bill, intermediate its introduction and final passage.
The presumption is conclusive that they have done
so. We think no court has ever declared an act of the
legislature void for non-compliance with the rules of
procedure made by itself , or the respective branches
thereof, and which it or they may change or suspend
at will. If there are any such adjudications, we decline
to follow them."
Schweizer v. Territory 17 is illustrative of the rule in
these cases. The 1893 Statutes of Oklahoma
provided for three readings on separate days before a
bill may be passed by each house of the legislature,
with the proviso that in case of an emergency the
house concerned may, by two-thirds vote, suspend
the operation of the rule. Plaintiff was convicted in the
district court of violation of a law punishing gambling.
He appealed contending that the gambling statute
was not properly passed by the legislature because
the suspension of the rule on three readings had not
been approved by the requisite two-thirds vote.
Dismissing this contention, the State Supreme Court
of Oklahoma held:
We have no constitutional provision requiring
that the legislature should read a bill in any
particular manner. It may, then, read or
deliberate upon a bill as it sees fit. either in
accordance with its own rules, or in violation
thereof, or without making any rules. The
provision of section 17 referred to is merely a
statutory provision for the direction of the
legislature in its action upon proposed
measures. It receives its entire force from
legislative sanction, and it exists only at
legislative pleasure. The failure of the
legislature to properly weigh and consider an
act, its passage through the legislature in a
hasty manner, might be reasons for the
governor withholding his signature thereto;
but this alone, even though it is shown to be
a violation of a rule which the legislature had
made to govern its own proceedings, could
be no reason for the court's refusing its
enforcement after it was actually passed by
a majority of each branch of the legislature,
and duly signed by the governor. The courts
cannot declare an act of the legislature void
on account of noncompliance with rules of
procedure made by itself to govern its
deliberations. McDonald v. State, 80 Wis.
407, 50 N.W. 185; In re Ryan, 80 Wis. 414,
50 N.W. 187; State v. Brown, 33 S.C. 151,
11 S.E. 641; Railway Co. v. Gill, 54 Ark. 101,
15 S.W. 18.
We conclude this survey with the useful summary of
the rulings by former Chief Justice Fernando,
commenting on the power of each House of Congress
to determine its rules of proceedings. He wrote:
Rules are hardly permanent in character.
The prevailing view is that they are subject to
revocation, modification or waiver at the
pleasure of the body adopting them as they
are primarily procedural. Courts ordinary
have no concern with their observance. They
may be waived or disregarded by the
legislative body. Consequently, mere failure
to conform to them does not have the effect
of nullifying the act taken if the requisite
number of members have agreed to a
particular measure. The above principle is
subject, however, to this qualification. Where
the construction to be given to a rule affects
person other than members of the legislative
body the question presented is necessarily
judicial in character. Even its validity is open
to question in a case where private rights are
involved. 18
In this case no rights of private individuals are
involved but only those of a member who, instead of
seeking redress in the House, chose to transfer the
dispute to this Court. We have no more power to look
into the internal proceedings of a House than
members of that House have to look over our
shoulders, as long as no violation of constitutional
provisions is shown.
Petitioners must realize that each of the three
departments of our government has its separate
sphere which the others may not invade without
upsetting the delicate balance on which our
constitutional order rests. Due regard for the working
of our system of government, more than mere comity,
compels reluctance on our part to enter upon an
inquiry into an alleged violation of the rules of the
House. We must accordingly decline the invitation to
exercise our power.
Second. Petitioners, quoting former Chief Justice
Roberto Concepcion's sponsorship in the
Constitutional Commission, contend that under Art.
VIII, §1, "nothing involving abuse of discretion [by the
other branches of the government] amounting to lack
or excess of jurisdiction is beyond judicial
review." 19 Implicit in this statement of the former
Chief Justice, however, is an acknowledgment that
the jurisdiction of this Court is subject to the case and
controversy requirement of Art. VIII. §5 and, therefore,
to the requirement of a justiciable controversy before
courts can adjudicate constitutional questions such as
those which arise in the field of foreign relations. For
while Art. VIII, §1 has broadened the scope of judicial
inquiry into areas normally left to the political
departments to decide, such as those relating to
national security, 20 it has not altogether done away
with political questions such as those which arise in
the field of foreign relations. As we have already held,
under Art. VIII, §1, this Court's function
is merely [to] check whether or not the
governmental branch or agency has gone
beyond the constitutional limits of its
jurisdiction, not that it erred or has a different
view. In the absence of a showing . . . [of]
grave abuse of discretion amounting to lack
of jurisdiction, there is no occasion for the
Court to exercise its corrective power. . . . It
has no power to look into what it thinks is
apparent error. 21
If, then, the established rule is that courts cannot
declare an act of the legislature void on account
merely of noncompliance with rules of procedure
made by itself, it follows that such a case does not
present a situation in which a branch of the
government has "gone beyond the constitutional limits
of its jurisdiction" so as to call for the exercise of our
Art. VIII. §1 power.
Third. Petitioners claim that the passage of the law in
the House was "railroaded." They claim that Rep.
Arroyo was still making a query to the Chair when the
latter declared Rep. Albano's motion approved.
What happened is that, after Rep. Arroyo's
interpellation of the sponsor of the committee report,
Majority Leader Rodolfo Albano moved for the
approval and ratification of the conference committee
report. The Chair called out for objections to the
motion. Then the Chair declared: "There being none,
approved." At the same time the Chair was saying
this, however, Rep. Arroyo was asking, "What is
that . . . Mr. Speaker?" The Chair and Rep. Arroyo
were talking simultaneously. Thus, although Rep.
Arroyo subsequently objected to the Majority Leader's
motion, the approval of the conference committee
report had by then already been declared by the
Chair, symbolized by its banging of the gavel.
Petitioners argue that, in accordance with the rules of
the House, Rep. Albano's motion for the approval of
the conference committee report should have been
stated by the Chair and later the individual votes of
the members should have been taken. They say that
the method used in this case is a legislator's
nightmare because it suggests unanimity when the
fact was that one or some legislators opposed the
report.
No rule of the House of Representative has been
cited which specifically requires that in case such as
this involving approval of a conference committee
report, the Chair must restate the motion and conduct
a viva voce or nominal voting. On the other hand, as
the Solicitor General has pointed out, the manner in
which the conference committee report on H. No.
7198 was approval was by no means a unique one. It
has basis in legislative practice. It was the way the
conference committee report on the bills which
became the Local Government Code of 1991 and the
conference committee report on the bills amending
the Tariff and Customs Code were approved.
In 1957, the practice was questioned as being
contrary to the rules of the House. The point was
answered by Majority Leader Arturo M. Tolentino and
his answer became the ruling of the Chair Mr.
Tolentino said:
Mr. TOLENTINO. The fact that nobody
objects means a unanimous action of the
House. Insofar as the matter of procedure is
concerned, this has been a precedent since I
came here seven years ago, and it has been
the procedure in this House that if somebody
objects, then a debate follows and after the
debate, then the voting comes in.
xxx xxx xxx
Mr. Speaker, a point of order was raised by
the gentleman from Leyte, and I wonder
what his attitude is nor on his point of order. I
should just like to state that I believe that we
have had a substantial compliance with the
Rules. The Rule invoked is not one that
refers to statutory or constitutional
requirement, and a substantial compliance,
to my mind, is sufficient. When the Chair
announces the vote by saying "Is there any
objection?" and nobody objects, then the
Chair announces "The bill is approved on
second reading." If there was any doubt as
to the vote, any motion to divide would have
been proper. So, if that motion is not
presented, we assume that the House
approves the measure. So I believe there is
substantial compliance here, and if anybody
wants a division of the House he can always
ask for it, and the Chair can announce how
many are in favor and how many are
against. 22
Indeed, it is no impeachment of the method to say
that some other way would be better, more accurate
and even more just. 23 The advantages or
disadvantages, the wisdom or folly of a method do not
present any matter for judicial consideration. 24 In the
words of the U.S. Circuit Court of Appeals, "this Court
cannot provide a second opinion on what is the best
procedure. Notwithstanding the deference and
esteem that is properly tendered to individual
congressional actors, our deference and esteem for
the institution as a whole and for the constitutional
command that the institution be allowed to manage its
own affairs precludes us from even attempting a
diagnosis of the problem." 25
Nor does the Constitution require that the yeas and
the nays of
the Members be taken every time a House has to
vote, except only in the following instances; upon the
last and third readings of a bill, 26 at the request of
one-fifth of the Members present, 27 and in repassing
a bill over the veto of the President. 28 Indeed,
considering the fact that in the approval of the original
bill the votes of the members byyeas and nays had
already been taken, it would have been sheer tedium
to repeat the process.
Petitioners claim that they were prevented from
seeking reconsideration allegedly as a result of the
precipitate suspension and subsequent adjournment
of the session. 29 It would appear, however, that the
session was suspended to allow the parties to settle
the problem, because when it resumed at 3:40 p.m.
on that day Rep. Arroyo did not say anything
anymore. While it is true that the Majority Leader
moved for adjournment until 4 p.m. of Wednesday of
the following week, Rep. Arroyo could at least have
objected if there was anything he wanted to say. The
fact, however, is that he did not. The Journal of
November 21, 1996 of the House shows.
ADJOURNMENT OF SESSION
On motion of Mr. Albano, there being no
objection, the Chair declared the session
adjourned until four o'clock in the afternoon
of Wednesday, November 27, 1996.
It was 3:40 p.m. Thursday, November 21,
1996. (emphasis added)
This Journal was approved on December 3, 1996.
Again, no one objected to its approval except Rep.
Lagman.
It is thus apparent that petitioners' predicament was
largely of their own making. Instead of submitting the
proper motions for the House to act upon, petitioners
insisted on the pendency of Rep. Arroyo's question as
an obstacle to the passage of the bill. But Rep.
Arroyo's question was not, in form or substance, a
point of order or a question of privilege entitled to
precedence.30 And even if Rep. Arroyo's question
were so, Rep. Albano's motion to adjourn would have
precedence and would have put an end to any further
consideration of the question. 31
Given this fact, it is difficult to see how it can plausibly
be contended that in signing the bill which became
R.A. No. 8240, respondent Speaker of the House be
acted with grave abuse of his discretion. Indeed, the
phrase "grave abuse of discretion amounting to lack
or excess of jurisdiction" has a settled meaning in the
jurisprudence of procedure. It means such capricious
and whimsical exercise of judgment by a tribunal
exercising judicial or quasi judicial power as to
amount to lack of power. As Chief Justice Concepcion
himself said in explaining this provision, the power
granted to the courts by Art. VIII. §1 extends to cases
where "a branch of the government or any of its
officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an
abuse of discretion amounting to excess of
jurisdiction." 32
Here, the matter complained of concerns a matter of
internal procedure of the House with which the Court
should not he concerned. To repeat, the claim is not
that there was no quorum but only that Rep. Arroyo
was effectively prevented from questioning the
presence of a quorum. Rep. Arroyo's earlier motion to
adjourn for lack of quorum had already been
defeated, as the roll call established the existence of
a quorum. The question of quorum cannot be raised
repeatedly — especially when the quorum is
obviously present — for the purpose of delaying the
business of the House. 33 Rep. Arroyo waived his
objection by his continued interpellation of the
sponsor for in so doing he in effect acknowledged the
presence of a quorum. 34
At any rate it is noteworthy that of the 111 members
of the House earlier found to be present on November
21, 1996, only the five, i.e., petitioners in this case,
are questioning the manner by which the conference
committee report on H. No. 7198 was approved on
that day. No one, except Rep. Arroyo, appears to
have objected to the manner by which the report was
approved. Rep. John Henry Osmeña did not
participate in the bicameral conference committee
proceedings. 35 Rep. Lagman and Rep. Zamora
objected to the report 36 but not to the manner it was
approved; while it is said that, if voting had been
conducted. Rep. Tañada would have voted in favor of
the conference committee report.37
Fourth. Under the enrolled bill doctrine, the signing of
H. No. 7198 by the Speaker of the House and the
President of the Senate and the certification by the
secretaries of both Houses of Congress that it was
passed on November 21, 1996 are conclusive of its
due enactment. Much energy and learning is devoted
in the separate opinion of Justice Puno, joined by
Justice Davide, to disputing this doctrine. To be sure,
there is no claim either here or in the decision in the
EVAT cases [Tolentino v. Secretary of Finance] that
the enrolled bill embodies a conclusive presumption.
In one case 38 we "went behind" an enrolled bill and
consulted the Journal to determine whether certain
provisions of a statute had been approved by the
Senate.
But, where as here there is no evidence to the
contrary, this Court will respect the certification of the
presiding officers of both Houses that a bill has been
duly passed. Under this rule, this Court has refused to
determine claims that the three-fourths vote needed
to pass a proposed amendment to the Constitution
had not been obtained, because "a duly authenticated
bill or resolution imports absolute verify and is binding
on the courts." 39 This Court quoted from Wigmore on
Evidence the following excerpt which embodies good,
if old-fashioned, democratic theory:
The truth is that many have been carried
away with the righteous desire to check at
any cost the misdoings of Legislatures. They
have set such store by the Judiciary for this
purpose that they have almost made them a
second and higher Legislature. But they aim
in the wrong direction. Instead of trusting a
faithful Judiciary to check an inefficient
Legislature, they should turn to improve the
Legislature. The sensible solution is not to
patch and mend casual errors by asking the
Judiciary to violate legal principle and to do
impossibilities with the Constitution; but to
represent ourselves with competent, careful,
and honest legislators, the work of whose
hands on the statute-roll may come to reflect
credit upon the name of popular
government. 40
This Court has refused to even look into allegations
that the enrolled bill sent to the President contained
provisions which had been "surreptitiously" inserted in
the conference committee:
[W]here allegations that the constitutional
procedures for the passage of bills have not
been observed have no more basis than
another allegation that the Conference
Committee "surreptitiously" inserted
provisions into a bill which it had prepared,
we should decline the invitation to go behind
the enrolled copy of the bill. To disregard the
"enrolled bill" rule in such cases would be to
disregard the respect due the other two
departments of our government. 41
It has refused to look into charges that an amendment
was made upon the last reading of a bill in violation of
Art. VI. §26(2) of the Constitution that "upon the last
reading of a bill, no amendment shall be allowed." 42
In other cases, 43 this Court has denied claims that
the tenor of a bill was otherwise than as certified by
the presiding officers of both Houses of Congress.
The enrolled bill doctrine, as a rule of evidence, is well
established. It is cited with approval by text writers
here and abroad. 44 The enrolled bill rule rests on the
following considerations:
. . . As the President has no authority to
approve a bill not passed by Congress, an
enrolled Act in the custody of the Secretary
of State, and having the official attestations
of the Speaker of the House of
Representatives, of the President of the
Senate, and of the President of the United
States, carries, on its face, a solemn
assurance by the legislative and executive
departments of the government, charged,
respectively, with the duty of enacting and
executing the laws, that it was passed by
Congress. The respect due to coequal and
independent departments requires the
judicial department to act upon that
assurance, and to accept, as having passed
Congress, all bills authenticated in the
manner stated; leaving the court to
determine, when the question properly
arises, whether the Act, so authenticated, is
in conformity with the Constitution. 45
To overrule the doctrine now, as the dissent urges, is
to repudiate the massive teaching of our cases and
overthrow an established rule of evidence.
Indeed, petitioners have advanced no argument to
warrant a departure from the rule, except to say that,
with a change in the membership of the Court, the
three new members may be assumed to have an
open mind on the question of the enrolled bill rule
Actually, not three but four (Cruz, Feliciano, Bidin, and
Quiason, JJ.) have departed from the Court since our
decision in the EVAT cases and their places have
since been taken by four new members (Francisco,
Hermosisima, Panganiban, and Torres, JJ.)
Petitioners are thus simply banking on the change in
the membership of the Court.
Moreover, as already noted, the due enactment of the
law in question is confirmed by the Journal of the
House of November 21, 1996 which shows that the
conference committee report on H. No. 7198, which
became R.A. No. 8740, was approved on that day.
The keeping of the Journal is required by the
Constitution, Art. VI, §16(4) provides:
Each House shall keep a Journal of its
proceedings, and from time to time publish
the same, excepting such parts as may, in its
judgment, affect national security; and
 the yeas and nays on any question shall, at
the request of one-fifth of the Members
present, be entered in the Journal.

Each House shall also keep a Record of its

proceedings.

The Journal is regarded as conclusive with respect to

matters that are required by the Constitution to be
recorded therein. 46 With respect to other matters, in
the absence of evidence to the contrary, the Journals
have also been accorded conclusive effect. Thus,
in United States v. Pons, 47 this Court spoke of the
imperatives of public policy for regarding the Journals
as "public memorials of the most permanent
character," thus: "They should be public, because all
are required to conform to them; they should be
permanent, that rights acquired today upon the faith
of what has been declared to be law shall not be
destroyed tomorrow, or at some remote period of
time, by facts resting only in the memory of
individuals." As already noted, the bill which became
R.A. No. 8240 is shown in the Journal. Hence its due
enactment has been duly proven.

It would be an unwarranted invasion of the

prerogative of a coequal department for this Court
either to set aside a legislative action as void because
the Court thinks the House has disregarded its own
rules of procedure, or to allow those defeated in the
political arena to seek a rematch in the judicial forum
when petitioners can find their remedy in that
department itself. The Court has not been invested
with a roving commission to inquire into complaints,
real or imagined, of legislative skullduggery. It would
be acting in excess of its power and would itself be
guilty of grave abuse of its discretion were it to do so.
The suggestion made in a case 48 may instead
appropriately be made here: petitioners can seek the
enactment of a new law or the repeal or amendment
of R.A. No. 8240. In the absence of anything to the
contrary, the Court must assume that Congress or
any House thereof acted in the good faith belief that
its conduct was permitted by its rules, and deference
rather than disrespect is due the judgment of that
body. 49

WHEREFORE, the petition for certiorari and

prohibition is DISMISSED.

SO ORDERED.
Case No. 002
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127685 July 23, 1998
BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE,
HECTOR VILLANUEVA, CIELITO HABITO,
ROBERT BARBERS, CARMENCITA REODICA,
CESAR SARINO, RENATO VALENCIA, TOMAS P.
AFRICA, HEAD OF THE NATIONAL COMPUTER
CENTER and CHAIRMAN OF THE COMMISSION
ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the
part of Senator Blas F. Ople to prevent the shrinking
of the right to privacy, which the revered Mr. Justice
Brandeis considered as "the most comprehensive of
rights and the right most valued by civilized
men." 1 Petitioner Ople prays that we invalidate
Administrative Order No. 308 entitled "Adoption of
a National Computerized Identification Reference
System" on two important constitutional
grounds, viz: one, it is a usurpation of the power
of Congress to legislate, and two, it impermissibly
intrudes on our citizenry's protected zone of
privacy. We grant the petition for the rights
sought to be vindicated by the petitioner need
stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V.
Ramos On December 12, 1996 and reads as
follows:
ADOPTION OF A NATIONAL
COMPUTERIZED
IDENTIFICATION REFERENCE
SYSTEM
WHEREAS, there is a need to
provide Filipino citizens and foreign
residents with the facility to
conveniently transact business with
basic service and social security
providers and other government
instrumentalities;
WHEREAS, this will require a
computerized system to properly
and efficiently identify persons
seeking basic services on social
security and reduce, if not totally
eradicate fraudulent transactions
and misrepresentations;
WHEREAS, a concerted and
collaborative effort among the
various basic services and social
security providing agencies and
other government intrumentalities is
required to achieve such a system;
NOW, THEREFORE, I, FIDEL V.
RAMOS, President of the Republic
of the Philippines, by virtue of the
powers vested in me by law, do
hereby direct the following:
Sec. 1. Establishment of a National
Compoterized Identification
Reference System. A decentralized
Identification Reference System
among the key basic services and
social security providers is hereby
established.
Sec. 2. Inter-Agency Coordinating
Committee. An Inter-Agency
Coordinating Committee (IACC) to
draw-up the implementing
guidelines and oversee the
implementation of the System is
hereby created, chaired by the
Executive Secretary, with the
following as members:
Head, Presidential Management
Staff
Secretary, National Economic
Development Authority
Secretary, Department of the
Interior and Local Government
Secretary, Department of Health
Administrator, Government Service
Insurance System,
Administrator, Social Security
System,
Administrator, National Statistics
Office
Managing Director, National
Computer Center.
Sec. 3. Secretariat. The National
Computer Center (NCC) is hereby
designated as secretariat to the
IACC and as such shall provide
administrative and technical support
to the IACC.
Sec. 4. Linkage Among Agencies.
The Population Reference Number
(PRN) generated by the NSO shall
serve as the common reference
number to establish a linkage
among concerned agencies. The
IACC Secretariat shall coordinate
with the different Social Security
and Services Agencies to establish
the standards in the use of
Biometrics Technology and in
computer application designs of
their respective systems.
Sec. 5. Conduct of Information
Dissemination Campaign. The
Office of the Press Secretary, in
coordination with the National
Statistics Office, the GSIS and SSS
as lead agencies and other
concerned agencies shall
undertake a massive tri-media
information dissemination campaign
to educate and raise public
awareness on the importance and
use of the PRN and the Social
Security Identification Reference.
Sec. 6. Funding. The funds
necessary for the implementation of
the system shall be sourced from
the respective budgets of the
concerned agencies.
Sec. 7. Submission of Regular
Reports. The NSO, GSIS and SSS
shall submit regular reports to the
Office of the President through the
IACC, on the status of
implementation of this undertaking.
Sec. 8. Effectivity. This
Administrative Order shall take
effect immediately.
DONE in the City of Manila, this
12th day of December in the year of
Our Lord, Nineteen Hundred and
Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of
general circulation on January 22, 1997 and January
23, 1997. On January 24, 1997, petitioner filed the
instant petition against respondents, then Executive
Secretary Ruben Torres and the heads of the
government agencies, who as members of the Inter-
Agency Coordinating Committee, are charged with
the implementation of A.O. No. 308. On April 8, 1997,
we issued a temporary restraining order enjoining its
implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A
NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE
SYSTEM REQUIRES A
LEGISLATIVE ACT. THE
ISSUANCE OF A.O. NO. 308 BY
THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES
IS, THEREFORE, AN
UNCONSTITUTIONAL
USURPATION OF THE
LEGISLATIVE POWERS OF THE
CONGRESS OF THE REPUBLIC
OF THE PHILIPPINES.
B. THE APPROPRIATION OF
PUBLIC FUNDS BY THE
PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO.
308 IS AN UNCONSTITUTIONAL
USURPATION OF THE
EXCLUSIVE RIGHT OF
CONGRESS TO APPROPRIATE
PUBLIC FUNDS FOR
EXPENDITURE.
C. THE IMPLEMENTATION OF
A.O. NO. 308 INSIDIOUSLY LAYS
THE GROUNDWORK FOR A
SYSTEM WHICH WILL VIOLATE
THE BILL OF RIGHTS
ENSHRINED IN THE
CONSTITUTION. 2
Respondents counter-argue:
 A. THE INSTANT PETITION IS
NOT A JUSTICIABLE CASE AS
WOULD WARRANT A JUDICIAL
REVIEW;
B. A.O. NO. 308 [1996] WAS
ISSUED WITHIN THE EXECUTIVE
AND ADMINISTRATIVE POWERS
OF THE PRESIDENT WITHOUT
ENCROACHING ON THE
LEGISLATIVE POWERS OF
CONGRESS;
C. THE FUNDS NECESSARY FOR
THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE
SYSTEM MAY BE SOURCED
FROM THE BUDGETS OF THE
CONCERNED AGENCIES;
D. A.O. NO. 308 [1996]
PROTECTS AN INDIVIDUAL'S
INTEREST IN PRIVACY. 3
We now resolve.
I and the power of the Executive to execute laws will
As is usual in constitutional litigation, respondents
raise the threshold issues relating to the standing to
sue of the petitioner and the justiciability of the case
at bar. More specifically, respondents aver that
petitioner has no legal interest to uphold and that the
implementing rules of A.O. No. 308 have yet to be
promulgated.
These submissions do not deserve our sympathetic
ear. Petitioner Ople is a distinguished member of our
Senate. As a Senator, petitioner is possessed of the
requisite standing to bring suit raising the issue that
the issuance of A.O. No. 308 is a usurpation of
legislative power. 4 As taxpayer and member of the
Government Service Insurance System (GSIS),
petitioner can also impugn the legality of the
misalignment of public funds and the misuse of GSIS
funds to implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is
not affected by the fact that the implementing rules of
A.O. No. 308 have yet to be promulgated. Petitioner
Ople assails A.O. No. 308 as invalid per se and as
infirmed on its face. His action is not premature for the
rules yet to be promulgated cannot cure its fatal
defects. Moreover, the respondents themselves have
started the implementation of A.O. No. 308 without
waiting for the rules. As early as January 19, 1997,
respondent Social Security System (SSS) caused the
publication of a notice to bid for the manufacture of
the National Identification (ID) card. 6 Respondent
Executive Secretary Torres has publicly announced
that representatives from the GSIS and the SSS have
completed the guidelines for the national identification
system. 7 All signals from the respondents show their
unswerving will to implement A.O. No. 308 and we
need not wait for the formality of the rules to pass
judgment on its constitutionality. In this light, the
dissenters insistence that we tighten the rule on
standing is not a commendable stance as its result
would be to throttle an important constitutional
principle and a fundamental right.
II
We now come to the core issues. Petitioner claims
that A.O. No. 308 is not a mere administrative order
but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308
establishes a system of identification that is all-
encompassing in scope, affects the life and liberty of
every Filipino citizen and foreign resident, and more
particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to
trespass on the lawmaking domain of Congress is
understandable. The blurring of the demarcation line
between the power of the Legislature to make laws
disturb their delicate balance of power and cannot be
allowed. Hence, the exercise by one branch of
government of power belonging to another will be
given a stricter scrutiny by this Court.
The line that delineates Legislative and Executive
power is not indistinct. Legislative power is "the
authority, under the Constitution, to make laws, and to
alter and repeal them." 8 The Constitution, as the will
of the people in their original, sovereign and unlimited
capacity, has vested this power in the Congress of the
Philippines. 9 The grant of legislative power to
Congress is broad, general and
comprehensive. 10 The legislative body possesses
plenary power for all purposes of civil
government. 11 Any power, deemed to be legislative
by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it
elsewhere. 12 In fine, except as limited by the
Constitution, either expressly or impliedly, legislative
power embraces all subjects and extends to matters
of general concern or common interest. 13
While Congress is vested with the power to enact
laws, the President executes the laws. 14 The
executive power is vested in the Presidents. 15 It is
generally defined as the power to enforce and
administer the laws. 16 It is the power of carrying the
laws into practical operation and enforcing their due
observance. 17
As head of the Executive Department, the President
is the Chief Executive. He represents the government
as a whole and sees to it that all laws are enforced by
the officials and employees of his department. 18 He
has control over the executive department, bureaus
and offices. This means that he has the authority to
assume directly the functions of the executive
department, bureau and office or interfere with the
discretion of its officials.19 Corollary to the power of
control, the President also has the duty of supervising
the enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted
administrative power over bureaus and offices under
his control to enable him to discharge his duties
effectively. 20
Administrative power is concerned with the work of
applying policies and enforcing orders as determined
by proper governmental organs. 21 It enables the
President to fix a uniform standard of administrative
efficiency and check the official conduct of his
agents. 22 To this end, he can issue administrative
orders, rules and regulations.
Prescinding from these precepts, we hold that A.O.
No. 308 involves a subject that is not appropriate to
be covered by an administrative order. An
administrative order is:
Sec. 3. Administrative Orders. —
Acts of the President which relate to
particular aspects of governmental
operation in pursuance of his duties
as administrative head shall be
promulgated in administrative
orders. 23
An administrative order is an ordinance
issued by the President which relates to
specific aspects in the administrative
operation of government. It must be in
harmony with the law and should be for the
sole purpose of implementing the law and
carrying out the legislative policy. 24 We
reject the argument that A.O. No. 308
implements the legislative policy of the
Administrative Code of 1987. The Code is a
general law and "incorporates in a unified
document the major structural, functional
and procedural principles of
governance." 25 and "embodies changes in
administrative structure and procedures
designed to serve the
people." 26 The Code is divided into seven
(7) Books: Book I deals with Sovereignty and
General Administration, Book II with the
Distribution of Powers of the three branches
of Government, Book III on the Office of the
President, Book IV on the Executive Branch,
Book V on Constitutional Commissions,
Book VI on National Government Budgeting,
and Book VII on Administrative Procedure.
These Books contain provisions on the
organization, powers and general
administration of the executive, legislative
and judicial branches of government, the
organization and administration of
departments, bureaus and offices under the
executive branch, the organization and
functions of the Constitutional Commissions
and other constitutional bodies, the rules on
the national government budget, as well as
guideline for the exercise by administrative
agencies of quasi-legislative and quasi-
judicial powers. The Code covers both the
internal administration of
government, i.e, internal organization,
personnel and recruitment, supervision and
discipline, and the effects of the functions
performed by administrative officials on
private individuals or parties outside
government. 27
It cannot be simplistically argued that A.O. No. 308
merely implements the Administrative Code of 1987.
It establishes for the first time a National
Computerized Identification Reference System. Such
a System requires a delicate adjustment of various
contending state policies — the primacy of national
security, the extent of privacy interest against dossier-
gathering by government, the choice of policies, etc.
Indeed, the dissent of Mr. Justice Mendoza states that
the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the
parameters of some basic rights of our citizenry vis-a-
vis the State as well as the line that separates the
administrative power of the President to make rules
and the legislative power of Congress, it ought to be
evident that it deals with a subject that should be
covered by law.
Nor is it correct to argue as the dissenters do that
A.D. No. 308 is not a law because it confers no right,
imposes no duty, affords no proctection, and creates
no office. Under A.O. No. 308, a citizen cannot
transact business with government agencies
delivering basic services to the people without the
contemplated identification card. No citizen will refuse
to get this identification card for no one can avoid
dealing with government. It is thus clear as daylight
that without the ID, a citizen will have difficulty
exercising his rights and enjoying his privileges. Given
this reality, the contention that A.O. No. 308 gives no
right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions
unduly expand the limits of administrative legislation
and consequently erodes the plenary power of
Congress to make laws. This is contrary to the
established approach defining the traditional limits of
administrative legislation. As well stated by Fisher:
". . . Many regulations however, bear directly on the
public. It is here that administrative legislation must he
restricted in its scope and application. Regulations are
not supposed to be a substitute for the general policy-
making that Congress enacts in the form of a public
law. Although administrative regulations are entitled to
respect, the authority to prescribe rules and
regulations is not an independent source of power to
make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be
the subject of a law, still it cannot pass constitutional
muster as an administrative legislation because
facially it violates the right to privacy. The essence of
privacy is the "right to be let alone." 29 In the 1965
case of Griswold v. Connecticut, 30 the United States
Supreme Court gave more substance to the right of
privacy when it ruled that the right has a constitutional
foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third,
Fourth, Fifth and Ninth Amendments, 31 viz:
Specific guarantees in the Bill of
Rights have penumbras formed by
emanations from these guarantees
that help give them life and
substance . . . various guarantees
create zones of privacy. The right of
association contained in the
penumbra of the First Amendment
is one, as we have seen. The Third
Amendment in its prohibition
against the quartering of soldiers "in
any house" in time of peace without
the consent of the owner is another
facet of that privacy. The Fourth
Amendment explicitly affirms the
''right of the people to be secure in
their persons, houses and effects,
against unreasonable searches and
seizures." The Fifth Amendment in
its Self-Incrimination Clause
enables the citizen to create a zone
of privacy which government may
not force him to surrender to his
detriment. The Ninth Amendment
provides: "The enumeration in the
Constitution, of certain rights, shall
not be construed to deny or
disparage others retained by the
people."
In the 1968 case of Morfe v. Mutuc, 32 we
adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru
Mr. Justice, later Chief Justice, Enrique
Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a
Connecticut statute which made the
use of contraceptives a criminal
offence on the ground of its
amounting to an unconstitutional
invasion of the right of privacy of
married persons; rightfully it
stressed "a relationship lying within
the zone of privacy created by
several fundamental constitutional
guarantees." It has wider
implications though. The
constitutional right to privacy has
come into its own.
So it is likewise in our jurisdiction.
The right to privacy as such is
accorded recognition independently
of its identification with liberty; in
itself, it is fully deserving of
constitutional protection. The
language of Prof. Emerson is
particularly apt: "The concept of
limited government has always
included the idea that governmental
powers stop short of certain
intrusions into the personal life of
the citizen. This is indeed one of the
basic distinctions between absolute
and limited government. Ultimate
and pervasive control of the
individual, in all aspects of his life,
is the hallmark of the absolute
state. In contrast, a system of
limited government safeguards a
private sector, which belongs to the
individual, firmly distinguishing it
from the public sector, which the
state can control. Protection of this
private sector — protection, in other
words, of the dignity and integrity of
the individual — has become
increasingly important as modern
society has developed. All the
forces of a technological age —
industrialization, urbanization, and
organization — operate to narrow
the area of privacy and facilitate
intrusion into it. In modern terms,
the capacity to maintain and
support this enclave of private life
marks the difference between a
democratic and a totalitarian
society."
Indeed, if we extend our judicial gaze we will find that
the right of privacy is recognized and enshrined in
several provisions of our Constitution. 33 It is
expressly recognized in section 3 (1) of the Bill of
Rights:
 Sec. 3. (1) The privacy of
communication and
correspondence shall be inviolable
except upon lawful order of the
court, or when public safety or order
requires otherwise as prescribed by
law.
Other facets of the right to privacy are
protectad in various provisions of the Bill of
Rights, viz: 34
Sec. 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.
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.
xxx xxx xxx
Sec. 6. The liberty of abode and of
changing the same within the limits
prescribed by law shall not be
impaired except upon lawful order
of the court. Neither shall the right
to travel be impaired except in the
interest of national security, public
safety, or public health as may be
provided by law.
xxx xxx xxx
Sec. 8. The right of the people,
including those employed in the
public and private sectors, to form
unions, associations, or societies
for purposes not contrary to law
shall not be abridged.
Sec. 17. No person shall be
compelled to be a witness against
himself.
Zones of privacy are likewise recognized and
protected in our laws. The Civil Code provides that
"[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other
persons" and punishes as actionable torts several
acts by a person of meddling and prying into the
privacy of another. 35 It also holds a public officer or
employee or any private individual liable for damages
for any violation of the rights and liberties of another
person, 36 and recognizes the privacy of letters and
other private communications. 37 The Revised Penal
Code makes a crime the violation of secrets by an
officer, 38the revelation of trade and industrial
secrets, 39 and trespass to dwelling. 40 Invasion of
privacy is an offense in special laws like the Anti-
Wiretapping Law, 41 the Secrecy of Bank Deposits
Act 42 and the Intellectual Property Code. 43 The Rules
of Court on privileged communication likewise
recognize the privacy of certain information. 44
Unlike the dissenters, we prescind from the premise
that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the
burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it
is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provides our citizens
and foreigners with the facility to conveniently transact
business with basic service and social security
providers and other government instrumentalities and
(2) the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by
persons seeking basic services. It is debatable
whether these interests are compelling enough to
warrant the issuance of A.O. No. 308. But what is not
arguable is the broadness, the vagueness, the
overbreadth of A.O. No. 308 which if implemented will
put our people's right to privacy in clear and present
danger.
The heart of A.O. No. 308 lies in its Section 4 which
provides for a Population Reference Number (PRN)
as a "common reference number to establish a
linkage among concerned agencies" through the use
of "Biometrics Technology" and "computer application
designs."
Biometry or biometrics is "the science of the applicatin
of statistical methods to biological facts; a
mathematical analysis of biological data." 45 The term
"biometrics" has evolved into a broad category of
technologies which provide precise confirmation of an
individual's identity through the use of the individual's
own physiological and behavioral characteristics. 46 A
physiological characteristic is a relatively stable
physical characteristic such as a fingerprint, retinal
scan, hand geometry or facial features. A behavioral
characteristic is influenced by the individual's
personality and includes voice print, signature and
keystroke. 47 Most biometric idenfication systems use
a card or personal identificatin number (PIN) for initial
identification. The biometric measurement is used to
verify that the individual holding the card or entering
the PIN is the legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-
scanning where technology scans a fingertip and
turns the unique pattern therein into an individual
number which is called a biocrypt. The biocrypt is
stored in computer data banks 49 and becomes a
means of identifying an individual using a service.
This technology requires one's fingertip to be scanned
every time service or access is provided. 50 Another
method is the retinal scan. Retinal scan technology
employs optical technology to map the capillary
pattern of the retina of the eye. This technology
produces a unique print similar to a finger
print. 51 Another biometric method is known as the
"artificial nose." This device chemically analyzes the
unique combination of substances excreted from the
skin of people. 52 The latest on the list of biometric
achievements is the thermogram. Scientists have
found that by taking pictures of a face using infra-red
cameras, a unique heat distribution pattern is seen.
The different densities of bone, skin, fat and blood
vessels all contribute to the individual's personal "heat
signature." 53
In the last few decades, technology has progressed at
a galloping rate. Some science fictions are now
science facts. Today, biometrics is no longer limited to
the use of fingerprint to identify an individual. It is a
new science that uses various technologies in
encoding any and all biological characteristics of an
individual for identification. It is noteworthy that A.O.
No. 308 does not state what specific biological
characteristics and what particular biometrics
technology shall be used to identify people who will
seek its coverage. Considering the banquest of
options available to the implementors of A.O. No. 308,
the fear that it threatens the right to privacy of our
people is not groundless.
A.O. No. 308 should also raise our antennas for a
further look will show that it does not state whether
encoding of data is limited to biological information
alone for identification purposes. In fact, the Solicitor
General claims that the adoption of the Identification
Reference System will contribute to the "generation of
population data for development planning." 54 This is
an admission that the PRN will not be used solely for
identification but the generation of other data with
remote relation to the avowed purposes of A.O. No.
308. Clearly, the indefiniteness of A.O. No. 308 can
give the government the roving authority to store and
retrieve information for a purpose other than the
identification of the individual through his PRN.
The potential for misuse of the data to be gathered
under A.O. No. 308 cannot be undarplayed as the
dissenters do. Pursuant to said administrative order,
an individual must present his PRN everytime he
deals with a government agency to avail of basic
services and security. His transactions with the
government agency will necessarily be recorded —
whether it be in the computer or in the documentary
file of the agency. The individual's file may include his
transactions for loan availments, income tax returns,
statement of assets and liabilities, reimbursements for
medication, hospitalization, etc. The more frequent
the use of the PRN, the better the chance of building
a huge formidable informatin base through the
electronic linkage of the files. 55 The data may be
gathered for gainful and useful government purposes;
but the existence of this vast reservoir of personal
information constitutes a covert invitation to misuse, a
temptation that may be too great for some of our
authorities to resist. 56
We can even grant, arguendo, that the computer data
file will be limited to the name, address and other
basic personal infomation about the
individual. 57 Even that hospitable assumption will not
save A.O. No. 308 from constitutional infirmity for
again said order does not tell us in clear and
categorical terms how these information gathered
shall he handled. It does not provide who shall control
and access the data, under what circumstances and
for what purpose. These factors are essential to
safeguard the privacy and guaranty the integrity of the
information. 58 Well to note, the computer linkage
gives other government agencies access to the
information. Yet, there are no controls to guard
against leakage of information. When the access
code of the control programs of the particular
computer system is broken, an intruder, without fear
of sanction or penalty, can make use of the data for
whatever purpose, or worse, manipulate the data
stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of
assuring that personal information which will be
gathered about our people will only be processed for
unequivocally specified purposes. 60 The lack of
proper safeguards in this regard of A.O. No. 308 may
interfere with the individual's liberty of abode and
travel by enabling authorities to track down his
movement; it may also enable unscrupulous persons
to access confidential information and circumvent the
right against self-incrimination; it may pave the way
for "fishing expeditions" by government authorities
and evade the right against unreasonable searches
and seizures. 61 The possibilities of abuse and misuse
of the PRN, biometrics and computer technology are
accentuated when we consider that the individual
lacks control over what can be read or placed on his
ID, much less verify the correctness of the data
encoded. 62 They threaten the very abuses that the
Bill of Rights seeks to prevent. 63
The ability of sophisticated data center to generate a
comprehensive cradle-to-grave dossier on an
individual and transmit it over a national network is
one of the most graphic threats of the computer
revolution. 64 The computer is capable of producing a
comprehensive dossier on individuals out of
information given at different times and for varied
purposes. 65 It can continue adding to the stored data
and keeping the information up to date. Retrieval of
stored date is simple. When information of a
privileged character finds its way into the computer, it
can be extracted together with other data on the
subject. 66Once extracted, the information is putty in
the hands of any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly
drawn, the dissenting opinions would dismiss its
danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a
laidback posture. The Court will not be true to its role
as the ultimate guardian of the people's liberty if it
would not immediately smother the sparks that
endanger their rights but would rather wait for the fire
that could consume them.
We reject the argument of the Solicitor General that
an individual has a reasonable expectation of privacy
with regard to the Natioal ID and the use of biometrics
technology as it stands on quicksand. The
reasonableness of a person's expectation of privacy
depends on a two-part test: (1) whether by his
conduct, the individual has exhibited an expectation of
privacy; and (2) whether this expectation is one that
society recognizes as reasonable. 67 The factual
circumstances of the case determines the
reasonableness of the expectation. 68 However, other
factors, such as customs, physical surroundings and
practices of a particular activity, may serve to create
or diminish this expectation. 69 The use of biometrics
and computer technology in A.O. No. 308 does not
assure the individual of a reasonable expectation of
privacy. 70 As technology advances, the level of
reasonably expected privacy decreases. 71 The
measure of protection granted by the reasonable
expectation diminishes as relevant technology
becomes more widely accepted. 72 The security of the
computer data file depends not only on the physical
inaccessibility of the file but also on the advances in
hardware and software computer technology. A.O.
No. 308 is so widely drawn that a minimum standard
for a reasonable expectation of privacy, regardless of
technology used, cannot be inferred from its
provisions.
The rules and regulations to be by the IACC cannot
remedy this fatal defect. Rules and regulations merely
implement the policy of the law or order. On its face,
A.O. No. gives the IACC virtually infettered discretion
to determine the metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards
for a reasonable expectation of privacy.
Commonwealth Act. No. 591 penalizes the disclosure
by any person of data furnished by the individual to
the NSO with imprisonment and fine. 73 Republic Act.
No. 1161 prohibits public disclosure of SSS
employment records and reports. 74 These laws,
however, apply to records and data with the NSO and
the SSS. It is not clear whether they may be applied
to data with the other government agencies forming
part of the National ID System. The need to clarify the
penal aspect of A.O. No. 308 is another reason why
its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O.
No. 308's abridgment of the right of privacy by using
the rational relationship test. 75 He stressed that the
purposes of A.O. No. 308 are: (1) to streamline and
speed up the implementation of basic government
services, (2) eradicate fraud by avoiding duplication of
services, and (3) generate population data for
development planning. He cocludes that these
purposes justify the incursions into the right to privacy
for the means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v.
Mutuc, 77 we upheld the constitutionality of R.A. 3019,
the Anti-Graft and Corrupt Practices Act, as a valid
police power measure. We declared that the law, in
compelling a public officer to make an annual report
disclosing his assets and liabilities, his sources of
income and expenses, did not infringe on the
individual's right to privacy. The law was enacted to
promote morality in public administration by curtailing
and minimizing the opportunities for official corruption
and maintaining a standard of honesty in the public
service. 78
The same circumstances do not obtain in the case at
bar. For one, R.A. 3019 is a statute, not an
administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what
practices were prohibited and penalized, and it was
narrowly drawn to avoid abuses. IN the case at bar,
A.O. No. 308 may have been impelled by a worthy
purpose, but, it cannot pass constitutional scrutiny for
it is not narrowly drawn. And we now hod that when
the integrity of a fundamental right is at stake, this
court will give the challenged law, administrative
order, rule or regulation a stricter scrutiny. It will not
do for the authorities to invoke the presumption of
regularity in the performance of official duties. Nor is it
enough for the authorities to prove that their act is not
irrational for a basic right can be diminished, if not
defeated, even when the government does not act
irrationally. They must satisfactorily show the
presence of compelling state interests and that the
law, rule or regulation is narrowly drawn to preclude
abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to
protect human rights and to prevent authoritarianism.
In case of doubt, the least we can do is to lean
towards the stance that will not put in danger the
rights protected by the Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor
General is also off-line. In Whalen, the United States
Supreme Court was presented with the question of
whether the State of New York could keep a
centralized computer record of the names and
addresses of all persons who obtained certain drugs
pursuant to a doctor's prescription. The New York
State Controlled Substance Act of 1972 required
physicians to identify parties obtaining prescription
drugs enumerated in the statute, i.e., drugs with a
recognized medical use but with a potential for abuse,
so that the names and addresses of the patients can
be recorded in a centralized computer file of the State
Department of Health. The plaintiffs, who were
patients and doctors, claimed that some people might
decline necessary medication because of their fear
that the computerized data may be readily available
and open to public disclosure; and that once
disclosed, it may stigmatize them as drug
addicts. 80 The plaintiffs alleged that the statute
invaded a constitutionally protected zone of
privacy, i.e., the individual interest in avoiding
disclosure of personal matters, and the interest in
independence in making certain kinds of important
decisions. The U.S. Supreme Court held that while an
individual's interest in avoiding disclosuer of personal
matter is an aspect of the right to privacy, the statute
did not pose a grievous threat to establish a
constitutional violation. The Court found that the
statute was necessary to aid in the enforcement of
laws designed to minimize the misuse of dangerous
drugs. The patient-identification requirement was a
product of an orderly and rational legislative decision
made upon recommmendation by a specially
appointed commission which held extensive hearings
on the matter. Moreover, the statute was narrowly
drawn and contained numerous safeguards against
indiscriminate disclosure. The statute laid down the
procedure and requirements for the gathering,
storage and retrieval of the informatin. It ebumerated
who were authorized to access the data. It also
prohibited public disclosure of the data by imposing
penalties for its violation. In view of these safeguards,
the infringement of the patients' right to privacy was
justified by a valid exercise of police power. As we
discussed above, A.O. No. 308 lacks these vital
safeguards.
Even while we strike down A.O. No. 308, we spell out
in neon that the Court is not per se agains the use of
computers to accumulate, store, process, retvieve
and transmit data to improve our bureaucracy.
Computers work wonders to achieve the efficiency
which both government and private industry seek.
Many information system in different countries make
use of the computer to facilitate important social
objective, such as better law enforcement, faster
delivery of public services, more efficient
management of credit and insurance programs,
improvement of telecommunications and streamlining
of financial activities. 81 Used wisely, data stored in
the computer could help good administration by
making accurate and comprehensive information for
those who have to frame policy and make key
decisions. 82 The benefits of the computer has
revolutionized information technology. It developed
the internet, 83 introduced the concept of
cyberspace 84 and the information superhighway
where the individual, armed only with his personal
computer, may surf and search all kinds and classes
of information from libraries and databases connected
to the net.
In no uncertain terms, we also underscore that the
right to privacy does not bar all incursions into
individual privacy. The right is not intended to stifle
scientific and technological advancements that
enhance public service and the common good. It
merely requires that the law be narrowly
focused 85 and a compelling interest justify such
intrusions. 86 Intrusions into the right must be
accompanied by proper safeguards and well-defined
standards to prevent unconstitutional invasions. We
reiterate that any law or order that invades individual
privacy will be subjected by this Court to strict
scrutiny. The reason for this stance was laid down
in Morfe v. Mutuc, to wit:
The concept of limited government
has always included the idea that
governmental powers stop short of
certain intrusions into the personal
life of the citizen. This is indeed one
of the basic disctinctions between
absolute and limited government.
Ultimate and pervasive control of
the individual, in all aspects of his
life, is the hallmark of the absolute
state. In contrast, a system of
limited government safeguards a
private sector, which belongs to the
individual, firmly distinguishing it
from the public sector, which the
state can control. Protection of this
private sector — protection, in other
words, of the dignity and integrity of
the individual — has become
increasingly important as modern
society has developed. All the
forces of a technological age —
industrialization, urbanization, and
organization — operate to narrow
the area of privacy and facilitate
intrusion into it. In modern terms,
the capacity to maintain and
support this enclave of private life
marks the difference between a
democratic and a totalitarian
society. 87
IV
The right to privacy is one of the most threatened
rights of man living in a mass society. The threats
emanate from various sources — governments,
journalists, employers, social scientists, etc. 88 In th
case at bar, the threat comes from the executive
branch of government which by issuing A.O. No. 308
pressures the people to surrender their privacy by
giving information about themselves on the pretext
that it will facilitate delivery of basic services. Given
the record-keeping power of the computer, only the
indifferent fail to perceive the danger that A.O. No.
308 gives the government the power to compile a
devastating dossier against unsuspecting citizens. It
is timely to take note of the well-worded warning of
Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record
of his past and his limitations. In a way, the threat is
that because of its record-keeping, the society will
have lost its benign capacity to forget." 89 Oblivious to
this counsel, the dissents still say we should not be
too quick in labelling the right to privacy as a
fundamental right. We close with the statement that
the right to privacy was not engraved in our
Constitution for flattery.

IN VIEW WHEREOF, the petition is granted and

Adminisrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference
System" declared null and void for being
unconstitutional.

SO ORDERED.
Case No. 003
EN BANC
G.R. No. 167798 April 19, 2006
KILUSANG MAYO UNO, NATIONAL FEDERATION
OF LABOR UNIONS-KILUSANG MAYO UNO
(NAFLU-KMU), JOSELITO V. USTAREZ, EMILIA P.
DAPULANG, SALVADOR T. CARRANZA, MARTIN
T. CUSTODIO, JR. and ROQUE M.
TAN, Petitioners,
vs.
THE DIRECTOR-GENERAL, NATIONAL
ECONOMIC DEVELOPMENT AUTHORITY, and
THE SECRETARY, DEPARTMENT OF BUDGET
and MANAGEMENT, Respondents.
x-----------------------------------x
G.R. No. 167930 April 19, 2006
BAYAN MUNA Representatives SATUR C.
OCAMPO, TEODORO A. CASIÑO, and JOEL G.
VIRADOR, GABRIELA WOMEN’S PARTY
Representative LIZA L. MAZA, ANAKPAWIS
Representatives RAFAEL V. MARIANO and
CRISPIN B. BELTRAN, Rep. FRANCIS G.
ESCUDERO, Rep. EDUARDO C. ZIALCITA, Rep.
LORENZO R. TAÑADA III, DR. CAROL
PAGADUAN-ARAULLO and RENATO M. REYES,
JR. of BAYAN, MARIE HILAO-ENRIQUEZ of
KARAPATAN, ANTONIO L. TINIO of ACT,
FERDINAND GAITE of COURAGE, GIOVANNI A.
TAPANG of AGHAM, WILFREDO MARBELLA
GARCIA, of KMP, LANA LINABAN of GABRIELA,
AMADO GAT INCIONG, RENATO CONSTANTINO,
JR., DEAN PACIFICO H. AGABIN, SHARON R.
DUREMDES of the NATIONAL COUNCIL OF
CHURCHES IN THE PHILIPPINES, and BRO.
EDMUNDO L. FERNANDEZ (FSC) of the
ASSOCIATION OF MAJOR RELIGIOUS
SUPERIORS OF THE PHILIPPINES
(AMRSP), Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive
Secretary, ROMULO NERI, in his capacity as
Director-General of the NATIONAL ECONOMIC
and DEVELOPMENT AUTHORITY (NEDA) and the
Administrator of the NATIONAL STATISTICS
OFFICE (NSO), Respondents.
DECISION
CARPIO, J.:
This case involves two consolidated petitions for
certiorari, prohibition, and mandamus under Rule 65
of the Rules of Court, seeking the nullification of
Executive Order No. 420 (EO 420) on the ground that
it is unconstitutional.
EO 420, issued by President Gloria Macapagal-
Arroyo on 13 April 2005, reads:
REQUIRING ALL GOVERNMENT AGENCIES AND
GOVERNMENT-OWNED AND CONTROLLED
CORPORATIONS TO STREAMLINE AND
HARMONIZE THEIR IDENTIFICATION (ID)
SYSTEMS, AND AUTHORIZING FOR SUCH
PURPOSE THE DIRECTOR-GENERAL, NATIONAL
ECONOMIC AND DEVELOPMENT AUTHORITY TO
IMPLEMENT THE SAME, AND FOR OTHER
PURPOSES
WHEREAS, good governance is a major thrust of this
Administration;
WHEREAS, the existing multiple identification
systems in government have created unnecessary
and costly redundancies and higher costs to
government, while making it inconvenient for
individuals to be holding several identification cards;
WHEREAS, there is urgent need to streamline and
integrate the processes and issuance of identification
cards in government to reduce costs and to provide
greater convenience for those transacting business
with government;
WHEREAS, a unified identification system will
facilitate private businesses, enhance the integrity
and reliability of government-issued identification
cards in private transactions, and prevent violations of
laws involving false names and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-
ARROYO, President of the Republic of the
Philippines by virtue of the powers vested in me by
law, do hereby direct the following:
Section 1. Adoption of a unified multi-purpose
identification (ID) system for
government.1avvphil.net – All government
agencies, including government-owned and controlled
corporations, are hereby directed to adopt a unified
multi-purpose ID system to ensure the attainment of
the following objectives:
a. To reduce costs and thereby lessen the
financial burden on both the government and
the public brought about by the use of
multiple ID cards and the maintenance of
redundant database containing the same or
related information;
b. To ensure greater convenience for those
transacting business with the government
and those availing of government services;
c. To facilitate private businesses and
promote the wider use of the unified ID card
as provided under this executive order;
d. To enhance the integrity and reliability of
government-issued ID cards; and
e. To facilitate access to and delivery of
quality and effective government service.
Section 2. Coverage – All government agencies and
government-owned and controlled corporations
issuing ID cards to their members or constituents
shall be covered by this executive order.
Section 3. Data requirement for the unified ID
system – The data to be collected and recorded by
the participating agencies shall be limited to the
following:
Name
Home Address
Sex
Picture
Signature
Date of Birth
Place of Birth
Marital Status
Names of Parents
Height
Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like
moles and others
Tax Identification Number (TIN)
Provided that a corresponding ID number issued by
the participating agency and a common reference
number shall form part of the stored ID data and,
together with at least the first five items listed above,
including the print of the right thumbmark, or any of
the fingerprints as collected and stored, shall appear
on the face or back of the ID card for visual
verification purposes.
Section 4. Authorizing the Director-General,
National Economic and Development Authority, to
Harmonize All Government Identification
Systems. – The Director-General, National Economic
Development Authority, is hereby authorized to
streamline and harmonize all government ID systems.
Section 5. Functions and responsibilities of the
Director-General, National Economic and
Development Authority. – In addition to his organic
functions and responsibilities, the Director-General,
National Economic and Development Authority, shall
have the following functions and responsibilities:
a. Adopt within sixty (60) days from the
effectivity of this executive order a unified
government ID system containing only such
data and features, as indicated in Section 3
above, to validly establish the identity of the
card holder:
b. Enter into agreements with local
governments, through their respective
leagues of governors or mayors, the
Commission on Elections (COMELEC), and
with other branches or instrumentalities of
the government, for the purpose of ensuring
government-wide adoption of and support to
this effort to streamline the ID systems in
government;
b. Call on any other government agency or
institution, or create sub–committees or
technical working groups, to provide such
assistance as may be necessary or required
for the effective performance of its functions;
and
d. Promulgate such rules or regulations as
may be necessary in pursuance of the
objectives of this executive order.
Section 6. Safeguards. – The Director-General,
National Economic and Development Authority, and
the pertinent agencies shall adopt such safeguard as
may be necessary and adequate to ensure that the
right to privacy of an individual takes precedence over
efficient public service delivery. Such safeguards
shall, as a minimum, include the following:
a. The data to be recorded and stored, which
shall be used only for purposes of
establishing the identity of a person, shall be
limited to those specified in Section 3 of this
executive order;
b. In no case shall the collection or
compilation of other data in violation of a
person’s right to privacy shall be allowed or
tolerated under this order;
c. Stringent systems of access control to
data in the identification system shall be
instituted;
d. Data collected and stored for this purpose
shall be kept and treated as strictly
confidential and a personal or written
authorization of the Owner shall be required
for access and disclosure of data;
e. The identification card to be issued shall
be protected by advanced security features
and cryptographic technology; and
f. A written request by the Owner of the
identification card shall be required for any
correction or revision of relevant data, or
under such conditions as the participating
agency issuing the identification card shall
prescribe.
Section 7. Funding. – Such funds as may be
recommended by the Department of Budget and
Management shall be provided to carry out the
objectives of this executive order.
Section 8. Repealing clause. – All executive orders
or issuances, or portions thereof, which are
inconsistent with this executive order, are hereby
revoked, amended or modified accordingly.
Section 9. Effectivity. – This executive order shall
take effect fifteen (15) days after its publication in two
(2) newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in
the year of Our Lord, Two Thousand and Five.
Thus, under EO 420, the President directs all
government agencies and government-owned and
controlled corporations to adopt a uniform data
collection and format for their existing identification
(ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is
unconstitutional because it constitutes usurpation of
legislative functions by the executive branch of the
government. Furthermore, they allege that EO 420
infringes on the citizen’s right to privacy.1
Petitioners in G.R. No. 167930 allege that EO 420 is
void based on the following grounds:
1. EO 420 is contrary to law. It completely
disregards and violates the decision of this
Honorable Court in Ople v. Torres et al.,
G.R. No. 127685, July 23, 1998. It also
violates RA 8282 otherwise known as the
Social Security Act of 1997.
2. The Executive has usurped the legislative
power of Congress as she has no power to
issue EO 420. Furthermore, the
implementation of the EO will use public
funds not appropriated by Congress for that
purpose.
3. EO 420 violates the constitutional
provisions on the right to privacy
(i) It allows access to personal
confidential data without the
owner’s consent.
(ii) EO 420 is vague and without
adequate safeguards or penalties
for any violation of its provisions.
(iii) There are no compelling
reasons that will legitimize the
necessity of EO 420.
4. Granting without conceding that the
President may issue EO 420, the Executive
Order was issued without public hearing.
5. EO 420 violates the Constitutional
provision on equal protection of laws and
results in the discriminatory treatment of and
penalizes those without ID.2
Issues
Essentially, the petitions raise two issues. First,
petitioners claim that EO 420 is a usurpation of
legislative power by the President. Second,
petitioners claim that EO 420 infringes on the citizen’s
right to privacy.
Respondents question the legal standing of
petitioners and the ripeness of the petitions. Even
assuming that petitioners are bereft of legal standing,
the Court considers the issues raised under the
circumstances of paramount public concern or of
transcendental significance to the people. The
petitions also present a justiciable controversy ripe for
judicial determination because all government entities
currently issuing identification cards are mandated to
implement EO 420, which petitioners claim is patently
unconstitutional. Hence, the Court takes cognizance
of the petitions.
The Court’s Ruling
The petitions are without merit.
On the Alleged Usurpation of Legislative Power
Section 2 of EO 420 provides, "Coverage. – All
government agencies and government-owned and
controlled corporations issuing ID cards to their
members or constituents shall be covered by this
executive order." EO 420 applies only to government
entities that issue ID cards as part of their functions
under existing laws. These government entities have
already been issuing ID cards even prior to EO 420.
Examples of these government entities are the
GSIS,3 SSS,4 Philhealth,5 Mayor’s
Office,6 LTO,7 PRC,8 and similar government entities.
Section 1 of EO 420 directs these government entities
to "adopt a unified multi-purpose ID system." Thus, all
government entities that issue IDs as part of their
functions under existing laws are required to adopt a
uniform data collection and format for their IDs.
Section 1 of EO 420 enumerates the purposes of the
uniform data collection and format, namely:
a. To reduce costs and thereby lessen the
financial burden on both the government and
the public brought about by the use of
multiple ID cards and the maintenance of
redundant database containing the same or
related information;
b. To ensure greater convenience for those
transacting business with the government
and those availing of government services;
c. To facilitate private businesses and
promote the wider use of the unified ID card
as provided under this executive order;
d. To enhance the integrity and reliability of
government-issued ID cards; and
e. To facilitate access to and delivery of
quality and effective government service.
In short, the purposes of the uniform ID data
collection and ID format are to reduce costs, achieve
efficiency and reliability, insure compatibility, and
provide convenience to the people served by
government entities.
Section 3 of EO 420 limits the data to be collected
and recorded under the uniform ID system to only 14
specific items, namely: (1) Name; (2) Home Address;
(3) Sex; (4) Picture; (5) Signature; (6) Date of Birth;
(7) Place of Birth; (8) Marital Status; (9) Name of
Parents; (10) Height; (11) Weight; (12) Two index
fingers and two thumbmarks; (13) Any prominent
distinguishing features like moles or others; and (14)
Tax Identification Number.
These limited and specific data are the usual data
required for personal identification by government
entities, and even by the private sector. Any one who
applies for or renews a driver’s license provides to the
LTO all these 14 specific data.
At present, government entities like LTO require
considerably more data from applicants for
identification purposes. EO 420 will reduce the data
required to be collected and recorded in the ID
databases of the government entities. Government
entities cannot collect or record data, for identification
purposes, other than the 14 specific data.
Various laws allow several government entities to
collect and record data for their ID systems, either
expressly or impliedly by the nature of the functions of
these government entities. Under their existing ID
systems, some government entities collect and record
more data than what EO 420 allows. At present, the
data collected and recorded by government entities
are disparate, and the IDs they issue are dissimilar.
In the case of the Supreme Court,9 the IDs that the
Court issues to all its employees, including the
Justices, contain 15 specific data, namely: (1) Name;
(2) Picture; (3) Position; (4) Office Code Number; (5)
ID Number; (6) Height; (7) Weight; (8) Complexion;
(9) Color of Hair; (10) Blood Type; (11) Right
Thumbmark; (12) Tax Identification Number; (13)
GSIS Policy Number; (14) Name and Address of
Person to be Notified in Case of Emergency; and (15)
Signature. If we consider that the picture in the ID can
generally also show the sex of the employee, the
Court’s ID actually contains 16 data.
In contrast, the uniform ID format under Section 3 of
EO 420 requires only "the first five items listed" in
Section 3, plus the fingerprint, agency number and
the common reference number, or only eight specific
data. Thus, at present, the Supreme Court’s ID
contains far more data than the proposed uniform ID
for government entities under EO 420. The nature of
the data contained in the Supreme Court ID is also far
more financially sensitive, specifically the Tax
Identification Number.
Making the data collection and recording of
government entities unified, and making their ID
formats uniform, will admittedly achieve substantial
benefits. These benefits are savings in terms of
procurement of equipment and supplies, compatibility
in systems as to hardware and software, ease of
verification and thus increased reliability of data, and
the user-friendliness of a single ID format for all
government entities.
There is no dispute that government entities can
individually limit the collection and recording of their
data to the 14 specific items in Section 3 of EO 420.
There is also no dispute that these government
entities can individually adopt the ID format as
specified in Section 3 of EO 420. Such an act is
certainly within the authority of the heads or governing
boards of the government entities that are already
authorized under existing laws to issue IDs.
A unified ID system for all these government entities
can be achieved in either of two ways. First, the
heads of these existing government entities can enter
into a memorandum of agreement making their
systems uniform. If the government entities can
individually adopt a format for their own ID pursuant to
their regular functions under existing laws, they can
also adopt by mutual agreement a uniform ID format,
especially if the uniform format will result in
substantial savings, greater efficiency, and optimum
compatibility. This is purely an administrative matter,
and does not involve the exercise of legislative power.
Second, the President may by executive or
administrative order direct the government entities
under the Executive department to adopt a uniform ID
data collection and format. Section 17, Article VII of
the 1987 Constitution provides that the "President
shall have control of all executive departments,
bureaus and offices." The same Section also
mandates the President to "ensure that the laws be
faithfully executed."
Certainly, under this constitutional power of control
the President can direct all government entities, in the
exercise of their functions under existing laws, to
adopt a uniform ID data collection and ID format to
achieve savings, efficiency, reliability, compatibility,
and convenience to the public. The President’s
constitutional power of control is self-executing and
does not need any implementing legislation.
Of course, the President’s power of control is limited
to the Executive branch of government and does not
extend to the Judiciary or to the independent
constitutional commissions. Thus, EO 420 does not
apply to the Judiciary, or to the COMELEC which
under existing laws is also authorized to issue voter’s
ID cards.10 This only shows that EO 420 does not
establish a national ID system because legislation is
needed to establish a single ID system that is
compulsory for all branches of government.
The Constitution also mandates the President to
ensure that the laws are faithfully executed. There are
several laws mandating government entities to reduce
costs, increase efficiency, and in general, improve
public services.11 The adoption of a uniform ID data
collection and format under EO 420 is designed to
reduce costs, increase efficiency, and in general,
improve public services. Thus, in issuing EO 420, the
President is simply performing the constitutional duty
to ensure that the laws are faithfully executed.
Clearly, EO 420 is well within the constitutional power
of the President to promulgate. The President has not
usurped legislative power in issuing EO 420. EO 420
is an exercise of Executive power – the President’s
constitutional power of control over the Executive
department. EO 420 is also compliance by the
President of the constitutional duty to ensure that the
laws are faithfully executed.
Legislative power is the authority to make laws and to
alter or repeal them. In issuing EO 420, the President
did not make, alter or repeal any law but merely
implemented and executed existing laws. EO 420
reduces costs, as well as insures efficiency, reliability,
compatibility and user-friendliness in the
implementation of current ID systems of government
entities under existing laws. Thus, EO 420 is simply
an executive issuance and not an act of legislation.
The act of issuing ID cards and collecting the
necessary personal data for imprinting on the ID card
does not require legislation. Private employers
routinely issue ID cards to their employees. Private
and public schools also routinely issue ID cards to
their students. Even private clubs and associations
issue ID cards to their members. The purpose of all
these ID cards is simply to insure the proper
identification of a person as an employee, student, or
member of a club. These ID cards, although imposed
as a condition for exercising a privilege, are voluntary
because a person is not compelled to be an
employee, student or member of a club.
What require legislation are three aspects of a
government maintained ID card system. First, when
the implementation of an ID card system requires a
special appropriation because there is no existing
appropriation for such purpose. Second, when the ID
card system is compulsory on all branches of
government, including the independent constitutional
commissions, as well as compulsory on all citizens
whether they have a use for the ID card or not. Third,
when the ID card system requires the collection and
recording of personal data beyond what is routinely or
usually required for such purpose, such that the
citizen’s right to privacy is infringed.
In the present case, EO 420 does not require any
special appropriation because the existing ID card
systems of government entities covered by EO 420
have the proper appropriation or funding. EO 420 is
not compulsory on all branches of government and is
not compulsory on all citizens. EO 420 requires a very
narrow and focused collection and recording of
personal data while safeguarding the confidentiality of
such data. In fact, the data collected and recorded
under EO 420 are far less than the data collected and
recorded under the ID systems existing prior to EO
420.
EO 420 does not establish a national ID card system.
EO 420 does not compel all citizens to have an ID
card. EO 420 applies only to government entities that
under existing laws are already collecting data and
issuing ID cards as part of their governmental
functions. Every government entity that presently
issues an ID card will still issue its own ID card under
its own name. The only difference is that the ID card
will contain only the five data specified in Section 3 of
EO 420, plus the fingerprint, the agency ID number,
and the common reference number which is needed
for cross-verification to ensure integrity and reliability
of identification.
This Court should not interfere how government
entities under the Executive department should
undertake cost savings, achieve efficiency in
operations, insure compatibility of equipment and
systems, and provide user-friendly service to the
public. The collection of ID data and issuance of ID
cards are day-to-day functions of many government
entities under existing laws. Even the Supreme Court
has its own ID system for employees of the Court and
all first and second level courts. The Court is even
trying to unify its ID system with those of the appellate
courts, namely the Court of Appeals, Sandiganbayan
and Court of Tax Appeals.
There is nothing legislative about unifying existing ID
systems of all courts within the Judiciary. The same is
true for government entities under the Executive
department. If government entities under the
Executive department decide to unify their existing ID
data collection and ID card issuance systems to
achieve savings, efficiency, compatibility and
convenience, such act does not involve the exercise
of any legislative power. Thus, the issuance of EO
420 does not constitute usurpation of legislative
power.
On the Alleged Infringement of the Right to Privacy
All these years, the GSIS, SSS, LTO, Philhealth and
other government entities have been issuing ID cards
in the performance of their governmental functions.
There have been no complaints from citizens that the
ID cards of these government entities violate their
right to privacy. There have also been no complaints
of abuse by these government entities in the
collection and recording of personal identification
data.
In fact, petitioners in the present cases do not claim
that the ID systems of government entities prior to EO
420 violate their right to privacy. Since petitioners do
not make such claim, they even have less basis to
complain against the unified ID system under EO 420.
The data collected and stored for the unified ID
system under EO 420 will be limited to only 14
specific data, and the ID card itself will show only
eight specific data. The data collection, recording and
ID card system under EO 420 will even require less
data collected, stored and revealed than under the
disparate systems prior to EO 420.
Prior to EO 420, government entities had a free hand
in determining the kind, nature and extent of data to
be collected and stored for their ID systems. Under
EO 420, government entities can collect and record
only the 14 specific data mentioned in Section 3 of
EO 420. In addition, government entities can show in
their ID cards only eight of these specific data, seven
less data than what the Supreme Court’s ID shows.
Also, prior to EO 420, there was no executive
issuance to government entities prescribing
safeguards on the collection, recording, and
disclosure of personal identification data to protect the
right to privacy. Now, under Section 5 of EO 420, the
following safeguards are instituted:
a. The data to be recorded and stored, which
shall be used only for purposes of
establishing the identity of a person, shall be
limited to those specified in Section 3 of this
executive order;
b. In no case shall the collection or
compilation of other data in violation of a
person’s right to privacy be allowed or
tolerated under this order;
c. Stringent systems of access control to
data in the identification system shall be
instituted;
d. Data collected and stored for this purpose
shall be kept and treated as strictly
confidential and a personal or written
 authorization of the Owner shall be required
for access and disclosure of data;
e. The identification card to be issued shall
be protected by advanced security features
and cryptographic technology;
f. A written request by the Owner of the
identification card shall be required for any
correction or revision of relevant data, or
under such conditions as the participating
agency issuing the identification card shall
prescribe.
On its face, EO 420 shows no constitutional infirmity
because it even narrowly limits the data that can be
collected, recorded and shown compared to the
existing ID systems of government entities. EO 420
further provides strict safeguards to protect the
confidentiality of the data collected, in contrast to the
prior ID systems which are bereft of strict
administrative safeguards.
The right to privacy does not bar the adoption of
reasonable ID systems by government entities. Some
one hundred countries have compulsory national ID
systems, including democracies such as Spain,
France, Germany, Belgium, Greece, Luxembourg,
and Portugal. Other countries which do not have
national ID systems, like the United States, Canada,
Australia, New Zealand, Ireland, the Nordic Countries
and Sweden, have sectoral cards for health, social or
other public services.12 Even with EO 420, the
Philippines will still fall under the countries that do not
have compulsory national ID systems but allow only
sectoral cards for social security, health services, and
other specific purposes.
Without a reliable ID system, government entities like
GSIS, SSS, Philhealth, and LTO cannot perform
effectively and efficiently their mandated functions
under existing laws. Without a reliable ID system,
GSIS, SSS, Philhealth and similar government
entities stand to suffer substantial losses arising from
false names and identities. The integrity of the LTO’s
licensing system will suffer in the absence of a
reliable ID system.
The dissenting opinion cites three American decisions
on the right to privacy, namely, Griswold v.
Connecticut,13U.S. Justice Department v. Reporters
Committee for Freedom of the Press,14 and Whalen v.
Roe.15 The last two decisions actually support the
validity of EO 420, while the first is inapplicable to the
present case.
In Griswold, the U.S. Supreme Court declared
unconstitutional a state law that prohibited the use
and distribution of contraceptives because
enforcement of the law would allow the police entry
into the bedrooms of married couples. Declared the
U.S. Supreme Court: "Would we allow the police to
search the sacred precincts of the marital bedrooms
for telltale signs of the use of contraceptives? The
very idea is repulsive to the notions of privacy
surrounding the marriage relationship." Because the
facts and the issue involved in Griswold are materially
different from the present case, Griswold has no
persuasive bearing on the present case.
In U.S. Justice Department, the issue was not
whether the State could collect and store information
on individuals from public records nationwide but
whether the State could withhold such information
from the press. The premise of the issue in U.S.
Justice Department is that the State can collect and
store in a central database information on citizens
gathered from public records across the country. In
fact, the law authorized the Department of Justice to
collect and preserve fingerprints and other criminal
identification records nationwide. The law also
authorized the Department of Justice to exchange
such information with "officials of States, cities and
other institutions." The Department of Justice treated
such information as confidential. A CBS news
correspondent and the Reporters Committee
demanded the criminal records of four members of a
family pursuant to the Freedom of Information Act.
The U.S. Supreme Court ruled that the Freedom of
Information Act expressly exempts release of
information that would "constitute an unwarranted
invasion of personal privacy," and the information
demanded falls under that category of exempt
information.
With the exception of the 8 specific data shown on the
ID card, the personal data collected and recorded
under EO 420 are treated as "strictly confidential"
under Section 6(d) of EO 420. These data are not
only strictly confidential but also personal matters.
Section 7, Article III of the 1987 Constitution grants
the "right of the people to information on matters of
public concern." Personal matters are exempt or
outside the coverage of the people’s right to
information on matters of public concern. The data
treated as "strictly confidential" under EO 420 being
private matters and not matters of public concern,
these data cannot be released to the public or the
press. Thus, the ruling in U.S. Justice Department
does not collide with EO 420 but actually supports the
validity EO 420.
Whalen v. Roe is the leading American case on the
constitutional protection for control over information.
In Whalen, the U.S. Supreme Court upheld the
validity of a New York law that required doctors to
furnish the government reports identifying patients
who received prescription drugs that have a potential
for abuse. The government maintained a central
computerized database containing the names and
addresses of the patients, as well as the identity of
the prescribing doctors. The law was assailed
because the database allegedly infringed the right to
privacy of individuals who want to keep their personal
matters confidential. The U.S. Supreme Court
rejected the privacy claim, and declared:
Disclosures of private medical information to doctors,
to hospital personnel, to insurance companies, and to
public health agencies are often an essential part of
modern medical practice even when the disclosure
may reflect unfavorably on the character of the
patient. Requiring such disclosures to representatives
of the State having responsibility for the health of the
community does not automatically amount to an
impermissible invasion of privacy. (Emphasis
supplied)
Compared to the personal medical data required for
disclosure to the New York State in Whalen, the 14
specific data required for disclosure to the Philippine
government under EO 420 are far less sensitive and
far less personal. In fact, the 14 specific data required
under EO 420 are routine data for ID systems, unlike
the sensitive and potentially embarrassing medical
records of patients taking prescription drugs. Whalen,
therefore, carries persuasive force for upholding the
constitutionality of EO 420 as non-violative of the right
to privacy.
Subsequent U.S. Supreme Court decisions have
reiterated Whalen. In Planned Parenthood of Central
Missouri v. Danforth,16 the U.S. Supreme Court
upheld the validity of a law that required doctors
performing abortions to fill up forms, maintain records
for seven years, and allow the inspection of such
records by public health officials. The U.S. Supreme
Court ruled that "recordkeeping and reporting
requirements that are reasonably directed to the
preservation of maternal health and that properly
respect a patient’s confidentiality and privacy are
permissible."
Again, in Planned Parenthood of Southeastern
Pennsylvania v. Casey,17 the U.S. Supreme Court
upheld a law that required doctors performing an
abortion to file a report to the government that
included the doctor’s name, the woman’s age, the
number of prior pregnancies and abortions that the
woman had, the medical complications from the
abortion, the weight of the fetus, and the marital
status of the woman. In case of state-funded
institutions, the law made such information publicly
available. In Casey, the U.S. Supreme Court stated:
"The collection of information with respect to actual
patients is a vital element of medical research, and so
it cannot be said that the requirements serve no
purpose other than to make abortion more difficult."
Compared to the disclosure requirements of personal
data that the U.S. Supreme Court have upheld in
Whalen, Danforth and Casey as not violative of the
right to privacy, the disclosure requirements under EO
420 are far benign and cannot therefore constitute
violation of the right to privacy. EO 420 requires
disclosure of 14 personal data that are routine for ID
purposes, data that cannot possibly embarrass or
humiliate anyone.
Petitioners have not shown how EO 420 will violate
their right to privacy. Petitioners cannot show such
violation by a mere facial examination of EO 420
because EO 420 narrowly draws the data collection,
recording and exhibition while prescribing
comprehensive safeguards. Ople v. Torres18 is not
authority to hold that EO 420 violates the right to
privacy because in that case the assailed executive
issuance, broadly drawn and devoid of safeguards,
was annulled solely on the ground that the subject
matter required legislation. As then Associate Justice,
now Chief Justice Artemio V. Panganiban noted in his
concurring opinion in Ople v. Torres, "The voting is
decisive only on the need for appropriate legislation,
and it is only on this ground that the petition is granted
by this Court."
EO 420 applies only to government entities that
already maintain ID systems and issue ID cards
pursuant to their regular functions under existing laws.
EO 420 does not grant such government entities any
power that they do not already possess under existing
laws. In contrast, the assailed executive issuance in
Ople v. Torres sought to establish a "National
Computerized Identification Reference System,"19 a
national ID system that did not exist prior to the
assailed executive issuance. Obviously, a national ID
card system requires legislation because it creates a
new national data collection and card issuance
system where none existed before.
In the present case, EO 420 does not establish a
national ID system but makes the existing sectoral
card systems of government entities like GSIS, SSS,
Philhealth and LTO less costly, more efficient, reliable
and user-friendly to the public. Hence, EO 420 is a
proper subject of executive issuance under the
President’s constitutional power of control over
government entities in the Executive department, as
well as under the President’s constitutional duty to
ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED.
Executive Order No. 420 is declared VALID.
SO ORDERED.
Case No. 004
EN BANC
G.R. No. 169777* April 20, 2006
SENATE OF THE PHILIPPINES, represented by
FRANKLIN M. DRILON, in his capacity as Senate
President, JUAN M. FLAVIER, in his capacity as
Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader,
AQUILINO Q. PIMENTEL, JR., in his capacity as
Minority Leader, SENATORS RODOLFO G.
BIAZON, "COMPANERA" PIA S. CAYETANO,
JINGGOY EJERCITO ESTRADA, LUISA "LOI"
EJERCITO ESTRADA, JUAN PONCE ENRILE,
RICHARD J. GORDON, PANFILO M. LACSON,
ALFREDO S.LIM, M. A. MADRIGAL, SERGIO
OSMENA III, RALPH G. RECTO, and MAR
ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as
Executive Secretary and alter-ego of President
Gloria Macapagal-Arroyo, and anyone acting in
his stead and in behalf of the President of the
Philippines, Respondents.
x-------------------------x
G.R. No. 169659 April 20, 2006
BAYAN MUNA represented by DR. REYNALDO
LESACA, JR., Rep. SATUR OCAMPO, Rep.
CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep.
LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL
VIRADOR, COURAGE represented by FERDINAND
GAITE, and COUNSELS FOR THE DEFENSE OF
LIBERTIES (CODAL) represented by ATTY.
REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive
Secretary and alter-ego of President Gloria
Macapagal-Arroyo, Respondent.
x-------------------------x
G.R. No. 169660 April 20, 2006
FRANCISCO I. CHAVEZ, Petitioner,
vs.
EDUARDO R. ERMITA, in his capacity as
Executive Secretary, AVELINO J. CRUZ, JR., in his
capacity as Secretary of Defense, and
GENEROSO S. SENGA, in his capacity as AFP
Chief of Staff, Respondents.
x-------------------------x
G.R. No. 169667 April 20, 2006
ALTERNATIVE LAW GROUPS, INC.
(ALG), Petitioner,
vs.
HON. EDUARDO R. ERMITA, in his capacity as
Executive Secretary, Respondent.
x-------------------------x
G.R. No. 169834 April 20, 2006
PDP- LABAN, Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R.
ERMITA, Respondent.
x-------------------------x
G.R. No. 171246 April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M.
BAUTISTA, ROMULO R. RIVERA, JOSE AMOR
AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON
C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY
C. BERNABE, BERNARD L. DAGCUTA, ROGELIO
V. GARCIA, and the INTEGRATED BAR FOR THE
PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R.
ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a
truly republican state. Even in the early history of
republican thought, however, it has been recognized
that the head of government may keep certain
information confidential in pursuit of the public
interest. Explaining the reason for vesting executive
power in only one magistrate, a distinguished
delegate to the U.S. Constitutional Convention said:
"Decision, activity, secrecy, and dispatch will
generally characterize the proceedings of one man, in
a much more eminent degree than the proceedings of
any greater number; and in proportion as the number
is increased, these qualities will be diminished."1
History has been witness, however, to the fact that
the power to withhold information lends itself to
abuse, hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and
prohibition proffer that the President has abused such
power by issuing Executive Order No. 464 (E.O. 464)
last September 28, 2005. They thus pray for its
declaration as null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed
with the recognition that the issuance under review
has come from a co-equal branch of government,
which thus entitles it to a strong presumption of
constitutionality. Once the challenged order is found
to be indeed violative of the Constitution, it is duty-
bound to declare it so. For the Constitution, being the
highest expression of the sovereign will of the Filipino
people, must prevail over any issuance of the
government that contravenes its mandates.
In the exercise of its legislative power, the Senate of
the Philippines, through its various Senate
Committees, conducts inquiries or investigations in
aid of legislation which call for, inter alia, the
attendance of officials and employees of the
executive department, bureaus, and offices including
those employed in Government Owned and
Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police
(PNP).
On September 21 to 23, 2005, the Committee of the
Senate as a whole issued invitations to various
officials of the Executive Department for them to
appear on September 29, 2005 as resource speakers
in a public hearing on the railway project of the North
Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North
Rail Project). The public hearing was sparked by a
privilege speech of Senator Juan Ponce Enrile urging
the Senate to investigate the alleged overpricing and
other unlawful provisions of the contract covering the
North Rail Project.
The Senate Committee on National Defense and
Security likewise issued invitations2 dated September
22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen.
Hermogenes C. Esperon; Inspector General of the
AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of
Staff for Intelligence of the AFP Rear Admiral Tirso R.
Danga; Chief of the Intelligence Service of the AFP
Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy
(PMA) Brig. Gen. Francisco V. Gudani; and Assistant
Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource
persons in a public hearing scheduled on September
28, 2005 on the following: (1) Privilege Speech of
Senator Aquilino Q. Pimentel Jr., delivered on June 6,
2005 entitled "Bunye has Provided Smoking Gun or
has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May
2005"; (2) Privilege Speech of Senator Jinggoy E.
Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World";
(3) Privilege Speech of Senator Rodolfo Biazon
delivered on August 1, 2005 entitled "Clear and
Present Danger"; (4) Senate Resolution No. 285 filed
by Senator Maria Ana Consuelo Madrigal –
Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of
Legislation, and in the National Interest, on the Role
of the Military in the So-called "Gloriagate Scandal";
and (5) Senate Resolution No. 295 filed by Senator
Biazon – Resolution Directing the Committee on
National Defense and Security to Conduct an Inquiry,
in Aid of Legislation, on the Wire-Tapping of the
President of the Philippines.
Also invited to the above-said hearing scheduled on
September 28 2005 was the AFP Chief of Staff,
General Generoso S. Senga who, by letter3 dated
September 27, 2005, requested for its postponement
"due to a pressing operational situation that demands
[his utmost personal attention" while "some of the
invited AFP officers are currently attending to other
urgent operational matters."
On September 28, 2005, Senate President Franklin
M. Drilon received from Executive Secretary Eduardo
R. Ermita a letter4 dated September 27, 2005
"respectfully request[ing] for the postponement of the
hearing [regarding the NorthRail project] to which
various officials of the Executive Department have
been invited" in order to "afford said officials ample
time and opportunity to study and prepare for the
various issues so that they may better enlighten the
Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive
Secretary Ermita that the Senators "are unable to
accede to [his request]" as it "was sent belatedly" and
"[a]ll preparations and arrangements as well as
notices to all resource persons were completed [the
previous] week."
Senate President Drilon likewise received on
September 28, 2005 a letter6 from the President of the
North Luzon Railways Corporation Jose L. Cortes, Jr.
requesting that the hearing on the NorthRail project
be postponed or cancelled until a copy of the report of
the UP Law Center on the contract agreements
relative to the project had been secured.
On September 28, 2005, the President issued E.O.
464, "Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on
Executive Privilege and Respect for the Rights of
Public Officials Appearing in Legislative Inquiries in
Aid of Legislation Under the Constitution, and For
Other Purposes,"7 which, pursuant to Section 6
thereof, took effect immediately. The salient
provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments
Before Congress. – In accordance with Article VI,
Section 22 of the Constitution and to implement the
Constitutional provisions on the separation of powers
between co-equal branches of the government, all
heads of departments of the Executive Branch of the
government shall secure the consent of the President
prior to appearing before either House of Congress.
When the security of the State or the public interest
so requires and the President so states in writing, the
appearance shall only be conducted in executive
session.
SECTION. 2. Nature, Scope and Coverage of
Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality
based on executive privilege is fundamental to the
operation of government and rooted in the separation
of powers under the Constitution (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995). Further,
Republic Act No. 6713 or the Code of Conduct and
Ethical Standards for Public Officials and Employees
provides that Public Officials and Employees shall not
use or divulge confidential or classified information
officially known to them by reason of their office and
not made available to the public to prejudice the
public interest.
Executive privilege covers all confidential or classified
information between the President and the public
officers covered by this executive order, including:
Conversations and correspondence between the
President and the public official covered by this
executive order (Almonte vs. Vasquez G.R. No.
95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters
which in the interest of national security should not be
divulged (Almonte vs. Vasquez, G.R. No. 95367, 23
May 1995; Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December
1998).
Information between inter-government agencies prior
to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December
1998);
Discussion in close-door Cabinet meetings (Chavez v.
Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998);
Matters affecting national security and public order
(Chavez v. Public Estates Authority, G.R. No. 133250,
9 July 2002).
(b) Who are covered. – The following are covered by
this executive order:
Senior officials of executive departments who in the
judgment of the department heads are covered by the
executive privilege;
Generals and flag officers of the Armed Forces of the
Philippines and such other officers who in the
judgment of the Chief of Staff are covered by the
executive privilege;
Philippine National Police (PNP) officers with rank of
chief superintendent or higher and such other officers
who in the judgment of the Chief of the PNP are
covered by the executive privilege;
Senior national security officials who in the judgment
of the National Security Adviser are covered by the
executive privilege; and
Such other officers as may be determined by the
President.
SECTION 3. Appearance of Other Public Officials
Before Congress. – All public officials enumerated in
Section 2 (b) hereof shall secure prior consent of the
President prior to appearing before either House of
Congress to ensure the observance of the principle of
separation of powers, adherence to the rule on
executive privilege and respect for the rights of public
officials appearing in inquiries in aid of legislation.
(Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon
received from Executive Secretary Ermita a copy of
E.O. 464, and another letter8 informing him "that
officials of the Executive Department invited to appear
at the meeting [regarding the NorthRail project] will
not be able to attend the same without the consent of
the President, pursuant to [E.O. 464]" and that "said
officials have not secured the required consent from
the President." On even date which was also the
scheduled date of the hearing on the alleged
wiretapping, Gen. Senga sent a letter9 to Senator
Biazon, Chairperson of the Committee on National
Defense and Security, informing him "that per
instruction of [President Arroyo], thru the Secretary of
National Defense, no officer of the [AFP] is authorized
to appear before any Senate or Congressional
hearings without seeking a written approval from the
President" and "that no approval has been granted by
the President to any AFP officer to appear before the
public hearing of the Senate Committee on National
Defense and Security scheduled [on] 28 September
2005."
Despite the communications received from Executive
Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and
Security pushed through, with only Col. Balutan and
Brig. Gen. Gudani among all the AFP officials invited
attending.
For defying President Arroyo’s order barring military
personnel from testifying before legislative inquiries
without her approval, Brig. Gen. Gudani and Col.
Balutan were relieved from their military posts and
were made to face court martial proceedings.
As to the NorthRail project hearing scheduled on
September 29, 2005, Executive Secretary Ermita,
citing E.O. 464, sent letter of regrets, in response to
the invitations sent to the following government
officials: Light Railway Transit Authority Administrator
Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of
Justice (DOJ) Chief State Counsel Ricardo V. Perez,
then Presidential Legal Counsel Merceditas Gutierrez,
Department of Transportation and Communication
(DOTC) Undersecretary Guiling Mamonding, DOTC
Secretary Leandro Mendoza, Philippine National
Railways General Manager Jose Serase II, Monetary
Board Member Juanita Amatong, Bases Conversion
Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail
President Cortes sent personal regrets likewise citing
E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R.
Nos. 169659, 169660, and 169667, for certiorari and
prohibition, were filed before this Court challenging
the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan
Muna, House of Representatives Members Satur
Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza,
Joel Virador and Teodoro Casino, Courage, an
organization of government employees, and Counsels
for the Defense of Liberties (CODAL), a group of
lawyers dedicated to the promotion of justice,
democracy and peace, all claiming to have standing
to file the suit because of the transcendental
importance of the issues they posed, pray, in their
petition that E.O. 464 be declared null and void for
being unconstitutional; that respondent Executive
Secretary Ermita, in his capacity as Executive
Secretary and alter-ego of President Arroyo, be
prohibited from imposing, and threatening to impose
sanctions on officials who appear before Congress
due to congressional summons. Additionally,
petitioners claim that E.O. 464 infringes on their rights
and impedes them from fulfilling their respective
obligations. Thus, Bayan Muna alleges that E.O. 464
infringes on its right as a political party entitled to
participate in governance; Satur Ocampo, et al. allege
that E.O. 464 infringes on their rights and duties as
members of Congress to conduct investigation in aid
of legislation and conduct oversight functions in the
implementation of laws; Courage alleges that the
tenure of its members in public office is predicated on,
and threatened by, their submission to the
requirements of E.O. 464 should they be summoned
by Congress; and CODAL alleges that its members
have a sworn duty to uphold the rule of law, and their
rights to information and to transparent governance
are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez,
claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the
enforcement of E.O. 464, prays in his petition that
E.O. 464 be declared null and void for being
unconstitutional.
In G.R. No. 169667, petitioner Alternative Law
Groups, Inc.12 (ALG), alleging that as a coalition of 17
legal resource non-governmental organizations
engaged in developmental lawyering and work with
the poor and marginalized sectors in different parts of
the country, and as an organization of citizens of the
Philippines and a part of the general public, it has
legal standing to institute the petition to enforce its
constitutional right to information on matters of public
concern, a right which was denied to the public by
E.O. 464,13 prays, that said order be declared null and
void for being unconstitutional and that respondent
Executive Secretary Ermita be ordered to cease from
implementing it.
On October 11, 2005, Petitioner Senate of the
Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it
stands to suffer imminent and material injury, as it has
already sustained the same with its continued
enforcement since it directly interferes with and
impedes the valid exercise of the Senate’s powers
and functions and conceals information of great public
interest and concern, filed its petition for certiorari and
prohibition, docketed as G.R. No. 169777 and prays
that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered
political party with members duly elected into the
Philippine Senate and House of Representatives, filed
a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is
affected by the challenged E.O. 464 because it
hampers its legislative agenda to be implemented
through its members in Congress, particularly in the
conduct of inquiries in aid of legislation and
transcendental issues need to be resolved to avert a
constitutional crisis between the executive and
legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006,
Senator Biazon reiterated his invitation to Gen. Senga
for him and other military officers to attend the hearing
on the alleged wiretapping scheduled on February 10,
2005. Gen. Senga replied, however, by letter15 dated
February 8, 2006, that "[p]ursuant to Executive Order
No. 464, th[e] Headquarters requested for a clearance
from the President to allow [them] to appear before
the public hearing" and that "they will attend once
[their] request is approved by the President." As none
of those invited appeared, the hearing on February
10, 2006 was cancelled.16
In another investigation conducted jointly by the
Senate Committee on Agriculture and Food and the
Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under
the Ginintuang Masaganang Ani program of the
Department of Agriculture (DA), several Cabinet
officials were invited to the hearings scheduled on
October 5 and 26, November 24 and December 12,
2005 but most of them failed to attend, DA
Undersecretary Belinda Gonzales, DA Assistant
Secretary Felix Jose Montes, Fertilizer and Pesticide
Authority Executive Director Norlito R. Gicana,17 and
those from the Department of Budget and
Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February
8 and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye,19 DOJ Secretary
Raul M. Gonzalez20 and Department of Interior and
Local Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to
lack of appropriate clearance from the President
pursuant to E.O. 464. During the February 13, 2005
budget hearing, however, Secretary Bunye was
allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the
incumbent members of the Board of Governors of the
Integrated Bar of the Philippines, as taxpayers, and
the Integrated Bar of the Philippines as the official
organization of all Philippine lawyers, all invoking their
constitutional right to be informed on matters of public
interest, filed their petition for certiorari and
prohibition, docketed as G.R. No. 171246, and pray
that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary
Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on
February 21, 2006, the following substantive issues
were ventilated: (1) whether respondents committed
grave abuse of discretion in implementing E.O. 464
prior to its publication in the Official Gazette or in a
newspaper of general circulation; and (2) whether
E.O. 464 violates the following provisions of the
Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III,
Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec.
22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The
procedural issue of whether there is an actual case or
controversy that calls for judicial review was not taken
up; instead, the parties were instructed to discuss it in
their respective memoranda.
After the conclusion of the oral arguments, the parties
were directed to submit their respective memoranda,
paying particular attention to the following
propositions: (1) that E.O. 464 is, on its face,
unconstitutional; and (2) assuming that it is not, it is
unconstitutional as applied in four instances, namely:
(a) the so called Fertilizer scam; (b) the NorthRail
investigation (c) the Wiretapping activity of the ISAFP;
and (d) the investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No.
16977724 filed their memoranda on March 7, 2006,
while those in G.R. No. 16966725 and G.R. No.
16983426 filed theirs the next day or on March 8,
2006. Petitioners in G.R. No. 171246 did not file any
memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659,
after their motion for extension to file
memorandum27 was granted, subsequently filed a
manifestation28 dated March 14, 2006 that it would no
longer file its memorandum in the interest of having
the issues resolved soonest, prompting this Court to
issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following
constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on
the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal
of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as
follows:
1. Whether E.O. 464 contravenes the power
of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the
people to information on matters of public
concern; and
3. Whether respondents have committed
grave abuse of discretion when they
implemented E.O. 464 prior to its publication
in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the
constitutionality of E.O. 464, ascertainment of whether
the requisites for a valid exercise of the Court’s power
of judicial review are present is in order.
Like almost all powers conferred by the Constitution,
the power of judicial review is subject to limitations, to
wit: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the
person challenging the act must have standing to
challenge the validity of the subject act or issuance;
otherwise stated, he must have a personal and
substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must
be raised at the earliest opportunity; and (4) the issue
of constitutionality must be the very lis mota of the
case.39
Except with respect to the requisites of standing and
existence of an actual case or controversy where the
disagreement between the parties lies, discussion of
the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert
that the allegations in G.R. Nos. 169659, 169660 and
169667 make it clear that they, adverting to the non-
appearance of several officials of the executive
department in the investigations called by the different
committees of the Senate, were brought to vindicate
the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in
the exercise of its oversight functions. They maintain
that Representatives Ocampo et al. have not shown
any specific prerogative, power, and privilege of the
House of Representatives which had been effectively
impaired by E.O. 464, there being no mention of any
investigation called by the House of Representatives
or any of its committees which was aborted due to the
implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list
representing the marginalized and underrepresented,
and that of the other petitioner groups and individuals
who profess to have standing as advocates and
defenders of the Constitution, respondents contend
that such interest falls short of that required to confer
standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend
that Chavez may not claim an interest as a taxpayer
for the implementation of E.O. 464 does not involve
the exercise of taxing or spending power.41
With regard to the petition filed by the Senate,
respondents argue that in the absence of a personal
or direct injury by reason of the issuance of E.O. 464,
the Senate and its individual members are not the
proper parties to assail the constitutionality of E.O.
464.
Invoking this Court’s ruling in National Economic
Protectionism Association v. Ongpin42 and Valmonte
v. Philippine Charity Sweepstakes
Office,43 respondents assert that to be considered a
proper party, one must have a personal and
substantial interest in the case, such that he has
sustained or will sustain direct injury due to the
enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental
right essential not only for intelligent public decision-
making in a democratic system, but more especially
for sound legislation45 is not disputed. E.O. 464,
however, allegedly stifles the ability of the members of
Congress to access information that is crucial to law-
making.46 Verily, the Senate, including its individual
members, has a substantial and direct interest over
the outcome of the controversy and is the proper
party to assail the constitutionality of E.O. 464.
Indeed, legislators have standing to maintain inviolate
the prerogative, powers and privileges vested by the
Constitution in their office and are allowed to sue to
question the validity of any official action which they
claim infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur
Ocampo (Bayan Muna), Teodoro Casino (Bayan
Muna), Joel Virador (Bayan Muna), Crispin Beltran
(Anakpawis), Rafael Mariano (Anakpawis), and Liza
Maza (Gabriela) are allowed to sue to question the
constitutionality of E.O. 464, the absence of any claim
that an investigation called by the House of
Representatives or any of its committees was aborted
due to the implementation of E.O. 464
notwithstanding, it being sufficient that a claim is
made that E.O. 464 infringes on their constitutional
rights and duties as members of Congress to conduct
investigation in aid of legislation and conduct
oversight functions in the implementation of laws.
The national political party, Bayan Muna, likewise
meets the standing requirement as it obtained three
seats in the House of Representatives in the 2004
elections and is, therefore, entitled to participate in the
legislative process consonant with the declared policy
underlying the party list system of affording citizens
belonging to marginalized and underrepresented
sectors, organizations and parties who lack well-
defined political constituencies to contribute to the
formulation and enactment of legislation that will
benefit the nation.48
As Bayan Muna and Representatives Ocampo et al.
have the standing to file their petitions, passing on the
standing of their co-petitioners Courage and Codal is
rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG
which claims to be an organization of citizens, and the
incumbent members of the IBP Board of Governors
and the IBP in behalf of its lawyer members,50 invoke
their constitutional right to information on matters of
public concern, asserting that the right to information,
curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional rights51 and
to the maintenance of the balance of power among
the three branches of the government through the
principle of checks and balances.52
It is well-settled that when suing as a citizen, the
interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders,
and other regulations, must be direct and personal. In
Franciso v. House of Representatives,53 this Court
held that when the proceeding involves the assertion
of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is
clothed with legal standing in view of the
transcendental issues raised in its petition which this
Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on
the ground of transcendental importance, however, it
must establish (1) the character of the funds (that it is
public) or other assets involved in the case, (2) the
presence of a clear case of disregard of a
constitutional or statutory prohibition by the public
respondent agency or instrumentality of the
government, and (3) the lack of any party with a more
direct and specific interest in raising the questions
being raised.54 The first and last determinants not
being present as no public funds or assets are
involved and petitioners in G.R. Nos. 169777 and
169659 have direct and specific interests in the
resolution of the controversy, petitioner PDP-Laban is
bereft of standing to file its petition. Its allegation that
E.O. 464 hampers its legislative agenda is vague and
uncertain, and at best is only a "generalized interest"
which it shares with the rest of the political parties.
Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in
part to cast it in a form traditionally capable of judicial
resolution.55 In fine, PDP-Laban’s alleged interest as
a political party does not suffice to clothe it with legal
standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they
citing the absence of the executive officials invited by
the Senate to its hearings after the issuance of E.O.
464, particularly those on the NorthRail project and
the wiretapping controversy.
Respondents counter that there is no case or
controversy, there being no showing that President
Arroyo has actually withheld her consent or prohibited
the appearance of the invited officials.56 These
officials, they claim, merely communicated to the
Senate that they have not yet secured the consent of
the President, not that the President prohibited their
attendance.57 Specifically with regard to the AFP
officers who did not attend the hearing on September
28, 2005, respondents claim that the instruction not to
attend without the President’s consent was based on
its role as Commander-in-Chief of the Armed Forces,
not on E.O. 464.
Respondents thus conclude that the petitions merely
rest on an unfounded apprehension that the President
will abuse its power of preventing the appearance of
officials before Congress, and that such apprehension
is not sufficient for challenging the validity of E.O.
464.
The Court finds respondents’ assertion that the
President has not withheld her consent or prohibited
the appearance of the officials concerned immaterial
in determining the existence of an actual case or
controversy insofar as E.O. 464 is concerned. For
E.O. 464 does not require either a deliberate
withholding of consent or an express prohibition
issuing from the President in order to bar officials from
appearing before Congress.
As the implementation of the challenged order has
already resulted in the absence of officials invited to
the hearings of petitioner Senate of the Philippines, it
would make no sense to wait for any further event
before considering the present case ripe for
adjudication. Indeed, it would be sheer abandonment
of duty if this Court would now refrain from passing on
the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of
executive officials before Congress, deprives
Congress of the information in the possession of
these officials. To resolve the question of whether
such withholding of information violates the
Constitution, consideration of the general power of
Congress to obtain information, otherwise known as
the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly
recognized in Section 21 of Article VI of the
Constitution which reads:
SECTION 21. The Senate or the House of
Representatives or any of its respective committees
may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure.
The rights of persons appearing in or affected by such
inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of
Article VIII of the 1973 Constitution except that, in the
latter, it vests the power of inquiry in the unicameral
legislature established therein – the Batasang
Pambansa – and its committees.
The 1935 Constitution did not contain a similar
provision. Nonetheless, in Arnault v. Nazareno,58 a
case decided in 1950 under that Constitution, the
Court already recognized that the power of inquiry is
inherent in the power to legislate.
Arnault involved a Senate investigation of the
reportedly anomalous purchase of the Buenavista and
Tambobong Estates by the Rural Progress
Administration. Arnault, who was considered a
leading witness in the controversy, was called to
testify thereon by the Senate. On account of his
refusal to answer the questions of the senators on an
important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senate’s power
to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution
expressly investing either House of Congress with
power to make investigations and exact testimony to
the end that it may exercise its legislative functions
advisedly and effectively, such power is so far
incidental to the legislative function as to be implied.
In other words, the power of inquiry – with process to
enforce it – is an essential and appropriate auxiliary to
the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of
information respecting the conditions which the
legislation is intended to affect or change; and where
the legislative body does not itself possess the
requisite information – which is not infrequently true –
recourse must be had to others who do possess it.
Experience has shown that mere requests for such
information are often unavailing, and also that
information which is volunteered is not always
accurate or complete; so some means of compulsion
is essential to obtain what is needed.59 . . . (Emphasis
and underscoring supplied)
That this power of inquiry is broad enough to cover
officials of the executive branch may be deduced from
the same case. The power of inquiry, the Court
therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper
subject of legislation and those which may be a
proper subject of investigation are one. It follows that
the operation of government, being a legitimate
subject for legislation, is a proper subject for
investigation.
Thus, the Court found that the Senate investigation of
the government transaction involved in Arnault was a
proper exercise of the power of inquiry. Besides being
related to the expenditure of public funds of which
Congress is the guardian, the transaction, the Court
held, "also involved government agencies created by
Congress and officers whose positions it is within the
power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the
operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar
with and informed on executive operations.
As discussed in Arnault, the power of inquiry, "with
process to enforce it," is grounded on the necessity of
information in the legislative process. If the
information possessed by executive officials on the
operation of their offices is necessary for wise
legislation on that subject, by parity of reasoning,
Congress has the right to that information and the
power to compel the disclosure thereof.
As evidenced by the American experience during the
so-called "McCarthy era," however, the right of
Congress to conduct inquiries in aid of legislation is,
in theory, no less susceptible to abuse than executive
or judicial power. It may thus be subjected to judicial
review pursuant to the Court’s certiorari powers under
Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon
Committee,61 the inquiry itself might not properly be in
aid of legislation, and thus beyond the constitutional
power of Congress. Such inquiry could not usurp
judicial functions. Parenthetically, one possible way
for Congress to avoid such a result as occurred in
Bengzon is to indicate in its invitations to the public
officials concerned, or to any person for that matter,
the possible needed statute which prompted the need
for the inquiry. Given such statement in its invitations,
along with the usual indication of the subject of inquiry
and the questions relative to and in furtherance
thereof, there would be less room for speculation on
the part of the person invited on whether the inquiry is
in aid of legislation.
Section 21, Article VI likewise establishes crucial
safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be
done in accordance with the Senate or House’s duly
published rules of procedure, necessarily implying the
constitutional infirmity of an inquiry conducted without
duly published rules of procedure. Section 21 also
mandates that the rights of persons appearing in or
affected by such inquiries be respected, an imposition
that obligates Congress to adhere to the guarantees
in the Bill of Rights.
These abuses are, of course, remediable before the
courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present,
wherein a clear pattern of abuse of the legislative
power of inquiry might be established, resulting in
palpable violations of the rights guaranteed to
members of the executive department under the Bill
of Rights. In such instances, depending on the
particulars of each case, attempts by the Executive
Branch to forestall these abuses may be accorded
judicial sanction.
Even where the inquiry is in aid of legislation, there
are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of
"executive privilege." Since this term figures
prominently in the challenged order, it being
mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of
executive privilege is crucial for determining the
constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this
jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of
American origin, it is best understood in light of how it
has been defined and used in the legal literature of
the United States.
Schwartz defines executive privilege as "the power of
the Government to withhold information from the
public, the courts, and the Congress."64 Similarly,
Rozell defines it as "the right of the President and
high-level executive branch officers to withhold
information from Congress, the courts, and ultimately
the public."65
Executive privilege is, nonetheless, not a clear or
unitary concept. 66 It has encompassed claims of
varying kinds.67Tribe, in fact, comments that while it is
customary to employ the phrase "executive privilege,"
it may be more accurate to speak of executive
privileges "since presidential refusals to furnish
information may be actuated by any of at least three
distinct kinds of considerations, and may be asserted,
with differing degrees of success, in the context of
either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the
state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the
information is of such nature that its disclosure would
subvert crucial military or diplomatic objectives.
Another variety is the informer’s privilege, or the
privilege of the Government not to disclose the
identity of persons who furnish information of
violations of law to officers charged with the
enforcement of that law. Finally, a generic privilege for
internal deliberations has been said to attach to
intragovernmental documents reflecting advisory
opinions, recommendations and deliberations
comprising part of a process by which governmental
decisions and policies are formulated. 68
Tribe’s comment is supported by the ruling in In re
Sealed Case, thus:
Since the beginnings of our nation, executive officials
have claimed a variety of privileges to resist
disclosure of information the confidentiality of which
they felt was crucial to fulfillment of the unique role
and responsibilities of the executive branch of our
government. Courts ruled early that the executive had
a right to withhold documents that might reveal
military or state secrets. The courts have also granted
the executive a right to withhold the identity of
government informers in some circumstances and a
qualified right to withhold information related to
pending investigations. x x x"69 (Emphasis and
underscoring supplied)
The entry in Black’s Law Dictionary on "executive
privilege" is similarly instructive regarding the scope of
the doctrine.
This privilege, based on the constitutional doctrine of
separation of powers, exempts the executive from
disclosure requirements applicable to the ordinary
citizen or organization where such exemption is
necessary to the discharge of highly important
executive responsibilities involved in maintaining
governmental operations, and extends not only to
military and diplomatic secrets but also to documents
integral to an appropriate exercise of the executive’
domestic decisional and policy making functions, that
is, those documents reflecting the frank expression
necessary in intra-governmental advisory and
deliberative communications.70 (Emphasis and
underscoring supplied)
That a type of information is recognized as privileged
does not, however, necessarily mean that it would be
considered privileged in all instances. For in
determining the validity of a claim of privilege, the
question that must be asked is not only whether the
requested information falls within one of the traditional
privileges, but also whether that privilege should be
honored in a given procedural setting.71
The leading case on executive privilege in the United
States is U.S. v. Nixon, 72 decided in 1974. In issue in
that case was the validity of President Nixon’s claim
of executive privilege against a subpoena issued by a
district court requiring the production of certain tapes
and documents relating to the Watergate
investigations. The claim of privilege was based on
the President’s general interest in the confidentiality of
his conversations and correspondence. The U.S.
Court held that while there is no explicit reference to a
privilege of confidentiality in the U.S. Constitution, it is
constitutionally based to the extent that it relates to
the effective discharge of a President’s powers. The
Court, nonetheless, rejected the President’s claim of
privilege, ruling that the privilege must be balanced
against the public interest in the fair administration of
criminal justice. Notably, the Court was careful to
clarify that it was not there addressing the issue of
claims of privilege in a civil litigation or against
congressional demands for information.
Cases in the U.S. which involve claims of executive
privilege against Congress are rare.73 Despite
frequent assertion of the privilege to deny information
to Congress, beginning with President Washington’s
refusal to turn over treaty negotiation records to the
House of Representatives, the U.S. Supreme Court
has never adjudicated the issue.74 However, the U.S.
Court of Appeals for the District of Columbia Circuit, in
a case decided earlier in the same year as Nixon,
recognized the President’s privilege over his
conversations against a congressional
subpoena.75 Anticipating the balancing approach
adopted by the U.S. Supreme Court in Nixon, the
Court of Appeals weighed the public interest
protected by the claim of privilege against the interest
that would be served by disclosure to the Committee.
Ruling that the balance favored the President, the
Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege
was recognized by this Court in Almonte v.
Vasquez.77Almonte used the term in reference to the
same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains
the basis for the privilege:
"The expectation of a President to the confidentiality
of his conversations and correspondences, like the
claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord
deference for the privacy of all citizens and, added to
those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. A
President and those who assist him must be free to
explore alternatives in the process of shaping policies
and making decisions and to do so in a way many
would be unwilling to express except privately. These
are the considerations justifying a presumptive
privilege for Presidential communications. The
privilege is fundamental to the operation of
government and inextricably rooted in the separation
of powers under the Constitution x x x " (Emphasis
and underscoring supplied)
Almonte involved a subpoena duces tecum issued by
the Ombudsman against the therein petitioners. It did
not involve, as expressly stated in the decision, the
right of the people to information.78 Nonetheless, the
Court recognized that there are certain types of
information which the government may withhold from
the public, thus acknowledging, in substance if not in
name, that executive privilege may be claimed
against citizens’ demands for information.
In Chavez v. PCGG,79 the Court held that this
jurisdiction recognizes the common law holding that
there is a "governmental privilege against public
disclosure with respect to state secrets regarding
military, diplomatic and other national security
matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on
the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the
Court ruled that the right to information does not
extend to matters recognized as "privileged
information under the separation of powers," 82 by
which the Court meant Presidential conversations,
correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on
military and diplomatic secrets and those affecting
national security, and information on investigations of
crimes by law enforcement agencies before the
prosecution of the accused were exempted from the
right to information.
From the above discussion on the meaning and
scope of executive privilege, both in the United States
and in this jurisdiction, a clear principle emerges.
Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only
in relation to certain types of information of a sensitive
character. While executive privilege is a constitutional
concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the
context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from
the duty to disclose information by the mere fact of
being executive officials. Indeed, the extraordinary
character of the exemptions indicates that the
presumption inclines heavily against executive
secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require
the officials covered by them to secure the consent of
the President prior to appearing before Congress.
There are significant differences between the two
provisions, however, which constrain this Court to
discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It
does not, unlike Section 3, require a prior
determination by any official whether they are covered
by E.O. 464. The President herself has, through the
challenged order, made the determination that they
are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to
depend on the department heads’ possession of any
information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis-
à-vis Section 2, there is no reference to executive
privilege at all. Rather, the required prior consent
under Section 1 is grounded on Article VI, Section 22
of the Constitution on what has been referred to as
the question hour.
SECTION 22. The heads of departments may upon
their own initiative, with the consent of the President,
or upon the request of either House, as the rules of
each House shall provide, appear before and be
heard by such House on any matter pertaining to their
departments. Written questions shall be submitted to
the President of the Senate or the Speaker of the
House of Representatives at least three days before
their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters
related thereto. When the security of the State or the
public interest so requires and the President so states
in writing, the appearance shall be conducted in
executive session.
Determining the validity of Section 1 thus requires an
examination of the meaning of Section 22 of Article
VI. Section 22 which provides for the question hour
must be interpreted vis-à-vis Section 21 which
provides for the power of either House of Congress to
"conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the
Constitutional Commission shows, the framers were
aware that these two provisions involved distinct
functions of Congress.
MR. MAAMBONG. x x x When we amended Section
20 [now Section 22 on the Question Hour] yesterday,
I noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of
Representatives or before the Senate. I have a
particular problem in this regard, Madam President,
because in our experience in the Regular Batasang
Pambansa – as the Gentleman himself has
experienced in the interim Batasang Pambansa – one
of the most competent inputs that we can put in our
committee deliberations, either in aid of legislation or
in congressional investigations, is the testimonies of
Cabinet ministers. We usually invite them, but if they
do not come and it is a congressional investigation,
we usually issue subpoenas.
I want to be clarified on a statement made by
Commissioner Suarez when he said that the fact that
the Cabinet ministers may refuse to come to the
House of Representatives or the Senate [when
requested under Section 22] does not mean that they
need not come when they are invited or subpoenaed
by the committee of either House when it comes to
inquiries in aid of legislation or congressional
investigation. According to Commissioner Suarez,
that is allowed and their presence can be had under
Section 21. Does the gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President,
because Section 20 refers only to what was originally
the Question Hour, whereas, Section 21 would refer
specifically to inquiries in aid of legislation, under
which anybody for that matter, may be summoned
and if he refuses, he can be held in contempt of the
House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid
of legislation and the question hour. While attendance
was meant to be discretionary in the question hour, it
was compulsory in inquiries in aid of legislation. The
reference to Commissioner Suarez bears noting, he
being one of the proponents of the amendment to
make the appearance of department heads
discretionary in the question hour.
So clearly was this distinction conveyed to the
members of the Commission that the Committee on
Style, precisely in recognition of this distinction, later
moved the provision on question hour from its original
position as Section 20 in the original draft down to
Section 31, far from the provision on inquiries in aid of
legislation. This gave rise to the following exchange
during the deliberations:
MR. GUINGONA. [speaking in his capacity as
Chairman of the Committee on Style] We now go, Mr.
Presiding Officer, to the Article on Legislative and
may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his
reaction.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Davide is recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I
have only one reaction to the Question Hour. I
propose that instead of putting it as Section 31, it
should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the
committee say?
MR. GUINGONA. I ask Commissioner Maambong to
reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that
previously when we sequenced this but we reasoned
that in Section 21, which is Legislative Inquiry, it is
actually a power of Congress in terms of its own
lawmaking; whereas, a Question Hour is not actually
a power in terms of its own lawmaking power because
in Legislative Inquiry, it is in aid of legislation. And so
we put Question Hour as Section 31. I hope
Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related
with the legislative power, and it is precisely as a
complement to or a supplement of the Legislative
Inquiry. The appearance of the members of Cabinet
would be very, very essential not only in the
application of check and balance but also, in effect, in
aid of legislation.
MR. MAAMBONG. After conferring with the
committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are
accepting that and so this Section 31 would now
become Section 22. Would it be, Commissioner
Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring
supplied)
Consistent with their statements earlier in the
deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these
provisions pertained to two different functions of the
legislature. Both Commissioners understood that the
power to conduct inquiries in aid of legislation is
different from the power to conduct inquiries during
the question hour. Commissioner Davide’s only
concern was that the two provisions on these distinct
powers be placed closely together, they being
complementary to each other. Neither Commissioner
considered them as identical functions of Congress.
The foregoing opinion was not the two
Commissioners’ alone. From the above-quoted
exchange, Commissioner Maambong’s committee –
the Committee on Style – shared the view that the two
provisions reflected distinct functions of Congress.
Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the
Committee on the Legislative Department. His views
may thus be presumed as representing that of his
Committee.
In the context of a parliamentary system of
government, the "question hour" has a definite
meaning. It is a period of confrontation initiated by
Parliament to hold the Prime Minister and the other
ministers accountable for their acts and the operation
of the government,85 corresponding to what is known
in Britain as the question period. There was a specific
provision for a question hour in the 1973
Constitution86 which made the appearance of
ministers mandatory. The same perfectly conformed
to the parliamentary system established by that
Constitution, where the ministers are also members of
the legislature and are directly accountable to it.
An essential feature of the parliamentary system of
government is the immediate accountability of the
Prime Minister and the Cabinet to the National
Assembly. They shall be responsible to the National
Assembly for the program of government and shall
determine the guidelines of national policy. Unlike in
the presidential system where the tenure of office of
all elected officials cannot be terminated before their
term expired, the Prime Minister and the Cabinet
remain in office only as long as they enjoy the
confidence of the National Assembly. The moment
this confidence is lost the Prime Minister and the
Cabinet may be changed.87
The framers of the 1987 Constitution removed the
mandatory nature of such appearance during the
question hour in the present Constitution so as to
conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is
presently understood in this jurisdiction, departs from
the question period of the parliamentary system. That
department heads may not be required to appear in a
question hour does not, however, mean that the
legislature is rendered powerless to elicit information
from them in all circumstances. In fact, in light of the
absence of a mandatory question period, the need to
enforce Congress’ right to executive information in the
performance of its legislative function becomes more
imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell
us on the subject under discussion, it is that the
Congress has the right to obtain information from any
source – even from officials of departments and
agencies in the executive branch. In the United States
there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear
separation between the legislative and executive
branches. It is this very separation that makes the
congressional right to obtain information from the
executive so essential, if the functions of the
Congress as the elected representatives of the people
are adequately to be carried out. The absence of
close rapport between the legislative and executive
branches in this country, comparable to those which
exist under a parliamentary system, and the
nonexistence in the Congress of an institution such as
the British question period have perforce made
reliance by the Congress upon its right to obtain
information from the executive essential, if it is
intelligently to perform its legislative tasks. Unless the
Congress possesses the right to obtain executive
information, its power of oversight of administration in
a system such as ours becomes a power devoid of
most of its practical content, since it depends for its
effectiveness solely upon information parceled out ex
gratia by the executive.89 (Emphasis and
underscoring supplied)
Sections 21 and 22, therefore, while closely related
and complementary to each other, should not be
considered as pertaining to the same power of
Congress. One specifically relates to the power to
conduct inquiries in aid of legislation, the aim of which
is to elicit information that may be used for legislation,
while the other pertains to the power to conduct a
question hour, the objective of which is to obtain
information in pursuit of Congress’ oversight function.
When Congress merely seeks to be informed on how
department heads are implementing the statutes
which it has issued, its right to such information is not
as imperative as that of the President to whom, as
Chief Executive, such department heads must give a
report of their performance as a matter of duty. In
such instances, Section 22, in keeping with the
separation of powers, states that Congress may only
request their appearance. Nonetheless, when the
inquiry in which Congress requires their appearance
is "in aid of legislation" under Section 21, the
appearance is mandatory for the same reasons stated
in Arnault.90
In fine, the oversight function of Congress may be
facilitated by compulsory process only to the extent
that it is performed in pursuit of legislation. This is
consistent with the intent discerned from the
deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the
appearance of executive officials under Section 21
and the lack of it under Section 22 find their basis in
the principle of separation of powers. While the
executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress
to legislate by refusing to comply with its demands for
information.
When Congress exercises its power of inquiry, the
only way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not
exempt by the mere fact that they are department
heads. Only one executive official may be exempted
from this power — the President on whom executive
power is vested, hence, beyond the reach of
Congress except through the power of impeachment.
It is based on her being the highest official of the
executive branch, and the due respect accorded to a
co-equal branch of government which is sanctioned
by a long-standing custom.
By the same token, members of the Supreme Court
are also exempt from this power of inquiry. Unlike the
Presidency, judicial power is vested in a collegial
body; hence, each member thereof is exempt on the
basis not only of separation of powers but also on the
fiscal autonomy and the constitutional independence
of the judiciary. This point is not in dispute, as even
counsel for the Senate, Sen. Joker Arroyo, admitted it
during the oral argument upon interpellation of the
Chief Justice.
Having established the proper interpretation of
Section 22, Article VI of the Constitution, the Court
now proceeds to pass on the constitutionality of
Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section
22 of Article VI of the Constitution and the absence of
any reference to inquiries in aid of legislation, must be
construed as limited in its application to appearances
of department heads in the question hour
contemplated in the provision of said Section 22 of
Article VI. The reading is dictated by the basic rule of
construction that issuances must be interpreted, as
much as possible, in a way that will render it
constitutional.
The requirement then to secure presidential consent
under Section 1, limited as it is only to appearances in
the question hour, is valid on its face. For under
Section 22, Article VI of the Constitution, the
appearance of department heads in the question hour
is discretionary on their part.
Section 1 cannot, however, be applied to
appearances of department heads in inquiries in aid
of legislation. Congress is not bound in such
instances to respect the refusal of the department
head to appear in such inquiry, unless a valid claim of
privilege is subsequently made, either by the
President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials
enumerated in Section 2(b) to secure the consent of
the President prior to appearing before either house
of Congress. The enumeration is broad. It covers all
senior officials of executive departments, all officers of
the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices
designated in the same section (i.e. department
heads, Chief of Staff of the AFP, Chief of the PNP,
and the National Security Adviser), are "covered by
the executive privilege."
The enumeration also includes such other officers as
may be determined by the President. Given the title of
Section 2 — "Nature, Scope and Coverage of
Executive Privilege" —, it is evident that under the
rule of ejusdem generis, the determination by the
President under this provision is intended to be based
on a similar finding of coverage under executive
privilege.
En passant, the Court notes that Section 2(b) of E.O.
464 virtually states that executive privilege actually
covers persons. Such is a misuse of the doctrine.
Executive privilege, as discussed above, is properly
invoked in relation to specific categories of
information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals
with the nature, scope and coverage of executive
privilege, the reference to persons being "covered by
the executive privilege" may be read as an
abbreviated way of saying that the person is in
possession of information which is, in the judgment of
the head of office concerned, privileged as defined in
Section 2(a). The Court shall thus proceed on the
assumption that this is the intention of the challenged
order.
Upon a determination by the designated head of
office or by the President that an official is "covered
by the executive privilege," such official is subjected
to the requirement that he first secure the consent of
the President prior to appearing before Congress.
This requirement effectively bars the appearance of
the official concerned unless the same is permitted by
the President. The proviso allowing the President to
give its consent means nothing more than that the
President may reverse a prohibition which already
exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is
the determination by a head of office, authorized by
the President under E.O. 464, or by the President
herself, that such official is in possession of
information that is covered by executive privilege.
This determination then becomes the basis for the
official’s not showing up in the legislative
investigation.
In view thereof, whenever an official invokes E.O. 464
to justify his failure to be present, such invocation
must be construed as a declaration to Congress that
the President, or a head of office authorized by the
President, has determined that the requested
information is privileged, and that the President has
not reversed such determination. Such declaration,
however, even without mentioning the term "executive
privilege," amounts to an implied claim that the
information is being withheld by the executive branch,
by authority of the President, on the basis of
executive privilege. Verily, there is an implied claim of
privilege.
The letter dated September 28, 2005 of respondent
Executive Secretary Ermita to Senate President
Drilon illustrates the implied nature of the claim of
privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the
Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on
29 September 2005 at 10:00 a.m., please be informed
that officials of the Executive Department invited to
appear at the meeting will not be able to attend the
same without the consent of the President, pursuant
to Executive Order No. 464 (s. 2005), entitled
"Ensuring Observance Of The Principle Of Separation
Of Powers, Adherence To The Rule On Executive
Privilege And Respect For The Rights Of Public
Officials Appearing In Legislative Inquiries In Aid Of
Legislation Under The Constitution, And For Other
Purposes". Said officials have not secured the
required consent from the President. (Underscoring
supplied)
The letter does not explicitly invoke executive
privilege or that the matter on which these officials are
being requested to be resource persons falls under
the recognized grounds of the privilege to justify their
absence. Nor does it expressly state that in view of
the lack of consent from the President under E.O.
464, they cannot attend the hearing.
Significant premises in this letter, however, are left
unstated, deliberately or not. The letter assumes that
the invited officials are covered by E.O. 464. As
explained earlier, however, to be covered by the order
means that a determination has been made, by the
designated head of office or the President, that the
invited official possesses information that is covered
by executive privilege. Thus, although it is not stated
in the letter that such determination has been made,
the same must be deemed implied. Respecting the
statement that the invited officials have not secured
the consent of the President, it only means that the
President has not reversed the standing prohibition
against their appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to
the conclusion that the executive branch, either
through the President or the heads of offices
authorized under E.O. 464, has made a determination
that the information required by the Senate is
privileged, and that, at the time of writing, there has
been no contrary pronouncement from the President.
In fine, an implied claim of privilege has been made
by the executive.
While there is no Philippine case that directly
addresses the issue of whether executive privilege
may be invoked against Congress, it is gathered from
Chavez v. PEA that certain information in the
possession of the executive may validly be claimed as
privileged even against Congress. Thus, the case
holds:
There is no claim by PEA that the information
demanded by petitioner is privileged information
rooted in the separation of powers. The information
does not cover Presidential conversations,
correspondences, or discussions during closed-door
Cabinet meetings which, like internal-deliberations of
the Supreme Court and other collegiate courts, or
executive sessions of either house of Congress, are
recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas
and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect
the independence of decision-making of those tasked
to exercise Presidential, Legislative and Judicial
power. This is not the situation in the instant
case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed
outright as invalid by the mere fact that it sanctions
claims of executive privilege. This Court must look
further and assess the claim of privilege authorized by
the Order to determine whether it is valid.
While the validity of claims of privilege must be
assessed on a case to case basis, examining the
ground invoked therefor and the particular
circumstances surrounding it, there is, in an implied
claim of privilege, a defect that renders it invalid per
se. By its very nature, and as demonstrated by the
letter of respondent Executive Secretary quoted
above, the implied claim authorized by Section 3 of
E.O. 464 is not accompanied by any specific
allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc.). While
Section 2(a) enumerates the types of information that
are covered by the privilege under the challenged
order, Congress is left to speculate as to which
among them is being referred to by the executive. The
enumeration is not even intended to be
comprehensive, but a mere statement of what is
included in the phrase "confidential or classified
information between the President and the public
officers covered by this executive order."
Certainly, Congress has the right to know why the
executive considers the requested information
privileged. It does not suffice to merely declare that
the President, or an authorized head of office, has
determined that it is so, and that the President has not
overturned that determination. Such declaration
leaves Congress in the dark on how the requested
information could be classified as privileged. That the
message is couched in terms that, on first impression,
do not seem like a claim of privilege only makes it
more pernicious. It threatens to make Congress
doubly blind to the question of why the executive
branch is not providing it with the information that it
has requested.
A claim of privilege, being a claim of exemption from
an obligation to disclose information, must, therefore,
be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be
asserted by it; it can neither be claimed nor waived by
a private party. It is not to be lightly invoked. There
must be a formal claim of privilege, lodged by the
head of the department which has control over the
matter, after actual personal consideration by that
officer. The court itself must determine whether the
circumstances are appropriate for the claim of
privilege, and yet do so without forcing a disclosure of
the very thing the privilege is designed to
protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a
claim of executive privilege, there is no way of
determining whether it falls under one of the
traditional privileges, or whether, given the
circumstances in which it is made, it should be
respected.93 These, in substance, were the same
criteria in assessing the claim of privilege asserted
against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of
the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is
enlightening:
[T]he lack of specificity renders an assessment of the
potential harm resulting from disclosure impossible,
thereby preventing the Court from balancing such
harm against plaintiffs’ needs to determine whether to
override any claims of privilege.96 (Underscoring
supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not
called upon to perform this balancing operation. In
stating its objection to claimant’s interrogatories,
government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free
expression of opinion that non-disclosure is designed
to protect. The government has not shown – nor even
alleged – that those who evaluated claimant’s product
were involved in internal policymaking, generally, or in
this particular instance. Privilege cannot be set up by
an unsupported claim. The facts upon which the
privilege is based must be established. To find these
interrogatories objectionable, this Court would have to
assume that the evaluation and classification of
claimant’s products was a matter of internal policy
formulation, an assumption in which this Court is
unwilling to indulge sua sponte.98 (Emphasis and
underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly
emphasizes that "an agency must provide ‘precise
and certain’ reasons for preserving the confidentiality
of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege
requires a specific designation and description of the
documents within its scope as well as precise and
certain reasons for preserving their confidentiality.
Without this specificity, it is impossible for a court to
analyze the claim short of disclosure of the very thing
sought to be protected. As the affidavit now stands,
the Court has little more than its sua sponte
speculation with which to weigh the applicability of the
claim. An improperly asserted claim of privilege is no
claim of privilege. Therefore, despite the fact that a
claim was made by the proper executive as Reynolds
requires, the Court can not recognize the claim in the
instant case because it is legally insufficient to allow
the Court to make a just and reasonable
determination as to its applicability. To recognize such
a broad claim in which the Defendant has given no
precise or compelling reasons to shield these
documents from outside scrutiny, would make a farce
of the whole procedure.101 (Emphasis and
underscoring supplied)
Due respect for a co-equal branch of government,
moreover, demands no less than a claim of privilege
clearly stating the grounds therefor. Apropos is the
following ruling in McPhaul v. U.S:102
We think the Court’s decision in United States v.
Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant
to these questions. For it is as true here as it was
there, that ‘if (petitioner) had legitimate reasons for
failing to produce the records of the association, a
decent respect for the House of Representatives, by
whose authority the subpoenas issued, would have
required that (he) state (his) reasons for
noncompliance upon the return of the writ. Such a
statement would have given the Subcommittee an
opportunity to avoid the blocking of its inquiry by
taking other appropriate steps to obtain the records.
‘To deny the Committee the opportunity to consider
the objection or remedy is in itself a contempt of its
authority and an obstruction of its processes. His
failure to make any such statement was "a patent
evasion of the duty of one summoned to produce
papers before a congressional committee[, and]
cannot be condoned." (Emphasis and underscoring
supplied; citations omitted)
Upon the other hand, Congress must not require the
executive to state the reasons for the claim with such
particularity as to compel disclosure of the information
which the privilege is meant to protect.103 A useful
analogy in determining the requisite degree of
particularity would be the privilege against self-
incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely
because he declares that in so doing he would
incriminate himself – his say-so does not of itself
establish the hazard of incrimination. It is for the court
to say whether his silence is justified, and to require
him to answer if ‘it clearly appears to the court that he
is mistaken.’ However, if the witness, upon
interposing his claim, were required to prove the
hazard in the sense in which a claim is usually
required to be established in court, he would be
compelled to surrender the very protection which the
privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the implications
of the question, in the setting in which it is asked, that
a responsive answer to the question or an explanation
of why it cannot be answered might be dangerous
because injurious disclosure could result." x x x
(Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in
relation to Section 2(b) is thus invalid per se. It is not
asserted. It is merely implied. Instead of providing
precise and certain reasons for the claim, it merely
invokes E.O. 464, coupled with an announcement that
the President has not given her consent. It is woefully
insufficient for Congress to determine whether the
withholding of information is justified under the
circumstances of each case. It severely frustrates the
power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must
be invalidated.
No infirmity, however, can be imputed to Section 2(a)
as it merely provides guidelines, binding only on the
heads of office mentioned in Section 2(b), on what is
covered by executive privilege. It does not purport to
be conclusive on the other branches of government. It
may thus be construed as a mere expression of
opinion by the President regarding the nature and
scope of executive privilege.
Petitioners, however, assert as another ground for
invalidating the challenged order the alleged unlawful
delegation of authority to the heads of offices in
Section 2(b). Petitioner Senate of the Philippines, in
particular, cites the case of the United States where,
so it claims, only the President can assert executive
privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides
that, once the head of office determines that a certain
information is privileged, such determination is
presumed to bear the President’s authority and has
the effect of prohibiting the official from appearing
before Congress, subject only to the express
pronouncement of the President that it is allowing the
appearance of such official. These provisions thus
allow the President to authorize claims of privilege by
mere silence.
Such presumptive authorization, however, is contrary
to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with
respect to information the confidential nature of which
is crucial to the fulfillment of the unique role and
responsibilities of the executive branch,105 or in those
instances where exemption from disclosure is
necessary to the discharge of highly important
executive responsibilities.106 The doctrine of executive
privilege is thus premised on the fact that certain
informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The
privilege being, by definition, an exemption from the
obligation to disclose information, in this case to
Congress, the necessity must be of such high degree
as to outweigh the public interest in enforcing that
obligation in a particular case.
In light of this highly exceptional nature of the
privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may
of course authorize the Executive Secretary to invoke
the privilege on her behalf, in which case the
Executive Secretary must state that the authority is
"By order of the President," which means that he
personally consulted with her. The privilege being an
extraordinary power, it must be wielded only by the
highest official in the executive hierarchy. In other
words, the President may not authorize her
subordinates to exercise such power. There is even
less reason to uphold such authorization in the instant
case where the authorization is not explicit but by
mere silence. Section 3, in relation to Section 2(b), is
further invalid on this score.
It follows, therefore, that when an official is being
summoned by Congress on a matter which, in his
own judgment, might be covered by executive
privilege, he must be afforded reasonable time to
inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is
necessary in order to provide the President or the
Executive Secretary with fair opportunity to consider
whether the matter indeed calls for a claim of
executive privilege. If, after the lapse of that
reasonable time, neither the President nor the
Executive Secretary invokes the privilege, Congress
is no longer bound to respect the failure of the official
to appear before Congress and may then opt to avail
of the necessary legal means to compel his
appearance.
The Court notes that one of the expressed purposes
for requiring officials to secure the consent of the
President under Section 3 of E.O. 464 is to ensure
"respect for the rights of public officials appearing in
inquiries in aid of legislation." That such rights must
indeed be respected by Congress is an echo from
Article VI Section 21 of the Constitution mandating
that "[t]he rights of persons appearing in or affected
by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear
that it is essentially an authorization for implied claims
of executive privilege, for which reason it must be
invalidated. That such authorization is partly
motivated by the need to ensure respect for such
officials does not change the infirm nature of the
authorization itself.
Right to Information
E.O 464 is concerned only with the demands of
Congress for the appearance of executive officials in
the hearings conducted by it, and not with the
demands of citizens for information pursuant to their
right to information on matters of public concern.
Petitioners are not amiss in claiming, however, that
what is involved in the present controversy is not
merely the legislative power of inquiry, but the right of
the people to information.
There are, it bears noting, clear distinctions between
the right of Congress to information which underlies
the power of inquiry and the right of the people to
information on matters of public concern. For one, the
demand of a citizen for the production of documents
pursuant to his right to information does not have the
same obligatory force as a subpoena duces tecum
issued by Congress. Neither does the right to
information grant a citizen the power to exact
testimony from government officials. These powers
belong only to Congress and not to an individual
citizen.
Thus, while Congress is composed of representatives
elected by the people, it does not follow, except in a
highly qualified sense, that in every exercise of its
power of inquiry, the people are exercising their right
to information.
To the extent that investigations in aid of legislation
are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures
of information in such investigations necessarily
deprives the people of information which, being
presumed to be in aid of legislation, is presumed to be
a matter of public concern. The citizens are thereby
denied access to information which they can use in
formulating their own opinions on the matter before
Congress — opinions which they can then
communicate to their representatives and other
government officials through the various legal means
allowed by their freedom of expression. Thus holds
Valmonte v. Belmonte:
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. Yet, this open dialogue can be
effective only to the extent that the citizenry is
informed and thus able to formulate its will
intelligently. Only when the participants in the
discussion are aware of the issues and have access
to information relating thereto can such bear
fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to
information as a consequence of E.O. 464 is,
therefore, in the sense explained above, just as direct
as its violation of the legislature’s power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the
executive branch, it does not follow that the same is
exempt from the need for publication. On the need for
publishing even those statutes that do not directly
apply to people in general, Tañada v. Tuvera states:
The term "laws" should refer to all laws and not only
to those of general application, for strictly speaking all
laws relate to the people in general albeit there are
some that do not apply to them directly. An example
is a law granting citizenship to a particular individual,
like a relative of President Marcos who was decreed
instant naturalization. It surely cannot be said that
such a law does not affect the public although it
unquestionably does not apply directly to all the
people. The subject of such law is a matter of public
interest which any member of the body politic may
question in the political forums or, if he is a proper
party, even in courts of justice.108 (Emphasis and
underscoring supplied)
Although the above statement was made in reference
to statutes, logic dictates that the challenged order
must be covered by the publication requirement. As
explained above, E.O. 464 has a direct effect on the
right of the people to information on matters of public
concern. It is, therefore, a matter of public interest
which members of the body politic may question
before this Court. Due process thus requires that the
people should have been apprised of this issuance
before it was implemented.
Conclusion
Congress undoubtedly has a right to information from
the executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such
information on the ground that it is privileged, it must
so assert it and state the reason therefor and why it
must be respected.
The infirm provisions of E.O. 464, however, allow the
executive branch to evade congressional requests for
information without need of clearly asserting a right to
do so and/or proffering its reasons therefor. By the
mere expedient of invoking said provisions, the power
of Congress to conduct inquiries in aid of legislation is
frustrated. That is impermissible. For
[w]hat republican theory did accomplish…was to
reverse the old presumption in favor of secrecy,
based on the divine right of kings and nobles, and
replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty.
(Underscoring supplied)109
Resort to any means then by which officials of the
executive branch could refuse to divulge information
cannot be presumed valid. Otherwise, we shall not
have merely nullified the power of our legislature to
inquire into the operations of government, but we
shall have given up something of much greater value
– our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED.
Sections 2(b) and 3 of Executive Order No. 464
(series of 2005), "Ensuring Observance of the
Principle of Separation of Powers, Adherence to the
Rule on Executive
Privilege and Respect for the Rights of Public Officials
Appearing in Legislative Inquiries in Aid of Legislation
Under the Constitution, and For Other Purposes," are
declared VOID. Sections 1 and 2(a) are, however,
VALID.
SO ORDERED
Case No. 005
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the
likeness of God; He created them male and
female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed
planted by Bathala and she heard voices
coming from inside the bamboo. "Oh North
Wind! North Wind! Please let us out!," the
voices said. She pecked the reed once, then
twice. All of a sudden, the bamboo cracked
and slit open. Out came two human beings;
one was a male and the other was a female.
Amihan named the man "Malakas" (Strong)
and the woman "Maganda" (Beautiful). (The
Legend of Malakas and Maganda)
When is a man a man and when is a woman a
woman? In particular, does the law recognize the
changes made by a physician using scalpel, drugs
and counseling with regard to a person’s sex? May a
person successfully petition for a change of name and
sex appearing in the birth certificate to reflect the
result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto
Dantes Silverio filed a petition for the change of his
first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The petition,
docketed as SP Case No. 02-105207, impleaded the
civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in
the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962. His
name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth certificate).
His sex was registered as "male."
He further alleged that he is a male transsexual, that
is, "anatomically male but feels, thinks and acts as a
female" and that he had always identified himself with
girls since childhood.1 Feeling trapped in a man’s
body, he consulted several doctors in the United
States. He underwent psychological examination,
hormone treatment and breast augmentation. His
attempts to transform himself to a "woman"
culminated on January 27, 2001 when he underwent
sex reassignment surgery2 in Bangkok, Thailand. He
was thereafter examined by Dr. Marcelino Reysio-
Cruz, Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting
that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in
fact engaged to be married. He then sought to have
his name in his birth certificate changed from
"Rommel Jacinto" to "Mely," and his sex from "male"
to "female."
An order setting the case for initial hearing was
published in the People’s Journal Tonight, a
newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were
sent to the Office of the Solicitor General (OSG) and
the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional
requirements were established. No opposition to the
petition was made.
During trial, petitioner testified for himself. He also
presented Dr. Reysio-Cruz, Jr. and his American
fiancé, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a
decision4 in favor of petitioner. Its relevant portions
read:
Petitioner filed the present petition not to
evade any law or judgment or any infraction
thereof or for any unlawful motive but solely
for the purpose of making his birth records
compatible with his present sex.
The sole issue here is whether or not
petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that
granting the petition would be more in
consonance with the principles of justice and
equity. With his sexual [re-assignment],
petitioner, who has always felt, thought and
acted like a woman, now possesses the
physique of a female. Petitioner’s misfortune
to be trapped in a man’s body is not his own
 doing and should not be in any way taken
against him.
Likewise, the [c]ourt believes that no harm,
injury [or] prejudice will be caused to
anybody or the community in granting the
petition. On the contrary, granting the
petition would bring the much-awaited
happiness on the part of the petitioner and
her [fiancé] and the realization of their
dreams.
Finally, no evidence was presented to show
any cause or ground to deny the present
petition despite due notice and publication
thereof. Even the State, through the [OSG]
has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered
GRANTING the petition and ordering the
Civil Registrar of Manila to change the
entries appearing in the Certificate of Birth of
[p]etitioner, specifically for petitioner’s first
name from "Rommel Jacinto" to MELY and
petitioner’s gender from "Male"
to FEMALE. 5
On August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for certiorari
in the Court of Appeals.6 It alleged that there is no law
allowing the change of entries in the birth certificate
by reason of sex alteration.
On February 23, 2006, the Court of
Appeals7 rendered a decision8 in favor of the
Republic. It ruled that the trial court’s decision lacked
legal basis. There is no law allowing the change of
either name or sex in the certificate of birth on the
ground of sex reassignment through surgery. Thus,
the Court of Appeals granted the Republic’s petition,
set aside the decision of the trial court and ordered
the dismissal of SP Case No. 02-105207. Petitioner
moved for reconsideration but it was denied.9 Hence,
this petition.
Petitioner essentially claims that the change of his
name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and
108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the
Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the
ground for his petition for change of name and sex.
As found by the trial court:
Petitioner filed the present petition not to
evade any law or judgment or any infraction
thereof or for any unlawful motive but solely
for the purpose of making his birth
records compatible with his present sex.
(emphasis supplied)
Petitioner believes that after having acquired the
physical features of a female, he became entitled to
the civil registry changes sought. We disagree.
The State has an interest in the names borne by
individuals and entities for purposes of
identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by
statutes.13 In this connection, Article 376 of the Civil
Code provides:
ART. 376. No person can change his name
or surname without judicial authority.
This Civil Code provision was amended by RA 9048
(Clerical Error Law). In particular, Section 1 of RA
9048 provides:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First
Name or Nickname. – No entry in a civil
register shall be changed or corrected
without a judicial order, except for clerical or
typographical errors and change of first
name or nickname which can be corrected or
changed by the concerned city or municipal
civil registrar or consul general in
accordance with the provisions of this Act
and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It
vests the power and authority to entertain petitions for
change of first name to the city or municipal civil
registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of
first name is now primarily lodged with the
aforementioned administrative officers. The intent and
effect of the law is to exclude the change of first name
from the coverage of Rules 103 (Change of Name)
and 108 (Cancellation or Correction of Entries in the
Civil Registry) of the Rules of Court, until and unless
an administrative petition for change of name is first
filed and subsequently denied.15 It likewise lays down
the corresponding venue,16 form17 and procedure. In
sum, the remedy and the proceedings regulating
change of first name are primarily administrative in
nature, not judicial.
RA 9048 likewise provides the grounds for which
change of first name may be allowed:
 SECTION 4. Grounds for Change of First
Name or Nickname. – The petition for
change of first name or nickname may be
allowed in any of the following cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce;
(2) The new first name or nickname has
been habitually and continuously used by the
petitioner and he has been publicly known by
that first name or nickname in the
community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first
name was his sex reassignment. He intended to
make his first name compatible with the sex he
thought he transformed himself into through surgery.
However, a change of name does not alter one’s legal
capacity or civil status.18 RA 9048 does not sanction a
change of first name on the ground of sex
reassignment. Rather than avoiding confusion,
changing petitioner’s first name for his declared
purpose may only create grave complications in the
civil registry and the public interest.
Before a person can legally change his given name,
he must present proper or reasonable cause or any
compelling reason justifying such change.19 In
addition, he must show that he will be prejudiced by
the use of his true and official name.20 In this case, he
failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official
name.
In sum, the petition in the trial court in so far as it
prayed for the change of petitioner’s first name was
not within that court’s primary jurisdiction as the
petition should have been filed with the local civil
registrar concerned, assuming it could be legally
done. It was an improper remedy because the proper
remedy was administrative, that is, that provided
under RA 9048. It was also filed in the wrong venue
as the proper venue was in the Office of the Civil
Registrar of Manila where his birth certificate is kept.
More importantly, it had no merit since the use of his
true and official name does not prejudice him at all.
For all these reasons, the Court of Appeals correctly
dismissed petitioner’s petition in so far as the change
of his first name was concerned.
No Law Allows The Change of Entry In The Birth
Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a person’s sex appearing in his
birth certificate is a legal issue and the court must
look to the statutes.21 In this connection, Article 412 of
the Civil Code provides:
ART. 412. No entry in the civil register shall
be changed or corrected without a judicial
order.
Together with Article 376 of the Civil Code, this
provision was amended by RA 9048 in so far
as clerical or typographical errors are involved. The
correction or change of such matters can now be
made through administrative proceedings and without
the need for a judicial order. In effect, RA 9048
removed from the ambit of Rule 108 of the Rules of
Court the correction of such errors.22 Rule 108 now
applies only to substantial changes and corrections in
entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. – As used
in this Act, the following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error"
refers to a mistake committed in the
performance of clerical work in
writing, copying, transcribing or
typing an entry in the civil register
that is harmless and innocuous,
such as misspelled name or
misspelled place of birth or the like,
which is visible to the eyes or
obvious to the understanding, and
can be corrected or changed only
by reference to other existing
record or records: Provided,
however, That no correction must
involve the change of nationality,
age, status or sex of the petitioner.
(emphasis supplied)
Under RA 9048, a correction in the civil registry
involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the
Rules of Court.
The entries envisaged in Article 412 of the Civil Code
and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil
Code:24
 ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall
be recorded in the civil register.
ART. 408. The following shall be entered in
the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions;
(9) acknowledgments of natural children;
(10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15)
voluntary emancipation of a minor; and (16)
changes of name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that
occur after birth.25 However, no reasonable
interpretation of the provision can justify the
conclusion that it covers the correction on the ground
of sex reassignment.
To correct simply means "to make or set aright; to
remove the faults or error from" while to change
means "to replace something with something else of
the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner
contained no error. All entries therein, including those
corresponding to his first name and sex, were all
correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in
the civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and
naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such
as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil
interdiction, judicial determination of filiation and
changes of name). These acts, events and judicial
decrees produce legal consequences that touch upon
the legal capacity, status and nationality of a person.
Their effects are expressly sanctioned by the laws. In
contrast, sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it
recognized nor even mentioned by any law, expressly
or impliedly.
"Status" refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality
and his family membership.27
The status of a person in law includes all his
personal qualities and relations, more or
less permanent in nature, not ordinarily
terminable at his own will, such as his
being legitimate or illegitimate, or his being
married or not. The comprehensive
term status… include such matters as the
beginning and end of legal personality,
capacity to have rights in general, family
relations, and its various aspects, such as
birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even
succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and
family relations. It is a part of a person’s legal capacity
and civil status. In this connection, Article 413 of the
Civil Code provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed
by special laws.
But there is no such special law in the Philippines
governing sex reassignment and its effects. This is
fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register
Law) provides:
SEC. 5. Registration and certification of
births. – The declaration of the physician or
midwife in attendance at the birth or, in
default thereof, the declaration of either
parent of the newborn child, shall be
sufficient for the registration of a birth in the
civil register. Such declaration shall be
exempt from documentary stamp tax and
shall be sent to the local civil registrar not
later than thirty days after the birth, by the
physician or midwife in attendance at the
birth or by either parent of the newborn child.
In such declaration, the person above
mentioned shall certify to the following facts:
(a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship
and religion of parents or, in case the father
is not known, of the mother alone; (d) civil
status of parents; (e) place where the infant
was born; and (f) such other data as may be
required in the regulations to be issued.
Under the Civil Register Law, a birth certificate is a
historical record of the facts as they existed at the
time of birth.29Thus, the sex of a person is determined
at birth, visually done by the birth attendant (the
physician or midwife) by examining the genitals of the
infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a
person’s sex made at the time of his or her birth, if not
attended by error,30 is immutable.31
When words are not defined in a statute they are to
be given their common and ordinary meaning in the
absence of a contrary legislative intent. The words
"sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry
(and even all other laws) should therefore be
understood in their common and ordinary usage,
there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities
of structure and function that distinguish a male from
a female"32 or "the distinction between male and
female."33Female is "the sex that produces ova or
bears young"34 and male is "the sex that has organs
to produce spermatozoa for fertilizing ova."35 Thus,
the words "male" and "female" in everyday
understanding do not include persons who have
undergone sex reassignment. Furthermore, "words
that are employed in a statute which had at the time a
well-known meaning are presumed to have been
used in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil
Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the term
"sex" as used then is something alterable through
surgery or something that allows a post-operative
male-to-female transsexual to be included in the
category "female."
For these reasons, while petitioner may have
succeeded in altering his body and appearance
through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil
registry for that reason. Thus, there is no legal basis
for his petition for the correction or change of the
entries in his birth certificate.
Neither May Entries in the Birth Certificate As to
First Name or Sex Be Changed on the Ground of
Equity
The trial court opined that its grant of the petition was
in consonance with the principles of justice and
equity. It believed that allowing the petition would
cause no harm, injury or prejudice to anyone. This is
wrong.
The changes sought by petitioner will have serious
and wide-ranging legal and public policy
consequences. First, even the trial court itself found
that the petition was but petitioner’s first step towards
his eventual marriage to his male fiancé. However,
marriage, one of the most sacred social institutions, is
a special contract of permanent union between a man
and a woman.37 One of its essential requisites is
the legal capacity of the contracting parties who must
be a male and a female.38 To grant the changes
sought by petitioner will substantially reconfigure and
greatly alter the laws on marriage and family relations.
It will allow the union of a man with another man who
has undergone sex reassignment (a male-to-female
post-operative transsexual). Second, there are
various laws which apply particularly to women such
as the provisions of the Labor Code on employment
of women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of
Court,41 among others. These laws underscore the
public policy in relation to women which could be
substantially affected if petitioner’s petition were to be
granted.
It is true that Article 9 of the Civil Code mandates that
"[n]o judge or court shall decline to render judgment
by reason of the silence, obscurity or insufficiency of
the law." However, it is not a license for courts to
engage in judicial legislation. The duty of the courts is
to apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature,
should it choose to do so, to determine what
guidelines should govern the recognition of the effects
of sex reassignment. The need for legislative
guidelines becomes particularly important in this case
where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions
for change of first name and for correction or change
of entries in the civil registry, where they may be filed,
what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If
the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change
his name and sex to conform with his reassigned sex,
it has to enact legislation laying down the guidelines
in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write
a protocol on when a person may be recognized as
having successfully changed his sex. However, this
Court has no authority to fashion a law on that matter,
or on anything else. The Court cannot enact a law
where no law exists. It can only apply or interpret the
written word of its co-equal branch of government,
Congress.
Petitioner pleads that "[t]he unfortunates are also
entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that.
The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the
commonly recognized parameters of social
convention and that, at least for them, life is indeed an
ordeal. However, the remedies petitioner seeks
involve questions of public policy to be addressed
solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED. Costs
against petitioner.
SO ORDERED.
Case No. 006
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. P-08-2535 June 23, 2010
(Formerly A.M. OCA IPI No. 04- 2022-P and A.M.
No. 04-434-RTC)
OFFICE OF THE COURT
ADMINISTRATOR, Complainant,
vs.
FLORENCIO M. REYES,1 Officer-in-Charge, and
RENE DE GUZMAN, Clerk, Regional Trial Court,
Branch 31, Guimba, Nueva Ecija, Respondents.
DECISION
Per curiam:*
This complaint for gross misconduct against Rene de
Guzman (De Guzman), Clerk, Regional Trial Court
(RTC) of Guimba, Nueva Ecija, Branch 31, is an
offshoot of the complaint filed by Atty. Hugo B.
Sansano, Jr. (Atty. Sansano) relative to the alleged
incompetence/inefficiency of the RTC of Guimba,
Nueva Ecija, Branch 31, in the transmittal of the
records of Criminal Case No. 1144-G2 to the Court of
Appeals.
In our Resolution dated September 17, 2007, we
adopted the findings and recommendation of the
Office of the Court Administrator (OCA) declaring as
closed and terminated the administrative matter
relative to the delay in the transmittal of the records of
Criminal Case No. 1144-G, and exonerating De
Guzman and Florencio M. Reyes (Reyes), the Officer-
in-Charge of the RTC of Guimba, Nueva Ecija,
Branch 31.
However, in the same Resolution, we also required
De Guzman to comment on the allegation that he is
using illegal drugs and had been manifesting irrational
and queer behavior while at work. According to
Reyes, De Guzman’s manifestations of absurd
behavior prompted Judge Napoleon R. Sta. Romana
(Judge Sta. Romana) to request the Philippine
National Police Crime Laboratory to perform a drug
test on De Guzman. As alleged by Reyes:
x x x Mr. Rene de Guzman, the Docket Clerk, was [in]
charge of the preparation and transmission of the
records on appeal x x x. Nonetheless, x x x Judge
Sta. Romana would x x x often x x x [remind him]
about the transmittal of records of the appealed cases
[for more than] a dozen times, even personally
confronting Mr. Rene de Guzman about the matter, x
x x though unsuccessfully x x x. Mr. De Guzman
would just x x x dismiss the subject in ridicule and
with the empty assurance that the task is as good as
finished and what x x x need[s] to be done [is] simply
retyping of the corrected indices or the like and that
he would submit the same in [no] time at all. This was
after a number of weeks from March 26, 2003 after
Mr. De Guzman made the undersigned sign the
transmittal of PP v. Manangan which he allegedly did
not transmit before owing to some minor corrections
in the indexing. All too often, (it seems to have been
customary on his part, for this he would do to other
pressing assignment) he would come to the office the
next day, jubilant that the problem has been solved at
last! But to no avail. This attitude seemingly bordering
on the irrational if not to say that a sense of
responsibility is utterly lacking may have given cue for
Judge Sta. Romana to have Mr. De Guzman undergo
a drug test x x x.3
That Mr. De Guzman could brush aside even the
personal importuning by the judge is a fete no other of
our co-employees dare emulate. On the contrary,
everybody is apprehensive for his well being and in
his behalf. x x x
On May 24, 2004, Judge Sta. Romana requested the
Nueva Ecija Provincial Crime Laboratory Office to
conduct a drug test on De Guzman. On May 26,
2004, De Guzman underwent a qualitative
examination the results of which yielded positive for
Tetrahydrocannabinol metabolites (marijuana) and
Methamphetamine (shabu), both dangerous drugs.
In our Resolution of September 17, 2007, we required
De Guzman to submit his comment on the charge of
misconduct relative to the alleged use of prohibited
drugs within 10 days from notice. Notwithstanding the
Court’s directive, De Guzman failed to file his
Comment. Thus, on January 23, 2008, we directed
De Guzman to show cause why he should not be held
in contempt for failure to comply with the September
17, 2007 Resolution. At the same time, we resolved to
require him to submit his comment within 10 days
from notice.
De Guzman complied with our directive only on March
12, 2008. In his letter, De Guzman claimed that he
failed to comply with the Court’s directive because he
lost his copy of the September 17, 2007 Resolution.
Treating De Guzman’s letter as his Comment, we
referred the same to the OCA for evaluation, report
and recommendation. The OCA submitted its Report
and Recommendation on July 23, 2008 which reads
in part:
xxxx
Noticeably, respondent de Guzman did not challenge
the authenticity and validity of the chemistry report of
the Nueva Ecija Provincial Crime Laboratory Office
which found him positive for "marijuana" and "shabu".
He did not also promptly submit another test report or
other document to controvert the drug test report. His
plain refutation of the charge and his willingness to
submit himself now to a drug test are token attempts
at candor and assertion of innocence. These
perfunctory attempts cannot prevail over the solitary
yet compelling evidence of misconduct for use of
prohibited drugs.
Relative to respondent’s delay in filing his comment to
the charge of misconduct, his claim that he "lost and
misplaced (his) copy of said resolution, and for that
(he) almost forgot about it" is neither a valid reason
nor an excuse for the delay in complying with the
order of the Court. His flippant attitude towards the
repeated orders of the Court to explain his conduct
does not merit consideration and justification for
delay.
It is settled that respondent’s "indifference to [the
resolutions] requiring him to comment on the
accusation(s) in the complaint thoroughly and
substantially is gross misconduct, and may even be
considered as outright disrespect to the Court." After
all, a resolution of the Supreme Court is not a mere
request and should be complied with promptly and
completely. Such failure to comply accordingly
betrays not only a recalcitrant streak in character, but
has likewise been considered as an utter lack of
interest to remain with, if not contempt of the judicial
system.
It should be mentioned that this is not the first
instance that respondent is ordered to account for his
failure to comply with a court order. Earlier, he was
required to explain to the Court his failure to promptly
submit a copy of the affidavit of retired court
stenographer Jorge Caoile and to show cause why he
should not be administratively dealt with for his failure
to comply with a show cause order.
For failure to overcome the charge of use of
prohibited drugs and to satisfactorily explain his
failure to submit promptly his compliance to the
Court’s show cause order, respondent may be held
guilty of two counts of gross misconduct.
The OCA thus submitted the following
recommendations for consideration of the Court viz:
1. The instant matter be RE-DOCKETED as
a regular administrative case; and
2. Respondent Rene de Guzman be found
guilty of gross misconduct and accordingly
be DISMISSED from the service effective
immediately with forfeiture of all benefits
except accrued leave credits, with prejudice
to his re-employment in any branch or
instrumentality of the government, including
government-owned or controlled agencies,
corporations and financial institutions.4
On August 27, 2008, we required De Guzman to
manifest within 10 days from receipt whether he is
willing to submit the case for resolution on the basis of
the pleadings/records already filed and submitted. As
before, De Guzman simply ignored our directive.
Consequently, on September 28, 2009, we deemed
waived the filing of De Guzman’s manifestation.
Our Ruling
We adopt the findings and recommendation of the
OCA.
We note that De Guzman is adept at ignoring the
Court’s directives. In his letter-explanation in the
administrative matter relative to the delay in the
transmittal of the records of Criminal Case No. 1144-
G, he requested for a period of 10 days or until
November 15, 2004 within which to submit the
Affidavit of George Caoile (Caoile), the retired
Stenographer, as part of his comment. However,
despite the lapse of five months, De Guzman still
failed to submit Caoile’s affidavit. Subsequently, we
furnished him with a copy of the April 18, 2005
Resolution wherein we mentioned that we are
awaiting his submission of the affidavit of Caoile
which shall be considered as part of his (De
Guzman’s) comment.
Nine months from the time he undertook to submit the
affidavit of Caoile, De Guzman has yet to comply with
his undertaking. Thus, on August 10, 2005, we
required De Guzman to show cause why he should
not be disciplinarily dealt with or held in contempt for
such failure.
Unfortunately, De Guzman merely ignored our show
cause order. Consequently, on November 20, 2006,
we imposed upon him a fine of ₱1,000.00. Finally, on
January 24, 2007, or after the lapse of one year and
two months, De Guzman submitted the affidavit of
Caoile.
Similarly, we also required De Guzman to file his
comment within 10 days from notice as regards the
allegation that he was using prohibited drugs.
However, he again ignored our directive as contained
in the Resolution of September 17, 2007. Thus, on
January 23, 2008, we required him to show cause
why he should not be held in contempt for such
failure. By way of explanation, De Guzman submitted
a letter dated March 12, 2008 wherein he claimed that
he failed to file his comment on the charge of
miscondouct because he allegedly lost his copy of the
said September 17, 2007 Resolution.
Finally, on August 27, 2008, we required De Guzman
to manifest whether he is willing to submit the case for
resolution based on the pleadings submitted. As
before, he failed to comply with the same.
As correctly observed by the OCA, De Guzman has
shown his propensity to defy the directives of this
Court.5However, at this juncture, we are no longer
wont to countenance such disrespectful behavior. As
we have categorically declared in Office of the Court
Administrator v. Clerk of Court Fe P. Ganzan, MCTC,
Jasaan, Claveria, Misamis Oriental:6
x x x A resolution of the Supreme Court should not be
construed as a mere request, and should be complied
with promptly and completely. Such failure to comply
betrays, not only a recalcitrant streak in character, but
also disrespect for the lawful order and directive of the
Court. Furthermore, this contumacious conduct of
refusing to abide by the lawful directives issued by the
Court has likewise been considered as an utter lack of
interest to remain with, if not contempt of, the system.
Ganzan’s transgression is highlighted even more by
the fact that she is an employee of the Judiciary, who,
more than an ordinary citizen, should be aware of her
duty to obey the orders and processes of the
Supreme Court without delay. x x x
Anent the use of illegal drugs, we have upheld
in Social Justice Society (SJS) v. Dangerous Drugs
Board7 the validity and constitutionality of the
mandatory but random drug testing of officers and
employees of both public and private offices. As
regards public officers and employees, we specifically
held that:
Like their counterparts in the private sector,
government officials and employees also labor under
reasonable supervision and restrictions imposed by
the Civil Service law and other laws on public officers,
all enacted to promote a high standard of ethics in the
public service. And if RA 9165 passes the norm of
reasonableness for private employees, the more
reason that it should pass the test for civil servants,
who, by constitutional demand, are required to be
accountable at all times to the people and to serve
them with utmost responsibility and efficiency.8
Parenthetically, in A.M. No. 06-1-01-SC9 dated
January 17, 2006, the Court has
adopted guidelines for a program to deter the use of
dangerous drugs and institute preventive measures
against drug abuse for the purpose of eliminating the
hazards of drug abuse in the Judiciary, particularly in
the first and second level courts. The objectives of the
said program are as follows:
1. To detect the use of dangerous drugs
among lower court employees, impose
disciplinary sanctions, and provide
administrative remedies in cases where an
employee is found positive for dangerous
drug use.
2. To discourage the use and abuse of
dangerous drugs among first and second
level court employees and enhance
awareness of their adverse effects by
information dissemination and periodic
random drug testing.
3. To institute other measures that address
the menace of drug abuse within the
personnel of the Judiciary.
In the instant administrative matter, De Guzman never
challenged the authenticity of the Chemistry Report of
the Nueva Ecija Provincial Crime Laboratory Office.
Likewise, the finding that De Guzman was found
positive for use of marijuana and shabu remains
unrebutted. De Guzman’s general denial that he is not
a drug user cannot prevail over this compelling
evidence.
The foregoing constitutes more than substantial
evidence that De Guzman was indeed found positive
for use of dangerous drugs. In Dadulo v. Court of
Appeals,10 we held that "(a)dministrative proceedings
are governed by the ‘substantial evidence rule.’
Otherwise stated, a finding of guilt in an administrative
case would have to be sustained for as long as it is
supported by substantial evidence that the
respondent has committed acts stated in the
complaint. Substantial evidence is more than a mere
scintilla of evidence. It means such relevant evidence
as a reasonable mind might accept as adequate to
support a conclusion, even if other minds equally
reasonable might conceivably opine otherwise." 11
This Court is a temple of justice. Its basic duty and
responsibility is the dispensation of justice. As
dispensers of justice, all members and employees of
the Judiciary are expected to adhere strictly to the
laws of the land, one of which is Republic Act No.
916512 which prohibits the use of dangerous drugs.13
The Court has adhered to the policy of safeguarding
the welfare, efficiency, and well-being not only of all
the court personnel, but also that of the general public
whom it serves. The Court will not allow its front-line
representatives, like De Guzman, to put at risk the
integrity of the whole judiciary. As we held in Baron v.
Anacan,14 "(t)he image of a court of justice is mirrored
in the conduct, official and otherwise, of the personnel
who work thereat. Thus, the conduct of a person
serving the judiciary must, at all times, be
characterized by propriety and decorum and above all
else, be above suspicion so as to earn and keep the
respect of the public for the judiciary. The Court would
never countenance any conduct, act or omission on
the part of all those in the administration of justice,
which will violate the norm of public accountability and
diminish or even just tend to diminish the faith of the
people in the judiciary."
Article XI of the Constitution mandates that:
SECTION 1. Public office is a public trust. Public
officers and employees must at all times be
accountable to the people and serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives.
De Guzman’s use of prohibited drugs has greatly
affected his efficiency in the performance of his
functions. De Guzman did not refute the observation
of his superior, Judge Sta. Romana, that as a criminal
docket court clerk, he (De Guzman) was totally inept
and incompetent. Hence, to get across his
displeasure and dissatisfaction with his job
performance, Judge Sta. Romana gave De Guzman
an unsatisfactory rating.
Moreover, De Guzman’s efficiency as a custodian of
court records is also totally wanting. As early as May
12, 2004, Judge Sta. Romana issued a Memorandum
addressed to De Guzman relative to the "sleeping
cases" inside the latter’s drawer. It would appear that
several cases have not been proceeded upon
because De Guzman hid the records of the same
inside his drawer. The text of the said Memorandum
reads:
An examination of the records found in your drawer
reveal that the following cases have not moved
because you have not brought the same to the
attention of the Presiding Judge, to wit:
1. Crim. Case No. 1849-C, PP v. Ruben
Villanueva – Order of transmittal to the Office
of the Provincial Prosecutor of Nueva Ecija
dated August 6, 2003 to resolve the Motion
for Reconsideration.
Resolution of the Provincial Prosecutor
dated September 23, 2003 denying the
Motion for Reconsideration and transmitting
the records to the RTC, Br. 31, Guimba,
Nueva Ecija received by this court on
September 24, 2003;
2. Crim. Case No. 1993-G, PP vs. JOJO
SUPNET – Information dated October 14,
2002 received by this Court on November
18, 2002;
3. Crim. Case No. 2013-G, PP vs. Brgy.
Capt. BAYANI CAMIS – Information dated
September 23, 2002 received by this court
on January 24, 2003;
4. Crim. Case No. 2007-G, PP vs. Armando
Marcos – Information dated June 23, 2002;
Records received on January 2, 2003.
The Presiding Judge caused the issuance of finding
of probable causes and the corresponding Warrants
of Arrest. You are hereby ordered to assist the
OIC/Clerk of Court in sending forthwith the Warrants
of Arrest to the proper agencies for implementation.
In the same vein, Reyes also put forth the absurd
behavioral manifestations of De Guzman. According
to Reyes, Judge Sta. Romana would always remind
De Guzman to prepare and transmit the complete
records of the appealed cases. However, De Guzman
would only make empty assurances to perform his
task. Notwithstanding the reminders of his superiors,
De Guzman would still fail to transmit the records.
Instead, he would report the next day and jubilantly
declare that the problem has been solved at last.
In fine, we agree with the OCA that by his repeated
and contumacious conduct of disrespecting the
Court’s directives, De Guzman is guilty of gross
misconduct and has already forfeited his privilege of
being an employee of the Court. Likewise, we can no
longer countenance his manifestations of queer
behavior, bordering on absurd, irrational and
irresponsible, because it has greatly affected his job
performance and efficiency. By using prohibited
drugs, and being a front-line representative of the
Judiciary, De Guzman has exposed to risk the very
institution which he serves. It is only by weeding out
the likes of De Guzman from the ranks that we would
be able to preserve the integrity of this institution.
Two justices disagree with the majority opinion. They
opine that the Court’s action in this case contravenes
an express public policy, i.e., "imprisonment for drug
dealers and pushers, rehabilitation for their victims."
They also posit that De Guzman’s failure to properly
perform his duties and promptly respond to Court
orders precisely springs from his drug addiction that
requires rehabilitation. Finally, they state that the
Court’s real strength is not in its righteousness but in
its willingness to understand that men are not perfect
and that there is a time to punish and a time to give a
chance for contrition and change.
However, the legislative policy as embodied in
Republic Act No. 9165 in deterring dangerous drug
use by resort to sustainable programs of rehabilitation
and treatment must be considered in light of this
Court’s constitutional power of administrative
supervision over courts and court personnel. The
legislative power imposing policies through laws is not
unlimited and is subject to the substantive and
constitutional limitations that set parameters both in
the exercise of the power itself and the allowable
subjects of legislation.15 As such, it cannot limit the
Court’s power to impose disciplinary actions against
erring justices, judges and court personnel. Neither
should such policy be used to restrict the Court’s
power to preserve and maintain the Judiciary’s honor,
dignity and integrity and public confidence that can
only be achieved by imposing strict and rigid
standards of decency and propriety governing the
conduct of justices, judges and court employees.

Likewise, we cannot subscribe to the idea that De

Guzman’s irrational behavior stems solely from his
being a drug user. Such queer behavior can be
attributed to several factors. However, it cannot by
any measure be categorically stated at this point that
it can be attributed solely to his being a drug user.

Finally, it must be emphasized at this juncture that De

Guzman’s dismissal is not grounded only on his being
a drug user. His outright dismissal from the service is
likewise anchored on his contumacious and repeated
acts of not heeding the directives of this Court. As we
have already stated, such attitude betrays not only a
recalcitrant streak of character, but also disrespect for
the lawful orders and directives of the Court.

ACCORDINGLY, Rene de Guzman, Clerk, Regional

Trial Court of Guimba, Nueva Ecija, Branch 31, is
hereby DISMISSED from the service with forfeiture of
all retirement benefits, except accrued leave credits,
and disqualification from reinstatement or
appointment to any public office, including
government-owned or controlled corporations.

SO ORDERED.
Case No. 007
Republic of the Philippines
SUPREME COURT
Manila
SPECIAL THIRD DIVISION
G.R. No. 183891 October 19, 2011
ROMARICO J. MENDOZA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
R E SO L U T I O N
BRION, J.:
We resolve the motion for reconsideration filed by
petitioner Romarico J. Mendoza seeking the reversal
of our Decision dated August 3, 2010.
The Decision affirmed the petitioner’s conviction for
his failure to remit the Social Security Service (SSS)
contributions of his employees. The petitioner anchors
the present motion on his supposed inclusion within
the coverage of Republic Act (RA) No. 9903 or the
Social Security Condonation Law of 2009, whose
passage the petitioner claims to be a supervening
event in his case. He further invokes the equal
protection clause in support of his motion.
In our Decision dated August 3, 2010,
we AFFIRMED, with modification, the decree of
conviction issued by both the trial and appellate
courts for the petitioner’s violation of Section 22(a)
and (d), in relation to Section 28 of RA No. 8282 or
the Social Security Act of 1997. To recall its
highlights, our Decision emphasized that the
petitioner readily admitted during trial that he did not
remit the SSS premium contributions of his
employees at Summa Alta Tierra Industries, Inc. from
August 1998 to July 1999, in the amount of
₱239,756.80; inclusive of penalties, this unremitted
amount totaled to ₱421,151.09. The petitioner’s
explanation for his failure to remit, which the trial court
disbelieved, was that during this period, Summa Alta
Tierra Industries, Inc. shut down as a result of the
general decline in the economy. The petitioner
pleaded good faith and lack of criminal intent as his
defenses.
We ruled that the decree of conviction was founded
on proof beyond reasonable doubt, based on the
following considerations: first, the remittance of
employee contributions to the SSS is mandatory
under RA No. 8282; and second, the failure to comply
with a special law being malum prohibitum, the
defenses of good faith and lack of criminal intent are
immaterial.
The petitioner further argued that since he was
designated in the Information as a "proprietor," he
was without criminal liability since "proprietors" are not
among the corporate officers specifically enumerated
in Section 28(f) of RA No. 8282 to be criminally liable
for the violation of its provisions. We rejected this
argument based on our ruling in Garcia v. Social
Security Commission Legal and Collection.1 We ruled
that to sustain the petitioner’s argument would be to
allow the unscrupulous to conveniently escape liability
merely through the creative use of managerial titles.
After taking into account the Indeterminate Penalty
Law and Article 315 of the Revised Penal Code,
we MODIFIEDthe penalty originally imposed by the
trial court2 and, instead, decreed the penalty of four
(4) years and two (2) months of prision correccional,
as minimum, to twenty (20) years of reclusion
temporal, as maximum.
In the present motion for reconsideration, the
petitioner points out that pending his appeal with the
Court of Appeals (CA), he voluntarily paid the SSS
the amount of ₱239,756.80 to settle his
delinquency.3 Note that the petitioner also gave notice
of this payment to the CA via a Motion for
Reconsideration and a Motion for New Trial. Although
the People did not contest the fact of voluntary
payment, the CA nevertheless denied the said
motions.
The present motion for reconsideration rests on the
following points:
First. On January 7, 2010, during the
pendency of the petitioner’s case before the
Court, then President Gloria Macapagal-
Arroyo signed RA No. 9903 into law. RA No.
9903 mandates the effective withdrawal
of all pending cases against employers who
would remit their delinquent contributions to
the SSS within a specified period, viz., within
six months after the law’s effectivity.4 The
petitioner claims that in view of RA No. 9903
and its implementing rules, the settlement of
his delinquent contributions in 2007 entitles
him to an acquittal. He invokes the equal
protection clause in support of his plea.
Second. The petitioner alternatively prays
that should the Court find his above
argument wanting, he should still be
acquitted since the prosecution failed to
prove all the elements of the crime charged.
Third. The petitioner prays that a fine be
imposed, not imprisonment, should he be
found guilty.
The Solicitor General filed a Manifestation In Lieu of
Comment and claims that the passage of RA No.
9903 constituted a supervening event in the
petitioner’s case that supports the petitioner’s
acquittal "[a]fter a conscientious review of the case."5
THE COURT’S RULING
The petitioner’s arguments supporting his prayer for
acquittal fail to convince us. However, we find basis to
allow waiver of the petitioner’s liability for accrued
penalties.
The petitioner’s liability for the crime is a settled
matter
Upfront, we reject the petitioner’s claim that the
prosecution failed to prove all the elements of the
crime charged. This is a matter that has been
resolved in our Decision, and the petitioner did not
raise anything substantial to merit the reversal of our
finding of guilt. To reiterate, the petitioner’s conviction
was based on his admission that he failed to remit his
employees’ contribution to the SSS.
The petitioner cannot benefit from the terms of RA
No. 9903, which condone only employers who pay
their delinquencies within six months from the law’s
effectivity
We note that the petitioner does not ask for the
reversal of his conviction based on the authority of RA
No. 9903; he avoids making a straightforward claim
because this law plainly does not apply to him or to
others in the same situation. The clear intent of the
law is to grant condonation only to employers with
delinquent contributions or pending cases for their
delinquencies and who pay their delinquencies within
the six (6)-month period set by the law. Mere payment
of unpaid contributions does not suffice; it is payment
within, and only within, the six (6)-month availment
period that triggers the applicability of RA No. 9903.
True, the petitioner’s case was pending with us when
RA No. 9903 was passed. Unfortunately for him, he
paid his delinquent SSS contributions in 2007. By
paying outside of the availment period, the petitioner
effectively placed himself outside the benevolent
sphere of RA No. 9903. This is how the law is written:
it condones employers — and only those employers
— with unpaid SSS contributions or with pending
cases who pay within the six (6)-month period
following the law’s date of effectivity. Dura lex, sed
lex.
The petitioner’s awareness that RA No. 9903
operates as discussed above is apparent in his plea
for equal protection. In his motion, he states that
[he] is entitled under the equal protection clause to
the dismissal of the case against him since he had
already paid the subject delinquent contributions due
to the SSS which accepted the payment as borne by
the official receipt it issued (please see Annex "A").
The equal protection clause requires that similar
subjects, [sic] should not be treated differently, so as
to give undue favor to some and unjustly discriminate
against others. The petitioner is no more no less in
the same situation as the employer who would enjoy
freedom from criminal prosecution upon payment in
full of the delinquent contributions due and payable to
the SSS within six months from the effectivity of
Republic Act No. 9903.6
The Court cannot amplify the scope of RA No. 9903
on the ground of equal protection, and acquit the
petitioner and other delinquent employers like him; it
would in essence be an amendment of RA No. 9903,
an act of judicial legislation abjured by the trias
politica principle.7
RA No. 9903 creates two classifications of employers
delinquent in remitting the SSS contributions of their
employees: (1) those delinquent employers who
pay within the six (6)-month period (the former group),
and (2) those delinquent employers who
pay outside of this availment period (the latter group).
The creation of these two classes is obvious and
unavoidable when Section 2 and the last proviso of
Section 48 of the law are read together. The same
provisions show the law’s intent to limit the benefit of
condonation to the former group only; had RA No.
9903 likewise intended to benefit the latter group,
which includes the petitioner, it would have expressly
declared so. Laws granting condonation constitute an
act of benevolence on the government’s part, similar
to tax amnesty laws; their terms are strictly construed
against the applicants. Since the law itself excludes
the class of employers to which the petitioner
belongs, no ground exists to justify his acquittal. An
implementing rule or regulation must conform to and
be consistent with the provisions of the enabling
statute; it cannot amend the law either by abridging or
expanding its scope.9
For the same reason, we cannot grant the petitioner’s
prayer to impose a fine in lieu of imprisonment;
neither RA No. 8282 nor RA No. 9903 authorizes the
Court to exercise this option.
On the matter of equal protection, we stated
in Tolentino v. Board of Accountancy, et al.10 that the
guarantee simply means "that no person or class of
persons shall be denied the same protection of the
laws which is enjoyed by other persons or other
classes in the same place and in like circumstances."
In People v. Cayat,11 we further summarized the
jurisprudence on equal protection in this wise:
It is an established principle of constitutional law that
the guaranty of the equal protection of the laws is not
violated by a legislation based on reasonable
classification. And the classification, to be reasonable,
(1) must rest on substantial distinctions; (2) must be
germane to the purposes of the law; (3) must not be
limited to existing conditions only; and (4) must apply
equally to all members of the same class.
The difference in the dates of payment of delinquent
contributions provides a substantial distinction
between the two classes of employers. In limiting the
benefits of RA No. 9903 to delinquent employers who
pay within the six (6)-month period, the legislature
refused to allow a sweeping, non-discriminatory
condonation to all delinquent employers, lest the
policy behind RA No. 8282 be undermined.1avvphi1
The petitioner is entitled to a waiver of his accrued
penalties
penal law, the Court is not precluded from giving the
Revised Penal Code suppletory application in light of
Article 1013 of the same Code and our ruling in People
v. Simon.14
WHEREFORE, the Court PARTIALLY GRANTS
petitioner Romarico J. Mendoza’s motion for
reconsideration. The Court AFFIRMS the petitioner’s
conviction for violation of Section 22(a) and (d), in
relation to Section 28 of Republic Act No. 8282, and
the petitioner is thus sentenced to an indeterminate
prison term of four (4) years and two (2) months of
prision correccional, as minimum, to twenty (20) years
of reclusion temporal, as maximum. In light of Section
4 of Republic Act No. 9903, the petitioner’s liability for
accrued penalties is considered WAIVED.
Considering the circumstances of the case, the Court
transmits the case to the Chief Executive, through the
Department of Justice, and RECOMMENDS the grant
of executive clemency to the petitioner.

Despite our discussion above, the petitioner’s move to SO ORDERED.

have our Decision reconsidered is not entirely futile.
The one benefit the petitioner can obtain from RA No.
9903 is the waiver of his accrued penalties, which
remain unpaid in the amount of ₱181,394.29. This
waiver is derived from the last proviso of Section 4 of
RA No. 9903:

Provided, further, That for reason of equity, employers

who settled arrears in contributions before the
effectivity of this Act shall likewise have their accrued
penalties waived.

This proviso is applicable to the petitioner who settled

his contributions long before the passage of the law.
Applied to the petitioner, therefore, RA No. 9903 only
works to allow a waiver of his accrued penalties, but
not the reversal of his conviction.1avvphi1

Referral to the Chief Executive for possible

exercise of executive clemency

We realize that with the affirmation of the petitioner’s

conviction for violation of RA No. 8282, he stands to
suffer imprisonment for four (4) years and two (2)
months of prision correccional, as minimum, to twenty
(20) years of reclusion temporal, as maximum,
notwithstanding the payment of his delinquent
contribution.

Under Article 5 of the Revised Penal Code,12 the

courts are bound to apply the law as it is and impose
the proper penalty, no matter how harsh it might be.
The same provision, however, gives the Court the
discretion to recommend to the President actions it
deems appropriate but are beyond its power when it
considers the penalty imposed as excessive.
Although the petitioner was convicted under a special
Case No. 008
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 208566 November 19, 2013
GRECO ANTONIOUS BEDA B. BELGICA JOSE M.
VILLEGAS JR. JOSE L. GONZALEZ REUBEN M.
ABANTE and QUINTIN PAREDES SAN
DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO
N. OCHOA JR. SECRETARY OF BUDGET AND
MANAGEMENT FLORENCIO B. ABAD, NATIONAL
TREASURER ROSALIA V. DE LEON SENATE OF
THE PHILIPPINES represented by FRANKLIN M.
DRILON m his capacity as SENATE PRESIDENT
and HOUSE OF REPRESENTATIVES represented
by FELICIANO S. BELMONTE, JR. in his capacity
as SPEAKER OF THE HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT
SAMSON S. ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his
capacity as SENATE PRESIDENT and
HONORABLE FELICIANO S. BELMONTE, JR., in
his capacity as SPEAKER OF THE HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac,
Marinduque Former Provincial Board Member -
Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO
III* and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions2 taken
under Rule 65 of the Rules of Court, all of which
assail the constitutionality of the Pork Barrel System.
Due to the complexity of the subject matter, the Court
shall heretofore discuss the system‘s conceptual
underpinnings before detailing the particulars of the
constitutional challenge.
The Facts
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of
American -English origin.3 Historically, its
usage may be traced to the degrading ritual
of rolling out a barrel stuffed with pork to a
multitude of black slaves who would cast
their famished bodies into the porcine feast
to assuage their hunger with morsels coming
from the generosity of their well-fed
master.4 This practice was later compared to
the actions of American legislators in trying
to direct federal budgets in favor of their
districts.5 While the advent of refrigeration
has made the actual pork barrel obsolete, it
persists in reference to political bills that
"bring home the bacon" to a legislator‘s
district and constituents.6 In a more technical
sense, "Pork Barrel" refers to an
appropriation of government spending meant
for localized projects and secured solely or
primarily to bring money to a representative's
district.7Some scholars on the subject further
use it to refer to legislative control of local
appropriations.8
In the Philippines, "Pork Barrel" has been
commonly referred to as lump-sum,
discretionary funds of Members of the
Legislature,9 although, as will be later
discussed, its usage would evolve in
reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the
Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act
of 1922, is considered11 as the
earliest form of "Congressional Pork
Barrel" in the Philippines since the
utilization of the funds appropriated
therein were subjected to post-
enactment legislator approval.
Particularly, in the area of fund
release, Section 312 provides that
the sums appropriated for certain
public works projects13 "shall be
distributed x x x subject to the
approval of a joint committee
elected by the Senate and the
House of Representatives. "The
committee from each House may
also authorize one of its members
to approve the distribution made by
the Secretary of Commerce and
Communications."14 Also, in the
area of fund realignment, the same
section provides that the said
secretary, "with the approval of said
joint committee, or of the authorized
members thereof, may, for the
purposes of said distribution,
transfer unexpended portions of
any item of appropriation under this
Act to any other item hereunder."
In 1950, it has been
documented15 that post-enactment
legislator participation broadened
from the areas of fund release and
realignment to the area of project
identification. During that year, the
mechanics of the public works act
was modified to the extent that the
discretion of choosing projects was
transferred from the Secretary of
Commerce and Communications to
legislators. "For the first time, the
law carried a list of projects
selected by Members of Congress,
they ‘being the representatives of
the people, either on their own
account or by consultation with
local officials or civil
leaders.‘"16 During this period, the
pork barrel process commenced
with local government councils, civil
groups, and individuals appealing to
Congressmen or Senators for
projects. Petitions that were
accommodated formed part of a
legislator‘s allocation, and the
amount each legislator would
eventually get is determined in a
caucus convened by the majority.
The amount was then integrated
into the administration bill prepared
by the Department of Public Works
and Communications. Thereafter,
the Senate and the House of
Representatives added their own
provisions to the bill until it was
signed into law by the President –
the Public Works Act.17 In the
1960‘s, however, pork barrel
legislation reportedly ceased in
view of the stalemate between the
House of Representatives and the
Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional
Pork Barrel" was apparently
discontinued in 1972 after Martial
Law was declared, an era when
"one man controlled the
legislature,"19 the reprieve was only
temporary. By 1982, the Batasang
Pambansa had already introduced
a new item in the General
Appropriations Act (GAA) called
the" Support for Local Development
Projects" (SLDP) under the article
on "National Aid to Local
Government Units". Based on
reports,20 it was under the SLDP
that the practice of giving lump-sum
allocations to individual legislators
began, with each assemblyman
receiving ₱500,000.00. Thereafter,
assemblymen would communicate
their project preferences to the
Ministry of Budget and
Management for approval. Then,
the said ministry would release the
allocation papers to the Ministry of
Local Governments, which would,
in turn, issue the checks to the city
or municipal treasurers in the
assemblyman‘s locality. It has been
further reported that "Congressional
Pork Barrel" projects under the
SLDP also began to cover not only
public works projects, or so- called
"hard projects", but also "soft
projects",21 or non-public works
projects such as those which would
fall under the categories of, among
others, education, health and
livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino
Administration (1986-1992).
After the EDSA People Power
Revolution in 1986 and the
restoration of Philippine democracy,
"Congressional Pork Barrel" was
revived in the form of the
"Mindanao Development Fund" and
the "Visayas Development Fund"
which were created with lump-sum
appropriations of ₱480 Million and
₱240 Million, respectively, for the
 funding of development projects in
the Mindanao and Visayas areas in
1989. It has been
documented23 that the clamor
raised by the Senators and the
Luzon legislators for a similar
funding, prompted the creation of
the "Countrywide Development
Fund" (CDF) which was integrated
into the 1990 GAA24 with an initial
funding of ₱2.3 Billion to cover
"small local infrastructure and other
priority community projects."
Under the GAAs for the years 1991
and 1992,25 CDF funds were, with
the approval of the President, to be
released directly to the
implementing agencies but "subject
to the submission of the required
list of projects and
activities."Although the GAAs from
1990 to 1992 were silent as to the
amounts of allocations of the
individual legislators, as well as
their participation in the
identification of projects, it has been
reported26 that by 1992,
Representatives were receiving
₱12.5 Million each in CDF funds,
while Senators were receiving ₱18
Million each, without any limitation
or qualification, and that they could
identify any kind of project, from
hard or infrastructure projects such
as roads, bridges, and buildings to
"soft projects" such as textbooks,
medicines, and scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration
(1992-1998).
The following year, or in 1993,28 the
GAA explicitly stated that the
release of CDF funds was to be
made upon the submission of the
list of projects and activities
identified by, among others,
individual legislators. For the first
time, the 1993 CDF Article included
an allocation for the Vice-
President.29 As such,
Representatives were allocated
₱12.5 Million each in CDF funds,
Senators, ₱18 Million each, and the
Vice-President, ₱20 Million.
In 1994,30 1995,31 and 1996,32 the
GAAs contained the same
provisions on project identification
and fund release as found in the
1993 CDF Article. In addition,
however, the Department of Budget
and Management (DBM) was
directed to submit reports to the
Senate Committee on Finance and
the House Committee on
Appropriations on the releases
made from the funds.33
Under the 199734 CDF Article,
Members of Congress and the
Vice-President, in consultation with
the implementing agency
concerned, were directed to submit
to the DBM the list of 50% of
projects to be funded from their
respective CDF allocations which
shall be duly endorsed by (a) the
Senate President and the Chairman
of the Committee on Finance, in the
case of the Senate, and (b) the
Speaker of the House of
Representatives and the Chairman
of the Committee on
Appropriations, in the case of the
House of Representatives; while
the list for the remaining 50% was
to be submitted within six (6)
months thereafter. The same article
also stated that the project list,
which would be published by the
DBM,35 "shall be the basis for the
release of funds" and that "no funds
appropriated herein shall be
disbursed for projects not included
in the list herein required."
The following year, or in 1998,36 the
foregoing provisions regarding the
required lists and endorsements
were reproduced, except that the
publication of the project list was no
longer required as the list itself
sufficed for the release of CDF
Funds.
The CDF was not, however, the
lone form of "Congressional Pork
Barrel" at that time. Other forms of
"Congressional Pork Barrel" were
reportedly fashioned and inserted
into the GAA (called "Congressional
Insertions" or "CIs") in order to
perpetuate the ad ministration‘s
political agenda.37 It has been
articulated that since CIs "formed
part and parcel of the budgets of
executive departments, they were
not easily identifiable and were thus
harder to monitor." Nonetheless,
the lawmakers themselves as well
 as the finance and budget officials
of the implementing agencies, as
well as the DBM, purportedly knew
about the insertions.38 Examples of
these CIs are the Department of
Education (DepEd) School Building
Fund, the Congressional Initiative
Allocations, the Public Works Fund,
the El Niño Fund, and the Poverty
Alleviation Fund.39 The allocations
for the School Building Fund,
particularly, ―shall be made upon
prior consultation with the
representative of the legislative
district concerned.”40 Similarly, the
legislators had the power to direct
how, where and when these
appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration
(1998-2001).
In 1999,42 the CDF was removed in
the GAA and replaced by three (3)
separate forms of CIs, namely, the
"Food Security Program
Fund,"43 the "Lingap Para Sa
Mahihirap Program Fund,"44and the
"Rural/Urban Development
Infrastructure Program Fund,"45 all
of which contained a special
provision requiring "prior
consultation" with the Member s of
Congress for the release of the
funds.
It was in the year 200046 that the
"Priority Development Assistance
Fund" (PDAF) appeared in the
GAA. The requirement of "prior
consultation with the respective
Representative of the District"
before PDAF funds were directly
released to the implementing
agency concerned was explicitly
stated in the 2000 PDAF Article.
Moreover, realignment of funds to
any expense category was
expressly allowed, with the sole
condition that no amount shall be
used to fund personal services and
other personnel benefits.47 The
succeeding PDAF provisions
remained the same in view of the
re-enactment48 of the 2000 GAA for
the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration
(2001-2010).
The 200249 PDAF Article was brief
and straightforward as it merely
contained a single special provision
ordering the release of the funds
directly to the implementing agency
or local government unit concerned,
without further qualifications. The
following year, 2003,50 the same
single provision was present, with
simply an expansion of purpose
and express authority to realign.
Nevertheless, the provisions in the
2003 budgets of the Department of
Public Works and
Highways51 (DPWH) and the
DepEd52 required prior consultation
with Members of Congress on the
aspects of implementation
delegation and project list
submission, respectively. In 2004,
the 2003 GAA was re-enacted.53
In 2005,54 the PDAF Article
provided that the PDAF shall be
used "to fund priority programs and
projects under the ten point agenda
of the national government and
shall be released directly to the
implementing agencies." It also
introduced the program menu
concept,55 which is essentially a list
of general programs and
implementing agencies from which
a particular PDAF project may be
subsequently chosen by the
identifying authority. The 2005 GAA
was re-enacted56 in 2006 and
hence, operated on the same
bases. In similar regard, the
program menu concept was
consistently integrated into the
2007,57 2008,58 2009,59 and
201060 GAAs.
Textually, the PDAF Articles from
2002 to 2010 were silent with
respect to the specific amounts
allocated for the individual
legislators, as well as their
participation in the proposal and
identification of PDAF projects to be
funded. In contrast to the PDAF
Articles, however, the provisions
under the DepEd School Building
Program and the DPWH budget,
similar to its predecessors, explicitly
required prior consultation with the
concerned Member of
Congress61anent certain aspects of
project implementation.
 Significantly, it was during this era
that provisions which allowed
formal participation of non-
governmental organizations (NGO)
in the implementation of
government projects were
introduced. In the Supplemental
Budget for 2006, with respect to the
appropriation for school buildings,
NGOs were, by law, encouraged to
participate. For such purpose, the
law stated that "the amount of at
least ₱250 Million of the ₱500
Million allotted for the construction
and completion of school buildings
shall be made available to NGOs
including the Federation of Filipino-
Chinese Chambers of Commerce
and Industry, Inc. for its "Operation
Barrio School" program, with
capability and proven track records
in the construction of public school
buildings x x x."62 The same
allocation was made available to
NGOs in the 2007 and 2009 GAAs
under the DepEd Budget.63 Also, it
was in 2007 that the Government
Procurement Policy
Board64 (GPPB) issued Resolution
No. 12-2007 dated June 29, 2007
(GPPB Resolution 12-2007),
amending the implementing rules
and regulations65 of RA 9184,66 the
Government Procurement Reform
Act, to include, as a form of
negotiated procurement,67 the
procedure whereby the Procuring
Entity68(the implementing agency)
may enter into a memorandum of
agreement with an NGO, provided
that "an appropriation law or
ordinance earmarks an amount to
be specifically contracted out to
NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF
Articles but similar to the CDF
Articles, the 201170 PDAF Article
included an express statement on
lump-sum amounts allocated for
individual legislators and the Vice-
President: Representatives were
given ₱70 Million each, broken
down into ₱40 Million for "hard
projects" and ₱30 Million for "soft
projects"; while ₱200 Million was
given to each Senator as well as
the Vice-President, with a ₱100
Million allocation each for "hard"
and "soft projects." Likewise, a
provision on realignment of funds
was included, but with the
qualification that it may be allowed
only once. The same provision also
allowed the Secretaries of
Education, Health, Social Welfare
and Development, Interior and
Local Government, Environment
and Natural Resources, Energy,
and Public Works and Highways to
realign PDAF Funds, with the
further conditions that: (a)
realignment is within the same
implementing unit and same project
category as the original project, for
infrastructure projects; (b) allotment
released has not yet been obligated
for the original scope of work, and
(c) the request for realignment is
with the concurrence of the
legislator concerned.71
In the 201272 and 201373 PDAF
Articles, it is stated that the
"identification of projects and/or
designation of beneficiaries shall
conform to the priority list, standard
or design prepared by each
implementing agency (priority list
requirement) x x x." However, as
practiced, it would still be the
individual legislator who would
choose and identify the project from
the said priority list.74
Provisions on legislator
allocations75 as well as fund
realignment76 were included in the
2012 and 2013 PDAF Articles; but
the allocation for the Vice-
President, which was pegged at
₱200 Million in the 2011 GAA, had
been deleted. In addition, the 2013
PDAF Article now allowed LGUs to
be identified as implementing
agencies if they have the technical
capability to implement the
projects.77 Legislators were also
allowed to identify
programs/projects, except for
assistance to indigent patients and
scholarships, outside of his
legislative district provided that he
secures the written concurrence of
the legislator of the intended
outside-district, endorsed by the
Speaker of the House.78 Finally,
any realignment of PDAF funds,
modification and revision of project
identification, as well as requests
 for release of funds, were all
required to be favorably endorsed
by the House Committee on
Appropriations and the Senate
Committee on Finance, as the case
may be.79
III. History of Presidential Pork Barrel in the
Philippines.
While the term "Pork Barrel" has been
typically associated with lump-sum,
discretionary funds of Members of Congress,
the present cases and the recent
controversies on the matter have, however,
shown that the term‘s usage has expanded
to include certain funds of the President such
as the Malampaya Funds and the
Presidential Social Fund.
On the one hand, the Malampaya Funds was
created as a special fund under Section
880 of Presidential Decree No. (PD)
910,81 issued by then President Ferdinand E.
Marcos (Marcos) on March 22, 1976. In
enacting the said law, Marcos recognized
the need to set up a special fund to help
intensify, strengthen, and consolidate
government efforts relating to the
exploration, exploitation, and development of
indigenous energy resources vital to
economic growth.82 Due to the energy-
related activities of the government in the
Malampaya natural gas field in Palawan, or
the "Malampaya Deep Water Gas-to-Power
Project",83 the special fund created under PD
910 has been currently labeled as
Malampaya Funds.
On the other hand the Presidential Social
Fund was created under Section 12, Title
IV84 of PD 1869,85 or the Charter of the
Philippine Amusement and Gaming
Corporation (PAGCOR). PD 1869 was
similarly issued by Marcos on July 11, 1983.
More than two (2) years after, he amended
PD 1869 and accordingly issued PD 1993 on
October 31, 1985,86 amending Section
1287 of the former law. As it stands, the
Presidential Social Fund has been described
as a special funding facility managed and
administered by the Presidential
Management Staff through which the
President provides direct assistance to
priority programs and projects not funded
under the regular budget. It is sourced from
the share of the government in the
aggregate gross earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the
Philippines have increased
tremendously,89 owing in no small part to
previous Presidents who reportedly used the
"Pork Barrel" in order to gain congressional
support.90 It was in 1996 when the first
controversy surrounding the "Pork Barrel"
erupted. Former Marikina City
Representative Romeo Candazo (Candazo),
then an anonymous source, "blew the lid on
the huge sums of government money that
regularly went into the pockets of legislators
in the form of kickbacks."91 He said that "the
kickbacks were ‘SOP‘ (standard operating
procedure) among legislators and ranged
from a low 19 percent to a high 52 percent of
the cost of each project, which could be
anything from dredging, rip rapping,
sphalting, concreting, and construction of
school buildings."92 "Other sources of
kickbacks that Candazo identified were
public funds intended for medicines and
textbooks. A few days later, the tale of the
money trail became the banner story of the
Philippine Daily Inquirer issue of August 13,
1996, accompanied by an illustration of a
roasted pig."93 "The publication of the
stories, including those about congressional
initiative allocations of certain lawmakers,
including ₱3.6 Billion for a Congressman,
sparked public outrage."94
Thereafter, or in 2004, several concerned
citizens sought the nullification of the PDAF
as enacted in the 2004 GAA for being
unconstitutional. Unfortunately, for lack of
"any pertinent evidentiary support that illegal
misuse of PDAF in the form of kickbacks has
become a common exercise of unscrupulous
Members of Congress," the petition was
dismissed.95
Recently, or in July of the present year, the
National Bureau of Investigation (NBI) began
its probe into allegations that "the
government has been defrauded of some
₱10 Billion over the past 10 years by a
syndicate using funds from the pork barrel of
lawmakers and various government
agencies for scores of ghost projects."96 The
investigation was spawned by sworn
affidavits of six (6) whistle-blowers who
declared that JLN Corporation – "JLN"
standing for Janet Lim Napoles (Napoles) –
had swindled billions of pesos from the
public coffers for "ghost projects" using no
fewer than 20 dummy NGOs for an entire
decade. While the NGOs were supposedly
the ultimate recipients of PDAF funds, the
whistle-blowers declared that the money was
diverted into Napoles‘ private
accounts.97 Thus, after its investigation on
the Napoles controversy, criminal complaints
were filed before the Office of the
Ombudsman, charging five (5) lawmakers for
Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of
the Anti-Graft and Corrupt Practices Act.
Also recommended to be charged in the
complaints are some of the
lawmakers‘ chiefs -of-staff or
representatives, the heads and other officials
of three (3) implementing agencies, and the
several presidents of the NGOs set up by
Napoles.98
On August 16, 2013, the Commission on
Audit (CoA) released the results of a three-
year audit investigation99covering the use of
legislators' PDAF from 2007 to 2009, or
during the last three (3) years of the Arroyo
administration. The purpose of the audit was
to determine the propriety of releases of
funds under PDAF and the Various
Infrastructures including Local Projects
(VILP)100 by the DBM, the application of
these funds and the implementation of
projects by the appropriate implementing
agencies and several government-owned-
and-controlled corporations (GOCCs).101 The
total releases covered by the audit amounted
to ₱8.374 Billion in PDAF and ₱32.664
Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP
releases that were found to have been made
nationwide during the audit
period.102 Accordingly, the Co A‘s findings
contained in its Report No. 2012-03 (CoA
Report), entitled "Priority Development
Assistance Fund (PDAF) and Various
Infrastructures including Local Projects
(VILP)," were made public, the highlights of
which are as follows:103
● Amounts released for projects
identified by a considerable number
of legislators significantly exceeded
their respective allocations.
● Amounts were released for
projects outside of legislative
districts of sponsoring members of
the Lower House.
● Total VILP releases for the period
exceeded the total amount
appropriated under the 2007 to
2009 GAAs.
● Infrastructure projects were
constructed on private lots without
these having been turned over to
the government.
● Significant amounts were
released to implementing agencies
without the latter‘s endorsement
and without considering their
mandated functions, administrative
and technical capabilities to
implement projects.
● Implementation of most livelihood
projects was not undertaken by the
implementing agencies themselves
but by NGOs endorsed by the
proponent legislators to which the
Funds were transferred.
● The funds were transferred to the
NGOs in spite of the absence of
any appropriation law or ordinance.
● Selection of the NGOs were not
compliant with law and regulations.
● Eighty-Two (82) NGOs entrusted
with implementation of seven
hundred seventy two (772) projects
amount to ₱6.156 Billion were
either found questionable, or
submitted questionable/spurious
documents, or failed to liquidate in
whole or in part their utilization of
the Funds.
● Procurement by the NGOs, as
well as some implementing
agencies, of goods and services
reportedly used in the projects were
not compliant with law.
As for the "Presidential Pork Barrel", whistle-
blowers alleged that" at least ₱900 Million
from royalties in the operation of the
Malampaya gas project off Palawan province
intended for agrarian reform beneficiaries
has gone into a dummy NGO."104 According
to incumbent CoA Chairperson Maria Gracia
Pulido Tan (CoA Chairperson), the CoA is,
as of this writing, in the process of preparing
"one consolidated report" on the Malampaya
Funds.105
V. The Procedural Antecedents.
Spurred in large part by the findings
contained in the CoA Report and the
Napoles controversy, several petitions were
lodged before the Court similarly seeking
 that the "Pork Barrel System" be declared
unconstitutional. To recount, the relevant
procedural antecedents in these cases are
as follows:
On August 28, 2013, petitioner Samson S. Alcantara
(Alcantara), President of the Social Justice Society,
filed a Petition for Prohibition of even date under Rule
65 of the Rules of Court (Alcantara Petition), seeking
that the "Pork Barrel System" be declared
unconstitutional, and a writ of prohibition be issued
permanently restraining respondents Franklin M.
Drilon and Feliciano S. Belmonte, Jr., in their
respective capacities as the incumbent Senate
President and Speaker of the House of
Representatives, from further taking any steps to
enact legislation appropriating funds for the "Pork
Barrel System," in whatever form and by whatever
name it may be called, and from approving further
releases pursuant thereto.106 The Alcantara Petition
was docketed as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious
Beda B. Belgica, Jose L. Gonzalez, Reuben M.
Abante, Quintin Paredes San Diego (Belgica, et al.),
and Jose M. Villegas, Jr. (Villegas) filed an Urgent
Petition For Certiorari and Prohibition With Prayer For
The Immediate Issuance of Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction
dated August 27, 2013 under Rule 65 of the Rules of
Court (Belgica Petition), seeking that the annual "Pork
Barrel System," presently embodied in the provisions
of the GAA of 2013 which provided for the 2013
PDAF, and the Executive‘s lump-sum, discretionary
funds, such as the Malampaya Funds and the
Presidential Social Fund,107 be declared
unconstitutional and null and void for being acts
constituting grave abuse of discretion. Also, they pray
that the Court issue a TRO against respondents
Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary
Abad) and Rosalia V. De Leon, in their respective
capacities as the incumbent Executive Secretary,
Secretary of the Department of Budget and
Management (DBM), and National Treasurer, or their
agents, for them to immediately cease any
expenditure under the aforesaid funds. Further, they
pray that the Court order the foregoing respondents to
release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed
of their PDAF and VILP from the years 2003 to 2013,
specifying the use of the funds, the project or activity
and the recipient entities or individuals, and all
pertinent data thereto"; and (b) "the use of the
Executive‘s lump-sum, discretionary funds, including
the proceeds from the x x x Malampaya Funds and
remittances from the PAGCOR x x x from 2003 to
2013, specifying the x x x project or activity and the
recipient entities or individuals, and all pertinent data
thereto."108 Also, they pray for the "inclusion in
budgetary deliberations with the Congress of all
presently off-budget, lump-sum, discretionary funds
including, but not limited to, proceeds from the
Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as
G.R. No. 208566.110
Lastly, on September 5, 2013, petitioner Pedrito M.
Nepomuceno (Nepomuceno), filed a Petition dated
August 23, 2012 (Nepomuceno Petition), seeking that
the PDAF be declared unconstitutional, and a cease
and desist order be issued restraining President
Benigno Simeon S. Aquino III (President Aquino) and
Secretary Abad from releasing such funds to
Members of Congress and, instead, allow their
release to fund priority projects identified and
approved by the Local Development Councils in
consultation with the executive departments, such as
the DPWH, the Department of Tourism, the
Department of Health, the Department of
Transportation, and Communication and the National
Economic Development Authority.111 The
Nepomuceno Petition was docketed as UDK-
14951.112
On September 10, 2013, the Court issued a
Resolution of even date (a) consolidating all cases;
(b) requiring public respondents to comment on the
consolidated petitions; (c) issuing a TRO (September
10, 2013 TRO) enjoining the DBM, National
Treasurer, the Executive Secretary, or any of the
persons acting under their authority from releasing (1)
the remaining PDAF allocated to Members of
Congress under the GAA of 2013, and (2) Malampaya
Funds under the phrase "for such other purposes as
may be hereafter directed by the President" pursuant
to Section 8 of PD 910 but not for the purpose of
"financing energy resource development and
exploitation programs and projects of the
government‖ under the same provision; and (d)
setting the consolidated cases for Oral Arguments on
October 8, 2013.
On September 23, 2013, the Office of the Solicitor
General (OSG) filed a Consolidated Comment
(Comment) of even date before the Court, seeking the
lifting, or in the alternative, the partial lifting with
respect to educational and medical assistance
purposes, of the Court‘s September 10, 2013 TRO,
and that the consolidated petitions be dismissed for
lack of merit.113
On September 24, 2013, the Court issued a
Resolution of even date directing petitioners to reply
to the Comment.
Petitioners, with the exception of Nepomuceno, filed
their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply
dated September 27, 2013 (Villegas Reply); (b) on
October 1, 2013, Belgica, et al. filed a Reply dated
September 30, 2013 (Belgica Reply); and (c) on
October 2, 2013, Alcantara filed a Reply dated
October 1, 2013.
On October 1, 2013, the Court issued an Advisory
providing for the guidelines to be observed by the
parties for the Oral Arguments scheduled on October
8, 2013. In view of the technicality of the issues
material to the present cases, incumbent Solicitor
General Francis H. Jardeleza (Solicitor General) was
directed to bring with him during the Oral Arguments
representative/s from the DBM and Congress who
would be able to competently and completely answer
questions related to, among others, the budgeting
process and its implementation. Further, the CoA
Chairperson was appointed as amicus curiae and
thereby requested to appear before the Court during
the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were
conducted. Thereafter, the Court directed the parties
to submit their respective memoranda within a period
of seven (7) days, or until October 17, 2013, which
the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the
Oral Arguments, the following are the main issues for
the Court‘s resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the
consolidated petitions involve an actual and justiciable
controversy; (b) the issues raised in the consolidated
petitions are matters of policy not subject to judicial
review; (c) petitioners have legal standing to sue; and
(d) the Court‘s Decision dated August 19, 1994 in
G.R. Nos. 113105, 113174, 113766, and 113888,
entitled "Philippine Constitution Association v.
Enriquez"114 (Philconsa) and Decision dated April 24,
2012 in G.R. No. 164987, entitled "Lawyers Against
Monopoly and Poverty v. Secretary of Budget and
Management"115 (LAMP) bar the re-litigatio n of the
issue of constitutionality of the "Pork Barrel System"
under the principles of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork
Barrel."
Whether or not the 2013 PDAF Article and all other
Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the
principles of/constitutional provisions on (a)
separation of powers; (b) non-delegability of
legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local
autonomy.
III. Substantive Issues on the "Presidential Pork
Barrel."
Whether or not the phrases (a) "and for such other
purposes as may be hereafter directed by the
President" under Section 8 of PD 910,116 relating to
the Malampaya Funds, and (b) "to finance the priority
infrastructure development projects and to finance the
restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the
Office of the President of the Philippines" under
Section 12 of PD 1869, as amended by PD 1993,
relating to the Presidential Social Fund, are
unconstitutional insofar as they constitute undue
delegations of legislative power.
These main issues shall be resolved in the order that
they have been stated. In addition, the Court shall
also tackle certain ancillary issues as prompted by the
present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is 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,117 namely: (a) there must
be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging
the act must have the standing to question the validity
of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest
opportunity ; and (d) the issue of constitutionality must
be the very lis mota of the case.118 Of these
requisites, case law states that the first two are the
most important119and, therefore, shall be discussed
forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only
when there is an actual case or controversy.120 This is
embodied in Section 1, Article VIII of the 1987
Constitution which pertinently states that "judicial
power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable x x x."
Jurisprudence provides that an actual case or
controversy is one which "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.121 In
other words, "there must be a contrariety of legal
rights that can be interpreted and enforced on the
basis of existing law and jurisprudence." 122 Related to
the requirement of an actual case or controversy is
the requirement of "ripeness," meaning that the
questions raised for constitutional scrutiny are already
ripe for adjudication. "A question is ripe for
adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it. It
is a prerequisite that something had then been
accomplished or performed by either branch before a
court may come into the picture, and the petitioner
must allege the existence of an immediate or
threatened injury to itself as a result of the challenged
action."123 "Withal, courts will decline to pass upon
constitutional issues through advisory opinions, bereft
as they are of authority to resolve hypothetical or
moot questions."124
Based on these principles, the Court finds that there
exists an actual and justiciable controversy in these
cases.
The requirement of contrariety of legal rights is clearly
satisfied by the antagonistic positions of the parties on
the constitutionality of the "Pork Barrel System." Also,
the questions in these consolidated cases are ripe for
adjudication since the challenged funds and the
provisions allowing for their utilization – such as the
2013 GAA for the PDAF, PD 910 for the Malampaya
Funds and PD 1869, as amended by PD 1993, for the
Presidential Social Fund – are currently existing and
operational; hence, there exists an immediate or
threatened injury to petitioners as a result of the
unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that
the issues related thereto had been rendered moot
and academic by the reforms undertaken by
respondents. A case becomes moot when there is no
more actual controversy between the parties or no
useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court
observes that respondents‘ proposed line-item
budgeting scheme would not terminate the
controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the
2014 budget, and not the 2013 PDAF Article which,
being a distinct subject matter, remains legally
effective and existing. Neither will the President‘s
declaration that he had already "abolished the PDAF"
render the issues on PDAF moot precisely because
the Executive branch of government has no
constitutional authority to nullify or annul its legal
existence. By constitutional design, the annulment or
nullification of a law may be done either by Congress,
through the passage of a repealing law, or by the
Court, through a declaration of unconstitutionality.
Instructive on this point is the following exchange
between Associate Justice Antonio T. Carpio (Justice
Carpio) and the Solicitor General during the Oral
Arguments:126
Justice Carpio: The President has taken an oath to
faithfully execute the law,127 correct? Solicitor General
Jardeleza: Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to
implement the General Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer,
Your Honor. In the case, for example of the PDAF,
the President has a duty to execute the laws but in
the face of the outrage over PDAF, the President was
saying, "I am not sure that I will continue the release
of the soft projects," and that started, Your Honor.
Now, whether or not that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there
are anomalies in the project, he has the power to stop
the releases in the meantime, to investigate, and that
is Section 38 of Chapter 5 of Book 6 of the Revised
Administrative Code128 x x x. So at most the President
can suspend, now if the President believes that the
PDAF is unconstitutional, can he just refuse to
implement it?
Solicitor General Jardeleza: No, Your Honor, as we
were trying to say in the specific case of the PDAF
because of the CoA Report, because of the reported
irregularities and this Court can take judicial notice,
even outside, outside of the COA Report, you have
the report of the whistle-blowers, the President was
just exercising precisely the duty ….
xxxx
Justice Carpio: Yes, and that is correct. You‘ve seen
the CoA Report, there are anomalies, you stop and
investigate, and prosecute, he has done that. But,
does that mean that PDAF has been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished
only in two (2) cases. Congress passes a law to
repeal it, or this Court declares it unconstitutional,
correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally
abolish PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence,
nevertheless, dictates that "the moot and
academic‘ principle is not a magical formula that can
automatically dissuade the Court in resolving a case."
The Court will decide cases, otherwise moot, if: first,
there is a grave violation of the Constitution; second,
the exceptional character of the situation and the
paramount public interest is involved; third, when the
constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and
the public; and fourth, the case is capable of repetition
yet evading review.129
The applicability of the first exception is clear from the
fundamental posture of petitioners – they essentially
allege grave violations of the Constitution with respect
to, inter alia, the principles of separation of powers,
non-delegability of legislative power, checks and
balances, accountability and local autonomy.
The applicability of the second exception is also
apparent from the nature of the interests involved
– the constitutionality of the very system within which
significant amounts of public funds have been and
continue to be utilized and expended undoubtedly
presents a situation of exceptional character as well
as a matter of paramount public interest. The present
petitions, in fact, have been lodged at a time when the
system‘s flaws have never before been magnified. To
the Court‘s mind, the coalescence of the CoA Report,
the accounts of numerous whistle-blowers, and the
government‘s own recognition that reforms are
needed "to address the reported abuses of the
PDAF"130 demonstrates a prima facie pattern of abuse
which only underscores the importance of the matter.
It is also by this finding that the Court finds
petitioners‘ claims as not merely theorized,
speculative or hypothetical. Of note is the weight
accorded by the Court to the findings made by the
CoA which is the constitutionally-mandated audit arm
of the government. In Delos Santos v. CoA,131 a
recent case wherein the Court upheld the CoA‘s
disallowance of irregularly disbursed PDAF funds, it
was emphasized that:
The COA is endowed with enough latitude to
determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or
unconscionable expenditures of government funds. It
is tasked to be vigilant and conscientious in
safeguarding the proper use of the government's, and
ultimately the people's, property. The exercise of its
general audit power is among the constitutional
mechanisms that gives life to the check and balance
system inherent in our form of government.
It is the general policy of the Court to sustain the
decisions of administrative authorities, especially one
which is constitutionally-created, such as the CoA, not
only on the basis of the doctrine of separation of
powers but also for their presumed expertise in the
laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect
but also finality when the decision and order are not
tainted with unfairness or arbitrariness that would
amount to grave abuse of discretion. It is only when
the CoA has acted without or in excess of jurisdiction,
or with grave abuse of discretion amounting to lack or
excess of jurisdiction, that this Court entertains a
petition questioning its rulings. x x x. (Emphases
supplied)
Thus, if only for the purpose of validating the
existence of an actual and justiciable controversy in
these cases, the Court deems the findings under the
CoA Report to be sufficient.
The Court also finds the third exception to be
applicable largely due to the practical need for a
definitive ruling on the system‘s constitutionality. As
disclosed during the Oral Arguments, the CoA
Chairperson estimates that thousands of notices of
disallowances will be issued by her office in
connection with the findings made in the CoA Report.
In this relation, Associate Justice Marvic Mario Victor
F. Leonen (Justice Leonen) pointed out that all of
these would eventually find their way to the
courts.132 Accordingly, there is a compelling need to
formulate controlling principles relative to the issues
raised herein in order to guide the bench, the bar, and
the public, not just for the expeditious resolution of the
anticipated disallowance cases, but more importantly,
so that the government may be guided on how public
funds should be utilized in accordance with
constitutional principles.
Finally, the application of the fourth exception is called
for by the recognition that the preparation and
passage of the national budget is, by constitutional
imprimatur, an affair of annual occurrence.133 The
relevance of the issues before the Court does not
cease with the passage of a "PDAF -free budget for
2014."134 The evolution of the "Pork Barrel System,"
by its multifarious iterations throughout the course of
history, lends a semblance of truth to
petitioners‘ claim that "the same dog will just
resurface wearing a different collar."135 In Sanlakas v.
Executive Secretary,136 the government had already
backtracked on a previous course of action yet the
Court used the "capable of repetition but evading
review" exception in order "to prevent similar
questions from re- emerging."137 The situation
similarly holds true to these cases. Indeed, the myriad
of issues underlying the manner in which certain
public funds are spent, if not resolved at this most
opportune time, are capable of repetition and hence,
must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to
actual cases and controversies‖ carries the assurance
that "the courts will not intrude into areas committed
to the other branches of government."138 Essentially,
the foregoing limitation is a restatement of the political
question doctrine which, under the classic formulation
of Baker v. Carr,139applies when there is found,
among others, "a textually demonstrable constitutional
commitment of the issue to a coordinate political
department," "a lack of judicially discoverable and
manageable standards for resolving it" or "the
impossibility of deciding without an initial policy
determination of a kind clearly for non- judicial
discretion." Cast against this light, respondents submit
that the "the political branches are in the best position
not only to perform budget-related reforms but also to
do them in response to the specific demands of their
constituents" and, as such, "urge the Court not to
impose a solution at this stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the
Court do not present political but legal questions
which are within its province to resolve. A political
question refers to "those questions which, under the
Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full
discretionary authority has been delegated to the
Legislature or executive branch of the Government. It
is concerned with issues dependent upon the wisdom,
not legality, of a particular measure."141 The intrinsic
constitutionality of the "Pork Barrel System" is not an
issue dependent upon the wisdom of the political
branches of government but rather a legal one which
the Constitution itself has commanded the Court to
act upon. Scrutinizing the contours of the system
along constitutional lines is a task that the political
branches of government are incapable of rendering
precisely because it is an exercise of judicial power.
More importantly, the present Constitution has not
only vested the Judiciary the right to exercise judicial
power but essentially makes it a duty to proceed
therewith. Section 1, Article VIII of the 1987
Constitution cannot be any clearer: "The judicial
power shall be vested in one Supreme Court and in
such lower courts as may be established by law. It
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." In Estrada v. Desierto,142 the expanded
concept of judicial power under the 1987 Constitution
and its effect on the political question doctrine was
explained as follows:143
To a great degree, the 1987 Constitution has
narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this
court not only to settle actual controversies involving
rights which are legally demandable and enforceable
but also 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 government. Heretofore, the
judiciary has focused on the "thou shalt not's" of the
Constitution directed against the exercise of its
jurisdiction. With the new provision, however, courts
are given a greater prerogative to determine what it
can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of government.
Clearly, the new provision did not just grant the Court
power of doing nothing. x x x (Emphases supplied)
It must also be borne in mind that ― when the
judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the
other departments; does not in reality nullify or
invalidate an act of the legislature or the executive,
but only asserts the solemn and sacred obligation
assigned to it by the Constitution."144 To a great
extent, the Court is laudably cognizant of the reforms
undertaken by its co-equal branches of government.
But it is by constitutional force that the Court must
faithfully perform its duty. Ultimately, it is the Court‘s
avowed intention that a resolution of these cases
would not arrest or in any manner impede the
endeavors of the two other branches but, in fact, help
ensure that the pillars of change are erected on firm
constitutional grounds. After all, it is in the best
interest of the people that each great branch of
government, within its own sphere, contributes its
share towards achieving a holistic and genuine
solution to the problems of society. For all these
reasons, the Court cannot heed respondents‘ plea for
judicial restraint.
C. Locus Standi.
"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. Unless a person is
injuriously affected in any of his constitutional rights
by the operation of statute or ordinance, he has no
standing."145
Petitioners have come before the Court in their
respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the
coffers of the National Treasury."146 Clearly, as
taxpayers, they possess the requisite standing to
question the validity of the existing "Pork Barrel
System" under which the taxes they pay have been
and continue to be utilized. It is undeniable that
petitioners, as taxpayers, are bound to suffer from the
unconstitutional usage of public funds, if the Court so
rules. Invariably, taxpayers have been allowed to sue
where there is a claim that public funds are illegally
disbursed or that public money is being deflected to
any improper purpose, or that public funds are wasted
through the enforcement of an invalid or
unconstitutional law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled
the standing requirement given that the issues they
have raised may be classified as matters "of
transcendental importance, of overreaching
significance to society, or of paramount public
interest."148 The CoA Chairperson‘s statement during
the Oral Arguments that the present controversy
involves "not merely a systems failure" but a
"complete breakdown of controls"149 amplifies, in
addition to the matters above-discussed, the
seriousness of the issues involved herein. Indeed, of
greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement
of an invalid statute.150 All told, petitioners have
sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and
stare decisis non quieta et movere (or simply, stare
decisis which means "follow past precedents and do
not disturb what has been settled") are general
procedural law principles which both deal with the
effects of previous but factually similar dispositions to
subsequent cases. For the cases at bar, the Court
examines the applicability of these principles in
relation to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The
principle states that a judgment on the merits in a
previous case rendered by a court of competent
jurisdiction would bind a subsequent case if, between
the first and second actions, there exists an identity of
parties, of subject matter, and of causes of
action.151 This required identity is not, however,
attendant hereto since Philconsa and LAMP,
respectively involved constitutional challenges against
the 1994 CDF Article and 2004 PDAF Article,
whereas the cases at bar call for a broader
constitutional scrutiny of the entire "Pork Barrel
System." Also, the ruling in LAMP is essentially a
dismissal based on a procedural technicality – and,
thus, hardly a judgment on the merits – in that
petitioners therein failed to present any "convincing
proof x x x showing that, indeed, there were direct
releases of funds to the Members of Congress, who
actually spend them according to their sole discretion"
or "pertinent evidentiary support to demonstrate the
illegal misuse of PDAF in the form of kickbacks and
has become a common exercise of unscrupulous
Members of Congress." As such, the Court up held, in
view of the presumption of constitutionality accorded
to every law, the 2004 PDAF Article, and saw "no
need to review or reverse the standing
pronouncements in the said case." Hence, for the
foregoing reasons, the res judicata principle, insofar
as the Philconsa and LAMP cases are concerned,
cannot apply.
On the other hand, the focal point of stare decisis is
the doctrine created. The principle, entrenched under
Article 8152 of the Civil Code, evokes the general rule
that, for the sake of certainty, a conclusion reached in
one case should be doctrinally applied to those that
follow if the facts are substantially the same, even
though the parties may be different. It proceeds from
the first principle of justice that, absent any powerful
countervailing considerations, like cases ought to be
decided alike. Thus, where the same questions
relating to the same event have been put forward by
the parties similarly situated as in a previous case
litigated and decided by a competent court, the rule of
stare decisis is a bar to any attempt to re-litigate the
same issue.153
Philconsa was the first case where a constitutional
challenge against a Pork Barrel provision, i.e., the
1994 CDF Article, was resolved by the Court. To
properly understand its context, petitioners‘ posturing
was that "the power given to the Members of
Congress to propose and identify projects and
activities to be funded by the CDF is an
encroachment by the legislature on executive power,
since said power in an appropriation act is in
implementation of the law" and that "the proposal and
identification of the projects do not involve the making
of laws or the repeal and amendment thereof, the only
function given to the Congress by the
Constitution."154 In deference to the foregoing
submissions, the Court reached the following main
conclusions: one, under the Constitution, the power of
appropriation, or the "power of the purse," belongs to
Congress; two, the power of appropriation carries with
it the power to specify the project or activity to be
funded under the appropriation law and it can be
detailed and as broad as Congress wants it to be;
and, three, the proposals and identifications made by
Members of Congress are merely recommendatory.
At once, it is apparent that the Philconsa resolution
was a limited response to a separation of powers
problem, specifically on the propriety of conferring
post-enactment identification authority to Members of
Congress. On the contrary, the present cases call for
a more holistic examination of (a) the inter-relation
between the CDF and PDAF Articles with each other,
formative as they are of the entire "Pork Barrel
System" as well as (b) the intra-relation of post-
enactment measures contained within a particular
CDF or PDAF Article, including not only those related
to the area of project identification but also to the
areas of fund release and realignment. The
complexity of the issues and the broader legal
analyses herein warranted may be, therefore,
considered as a powerful countervailing reason
against a wholesale application of the stare decisis
principle.
In addition, the Court observes that the Philconsa
ruling was actually riddled with inherent constitutional
inconsistencies which similarly countervail against a
full resort to stare decisis. As may be deduced from
the main conclusions of the case, Philconsa‘s
fundamental premise in allowing Members of
Congress to propose and identify of projects would be
that the said identification authority is but an aspect of
the power of appropriation which has been
constitutionally lodged in Congress. From this
premise, the contradictions may be easily seen. If the
authority to identify projects is an aspect of
appropriation and the power of appropriation is a form
of legislative power thereby lodged in Congress, then
it follows that: (a) it is Congress which should exercise
such authority, and not its individual Members; (b)
such authority must be exercised within the
prescribed procedure of law passage and, hence,
should not be exercised after the GAA has already
been passed; and (c) such authority, as embodied in
the GAA, has the force of law and, hence, cannot be
merely recommendatory. Justice Vitug‘s Concurring
Opinion in the same case sums up the Philconsa
quandary in this wise: "Neither would it be
objectionable for Congress, by law, to appropriate
funds for such specific projects as it may be minded;
to give that authority, however, to the individual
members of Congress in whatever guise, I am afraid,
would be constitutionally impermissible." As the Court
now largely benefits from hindsight and current
findings on the matter, among others, the CoA
Report, the Court must partially abandon its previous
ruling in Philconsa insofar as it validated the post-
enactment identification authority of Members of
Congress on the guise that the same was merely
recommendatory. This postulate raises serious
constitutional inconsistencies which cannot be simply
excused on the ground that such mechanism is
"imaginative as it is innovative." Moreover, it must be
pointed out that the recent case of Abakada Guro
Party List v. Purisima155(Abakada) has effectively
overturned Philconsa‘s allowance of post-enactment
legislator participation in view of the separation of
powers principle. These constitutional inconsistencies
and the Abakada rule will be discussed in greater
detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case
was dismissed on a procedural technicality and,
hence, has not set any controlling doctrine
susceptible of current application to the substantive
issues in these cases. In fine, stare decisis would not
apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive
issues of these cases, it must first define the terms
"Pork Barrel System," "Congressional Pork Barrel,"
and "Presidential Pork Barrel" as they are essential to
the ensuing discourse.
Petitioners define the term "Pork Barrel System" as
the "collusion between the Legislative and Executive
branches of government to accumulate lump-sum
public funds in their offices with unchecked
discretionary powers to determine its distribution as
political largesse."156 They assert that the following
elements make up the Pork Barrel System: (a) lump-
sum funds are allocated through the appropriations
process to an individual officer; (b) the officer is given
sole and broad discretion in determining how the
funds will be used or expended; (c) the guidelines on
how to spend or use the funds in the appropriation are
either vague, overbroad or inexistent; and (d) projects
funded are intended to benefit a definite constituency
in a particular part of the country and to help the
political careers of the disbursing official by yielding
rich patronage benefits.157 They further state that the
Pork Barrel System is comprised of two (2) kinds of
discretionary public funds: first, the Congressional (or
Legislative) Pork Barrel, currently known as the
PDAF;158 and, second, the Presidential (or Executive)
Pork Barrel, specifically, the Malampaya Funds under
PD 910 and the Presidential Social Fund under PD
1869, as amended by PD 1993.159
Considering petitioners‘ submission and in reference
to its local concept and legal history, the Court defines
the Pork Barrel System as the collective body of rules
and practices that govern the manner by which lump-
sum, discretionary funds, primarily intended for local
projects, are utilized through the respective
participations of the Legislative and Executive
branches of government, including its members. The
Pork Barrel System involves two (2) kinds of lump-
sum discretionary funds:
First, there is the Congressional Pork Barrel which is
herein defined as a kind of lump-sum, discretionary
fund wherein legislators, either individually or
collectively organized into committees, are able to
effectively control certain aspects of the fund’s
utilization through various post-enactment measures
and/or practices. In particular, petitioners consider the
PDAF, as it appears under the 2013 GAA, as
Congressional Pork Barrel since it is, inter alia, a
post-enactment measure that allows individual
legislators to wield a collective power;160 and
Second, there is the Presidential Pork Barrel which is
herein defined as a kind of lump-sum, discretionary
fund which allows the President to determine the
manner of its utilization. For reasons earlier
stated,161 the Court shall delimit the use of such term
to refer only to the Malampaya Funds and the
Presidential Social Fund.
With these definitions in mind, the Court shall now
proceed to discuss the substantive issues of these
cases.
B. Substantive Issues on the Congressional Pork
Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the
constitutional demarcation of the three fundamental
powers of government. In the celebrated words of
Justice Laurel in Angara v. Electoral Commission,162 it
means that the "Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments
of the government."163 To the legislative branch of
government, through Congress,164belongs the power
to make laws; to the executive branch of government,
through the President,165 belongs the power to
enforce laws; and to the judicial branch of
government, through the Court,166 belongs the power
to interpret laws. Because the three great powers
have been, by constitutional design, ordained in this
respect, "each department of the government has
exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere."167 Thus, "the
legislature has no authority to execute or construe the
law, the executive has no authority to make or
construe the law, and the judiciary has no power to
make or execute the law."168 The principle of
separation of powers and its concepts of autonomy
and independence stem from the notion that the
powers of government must be divided to avoid
concentration of these powers in any one branch; the
division, it is hoped, would avoid any single branch
from lording its power over the other branches or the
citizenry.169 To achieve this purpose, the divided
power must be wielded by co-equal branches of
government that are equally capable of independent
action in exercising their respective mandates. Lack
of independence would result in the inability of one
branch of government to check the arbitrary or self-
interest assertions of another or others.170
Broadly speaking, there is a violation of the
separation of powers principle when one branch of
government unduly encroaches on the domain of
another. US Supreme Court decisions instruct that the
principle of separation of powers may be violated in
two (2) ways: firstly, "one branch may interfere
impermissibly with the other’s performance of its
constitutionally assigned function";171 and
"alternatively, the doctrine may be violated when one
branch assumes a function that more properly is
entrusted to another."172 In other words, there is a
violation of the principle when there is impermissible
(a) interference with and/or (b) assumption of another
department‘s functions.
The enforcement of the national budget, as primarily
contained in the GAA, is indisputably a function both
constitutionally assigned and properly entrusted to the
Executive branch of government. In Guingona, Jr. v.
Hon. Carague173 (Guingona, Jr.), the Court explained
that the phase of budget execution "covers the
various operational aspects of budgeting" and
accordingly includes "the evaluation of work and
financial plans for individual activities," the "regulation
and release of funds" as well as all "other related
activities" that comprise the budget execution
cycle.174 This is rooted in the principle that the
allocation of power in the three principal branches of
government is a grant of all powers inherent in
them.175 Thus, unless the Constitution provides
otherwise, the Executive department should
exclusively exercise all roles and prerogatives which
go into the implementation of the national budget as
provided under the GAA as well as any other
appropriation law.
In view of the foregoing, the Legislative branch of
government, much more any of its members, should
not cross over the field of implementing the national
budget since, as earlier stated, the same is properly
the domain of the Executive. Again, in Guingona, Jr.,
the Court stated that "Congress enters the picture
when it deliberates or acts on the budget proposals of
the President. Thereafter, Congress, "in the exercise
of its own judgment and wisdom, formulates an
appropriation act precisely following the process
established by the Constitution, which specifies that
no money may be paid from the Treasury except in
accordance with an appropriation made by law." Upon
approval and passage of the GAA, Congress‘ law -
making role necessarily comes to an end and from
there the Executive‘s role of implementing the
national budget begins. So as not to blur the
constitutional boundaries between them, Congress
must "not concern it self with details for
implementation by the Executive."176
The foregoing cardinal postulates were definitively
enunciated in Abakada where the Court held that
"from the moment the law becomes effective, any
provision of law that empowers Congress or any of its
members to play any role in the implementation or
enforcement of the law violates the principle of
separation of powers and is thus
unconstitutional."177 It must be clarified, however, that
since the restriction only pertains to "any role in the
implementation or enforcement of the law," Congress
may still exercise its oversight function which is a
mechanism of checks and balances that the
Constitution itself allows. But it must be made clear
that Congress‘ role must be confined to mere
oversight. Any post-enactment-measure allowing
legislator participation beyond oversight is bereft of
any constitutional basis and hence, tantamount to
impermissible interference and/or assumption of
executive functions. As the Court ruled in Abakada:178
Any post-enactment congressional measure x x x
should be limited to scrutiny and
investigation.1âwphi1 In particular, congressional
oversight must be confined to the following:
(1) scrutiny based primarily on
Congress‘ power of appropriation and the
budget hearings conducted in connection
with it, its power to ask heads of
departments to appear before and be heard
by either of its Houses on any matter
pertaining to their departments and its power
of confirmation; and
(2) investigation and monitoring of the
implementation of laws pursuant to the
power of Congress to conduct inquiries in aid
of legislation.
Any action or step beyond that will undermine the
separation of powers guaranteed by the Constitution.
(Emphases supplied)
b. Application.
In these cases, petitioners submit that the
Congressional Pork Barrel – among others, the 2013
PDAF Article – "wrecks the assignment of
responsibilities between the political branches" as it is
designed to allow individual legislators to interfere
"way past the time it should have ceased" or,
particularly, "after the GAA is passed."179 They state
that the findings and recommendations in the CoA
Report provide "an illustration of how absolute and
definitive the power of legislators wield over project
implementation in complete violation of the
constitutional principle of separation of
powers."180 Further, they point out that the Court in
the Philconsa case only allowed the CDF to exist on
the condition that individual legislators limited their
role to recommending projects and not if they actually
dictate their implementation.181
For their part, respondents counter that the
separations of powers principle has not been violated
since the President maintains "ultimate authority to
control the execution of the GAA‖ and that he "retains
the final discretion to reject" the
legislators‘ proposals.182 They maintain that the Court,
in Philconsa, "upheld the constitutionality of the power
of members of Congress to propose and identify
projects so long as such proposal and identification
are recommendatory."183 As such, they claim that
"everything in the Special Provisions [of the 2013
PDAF Article follows the Philconsa framework, and
hence, remains constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the
defining feature of all forms of Congressional Pork
Barrel would be the authority of legislators to
participate in the post-enactment phases of project
implementation.
At its core, legislators – may it be through project
lists,185 prior consultations186 or program menus187 –
have been consistently accorded post-enactment
authority to identify the projects they desire to be
funded through various Congressional Pork Barrel
allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects
post-GAA may be construed from the import of
Special Provisions 1 to 3 as well as the second
paragraph of Special Provision 4. To elucidate,
Special Provision 1 embodies the program menu
feature which, as evinced from past PDAF Articles,
allows individual legislators to identify PDAF projects
for as long as the identified project falls under a
general program listed in the said menu. Relatedly,
Special Provision 2 provides that the implementing
agencies shall, within 90 days from the GAA is
passed, submit to Congress a more detailed priority
list, standard or design prepared and submitted by
implementing agencies from which the legislator may
make his choice. The same provision further
authorizes legislators to identify PDAF projects
outside his district for as long as the representative of
the district concerned concurs in writing. Meanwhile,
Special Provision 3 clarifies that PDAF projects refer
to "projects to be identified by legislators"188 and
thereunder provides the allocation limit for the total
amount of projects identified by each legislator.
Finally, paragraph 2 of Special Provision 4 requires
that any modification and revision of the project
identification "shall be submitted to the House
Committee on Appropriations and the Senate
Committee on Finance for favorable endorsement to
the DBM or the implementing agency, as the case
may be." From the foregoing special provisions, it
cannot be seriously doubted that legislators have
been accorded post-enactment authority to identify
PDAF projects.
Aside from the area of project identification,
legislators have also been accorded post-enactment
authority in the areas of fund release and realignment.
Under the 2013 PDAF Article, the statutory authority
of legislators to participate in the area of fund release
through congressional committees is contained in
Special Provision 5 which explicitly states that "all
request for release of funds shall be supported by the
documents prescribed under Special Provision No. 1
and favorably endorsed by House Committee on
Appropriations and the Senate Committee on
Finance, as the case may be"; while their statutory
authority to participate in the area of fund realignment
is contained in: first , paragraph 2, Special Provision
4189 which explicitly state s, among others, that "any
realignment of funds shall be submitted to the House
Committee on Appropriations and the Senate
Committee on Finance for favorable endorsement to
the DBM or the implementing agency, as the case
may be‖ ; and, second , paragraph 1, also of Special
Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local
Government, Labor and Employment, Public Works
and Highways, Social Welfare and Development and
Trade and Industry190 x x x to approve realignment
from one project/scope to another within the allotment
received from this Fund, subject to among others (iii)
the request is with the concurrence of the legislator
concerned."
Clearly, these post-enactment measures which
govern the areas of project identification, fund release
and fund realignment are not related to functions of
congressional oversight and, hence, allow legislators
to intervene and/or assume duties that properly
belong to the sphere of budget execution. Indeed, by
virtue of the foregoing, legislators have been, in one
form or another, authorized to participate in – as
Guingona, Jr. puts it – "the various operational
aspects of budgeting," including "the evaluation of
work and financial plans for individual activities" and
the "regulation and release of funds" in violation of the
separation of powers principle. The fundamental rule,
as categorically articulated in Abakada, cannot be
overstated – from the moment the law becomes
effective, any provision of law that empowers
Congress or any of its members to play any role in the
implementation or enforcement of the law violates the
principle of separation of powers and is thus
unconstitutional.191 That the said authority is treated
as merely recommendatory in nature does not alter its
unconstitutional tenor since the prohibition, to repeat,
covers any role in the implementation or enforcement
of the law. Towards this end, the Court must therefore
abandon its ruling in Philconsa which sanctioned the
conduct of legislator identification on the guise that
the same is merely recommendatory and, as such,
respondents‘ reliance on the same falters altogether.
Besides, it must be pointed out that respondents have
nonetheless failed to substantiate their position that
the identification authority of legislators is only of
recommendatory import. Quite the contrary,
respondents – through the statements of the Solicitor
General during the Oral Arguments – have admitted
that the identification of the legislator constitutes a
mandatory requirement before his PDAF can be
tapped as a funding source, thereby highlighting the
indispensability of the said act to the entire budget
execution process:192
Justice Bernabe: Now, without the individual
legislator’s identification of the project, can the PDAF
of the legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the
identification of the project by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is
mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the
sense that if it is not done and then there is no
identification.
xxxx
Justice Bernabe: Now, would you know of specific
instances when a project was implemented without
the identification by the individual legislator?
Solicitor General Jardeleza: I do not know, Your
Honor; I do not think so but I have no specific
examples. I would doubt very much, Your Honor,
because to implement, there is a need for a SARO
and the NCA. And the SARO and the NCA are
triggered by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by
mandatory, Your Honor, is we were replying to a
question, "How can a legislator make sure that he is
able to get PDAF Funds?" It is mandatory in the
sense that he must identify, in that sense, Your
Honor. Otherwise, if he does not identify, he cannot
avail of the PDAF Funds and his district would not be
able to have PDAF Funds, only in that sense, Your
Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby
declares the 2013 PDAF Article as well as all other
provisions of law which similarly allow legislators to
wield any form of post-enactment authority in the
implementation or enforcement of the budget,
unrelated to congressional oversight, as violative of
the separation of powers principle and thus
unconstitutional. Corollary thereto, informal practices,
through which legislators have effectively intruded into
the proper phases of budget execution, must be
deemed as acts of grave abuse of discretion
amounting to lack or excess of jurisdiction and,
hence, accorded the same unconstitutional treatment.
That such informal practices do exist and have, in
fact, been constantly observed throughout the years
has not been substantially disputed here. As pointed
out by Chief Justice Maria Lourdes P.A. Sereno
(Chief Justice Sereno) during the Oral Arguments of
these cases:193
Chief Justice Sereno:
Now, from the responses of the representative of
both, the DBM and two (2) Houses of Congress, if we
enforces the initial thought that I have, after I had
seen the extent of this research made by my staff,
that neither the Executive nor Congress frontally
faced the question of constitutional compatibility of
how they were engineering the budget process. In
fact, the words you have been using, as the three
lawyers of the DBM, and both Houses of Congress
has also been using is surprise; surprised that all of
these things are now surfacing. In fact, I thought that
what the 2013 PDAF provisions did was to codify in
one section all the past practice that had been done
since 1991. In a certain sense, we should be thankful
that they are all now in the PDAF Special Provisions.
x x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which
they do not have, whether through formal measures
written into the law or informal practices
institutionalized in government agencies, else the
Executive department be deprived of what the
Constitution has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers
principle,194 legislative power shall be exclusively
exercised by the body to which the Constitution has
conferred the same. In particular, Section 1, Article VI
of the 1987 Constitution states that such power shall
be vested in the Congress of the Philippines which
shall consist of a Senate and a House of
Representatives, except to the extent reserved to the
people by the provision on initiative and
referendum.195 Based on this provision, it is clear that
only Congress, acting as a bicameral body, and the
people, through the process of initiative and
referendum, may constitutionally wield legislative
power and no other. This premise embodies the
principle of non-delegability of legislative power, and
the only recognized exceptions thereto would be: (a)
delegated legislative power to local governments
which, by immemorial practice, are allowed to
legislate on purely local matters;196 and (b)
constitutionally-grafted exceptions such as the
authority of the President to, by law, exercise powers
necessary and proper to carry out a declared national
policy in times of war or other national
emergency,197or fix within specified limits, and subject
to such limitations and restrictions as Congress may
impose, tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or
imposts within the framework of the national
development program of the Government.198
Notably, the principle of non-delegability should not
be confused as a restriction to delegate rule-making
authority to implementing agencies for the limited
purpose of either filling up the details of the law for its
enforcement (supplementary rule-making) or
ascertaining facts to bring the law into actual
operation (contingent rule-making).199The conceptual
treatment and limitations of delegated rule-making
were explained in the case of People v.
Maceren200 as follows:
The grant of the rule-making power to administrative
agencies is a relaxation of the principle of separation
of powers and is an exception to the nondelegation of
legislative powers. Administrative regulations or
"subordinate legislation" calculated to promote the
public interest are necessary because of "the growing
complexity of modern life, the multiplication of the
subjects of governmental regulations, and the
increased difficulty of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-
making power must be confined to details for
regulating the mode or proceeding to carry into effect
the law as it has been enacted. The power cannot be
extended to amending or expanding the statutory
requirements or to embrace matters not covered by
the statute. Rules that subvert the statute cannot be
sanctioned. (Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013
PDAF Article, insofar as it confers post-enactment
identification authority to individual legislators, violates
the principle of non-delegability since said legislators
are effectively allowed to individually exercise the
power of appropriation, which – as settled in
Philconsa – is lodged in Congress.201 That the power
to appropriate must be exercised only through
legislation is clear from Section 29(1), Article VI of the
1987 Constitution which states that: "No money shall
be paid out of the Treasury except in pursuance of an
appropriation made by law." To understand what
constitutes an act of appropriation, the Court, in
Bengzon v. Secretary of Justice and Insular
Auditor202 (Bengzon), held that the power of
appropriation involves (a) the setting apart by law of a
certain sum from the public revenue for (b) a specified
purpose. Essentially, under the 2013 PDAF Article,
individual legislators are given a personal lump-sum
fund from which they are able to dictate (a) how much
from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. As
these two (2) acts comprise the exercise of the power
of appropriation as described in Bengzon, and given
that the 2013 PDAF Article authorizes individual
legislators to perform the same, undoubtedly, said
legislators have been conferred the power to legislate
which the Constitution does not, however, allow.
Thus, keeping with the principle of non-delegability of
legislative power, the Court hereby declares the 2013
PDAF Article, as well as all other forms of
Congressional Pork Barrel which contain the similar
legislative identification feature as herein discussed,
as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government
are intended to be kept separate and distinct does not
mean that they are absolutely unrestrained and
independent of each other. The Constitution has also
provided for an elaborate system of checks and
balances to secure coordination in the workings of the
various departments of the government.203
A prime example of a constitutional check and
balance would be the President’s power to veto an
item written into an appropriation, revenue or tariff bill
submitted to him by Congress for approval through a
process known as "bill presentment." The President‘s
item-veto power is found in Section 27(2), Article VI of
the 1987 Constitution which reads as follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any
particular item or items in an appropriation, revenue,
or tariff bill, but the veto shall not affect the item or
items to which he does not object.
The presentment of appropriation, revenue or tariff
bills to the President, wherein he may exercise his
power of item-veto, forms part of the "single, finely
wrought and exhaustively considered, procedures" for
law-passage as specified under the
Constitution.204 As stated in Abakada, the final step in
the law-making process is the "submission of the bill
to the President for approval. Once approved, it takes
effect as law after the required publication." 205
Elaborating on the President‘s item-veto power and its
relevance as a check on the legislature, the Court, in
Bengzon, explained that:206
The former Organic Act and the present Constitution
of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval
of a bill, commonly known as a veto, is essentially a
legislative act. The questions presented to the mind of
the Chief Executive are precisely the same as those
the legislature must determine in passing a bill,
except that his will be a broader point of view.
The Constitution is a limitation upon the power of the
legislative department of the government, but in this
respect it is a grant of power to the executive
department. The Legislature has the affirmative power
to enact laws; the Chief Executive has the negative
power by the constitutional exercise of which he may
defeat the will of the Legislature. It follows that the
Chief Executive must find his authority in the
Constitution. But in exercising that authority he may
not be confined to rules of strict construction or
hampered by the unwise interference of the judiciary.
The courts will indulge every intendment in favor of
the constitutionality of a veto in the same manner as
they will presume the constitutionality of an act as
originally passed by the Legislature. (Emphases
supplied)
The justification for the President‘s item-veto power
rests on a variety of policy goals such as to prevent
log-rolling legislation,207 impose fiscal restrictions on
the legislature, as well as to fortify the executive
branch‘s role in the budgetary process.208 In
Immigration and Naturalization Service v. Chadha, the
US Supreme Court characterized the President‘s
item-power as "a salutary check upon the legislative
body, calculated to guard the community against the
effects of factions, precipitancy, or of any impulse
unfriendly to the public good, which may happen to
influence a majority of that body"; phrased differently,
it is meant to "increase the chances in favor of the
community against the passing of bad laws, through
haste, inadvertence, or design."209
For the President to exercise his item-veto power, it
necessarily follows that there exists a proper "item"
which may be the object of the veto. An item, as
defined in the field of appropriations, pertains to "the
particulars, the details, the distinct and severable
parts of the appropriation or of the bill." In the case of
Bengzon v. Secretary of Justice of the Philippine
Islands,210 the US Supreme Court characterized an
item of appropriation as follows:
An item of an appropriation bill obviously means an
item which, in itself, is a specific appropriation of
money, not some general provision of law which
happens to be put into an appropriation bill.
(Emphases supplied)
On this premise, it may be concluded that an
appropriation bill, to ensure that the President may be
able to exercise his power of item veto, must contain
"specific appropriations of money" and not only
"general provisions" which provide for parameters of
appropriation.
Further, it is significant to point out that an item of
appropriation must be an item characterized by
singular correspondence – meaning an allocation of a
specified singular amount for a specified singular
purpose, otherwise known as a "line-item."211 This
treatment not only allows the item to be consistent
with its definition as a "specific appropriation of
money" but also ensures that the President may
discernibly veto the same. Based on the foregoing
formulation, the existing Calamity Fund, Contingent
Fund and the Intelligence Fund, being appropriations
which state a specified amount for a specific purpose,
would then be considered as "line- item"
appropriations which are rightfully subject to item
veto. Likewise, it must be observed that an
appropriation may be validly apportioned into
component percentages or values; however, it is
crucial that each percentage or value must be
allocated for its own corresponding purpose for such
component to be considered as a proper line-item.
Moreover, as Justice Carpio correctly pointed out, a
valid appropriation may even have several related
purposes that are by accounting and budgeting
practice considered as one purpose, e.g., MOOE
(maintenance and other operating expenses), in
which case the related purposes shall be deemed
sufficiently specific for the exercise of the President‘s
item veto power. Finally, special purpose funds and
discretionary funds would equally square with the
constitutional mechanism of item-veto for as long as
they follow the rule on singular correspondence as
herein discussed. Anent special purpose funds, it
must be added that Section 25(4), Article VI of the
1987 Constitution requires that the "special
appropriations bill shall specify the purpose for which
it is intended, and shall be supported by funds
actually available as certified by the National
Treasurer, or t o be raised by a corresponding
revenue proposal therein." Meanwhile, with respect to
discretionary funds, Section 2 5(6), Article VI of the
1987 Constitution requires that said funds "shall be
disbursed only for public purposes to be supported by
appropriate vouchers and subject to such guidelines
as may be prescribed by law."
In contrast, what beckons constitutional infirmity are
appropriations which merely provide for a singular
lump-sum amount to be tapped as a source of funding
for multiple purposes. Since such appropriation type
necessitates the further determination of both the
actual amount to be expended and the actual purpose
of the appropriation which must still be chosen from
the multiple purposes stated in the law, it cannot be
said that the appropriation law already indicates a
"specific appropriation of money‖ and hence, without
a proper line-item which the President may veto. As a
practical result, the President would then be faced
with the predicament of either vetoing the entire
appropriation if he finds some of its purposes wasteful
or undesirable, or approving the entire appropriation
so as not to hinder some of its legitimate purposes.
Finally, it may not be amiss to state that such
arrangement also raises non-delegability issues
considering that the implementing authority would still
have to determine, again, both the actual amount to
be expended and the actual purpose of the
appropriation. Since the foregoing determinations
constitute the integral aspects of the power to
appropriate, the implementing authority would, in
effect, be exercising legislative prerogatives in
violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x
x x system where the PDAF is a lump-sum
appropriation, the legislator‘s identification of the
projects after the passage of the GAA denies the
President the chance to veto that item later
on."212 Accordingly, they submit that the "item veto
power of the President mandates that appropriations
bills adopt line-item budgeting" and that "Congress
cannot choose a mode of budgeting which effectively
renders the constitutionally-given power of the
President useless."213
On the other hand, respondents maintain that the text
of the Constitution envisions a process which is
intended to meet the demands of a modernizing
economy and, as such, lump-sum appropriations are
essential to financially address situations which are
barely foreseen when a GAA is enacted. They argue
that the decision of the Congress to create some
lump-sum appropriations is constitutionally allowed
and textually-grounded.214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of ₱24.79
Billion only appears as a collective allocation limit
since the said amount would be further divided among
individual legislators who would then receive personal
lump-sum allocations and could, after the GAA is
passed, effectively appropriate PDAF funds based on
their own discretion. As these intermediate
appropriations are made by legislators only after the
GAA is passed and hence, outside of the law, it
necessarily means that the actual items of PDAF
appropriation would not have been written into the
General Appropriations Bill and thus effectuated
without veto consideration. This kind of lump-
sum/post-enactment legislative identification
budgeting system fosters the creation of a budget
within a budget" which subverts the prescribed
procedure of presentment and consequently impairs
the President‘s power of item veto. As petitioners
aptly point out, the above-described system forces the
President to decide between (a) accepting the entire
₱24.79 Billion PDAF allocation without knowing the
specific projects of the legislators, which may or may
not be consistent with his national agenda and (b)
rejecting the whole PDAF to the detriment of all other
legislators with legitimate projects.215
Moreover, even without its post-enactment legislative
identification feature, the 2013 PDAF Article would
remain constitutionally flawed since it would then
operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the
lump-sum amount of ₱24.79 Billion would be treated
as a mere funding source allotted for multiple
purposes of spending, i.e., scholarships, medical
missions, assistance to indigents, preservation of
historical materials, construction of roads, flood
control, etc. This setup connotes that the
appropriation law leaves the actual amounts and
purposes of the appropriation for further determination
and, therefore, does not readily indicate a discernible
item which may be subject to the President‘s power of
item veto.
In fact, on the accountability side, the same lump-sum
budgeting scheme has, as the CoA Chairperson
relays, "limited state auditors from obtaining relevant
data and information that would aid in more
stringently auditing the utilization of said
Funds."216 Accordingly, she recommends the adoption
of a "line by line budget or amount per proposed
program, activity or project, and per implementing
agency."217
Hence, in view of the reasons above-stated, the Court
finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation,
to be unconstitutional. That such budgeting system
provides for a greater degree of flexibility to account
for future contingencies cannot be an excuse to
defeat what the Constitution requires. Clearly, the first
and essential truth of the matter is that
unconstitutional means do not justify even
commendable ends.218
c. Accountability.
Petitioners further relate that the system under which
various forms of Congressional Pork Barrel operate
defies public accountability as it renders Congress
incapable of checking itself or its Members. In
particular, they point out that the Congressional Pork
Barrel "gives each legislator a direct, financial interest
in the smooth, speedy passing of the yearly budget"
which turns them "from fiscalizers" into "financially-
interested partners."219 They also claim that the
system has an effect on re- election as "the PDAF
excels in self-perpetuation of elective officials."
Finally, they add that the "PDAF impairs the power of
impeachment" as such "funds are indeed quite useful,
‘to well, accelerate the decisions of senators.‘"220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the
1987 Constitution, which states that "public office is a
public trust," is an overarching reminder that every
instrumentality of government should exercise their
official functions only in accordance with the principles
of the Constitution which embodies the parameters of
the people‘s trust. The notion of a public trust
connotes accountability,221 hence, the various
mechanisms in the Constitution which are designed to
exact accountability from public officers.
Among others, an accountability mechanism with
which the proper expenditure of public funds may be
checked is the power of congressional oversight. As
mentioned in Abakada,222 congressional oversight
may be performed either through: (a) scrutiny based
primarily on Congress‘ power of appropriation and the
budget hearings conducted in connection with it, its
power to ask heads of departments to appear before
and be heard by either of its Houses on any matter
pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of
the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.224
The Court agrees with petitioners that certain features
embedded in some forms of Congressional Pork
Barrel, among others the 2013 PDAF Article, has an
effect on congressional oversight. The fact that
individual legislators are given post-enactment roles
in the implementation of the budget makes it difficult
for them to become disinterested "observers" when
scrutinizing, investigating or monitoring the
implementation of the appropriation law. To a certain
extent, the conduct of oversight would be tainted as
said legislators, who are vested with post-enactment
authority, would, in effect, be checking on activities in
which they themselves participate. Also, it must be
pointed out that this very same concept of post-
enactment authorization runs afoul of Section 14,
Article VI of the 1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of
Representatives may personally appear as counsel
before any court of justice or before the Electoral
Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any
franchise or special privilege granted by the
Government, or any subdivision, agency, or
instrumentality thereof, including any government-
owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any
matter before any office of the Government for his
pecuniary benefit or where he may be called upon to
act on account of his office. (Emphasis supplied)
Clearly, allowing legislators to intervene in the various
phases of project implementation – a matter before
another office of government – renders them
susceptible to taking undue advantage of their own
office.
The Court, however, cannot completely agree that the
same post-enactment authority and/or the individual
legislator‘s control of his PDAF per se would allow
him to perpetuate himself in office. Indeed, while the
Congressional Pork Barrel and a legislator‘s use
thereof may be linked to this area of interest, the use
of his PDAF for re-election purposes is a matter which
must be analyzed based on particular facts and on a
case-to-case basis.
Finally, while the Court accounts for the possibility
that the close operational proximity between
legislators and the Executive department, through the
former‘s post-enactment participation, may affect the
process of impeachment, this matter largely borders
on the domain of politics and does not strictly concern
the Pork Barrel System‘s intrinsic constitutionality. As
such, it is an improper subject of judicial assessment.
In sum, insofar as its post-enactment features dilute
congressional oversight and violate Section 14, Article
VI of the 1987 Constitution, thus impairing public
accountability, the 2013 PDAF Article and other forms
of Congressional Pork Barrel of similar nature are
deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel
System enables politicians who are members of
political dynasties to accumulate funds to perpetuate
themselves in power, in contravention of Section 26,
Article II of the 1987 Constitution225 which states that:
Sec. 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis and
underscoring supplied)
At the outset, suffice it to state that the foregoing
provision is considered as not self-executing due to
the qualifying phrase "as may be defined by law." In
this respect, said provision does not, by and of itself,
provide a judicially enforceable constitutional right but
merely specifies guideline for legislative or executive
action.226 Therefore, since there appears to be no
standing law which crystallizes the policy on political
dynasties for enforcement, the Court must defer from
ruling on this issue.
In any event, the Court finds the above-stated
argument on this score to be largely speculative since
it has not been properly demonstrated how the Pork
Barrel System would be able to propagate political
dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally
stated in Section 25, Article II and Sections 2 and 3,
Article X of the 1987 Constitution which read as
follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local
governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall
enjoy local autonomy.
Sec. 3. The Congress shall enact a local government
code which shall provide for a more responsive and
accountable local government structure instituted
through a system of decentralization with effective
mechanisms of recall, initiative, and referendum,
allocate among the different local government units
their powers, responsibilities, and resources, and
provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions
and duties of local officials, and all other matters
relating to the organization and operation of the local
units.
Pursuant thereto, Congress enacted RA
7160,227 otherwise known as the "Local Government
Code of 1991" (LGC), wherein the policy on local
autonomy had been more specifically explicated as
follows:
Sec. 2. Declaration of Policy. – (a) It is hereby
declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine
and meaningful local autonomy to enable them to
attain their fullest development as self-reliant
communities and make them more effective partners
in the attainment of national goals. Toward this end,
the State shall provide for a more responsive and
accountable local government structure instituted
through a system of decentralization whereby local
government units shall be given more powers,
authority, responsibilities, and resources. The process
of decentralization shall proceed from the National
Government to the local government units.
xxxx
(c) It is likewise the policy of the State to require all
national agencies and offices to conduct periodic
consultations with appropriate local government units,
nongovernmental and people‘s organizations, and
other concerned sectors of the community before any
project or program is implemented in their respective
jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and
the LGC reveal the policy of the State to empower
local government units (LGUs) to develop and
ultimately, become self-sustaining and effective
contributors to the national economy. As explained by
the Court in Philippine Gamefowl Commission v.
Intermediate Appellate Court:228
This is as good an occasion as any to stress the
commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed
impetus and encouragement to the development of
our local political subdivisions as "self - reliant
communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the
great one derives its strength." The vitalization of local
governments will enable their inhabitants to fully
exploit their resources and more important, imbue
them with a deepened sense of involvement in public
affairs as members of the body politic. This objective
could be blunted by undue interference by the
national government in purely local affairs which are
best resolved by the officials and inhabitants of such
political units. The decision we reach today conforms
not only to the letter of the pertinent laws but also to
the spirit of the Constitution.229 (Emphases and
underscoring supplied)
In the cases at bar, petitioners contend that the
Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it
allows district representatives, who are national
officers, to substitute their judgments in utilizing public
funds for local development.230 The Court agrees with
petitioners.
Philconsa described the 1994 CDF as an attempt "to
make equal the unequal" and that "it is also a
recognition that individual members of Congress, far
more than the President and their congressional
colleagues, are likely to be knowledgeable about the
needs of their respective constituents and the priority
to be given each project."231 Drawing strength from
this pronouncement, previous legislators justified its
existence by stating that "the relatively small projects
implemented under the Congressional Pork Barrel
complement and link the national development goals
to the countryside and grassroots as well as to
depressed areas which are overlooked by central
agencies which are preoccupied with mega-
projects.232 Similarly, in his August 23, 2013 speech
on the "abolition" of PDAF and budgetary reforms,
President Aquino mentioned that the Congressional
Pork Barrel was originally established for a worthy
goal, which is to enable the representatives to identify
projects for communities that the LGU concerned
cannot afford.233
Notwithstanding these declarations, the Court,
however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal
the unequal." In particular, the Court observes that the
gauge of PDAF and CDF allocation/division is based
solely on the fact of office, without taking into account
the specific interests and peculiarities of the district
the legislator represents. In this regard, the
allocation/division limits are clearly not based on
genuine parameters of equality, wherein economic or
geographic indicators have been taken into
consideration. As a result, a district representative of
a highly-urbanized metropolis gets the same amount
of funding as a district representative of a far-flung
rural province which would be relatively
"underdeveloped" compared to the former. To add,
what rouses graver scrutiny is that even Senators and
Party-List Representatives – and in some years, even
the Vice-President – who do not represent any
locality, receive funding from the Congressional Pork
Barrel as well. These certainly are anathema to the
Congressional Pork Barrel‘s original intent which is "to
make equal the unequal." Ultimately, the PDAF and
CDF had become personal funds under the effective
control of each legislator and given unto them on the
sole account of their office.
The Court also observes that this concept of legislator
control underlying the CDF and PDAF conflicts with
the functions of the various Local Development
Councils (LDCs) which are already legally mandated
to "assist the corresponding sanggunian in setting the
direction of economic and social development, and
coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are
instrumentalities whose functions are essentially
geared towards managing local affairs,235 their
programs, policies and resolutions should not be
overridden nor duplicated by individual legislators,
who are national officers that have no law-making
authority except only when acting as a body. The
undermining effect on local autonomy caused by the
post-enactment authority conferred to the latter was
succinctly put by petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the
local development council and initiate projects on his
own, and even take sole credit for its execution.
Indeed, this type of personality-driven project
identification has not only contributed little to the
overall development of the district, but has even
contributed to "further weakening infrastructure
planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized
to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF
Article as well as all other similar forms of
Congressional Pork Barrel is deemed
unconstitutional.
With this final issue on the Congressional Pork Barrel
resolved, the Court now turns to the substantive
issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910
and Section 12 of PD1869 (now, amended by PD
1993), which respectively provide for the Malampaya
Funds and the Presidential Social Fund, as invalid
appropriations laws since they do not have the
"primary and specific" purpose of authorizing the
release of public funds from the National Treasury.
Petitioners submit that Section 8 of PD 910 is not an
appropriation law since the "primary and specific‖
purpose of PD 910 is the creation of an Energy
Development Board and Section 8 thereof only
created a Special Fund incidental thereto.237 In similar
regard, petitioners argue that Section 12 of PD 1869
is neither a valid appropriations law since the
allocation of the Presidential Social Fund is merely
incidental to the "primary and specific" purpose of PD
1869 which is the amendment of the Franchise and
Powers of PAGCOR.238 In view of the foregoing,
petitioners suppose that such funds are being used
without any valid law allowing for their proper
appropriation in violation of Section 29(1), Article VI of
the 1987 Constitution which states that: "No money
shall be paid out of the Treasury except in pursuance
of an appropriation made by law."239
The Court disagrees.
"An appropriation made by law‖ under the
contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets
apart a determinate or determinable240 amount of
money and (b) allocates the same for a particular
public purpose. These two minimum designations of
amount and purpose stem from the very definition of
the word "appropriation," which means "to allot,
assign, set apart or apply to a particular use or
purpose," and hence, if written into the law,
demonstrate that the legislative intent to appropriate
exists. As the Constitution "does not provide or
prescribe any particular form of words or religious
recitals in which an authorization or appropriation by
Congress shall be made, except that it be ‘made by
law,‘" an appropriation law may – according to
Philconsa – be "detailed and as broad as Congress
wants it to be" for as long as the intent to appropriate
may be gleaned from the same. As held in the case of
Guingona, Jr.:241
There is no provision in our Constitution that provides
or prescribes any particular form of words or religious
recitals in which an authorization or appropriation by
Congress shall be made, except that it be "made by
law," such as precisely the authorization or
appropriation under the questioned presidential
decrees. In other words, in terms of time horizons, an
appropriation may be made impliedly (as by past but
subsisting legislations) as well as expressly for the
current fiscal year (as by enactment of laws by the
present Congress), just as said appropriation may be
made in general as well as in specific terms. The
Congressional authorization may be embodied in
annual laws, such as a general appropriations act or
in special provisions of laws of general or special
application which appropriate public funds for specific
public purposes, such as the questioned decrees. An
appropriation measure is sufficient if the legislative
intention clearly and certainly appears from the
language employed (In re Continuing Appropriations,
32 P. 272), whether in the past or in the present.
(Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State
of Nevada v. La Grave:242
To constitute an appropriation there must be money
placed in a fund applicable to the designated purpose.
The word appropriate means to allot, assign, set apart
or apply to a particular use or purpose. An
appropriation in the sense of the constitution means
the setting apart a portion of the public funds for a
public purpose. No particular form of words is
necessary for the purpose, if the intention to
appropriate is plainly manifested. (Emphases
supplied)
Thus, based on the foregoing, the Court cannot
sustain the argument that the appropriation must be
the "primary and specific" purpose of the law in order
for a valid appropriation law to exist. To reiterate, if a
legal provision designates a determinate or
determinable amount of money and allocates the
same for a particular public purpose, then the
legislative intent to appropriate becomes apparent
and, hence, already sufficient to satisfy the
requirement of an "appropriation made by law" under
contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any
and all sources including receipts from service
contracts and agreements such as application and
processing fees, signature bonus, discovery bonus,
production bonus; all money collected from
concessionaires, representing unspent work
obligations, fines and penalties under the Petroleum
Act of 1949; as well as the government share
representing royalties, rentals, production share on
service contracts and similar payments on the
exploration, development and exploitation of energy
resources, shall form part of a Special Fund to be
used to finance energy resource development and
exploitation programs and projects of the government
and for such other purposes as may be hereafter
directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD
1993, reads:
Sec. 12. Special Condition of Franchise. — After
deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the
aggregate gross earnings of the Corporation from this
Franchise, or 60% if the aggregate gross earnings be
less than ₱150,000,000.00 shall be set aside and
shall accrue to the General Fund to finance the
priority infrastructure development projects and to
finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and
authorized by the Office of the President of the
Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned
principles, it may then be concluded that (a) Section 8
of PD 910, which creates a Special Fund comprised
of "all fees, revenues, and receipts of the Energy
Development Board from any and all sources" (a
determinable amount) "to be used to finance energy
resource development and exploitation programs and
projects of the government and for such other
purposes as may be hereafter directed by the
President" (a specified public purpose), and (b)
Section 12 of PD 1869, as amended by PD 1993,
which similarly sets aside, "after deducting five (5%)
percent as Franchise Tax, the Fifty (50%) percent
share of the Government in the aggregate gross
earnings of PAGCOR, or 60%, if the aggregate gross
earnings be less than ₱150,000,000.00" (also a
determinable amount) "to finance the priority
infrastructure development projects and x x x the
restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the
Office of the President of the Philippines" (also a
specified public purpose), are legal appropriations
under Section 29(1), Article VI of the 1987
Constitution.
In this relation, it is apropos to note that the 2013
PDAF Article cannot be properly deemed as a legal
appropriation under the said constitutional provision
precisely because, as earlier stated, it contains post-
enactment measures which effectively create a
system of intermediate appropriations. These
intermediate appropriations are the actual
appropriations meant for enforcement and since they
are made by individual legislators after the GAA is
passed, they occur outside the law. As such, the
Court observes that the real appropriation made
under the 2013 PDAF Article is not the ₱24.79 Billion
allocated for the entire PDAF, but rather the post-
enactment determinations made by the individual
legislators which are, to repeat, occurrences outside
of the law. Irrefragably, the 2013 PDAF Article does
not constitute an "appropriation made by law" since it,
in its truest sense, only authorizes individual
legislators to appropriate in violation of the non-
delegability principle as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section
8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other
purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to
determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the
Court to apply the principle of ejusdem generis to the
same section and thus, construe the phrase "and for
such other purposes as may be hereafter directed by
the President" to refer only to other purposes related
"to energy resource development and exploitation
programs and projects of the government."244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or
determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the
appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making
authority to the Executive245 either for the purpose of
(a) filling up the details of the law for its enforcement,
known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual
operation, referred to as contingent rule-
making.246 There are two (2) fundamental tests to
ensure that the legislative guidelines for delegated
rule-making are indeed adequate. The first test is
called the "completeness test." Case law states that a
law is complete when it sets forth therein the policy to
be executed, carried out, or implemented by the
delegate. On the other hand, the second test is called
the "sufficient standard test." Jurisprudence holds that
a law lays down a sufficient standard when it provides
adequate guidelines or limitations in the law to map
out the boundaries of the delegate‘s authority and
prevent the delegation from running riot.247 To be
sufficient, the standard must specify the limits of the
delegate‘s authority, announce the legislative policy,
and identify the conditions under which it is to be
implemented.248
In view of the foregoing, the Court agrees with
petitioners that the phrase "and for such other
purposes as may be hereafter directed by the
President" under Section 8 of PD 910 constitutes an
undue delegation of legislative power insofar as it
does not lay down a sufficient standard to adequately
determine the limits of the President‘s authority with
respect to the purpose for which the Malampaya
Funds may be used. As it reads, the said phrase
gives the President wide latitude to use the
Malampaya Funds for any other purpose he may
direct and, in effect, allows him to unilaterally
appropriate public funds beyond the purview of the
law. That the subject phrase may be confined only to
"energy resource development and exploitation
programs and projects of the government" under the
principle of ejusdem generis, meaning that the
general word or phrase is to be construed to include –
or be restricted to – things akin to, resembling, or of
the same kind or class as those specifically
mentioned,249 is belied by three (3) reasons: first, the
phrase "energy resource development and
exploitation programs and projects of the government"
states a singular and general class and hence, cannot
be treated as a statutory reference of specific things
from which the general phrase "for such other
purposes" may be limited; second, the said phrase
also exhausts the class it represents, namely energy
development programs of the government;250 and,
third, the Executive department has, in fact, used the
Malampaya Funds for non-energy related purposes
under the subject phrase, thereby contradicting
respondents‘ own position that it is limited only to
"energy resource development and exploitation
programs and projects of the government."251 Thus,
while Section 8 of PD 910 may have passed the
completeness test since the policy of energy
development is clearly deducible from its text, the
phrase "and for such other purposes as may be
hereafter directed by the President" under the same
provision of law should nonetheless be stricken down
as unconstitutional as it lies independently unfettered
by any sufficient standard of the delegating law. This
notwithstanding, it must be underscored that the rest
of Section 8, insofar as it allows for the use of the
Malampaya Funds "to finance energy resource
development and exploitation programs and projects
of the government," remains legally effective and
subsisting. Truth be told, the declared
unconstitutionality of the aforementioned phrase is but
an assurance that the Malampaya Funds would be
used – as it should be used – only in accordance with
the avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes
judicial notice of the fact that Section 12 of PD 1869
has already been amended by PD 1993 which thus
moots the parties‘ submissions on the
same.252 Nevertheless, since the amendatory
provision may be readily examined under the current
parameters of discussion, the Court proceeds to
resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD
1993, indicates that the Presidential Social Fund may
be used "to first, finance the priority infrastructure
development projects and second, to finance the
restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the
Office of the President of the Philippines." The Court
finds that while the second indicated purpose
adequately curtails the authority of the President to
spend the Presidential Social Fund only for
restoration purposes which arise from calamities, the
first indicated purpose, however, gives him carte
blanche authority to use the same fund for any
infrastructure project he may so determine as a
"priority". Verily, the law does not supply a definition of
"priority in frastructure development projects" and
hence, leaves the President without any guideline to
construe the same. To note, the delimitation of a
project as one of "infrastructure" is too broad of a
classification since the said term could pertain to any
kind of facility. This may be deduced from its
lexicographic definition as follows: "the underlying
framework of a system, especially public services and
facilities (such as highways, schools, bridges, sewers,
and water-systems) needed to support commerce as
well as economic and residential development."253 In
fine, the phrase "to finance the priority infrastructure
development projects" must be stricken down as
unconstitutional since – similar to the above-assailed
provision under Section 8 of PD 910 – it lies
independently unfettered by any sufficient standard of
the delegating law. As they are severable, all other
provisions of Section 12 of PD 1869, as amended by
PD 1993, remains legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed
Reports.
Aside from seeking the Court to declare the Pork
Barrel System unconstitutional – as the Court did so
in the context of its pronouncements made in this
Decision – petitioners equally pray that the Executive
Secretary and/or the DBM be ordered to release to
the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their
PDAF and VILP from the years 2003 to 2013,
specifying the use of the funds, the project or activity
and the recipient entities or individuals, and all
pertinent data thereto" (PDAF Use
Schedule/List);254 and (b) "the use of the Executive‘s
lump-sum, discretionary funds, including the proceeds
from the x x x Malampaya Funds and remittances
from the PAGCOR x x x from 2003 to 2013,
specifying the x x x project or activity and the recipient
entities or individuals, and all pertinent data
thereto"255 (Presidential Pork Use Report).
Petitioners‘ prayer is grounded on Section 28, Article
II and Section 7, Article III of the 1987 Constitution
which read as follows:
ARTICLE II
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.
ARTICLE III 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.
The Court denies petitioners‘ submission.
Case law instructs that the proper remedy to invoke
the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v.
Civil Service Commission:256
While the manner of examining public records may be
subject to reasonable regulation by the government
agency in custody thereof, the duty to disclose the
information of public concern, and to afford access to
public records cannot be discretionary on the part of
said agencies. Certainly, its performance cannot be
made contingent upon the discretion of such
agencies. Otherwise, the enjoyment of the
constitutional right may be rendered nugatory by any
whimsical exercise of agency discretion. The
constitutional duty, not being discretionary, its
performance may be compelled by a writ of
mandamus in a proper case.
But what is a proper case for Mandamus to issue? In
the case before Us, the public right to be enforced
and the concomitant duty of the State are
unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance
of the writ of mandamus in this case is, whether the
information sought by the petitioner is within the ambit
of the constitutional guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte
Jr.257 (Valmonte), it has been clarified that the right to
information does not include the right to compel the
preparation of "lists, abstracts, summaries and the
like." In the same case, it was stressed that it is
essential that the "applicant has a well -defined, clear
and certain legal right to the thing demanded and that
it is the imperative duty of defendant to perform the
act required." Hence, without the foregoing
substantiations, the Court cannot grant a particular
request for information. The pertinent portions of
Valmonte are hereunder quoted:258
Although citizens are afforded the right to information
and, pursuant thereto, are entitled to "access to
official records," the Constitution does not accord
them a right to compel custodians of official records to
prepare lists, abstracts, summaries and the like in
their desire to acquire information on matters of public
concern.
It must be stressed that it is essential for a writ of
mandamus to issue that the applicant has a well-
defined, clear and certain legal right to the thing
demanded and that it is the imperative duty of
defendant to perform the act required. The
corresponding duty of the respondent to perform the
required act must be clear and specific Lemi v.
Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344,
August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this
standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases
supplied)
In these cases, aside from the fact that none of the
petitions are in the nature of mandamus actions, the
Court finds that petitioners have failed to establish a
"a well-defined, clear and certain legal right" to be
furnished by the Executive Secretary and/or the DBM
of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners
assert any law or administrative issuance which would
form the bases of the latter‘s duty to furnish them with
the documents requested. While petitioners pray that
said information be equally released to the CoA, it
must be pointed out that the CoA has not been
impleaded as a party to these cases nor has it filed
any petition before the Court to be allowed access to
or to compel the release of any official document
relevant to the conduct of its audit investigations.
While the Court recognizes that the information
requested is a matter of significant public concern,
however, if only to ensure that the parameters of
disclosure are properly foisted and so as not to unduly
hamper the equally important interests of the
government, it is constrained to deny
petitioners‘ prayer on this score, without prejudice to a
proper mandamus case which they, or even the CoA,
may choose to pursue through a separate petition.
It bears clarification that the Court‘s denial herein
should only cover petitioners‘ plea to be furnished
with such schedule/list and report and not in any way
deny them, or the general public, access to official
documents which are already existing and of public
record. Subject to reasonable regulation and absent
any valid statutory prohibition, access to these
documents should not be proscribed. Thus, in
Valmonte, while the Court denied the application for
mandamus towards the preparation of the list
requested by petitioners therein, it nonetheless
allowed access to the documents sought for by the
latter, subject, however, to the custodian‘s reasonable
regulations,viz.:259
In fine, petitioners are entitled to access to the
documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may
promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the
records may be avoided, that undue interference with
the duties of the custodian of the records may be
prevented and that the right of other persons entitled
to inspect the records may be insured Legaspi v. Civil
Service Commission, supra at p. 538, quoting Subido
v. Ozaeta, 80 Phil. 383, 387. The petition, as to the
second and third alternative acts sought to be done
by petitioners, is meritorious.
However, the same cannot be said with regard to the
first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the
Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure
clean loans immediately before the February 7
election thru the intercession/marginal note of the
then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment
here.
2. Petitioners’ Prayer to Include Matters in
Congressional Deliberations.
Petitioners further seek that the Court "order the
inclusion in budgetary deliberations with the Congress
of all presently, off-budget, lump sum, discretionary
funds including but not limited to, proceeds from the x
x x Malampaya Fund, remittances from the PAGCOR
and the PCSO or the Executive‘s Social Funds."260
Suffice it to state that the above-stated relief sought
by petitioners covers a matter which is generally left
to the prerogative of the political branches of
government. Hence, lest the Court itself overreach, it
must equally deny their prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential
Effects of Decision.
The final issue to be resolved stems from the
interpretation accorded by the DBM to the concept of
released funds. In response to the Court‘s September
10, 2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013, the DBM
issued Circular Letter No. 2013-8 dated September
27, 2013 (DBM Circular 2013-8) which pertinently
reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY
2013 GAA, where a Special Allotment Release Order
(SARO) has been issued by the DBM and such
SARO has been obligated by the implementing
agencies prior to the issuance of the TRO, may
continually be implemented and disbursements
thereto effected by the agencies concerned.
Based on the text of the foregoing, the DBM
authorized the continued implementation and
disbursement of PDAF funds as long as they are: first,
covered by a SARO; and, second, that said SARO
had been obligated by the implementing agency
concerned prior to the issuance of the Court‘s
September 10, 2013 TRO.
Petitioners take issue with the foregoing circular,
arguing that "the issuance of the SARO does not yet
involve the release of funds under the PDAF, as
release is only triggered by the issuance of a Notice
of Cash Allocation [(NCA)]."261 As such, PDAF
disbursements, even if covered by an obligated
SARO, should remain enjoined.
For their part, respondents espouse that the subject
TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been
issued and obligated by the implementing agency
concerned, the PDAF funds covered by the same are
already "beyond the reach of the TRO because they
cannot be considered as ‘remaining PDAF.‘" They
conclude that this is a reasonable interpretation of the
TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of
whether or not the Court‘s September 10, 2013 TRO
should be lifted is a matter rendered moot by the
present Decision. The unconstitutionality of the 2013
PDAF Article as declared herein has the
consequential effect of converting the temporary
injunction into a permanent one. Hence, from the
promulgation of this Decision, the release of the
remaining PDAF funds for 2013, among others, is
now permanently enjoined.
The propriety of the DBM‘s interpretation of the
concept of "release" must, nevertheless, be resolved
as it has a practical impact on the execution of the
current Decision. In particular, the Court must resolve
the issue of whether or not PDAF funds covered by
obligated SAROs, at the time this Decision is
promulgated, may still be disbursed following the
DBM‘s interpretation in DBM Circular 2013-8.
On this score, the Court agrees with
petitioners‘ posturing for the fundamental reason that
funds covered by an obligated SARO are yet to be
"released" under legal contemplation. A SARO, as
defined by the DBM itself in its website, is "aspecific
authority issued to identified agencies to incur
obligations not exceeding a given amount during a
specified period for the purpose indicated. It shall
cover expenditures the release of which is subject to
compliance with specific laws or regulations, or is
subject to separate approval or clearance by
competent authority."263
Based on this definition, it may be gleaned that a
SARO only evinces the existence of an obligation and
not the directive to pay. Practically speaking, the
SARO does not have the direct and immediate effect
of placing public funds beyond the control of the
disbursing authority. In fact, a SARO may even be
withdrawn under certain circumstances which will
prevent the actual release of funds. On the other
hand, the actual release of funds is brought about by
the issuance of the NCA,264 which is subsequent to
the issuance of a SARO. As may be determined from
the statements of the DBM representative during the
Oral Arguments:265
Justice Bernabe: Is the notice of allocation issued
simultaneously with the SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is
only the go signal for the agencies to obligate or to
enter into commitments. The NCA, Your Honor, is
already the go signal to the treasury for us to be able
to pay or to liquidate the amounts obligated in the
SARO; so it comes after. x x x The NCA, Your Honor,
is the go signal for the MDS for the authorized
government-disbursing banks to, therefore, pay the
payees depending on the projects or projects covered
by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are
cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit
that there are instances that the SAROs issued are
withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and
underscoring supplied)
Thus, unless an NCA has been issued, public funds
should not be treated as funds which have been
"released." In this respect, therefore, the
disbursement of 2013 PDAF funds which are only
covered by obligated SAROs, and without any
corresponding NCAs issued, must, at the time of this
Decision’s promulgation, be enjoined and
consequently reverted to the unappropriated surplus
of the general fund. Verily, in view of the declared
unconstitutionality of the 2013 PDAF Article, the funds
appropriated pursuant thereto cannot be disbursed
even though already obligated, else the Court
sanctions the dealing of funds coming from an
unconstitutional source.
This same pronouncement must be equally applied to
(a) the Malampaya Funds which have been obligated
but not released – meaning, those merely covered by
a SARO – under the phrase "and for such other
purposes as may be hereafter directed by the
President" pursuant to Section 8 of PD 910; and (b)
funds sourced from the Presidential Social Fund
under the phrase "to finance the priority infrastructure
development projects" pursuant to Section 12 of PD
1869, as amended by PD 1993, which were
altogether declared by the Court as unconstitutional.
However, these funds should not be reverted to the
general fund as afore-stated but instead, respectively
remain under the Malampaya Funds and the
Presidential Social Fund to be utilized for their
corresponding special purposes not otherwise
declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s
pronouncement anent the unconstitutionality of (a) the
2013 PDAF Article and its Special Provisions, (b) all
other Congressional Pork Barrel provisions similar
thereto, and (c) the phrases (1) "and for such other
purposes as may be hereafter directed by the
President" under Section 8 of PD 910, and (2) "to
finance the priority infrastructure development
projects" under Section 12 of PD 1869, as amended
by PD 1993, must only be treated as prospective in
effect in view of the operative fact doctrine.
To explain, the operative fact doctrine exhorts the
recognition that until the judiciary, in an appropriate
case, declares the invalidity of a certain legislative or
executive act, such act is presumed constitutional and
thus, entitled to obedience and respect and should be
properly enforced and complied with. As explained in
the recent case of Commissioner of Internal Revenue
v. San Roque Power Corporation,266 the doctrine
merely "reflects awareness that precisely because the
judiciary is the governmental organ which has the
final say on whether or not a legislative or executive
measure is valid, a period of time may have elapsed
before it can exercise the power of judicial review that
may lead to a declaration of nullity. It would be to
deprive the law of its quality of fairness and justice
then, if there be no recognition of what had transpired
prior to such adjudication."267 "In the language of an
American Supreme Court decision: ‘The actual
existence of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may have
consequences which cannot justly be ignored.‘" 268
For these reasons, this Decision should be heretofore
applied prospectively.
Conclusion
The Court renders this Decision to rectify an error
which has persisted in the chronicles of our history. In
the final analysis, the Court must strike down the Pork
Barrel System as unconstitutional in view of the
inherent defects in the rules within which it operates.
To recount, insofar as it has allowed legislators to
wield, in varying gradations, non-oversight, post-
enactment authority in vital areas of budget execution,
the system has violated the principle of separation of
powers; insofar as it has conferred unto legislators the
power of appropriation by giving them personal,
discretionary funds from which they are able to fund
specific projects which they themselves determine, it
has similarly violated the principle of non-delegability
of legislative power ; insofar as it has created a
system of budgeting wherein items are not textualized
into the appropriations bill, it has flouted the
prescribed procedure of presentment and, in the
process, denied the President the power to veto
items ; insofar as it has diluted the effectiveness of
congressional oversight by giving legislators a stake
in the affairs of budget execution, an aspect of
governance which they may be called to monitor and
scrutinize, the system has equally impaired public
accountability ; insofar as it has authorized legislators,
who are national officers, to intervene in affairs of
purely local nature, despite the existence of capable
local institutions, it has likewise subverted genuine
local autonomy ; and again, insofar as it has
conferred to the President the power to appropriate
funds intended by law for energy-related purposes
only to other purposes he may deem fit as well as
other public funds under the broad classification of
"priority infrastructure development projects," it has
once more transgressed the principle of non-
delegability.
For as long as this nation adheres to the rule of law,
any of the multifarious unconstitutional methods and
mechanisms the Court has herein pointed out should
never again be adopted in any system of governance,
by any name or form, by any semblance or similarity,
by any influence or effect. Disconcerting as it is to
think that a system so constitutionally unsound has
monumentally endured, the Court urges the people
and its co-stewards in government to look forward
with the optimism of change and the awareness of the
past. At a time of great civic unrest and vociferous
public debate, the Court fervently hopes that its
Decision today, while it may not purge all the wrongs
of society nor bring back what has been lost, guides
this nation to the path forged by the Constitution so
that no one may heretofore detract from its cause nor
stray from its course. After all, this is the Court‘s
bounden duty and no other‘s.
WHEREFORE, the petitions are PARTLY GRANTED.
In view of the constitutional violations discussed in
this Decision, the Court hereby declares as
UNCONSTITUTIONAL: (a) the entire 2013 PDAF
Article; (b) all legal provisions of past and present
Congressional Pork Barrel Laws, such as the
previous PDAF and CDF Articles and the various
Congressional Insertions, which authorize/d
legislators – whether individually or collectively
organized into committees – to intervene, assume or
participate in any of the various post-enactment
stages of the budget execution, such as but not
limited to the areas of project identification,
modification and revision of project identification, fund
release and/or fund realignment, unrelated to the
power of congressional oversight; (c) all legal
provisions of past and present Congressional Pork
Barrel Laws, such as the previous PDAF and CDF
Articles and the various Congressional Insertions,
which confer/red personal, lump-sum allocations to
legislators from which they are able to fund specific
projects which they themselves determine; (d) all
informal practices of similar import and effect, which
the Court similarly deems to be acts of grave abuse of
discretion amounting to lack or excess of jurisdiction;
and (e) the phrases (1) "and for such other purposes
as may be hereafter directed by the President" under
Section 8 of Presidential Decree No. 910 and (2) "to
finance the priority infrastructure development
projects" under Section 12 of Presidential Decree No.
1869, as amended by Presidential Decree No. 1993,
for both failing the sufficient standard test in violation
of the principle of non-delegability of legislative power.
Accordingly, the Court‘s temporary injunction dated
September 10, 2013 is hereby declared to be
PERMANENT. Thus, the disbursement/release of the
remaining PDAF funds allocated for the year 2013, as
well as for all previous years, and the funds sourced
from (1) the Malampaya Funds under the phrase "and
for such other purposes as may be hereafter directed
by the President" pursuant to Section 8 of Presidential
Decree No. 910, and (2) the Presidential Social Fund
under the phrase "to finance the priority infrastructure
development projects" pursuant to Section 12 of
Presidential Decree No. 1869, as amended by
Presidential Decree No. 1993, which are, at the time
this Decision is promulgated, not covered by Notice of
Cash Allocations (NCAs) but only by Special
Allotment Release Orders (SAROs), whether
obligated or not, are hereby ENJOINED. The
remaining PDAF funds covered by this permanent
injunction shall not be disbursed/released but instead
reverted to the unappropriated surplus of the general
fund, while the funds under the Malampaya Funds
and the Presidential Social Fund shall remain therein
to be utilized for their respective special purposes not
otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack
of proper substantiation, the Court hereby DENIES
petitioners‘ prayer seeking that the Executive
Secretary and/or the Department of Budget and
Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or
detailed reports related to the availments and
utilization of the funds subject of these cases.
Petitioners‘ access to official documents already
available and of public record which are related to
these funds must, however, not be prohibited but
merely subjected to the custodian‘s reasonable
regulations or any valid statutory prohibition on the
same. This denial is without prejudice to a proper
mandamus case which they or the Commission on
Audit may choose to pursue through a separate
petition.

The Court also DENIES petitioners prayer to order the

inclusion of the funds subject of these cases in the
budgetary deliberations of Congress as the same is a
matter left to the prerogative of the political branches
of government.

Finally, the Court hereby DIRECTS all prosecutorial

organs of the government to, within the bounds of
reasonable dispatch, investigate and accordingly
prosecute all government officials and/or private
individuals for possible criminal offenses related to the
irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork
Barrel System.

This Decision is immediately executory but

prospective in effect.

SO ORDERED.
Case No. 009
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 196231 January 28, 2014
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE
PHILIPPINES, ACTING THROUGH AND
REPRESENTED BY EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., SENIOR DEPUTY
EXECUTIVE SECRETARY JOSE AMOR M.
AMORANDO, OFFICER-IN-CHARGE - OFFICE OF
THE DEPUTY EXECUTIVE SECRETARY FOR
LEGAL AFFAIRS, ATTY. RONALDO A. GERON,
DIR. ROWENA TURINGAN-SANCHEZ, AND ATTY.
CARLITO D. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A
CITY AS EXECUTIVE SECRETARY, OFFICE OF
THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY.
CARLO D. SULAY AND ATTY. FROILAN D.
MONTALBAN, JR., IN THEIR CAPACITIES AS
CHAIRMAN AND MEMBERS OF OFFICE OF
MALACANANG LEGAL AFFAIRS,Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's)
motion for reconsideration of our September 4, 2012
Decision1which ruled on the petitions filed by Deputy
Ombudsman Emilio Gonzales III and Special
Prosecutor Wendell Barreras-Sulit. Their petitions
challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2
In the challenged Decision, the Court upheld the
constitutionality of Section 8(2) of RA No. 6770 and
ruled that the President has disciplinary jurisdiction
over a Deputy Ombudsman and a Special Prosecutor.
The Court, however, reversed the OP ruling that: (i)
found Gonzales guilty of Gross Neglect of Duty and
Grave Misconduct constituting betrayal of public trust;
and (ii) imposed on him the penalty of dismissal.
Sulit, who had not then been dismissed and who
simply sought to restrain the disciplinary proceedings
against her, solely questioned the jurisdiction of the
OP to subject her to disciplinary proceedings. The
Court affirmed the continuation of the proceedings
against her after upholding the constitutionality of
Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of
the Office of the President in OP Case No. 1 O-J-460
is REVERSED and SET ASIDE. Petitioner Emilio A.
Gonzales III is ordered REINSTATED with payment of
backwages corresponding to the period of suspension
effective immediately, even as the Office of the
Ombudsman is directed to proceed with the
investigation in connection with the above case
against petitioner. In G.R. No. 196232, We AFFIRM
the continuation of OP-DC Case No. ll-B-003 against
Special Prosecutor Wendell Barreras-Sulit for alleged
acts and omissions tantamount to culpable violation of
the Constitution and a betrayal of public trust, in
accordance with Section 8(2) of the Ombudsman Act
of 1989.3
In view of the Court’s ruling, the OP filed the present
motion for reconsideration through the Office of the
Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of
the petitions and the present motion for
reconsideration.
I. ANTECEDENTS
A. Gonzales’ petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate
charges with the Philippine National Police Internal
Affairs Service (PNP-IAS) and with the Manila City
Prosecutor’s Office against Manila Police District
Senior Inspector Rolando Mendoza and four others
(Mendoza, et al.) for robbery, grave threat, robbery
extortion and physical injury.4
On May 29, 2008, Police Senior Superintendent Atty.
Clarence Guinto filed an administrative charge for
grave misconduct with the National Police
Commission (NAPOLCOM) PNP-NCRPO against
Mendoza, et al. based on the same allegations made
by Kalaw before the PNP-IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for
Military and Other Law Enforcement Officers
(MOLEO), directed the NAPOLCOM to turn over the
records of Mendoza’s case to his office. The Office of
the Regional Director of the NAPOLCOM duly
complied on July 24, 2008.6 Mendoza, et al. filed their
position papers with Gonzales, in compliance with his
Order.7
Pending Gonzales’ action on Mendoza, et al.’s case
(on August 26, 2008), the Office of the City
Prosecutor of Manila City dismissed Kalaw’s
complaint against Mendoza, et al. for his failure to
substantiate his allegations.8 Similarly, on October 17,
2008, the PNP-IAS recommended the dismissal
without prejudice of the administrative case against
Mendoza, et al. for Kalaw’s failure to prosecute. 9
On February 16, 2009, after preparing a draft decision
on Mendoza, et al.’s case, Gonzales forwarded the
entire records to the Office of then Ombudsman
Merceditas Gutierrez for her review.10 In his draft
decision, Gonzales found Mendoza, et al. guilty of
grave misconduct and imposed on them the penalty
of dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsman’s
decision that approved Gonzales’ recommendation on
October 30, 2009. Mendoza, et al. filed a motion for
reconsideration12 on November 5, 2009, followed by a
Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section
forwarded Mendoza, et al.’s case records to the
Criminal Investigation, Prosecution and Administrative
Bureau-MOLEO. On December 14, 2009, the case
was assigned to Graft Investigation and Prosecution
Officer (GIPO) Dennis Garcia for review and
recommendation.14
GIPO Garcia released a draft order15 to his immediate
superior, Director Eulogio S. Cecilio, for appropriate
action on April 5, 2010. Dir. Cecilio signed and
forwarded the draft order to Gonzales’ office on April
27, 2010. Gonzales reviewed the draft and endorsed
the order, together with the case records, on May 6,
2010 for the final approval by the Ombudsman.16
On August 23, 2010, pending final action by the
Ombudsman on Mendoza, et al.’s case, Mendoza
hijacked a tourist bus and held the 21 foreign tourists
and the four Filipino tour assistants on board as
hostages. While the government exerted earnest
attempts to peacefully resolve the hostage-taking, it
ended tragically, resulting in the deaths of Mendoza
and several others on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III
directed the Department of Justice and the
Department of Interior and Local Government to
conduct a joint thorough investigation of the incident.
The two departments issued Joint Department Order
No. 01-2010, creating an Incident Investigation and
Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found
the Ombudsman and Gonzales accountable for their
"gross negligence and grave misconduct in handling
the case against Mendoza."17 The IIRC stated that the
Ombudsman and Gonzales’ failure to promptly
resolve Mendoza’s motion for reconsideration,
"without justification and despite repeated pleas" xxx
"precipitated the desperate resort to hostage-
taking."18 The IIRC recommended the referral of its
findings to the OP for further determination of possible
administrative offenses and for the initiation of the
proper administrative proceedings.19
Accordingly, on October 15, 2010, Gonzales was
formally charged before the OP for Gross Neglect of
Duty and/or Inefficiency in the Performance of Official
Duty and for Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as
charged and dismissed him from the
service.21According to the OP, "the inordinate and
unjustified delay in the resolution of [Mendoza’s]
Motion for Reconsideration [‘that spanned for nine (9)
long months’] xxx amounted to gross neglect of duty"
and "constituted a flagrant disregard of the Office of
the Ombudsman’s own Rules of Procedure." 22
c. The Petition
Gonzales posited in his petition that the OP has no
administrative disciplinary jurisdiction over a Deputy
Ombudsman. Under Section 21 of RA No. 6770, it is
the Ombudsman who exercises administrative
disciplinary jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office
received the draft order from GIPO Garcia on April 27,
2010. On May 6, 2010, he completed his review of the
draft, approved it, and transmitted it to the Office of
the Ombudsman for final approval. Since the draft
order on Mendoza’s motion for reconsideration had to
undergo different levels of preparation, review and
approval, the period it took to resolve the motion
could not be unjustified, since he himself acted on the
draft order only within nine (9) calendars days from
his receipt of the order.23
B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged
Major General Carlos F. Garcia and several others,
before the Sandiganbayan, with plunder and money
laundering. On May 7, 2007, Garcia filed an Urgent
Petition for Bail which the prosecution opposed. The
Sandiganbayan denied Garcia's urgent petition for
bail on January 7, 2010, in view of the strength of the
prosecution’s evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman,
through Sulit and her prosecutorial staff, entered into
a plea bargaining agreement (Agreement) with
Garcia.24 Garcia thereby agreed to: (i) withdraw his
plea of not guilty to the charge of plunder and enter a
plea of guilty to the lesser offense of indirect bribery;
and (ii) withdraw his plea of not guilty to the charge of
money laundering and enter a guilty plea to the lesser
offense of facilitating money laundering. In exchange,
he would convey to the government his ownership,
rights and other interests over the real and personal
properties enumerated in the Agreement and the
bank deposits alleged in the information.25
The Sandiganbayan approved the Agreement on May
4, 201026 based on the parties’ submitted Joint Motion
for Approval.27
The apparent one-sidedness of the Agreement drew
public outrage and prompted the Committee on
Justice of the House of Representatives to conduct an
investigation. After public hearings, the Committee
found that Sulit, her deputies and assistants
committed culpable violations of the Constitution and
betrayal of public trust – grounds for removal under
Section 8(2) of RA No. 6770.28The Committee
recommended to the President the dismissal from the
service of Sulit and the filing of appropriate charges
against her deputies and assistants before the
appropriate government office.
Accordingly, the OP initiated an administrative
disciplinary proceeding against Sulit.29 On March 24,
2011, Sulit filed her Written Explanation, questioning
the OP’s jurisdiction.30 The question of jurisdiction
notwithstanding, the OP set the case for preliminary
investigation on April 15, 2011, prompting Sulit to
seek relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection,
the Court votes to grant Gonzales’ petition and to
declare Section 8(2) of RA No. 6770 unconstitutional
with respect to the Office of the Ombudsman. (As the
full explanation of the Court’s vote describes below,
this conclusion does not apply to Sulit as the grant of
independence is solely with respect to the Office of
the Ombudsman which does not include the Office of
the Special Prosecutor under the Constitution. The
prevailing ruling on this latter point is embodied in the
Concurring and Dissenting Opinion of J. Marvic Mario
Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part
of the petitioners
At the outset, the Court notes that Gonzales and Sulit
did not file a motion for reconsideration of the Court’s
September 4, 2012 Decision; only the OP, through
the OSG, moved for the reconsideration of our ruling
reinstating Gonzales.
This omission, however, poses no obstacle for the
Court’s review of its ruling on the whole case since a
serious constitutional question has been raised and is
one of the underlying bases for the validity or
invalidity of the presidential action. If the President
does not have any constitutional authority to discipline
a Deputy Ombudsman and/or a Special Prosecutor in
the first place, then any ruling on the legal correctness
of the OP’s decision on the merits will be an empty
one.
In other words, since the validity of the OP’s decision
on the merits of the dismissal is inextricably anchored
on the final and correct ruling on the constitutional
issue, the whole case – including the constitutional
issue – remains alive for the Court’s consideration on
motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy
Ombudsman may be subjected to the administrative
disciplinary jurisdiction of the President (concurrently
with that of the Ombudsman) is a justiciable – not a
political – question. A justiciable question is one which
is inherently susceptible of being decided on grounds
recognized by law,31 as where the court finds that
there are constitutionally-imposed limits on the
exercise of the powers conferred on a political branch
of the government.32
In resolving the petitions, we do not inquire into the
wisdom of the Congress’ choice to grant concurrent
disciplinary authority to the President. Our inquiry is
limited to whether such statutory grant violates the
Constitution, particularly whether Section 8(2) of RA
No. 6770 violates the core constitutional principle of
the independence of the Office of the Ombudsman as
expressed in Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative
can create the power that Section 8(2) of RA No.
6770 grants where the Constitution confers none.
When exercised authority is drawn from a vacuum,
more so when the authority runs counter to a core
constitutional principle and constitutional intents, the
Court is duty-bound to intervene under the powers
and duties granted and imposed on it by Article VIII of
the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents
established several Ombudsman-like agencies to
serve as the people's medium for airing grievances
and for direct redress against abuses and misconduct
in the government. Ultimately, however, these
agencies failed to fully realize their objective for lack
of the political independence necessary for the
effective performance of their function as government
critic.33
It was under the 1973 Constitution that the Office of
the Ombudsman became a constitutionally-mandated
office to give it political independence and adequate
powers to enforce its mandate. Pursuant to the 1973
Constitution, President Ferdinand Marcos enacted
Presidential Decree (PD) No. 1487, as amended by
PD No. 1607 and PD No. 1630, creating the Office of
the Ombudsman to be known as Tanodbayan. It was
tasked principally to investigate, on complaint or motu
proprio, any administrative act of any administrative
agency, including any government-owned or
controlled corporation. When the Office of the
Tanodbayan was reorganized in 1979, the powers
previously vested in the Special Prosecutor were
transferred to the Tanodbayan himself. He was given
the exclusive authority to conduct preliminary
investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information,
and control the prosecution of these cases.34
With the advent of the 1987 Constitution, a new Office
of the Ombudsman was created by constitutional fiat.
Unlike in the 1973 Constitution, its independence was
expressly and constitutionally guaranteed. Its
objectives are to enforce the state policy in Section
27, Article II35 and the standard of accountability in
public service under Section 1, Article XI of the 1987
Constitution. These provisions read:
Section 27. The State shall maintain honesty and
integrity in the public service and take positive and
effective measures against graft and corruption.
Section 1. Public office is a public trust. Public officers
and employees must, at all times, be accountable to
the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism
and justice, and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution,
the Office of the Ombudsman is envisioned to be the
"protector of the people" against the inept, abusive,
and corrupt in the Government, to function essentially
as a complaints and action bureau.36 This
constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an
authority to directly check and guard against the ills,
abuses and excesses of the bureaucracy. Pursuant to
Section 13(8), Article XI of the 1987 Constitution,
Congress enacted RA No. 6770 to enable it to further
realize the vision of the Constitution. Section 21 of RA
No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority;
Exceptions. — The Office of the Ombudsman shall
have disciplinary authority over all elective and
appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government,
government-owned or controlled corporations and
their subsidiaries, except over officials who may be
removed only by impeachment or over Members of
Congress, and the Judiciary. [emphasis ours, italics
supplied]
As the Ombudsman is expected to be an "activist
watchman,"37 the Court has upheld its actions,
although not squarely falling under the broad powers
granted it by the Constitution and by RA No. 6770, if
these actions are reasonably in line with its official
function and consistent with the law and the
Constitution.38
The Ombudsman’s broad investigative and
disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials,
including Members of the Cabinet and key Executive
officers, during their tenure. To support these broad
powers, the Constitution saw it fit to insulate the
Office of the Ombudsman from the pressures and
influence of officialdom and partisan politics and from
fear of external reprisal by making it an "independent"
office. Section 5,
Article XI of the Constitution expressed this intent, as
follows:
Section 5. There is hereby created the independent
Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one
overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed.
[emphasis ours]
Given the scope of its disciplinary authority, the Office
of the Ombudsman is a very powerful government
constitutional agency that is considered "a notch
above other grievance-handling investigative
bodies."39 It has powers, both constitutional and
statutory, that are commensurate with its daunting
task of enforcing accountability of public officers.40
b. "Independence" of constitutional bodies vis-a-vis
the Ombudsman’s independence
Under the Constitution, several constitutional bodies
have been expressly labeled as "independent." 41The
extent of the independence enjoyed by these
constitutional bodies however varies and is to be
interpreted with two significant considerations in mind:
first, the functions performed or the powers involved
in a given case; and second, consistency of any
allowable interference to these powers and functions,
with the principle of checks and balances.
Notably, the independence enjoyed by the Office of
the Ombudsman and by the Constitutional
Commissions shares certain characteristics – they do
not owe their existence to any act of Congress, but
are created by the Constitution itself; additionally, they
all enjoy fiscal autonomy. In general terms, the
framers of the Constitution intended that these
"independent" bodies be insulated from political
pressure to the extent that the absence of
"independence" would result in the impairment of their
core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy
of the Judiciary, we ruled against the interference that
the President may bring and maintained that the
independence and the flexibility of the Judiciary, the
Constitutional Commissions and the Office of the
Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and
the Ombudsman must have the independence and
flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions
and constraints on the manner the independent
constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal
autonomy and violative not only the express mandate
of the Constitution but especially as regards the
Supreme Court, of the independence and separation
of powers upon which the entire fabric of our
constitutional system is based.
The constitutional deliberations explain the
Constitutional Commissions’ need for independence.
In the deliberations of the 1973 Constitution, the
delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service
Commission, instead of one created by law, on the
premise that the effectivity of this body is dependent
on its freedom from the tentacles of politics.43 In a
similar manner, the deliberations of the 1987
Constitution on the Commission on Audit highlighted
the developments in the past Constitutions geared
towards insulating the Commission on Audit from
political pressure.44
Notably, the Constitution also created an
"independent" Commission on Human Rights,
although it enjoys a lesser degree of independence
since it is not granted fiscal autonomy in the manner
fiscal autonomy is granted to the constitutional
commissions. The lack of fiscal autonomy
notwithstanding, the framers of the 1987 Constitution
clearly expressed their desire to keep the
Commission independent from the executive branch
and other political leaders:
MR. MONSOD. We see the merits of the arguments
of Commissioner Rodrigo. If we explain to him our
concept, he can advise us on how to reconcile his
position with ours. The position of the committee is
that we need a body that would be able to work and
cooperate with the executive because the
Commissioner is right. Many of the services needed
by this commission would need not only the
cooperation of the executive branch of the
government but also of the judicial branch of
government. This is going to be a permanent
constitutional commission over time. We also want a
commission to function even under the worst
circumstance when the executive may not be very
cooperative. However, the question in our mind is:
Can it still function during that time? Hence, we are
willing to accept suggestions from Commissioner
Rodrigo on how to reconcile this. We realize the need
for coordination and cooperation. We also would like
to build in some safeguards that it will not be rendered
useless by an uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international
commissions or organizations on human rights go to a
country, the most credible organizations are
independent human rights bodies. Very often these
are private organizations, many of which are
prosecuted, such as those we find in many countries
in Latin America. In fact, what we are proposing is an
independent body on human rights, which would
provide governments with credibility precisely
because it is independent of the present
administration. Whatever it says on the human rights
situation will be credible because it is not subject to
pressure or control from the present political
leadership.
Secondly, we all know how political fortunes come
and go. Those who are in power yesterday are in
opposition today and those who are in power today
may be in the opposition tomorrow. Therefore, if we
have a Commission on Human Rights that would
investigate and make sure that the rights of each one
is protected, then we shall have a body that could
stand up to any power, to defend the rights of
individuals against arrest, unfair trial, and so on.45
These deliberative considerations abundantly show
that the independent constitutional commissions have
been consistently intended by the framers to be
independent from executive control or supervision or
any form of political influence. At least insofar as
these bodies are concerned, jurisprudence is not
scarce on how the "independence" granted to these
bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the
Constitutional Commissions, which have been
characterized under the Constitution as
"independent," are not under the control of the
President, even if they discharge functions that are
executive in nature. The Court declared as
unconstitutional the President’s act of temporarily
appointing the respondent in that case as Acting
Chairman of the Comelec "however well-meaning"47 it
might have been.
In Bautista v. Senator Salonga,48 the Court
categorically stated that the tenure of the
commissioners of the independent Commission on
Human Rights could not be placed under the
discretionary power of the President:
Indeed, the Court finds it extremely difficult to
conceptualize how an office conceived and created by
the Constitution to be independent – as the
Commission on Human Rights – and vested with the
delicate and vital functions of investigating violations
of human rights, pinpointing responsibility and
recommending sanctions as well as remedial
measures therefor, can truly function with
independence and effectiveness, when the tenure in
office of its Chairman and Members is made
dependent on the pleasure of the President.
Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the
Commission on Human Rights has to be declared
unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court
considered even the mere review of the rules of the
Commission on Elections by Congress a "trampling"
of the constitutional mandate of independence of this
body. Obviously, the mere review of rules places
considerably less pressure on a constitutional body
than the Executive’s power to discipline and remove
key officials of the Office of the Ombudsman, yet the
Court struck down the law as unconstitutional.
The kind of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior – but is
similar in degree and kind – to the independence
similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill
the political interstices of a republican democracy that
are crucial to its existence and proper functioning.50
c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed
caution against presidential interference with the
constitutional commissions, on one hand, and those
expressed by the framers of the 1987 Constitution, on
the other, in protecting the independence of the
Constitutional Commissions, speak for themselves as
overwhelming reasons to invalidate Section 8(2) of
RA No. 6770 for violating the independence of the
Office of the Ombudsman.
In more concrete terms, we rule that subjecting the
Deputy Ombudsman to discipline and removal by the
President, whose own alter egos and officials in the
Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but
seriously place at risk the independence of the Office
of the Ombudsman itself. The Office of the
Ombudsman, by express constitutional mandate,
includes its key officials, all of them tasked to support
the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-
granted independence is what Section 8(2) of RA No.
6770 exactly did. By so doing, the law directly collided
not only with the independence that the Constitution
guarantees to the Office of the Ombudsman, but
inevitably with the principle of checks and balances
that the creation of an Ombudsman office seeks to
revitalize.
What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of
the Ombudsman in the performance of their duties.
The Ombudsman can hardly be expected to place her
complete trust in her subordinate officials who are not
as independent as she is, if only because they are
subject to pressures and controls external to her
Office. This need for complete trust is true in an ideal
setting and truer still in a young democracy like the
Philippines where graft and corruption is still a major
problem for the government. For these reasons,
Section 8(2) of RA No. 6770 (providing that the
President may remove a Deputy Ombudsman) should
be declared void.
The deliberations of the Constitutional Commission on
the independence of the Ombudsman fully support
this position. Commissioner Florenz Regalado of the
Constitutional Commission expressed his
apprehension that any form of presidential control
over the Office of the Ombudsman would diminish its
independence.51 The following exchanges between
Commissioners Blas Ople and Christian Monsod
further reveal the constitutional intent to keep the
Office of the Ombudsman independent from the
President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill
the Committee consider later an amendment xxx, by
way of designating the office of the Ombudsman as a
constitutional arm for good government, efficiency of
the public service and the integrity of the President of
the Philippines, instead of creating another agency in
a kind of administrative limbo which would be
accountable to no one on the pretext that it is a
constitutional body?
MR. MONSOD. The Committee discussed that during
our committee deliberations and when we prepared
the report, it was the opinion of the Committee — and
I believe it still is — that it may not contribute to the
effectiveness of this office of the Ombudsman
precisely because many of the culprits in inefficiency,
injustice and impropriety are in the executive
department. Therefore, as we saw the wrong
implementation of the Tanodbayan which was under
the tremendous influence of the President, it was an
ineffectual body and was reduced to the function of a
special fiscal. The whole purpose of our proposal is
precisely to separate those functions and to produce
a vehicle that will give true meaning to the concept of
Ombudsman. Therefore, we regret that we cannot
accept the proposition.52
The statements made by Commissioner Monsod
emphasized a very logical principle: the Executive
power to remove and discipline key officials of the
Office of the Ombudsman, or to exercise any power
over them, would result in an absurd situation wherein
the Office of the Ombudsman is given the duty to
adjudicate on the integrity and competence of the
very persons who can remove or suspend its
members. Equally relevant is the impression that
would be given to the public if the rule were
otherwise. A complainant with a grievance against a
high-ranking official of the Executive, who appears to
enjoy the President’s favor, would be discouraged
from approaching the Ombudsman with his complaint;
the complainant’s impression (even if misplaced), that
the Ombudsman would be susceptible to political
pressure, cannot be avoided. To be sure, such an
impression would erode the constitutional intent of
creating an Office of the Ombudsman as champion of
the people against corruption and bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress
apparently addressed the concern that a lack of an
external check against the Deputy Ombudsman would
result in mutual protection between the Ombudsman
and her Deputies.
While the preceding discussion already suffices to
address this concern, it should be added that this
concern stands on shaky grounds since it ignores the
existing checks and balances already in place. On the
one hand, the Ombudsman’s Deputies cannot protect
the Ombudsman because she is subject to the
impeachment power of Congress. On the other hand,
the Ombudsman’s attempt to cover up the misdeeds
of her Deputies can be questioned before the Court
on appeal or certiorari. The same attempt can
likewise subject her to impeachment.
The judicial recourse available is only consistent with
the nature of the Supreme Court as a non-political
independent body mandated by the Constitution to
settle judicial and quasi-judicial disputes, whose
judges and employees are not subject to the
disciplinary authority of the Ombudsman and whose
neutrality would be less questionable. The Members
of the Court themselves may be subjected to the
impeachment power of Congress.
In these lights, the appeal, if any, of the mutual
protection argument becomes distinctly implausible.
At the same time, the Court remains consistent with
its established rulings - that the independence
granted to the Constitutional Commissions bars any
undue interference from either the Executive or
Congress – and is in full accord with constitutional
intent.
e. Congress’ power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987
Constitution,53 Congress is empowered to determine
the modes of removal from office of all public officers
and employees except the President, the Vice-
President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the
Ombudsman, who are all impeachable officials.
The intent of the framers of the Constitution in
providing that "[a]ll other public officers and
employees may be removed from office as provided
by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent
Congress from extending the more stringent rule of
"removal only by impeachment" to favored public
officers.54 Understandably so, impeachment is the
most difficult and cumbersome mode of removing a
public officer from office. It is, by its nature, a sui
generis politico-legal process55 that signals the need
for a judicious and careful handling as shown by the
process required to initiate the proceeding;56 the one-
year limitation or bar for its initiation;57 the limited
grounds for impeachment;58 the defined
instrumentality given the power to try impeachment
cases;59 and the number of votes required for a
finding of guilt.60 All these argue against the extension
of this removal mechanism beyond those mentioned
in the Constitution.
On the practical side, our nation has witnessed the
complications and problems an impeachment
proceeding entails, thus justifying its limited
application only to the officials occupying the highest
echelons of responsibility in our government. To
name a few, some of the negative practical effects of
impeachment are: it stalls legislative work; it is an
expensive process in terms of the cost of prosecution
alone; and, more importantly, it is inherently divisive
of the nation.61 Thus, in a cost-benefit analysis of
adopting impeachment as a mechanism, limiting
Congress’ power to otherwise legislate on the matter
is far more advantageous to the country.
It is in these lights that the second sentence in
Section 2, Article XI of the 1987 Constitution should
be read. Contrary to the implied view of the minority,
in no way can this provision be regarded as blanket
authority for Congress to provide for any ground of
removal it deems fit. While the manner and cause of
removal are left to congressional determination, this
must still be consistent with constitutional guarantees
and principles, namely: the right to procedural and
substantive due process; the constitutional guarantee
of security of tenure; the principle of separation of
powers; and the principle of checks and balances.62
In short, the authority granted by the Constitution to
Congress to provide for the manner and cause of
removal of all other public officers and employees
does not mean that Congress can ignore the basic
principles and precepts established by the
Constitution.
In the same manner, the congressional determination
of the identity of the disciplinary authority is not a
blanket authority for Congress to repose it on
whomsoever Congress chooses without running afoul
of the independence enjoyed by the Office of the
Ombudsman and without disrupting the delicate
check and balance mechanism under the
Constitution. Properly viewed from this perspective,
the core constitutional principle of independence is
observed and any possible absurdity resulting from a
contrary interpretation is avoided. In other words,
while the Constitution itself vested Congress with the
power to determine the manner and cause of removal
of all non-impeachable officials, this power must be
interpreted consistent with the core constitutional
principle of independence of the Office of the
Ombudsman. Our observation in Macalintal v.
Comelec63 is apt:
The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional
provisions. One such provision is Section 1 of Article
IX-A of the 1987 Constitution ordaining that
constitutional commissions such as the COMELEC
shall be "independent."
While one may argue that the grounds for
impeachment under Section 8(2) of RA No. 6770 is
intended as a measure of protection for the Deputy
Ombudsman and Special Prosecutor – since these
grounds are not intended to cover all kinds of official
wrongdoing and plain errors of judgment - this
argument seriously overlooks the erosion of the
independence of the Office of the Ombudsman that it
creates. The mere fact that a statutorily-created sword
of Damocles hangs over the Deputy Ombudsman’s
head, by itself, opens up all the channels for external
pressures and influence of officialdom and partisan
politics. The fear of external reprisal from the very
office he is to check for excesses and abuses defeats
the very purpose of granting independence to the
Office of the Ombudsman.
That a judicial remedy is available (to set aside
dismissals that do not conform to the high standard
required in determining whether a Deputy
Ombudsman committed an impeachable offense) and
that the President’s power of removal is limited to
specified grounds are dismally inadequate when
balanced with the constitutional principle of
independence. The mere filing of an administrative
case against the Deputy Ombudsman and the Special
Prosecutor before the OP can already result in their
suspension and can interrupt the performance of their
functions, in violation of Section 12, Article XI of the
Constitution. With only one term allowed under
Section 11, a Deputy Ombudsman or Special
Prosecutor, if removable by the President, can be
reduced to the very same ineffective Office of the
Ombudsman that the framers had foreseen and
carefully tried to avoid by making these offices
independent constitutional bodies.
At any rate, even assuming that the OP has
disciplinary authority over the Deputy Ombudsman, its
decision finding Gonzales guilty of Gross Neglect of
Duty and Grave Misconduct constituting betrayal of
public trust is patently erroneous. The OP’s decision
perfectly illustrates why the requirement of
impeachment-grounds in Section 8(2) of RA No. 6770
cannot be considered, even at a minimum, a measure
of protection of the independence of the Office of the
Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s
finding of gross negligence
has no legal and factual leg to
stand on
The OP’s decision found Gonzales guilty of Gross
Neglect of Duty and of Grave Misconduct. The
assailed Decision of the OP reads:
Upon consideration of the First Report, the evidence
and allegations of respondent Deputy Ombudsman
himself, and other documentary evidence gathered,
this Office finds that the inordinate and unjustified
delay in the resolution of Captain Mendoza’s Motion
for Reconsideration timely filed on 5 November 2009
xxx amounted to gross neglect of duty and/or
inefficiency in the performance of official duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a
Motion for Reconsideration of the decision of
the Ombudsman,65 which was followed by a
Supplement to the Motion for
Reconsideration;66
2. December 14, 200967 - GIPO Garcia, who
was assigned to review these motions and
make his recommendation for the
appropriate action, received the records of
the case;
3. April 5, 2010 – GIPO Garcia released a
draft order to be reviewed by his immediate
superior, Dir. Cecilio;68
4. April 27, 2010 – Dir. Cecilio signed and
forwarded to Gonzales this draft order;69
5. May 6, 2010 (or nine days after the
records were forwarded to Gonzales) –
Gonzales endorsed the draft order for the
final approval of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on
August 23, 2010, the records of the case were
already pending before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized
by the want of even the slightest care, acting or
omitting to act in a situation where there is a duty to
act, not inadvertently but willfully and intentionally,
with a conscious indifference to consequences insofar
as other persons may be affected. In the case of
public officials, there is gross negligence when a
breach of duty is flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty
and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales
guilty, the OP72 relied on Section 8, Rule III of
Administrative Order No. 7 (or the Rules of Procedure
of the Office of the Ombudsman, series of 1990, as
amended) in ruling that Gonzales should have acted
on Mendoza’s Motion for Reconsideration within five
days:
Section 8. Motion for reconsideration or
reinvestigation: Grounds – Whenever allowable, a
motion for reconsideration or reinvestigation may only
be entertained if filed within ten (10) days from receipt
of the decision or order by the party on the basis of
any of the following grounds:
a) New evidence had been discovered which
materially affects the order, directive or
decision;
b) Grave errors of facts or laws or serious
irregularities have been committed
prejudicial to the interest of the movant.
Only one motion for reconsideration or reinvestigation
shall be allowed, and the Hearing Officer shall resolve
the same within five (5) days from the date of
submission for resolution. [emphasis and underscore
ours]
Even if we consider this provision to be mandatory,
the period it requires cannot apply to Gonzales since
he is a Deputy Ombudsman whose obligation is to
review the case; he is not simply a Hearing Officer
tasked with the initial resolution of the motion. In
Section 6 of Administrative Order No. 7 on the
resolution of the case and submission of the proposed
decision, the period for resolving the case does not
cover the period within which it should be reviewed:
Section 6. Rendition of decision. – Not later than thirty
(30) days after the case is declared submitted for
resolution, the Hearing Officer shall submit a
proposed decision containing his findings and
recommendation for the approval of the Ombudsman.
Said proposed decision shall be reviewed by the
Directors, Assistant Ombudsmen and Deputy
Ombudsmen concerned. With respect to low ranking
public officials, the Deputy Ombudsman concerned
shall be the approving authority. Upon approval,
copies thereof shall be served upon the parties and
the head of the office or agency of which the
respondent is an official or employee for his
information and compliance with the appropriate
directive contained therein. [italics and emphases
supplied]
Thus, the OP’s ruling that Gonzales had been grossly
negligent for taking nine days, instead of five days, to
review a case was totally baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised
his subordinates to promptly act on Mendoza’s motion
and apprised the Tanodbayan of the urgency of
resolving the same are similarly groundless.
The Office of the Ombudsman is not a corner office in
our bureaucracy. It handles numerous cases that
involve the potential loss of employment of many
other public employees. We cannot conclusively
state, as the OP appears to suggest, that Mendoza’s
case should have been prioritized over other similar
cases.
The Court has already taken judicial notice of the
steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates
against the OSG’s observation that there was "a
grossly inordinate and inexcusable delay" 74 on the
part of Gonzales.
Equally important, the constitutional guarantee of
"speedy disposition of cases" before, among others,
quasi-judicial bodies,75 like the Office of the
Ombudsman, is itself a relative concept.76 Thus, the
delay, if any, must be measured in this objective
constitutional sense. Unfortunately, because of the
very statutory grounds relied upon by the OP in
dismissing Gonzales, the political and, perhaps,
"practical" considerations got the better of what is
legal and constitutional.
The facts do not show that Gonzales’ subordinates
had in any way been grossly negligent in their work.
While GIPO Garcia reviewed the case and drafted the
order for more than three months, it is noteworthy that
he had not drafted the initial decision and, therefore,
had to review the case for the first time.77 Even the
Ombudsman herself could not be faulted for acting on
a case within four months, given the amount of cases
that her office handles.
The point is that these are not inordinately long
periods for the work involved: examination of the
records, research on the pertinent laws and
jurisprudence, and exercise of legal judgment and
discretion. If this Court rules that these periods per se
constitute gross neglect of duty, the Ombudsman’s
constitutional mandate to prosecute all the erring
officials of this country would be subjected to an
unreasonable and overwhelming constraint. Similarly,
if the Court rules that these periods per se constitute
gross neglect of duty, then we must be prepared to
reconcile this with the established concept of the right
of speedy disposition of cases – something the Court
may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue
interest in Mendoza’s case by having the case
endorsed to the Office of the Ombudsman and by
resolving it against Mendoza on the basis of the
unverified complaint-affidavit of the alleged victim,
Kalaw.
The fact that Gonzales had Mendoza’s case endorsed
to his office lies within his mandate, even if it were
based merely on the request of the alleged victim’s
father. The Constitution empowers the Ombudsman
and her Deputies to act promptly on complaints filed
in any form or manner against any public official or
employee of the government.78 This provision is
echoed by Section 13 of RA No. 6770,79 and by
Section 3, Rule III of Administrative Order No. 7,
series of 1990, as amended.80
Moreover, Gonzales and his subordinates did not
resolve the complaint only on the basis of the
unverified affidavit of Kalaw. Based on the
prosecution officer’s recommendations, the finding of
guilt on the part of Mendoza, et al. was based on their
admissions as well. Mendoza, et al. admitted that they
had arrested Kalaw based on two traffic violations and
allowed him to stay the whole night until the following
morning in the police precinct. The next morning,
Kalaw was allowed to leave the precinct despite his
failure to show a valid license and based merely on
his promise to return with the proper
documents.81 These admissions led Gonzales and his
staff to conclude that Mendoza, et al. irregularly acted
in apprehending Kalaw, since the proper procedure
for the apprehension of traffic violators would be to
give them a ticket and to file a case, when
appropriate.82
Lastly, we cannot deduce undue interest simply
because Gonzales’ decision differs from the decision
of the PNP-IAS (which dismissed the complaint
against Mendoza). To be sure, we cannot tie the
hands of any judicial or quasi-judicial body by ruling
that it should always concur with the decisions of
other judicial or quasi-judicial bodies which may have
also taken cognizance of the case. To do so in the
case of a Deputy Ombudsman would be repugnant to
the independence that our Constitution has
specifically granted to this office and would nullify the
very purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against
Gonzales, the penalty of removal imposed by the OP
necessarily suffers grave infirmity. Basic strictures of
fair play dictate that we can only be held liable for our
own misdeeds; we can be made to account only for
lapses in our responsibilities. It is notable that of all
the officers, it was Gonzales who took the least time
— nine days — followed by Cecilio, who took 21
days; Garcia — the writer of the draft — took less
than four months, and the Ombudsman, less than four
months until the kidnapping incident rendered
Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and
patently wrong. This conclusion, however, does not
preclude the Ombudsman from looking into any other
possible administrative liability of Gonzales under
existing Civil Service laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent
Office of the Ombudsman. The existing Tanodbayan
at the time83 became the Office of the Special
Prosecutor under the 1987 Constitution. While the
composition of the independent Office of the
Ombudsman under the 1987 Constitution does not
textually include the Special Prosecutor, the weight of
the foregoing discussions on the unconstitutionality of
Section 8(2) of RA No. 6770 should equally apply to
the
Special Prosecutor on the basis of the legislative
history of the Office of the Ombudsman as expounded
in jurisprudence.
Under the 1973 Constitution,84 the legislature was
mandated to create the Office of the Ombudsman,
known as the Tanodbayan, with investigative and
prosecutorial powers. Accordingly, on June 11, 1978,
President Ferdinand Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special
Prosecutor" (CSP) was given the "exclusive authority"
to conduct preliminary investigation and to prosecute
cases that are within the jurisdiction of the
Sandiganbayan.87 PD No. 1486 expressly gave the
Secretary of Justice the power of control and
supervision over the Special Prosecutor.88 Consistent
with this grant of power, the law also authorized the
Secretary of Justice to appoint or detail to the Office
of the CSP "any officer or employee of Department of
Justice or any Bureau or Office under the executive
supervision thereof" to assist the Office of the CSP.
In December 1978, PD No. 160789 practically gave
back to the Tanodbayan the powers taken away from
it by the Office of the CSP. The law "created in the
Office of the Tanodbayan an Office of the Chief
Special Prosecutor" under the Tanodbayan’s
control,90 with the exclusive authority to conduct
preliminary investigation and prosecute all cases
cognizable by the Sandiganbayan. Unlike the earlier
decree, the law also empowered the Tanodbayan to
appoint Special Investigators and subordinate
personnel and/or to detail to the Office of the CSP any
public officer or employees who "shall be under the
supervision and control of the Chief Special
Prosecutor."91 In 1979, PD No. 1630 further amended
the earlier decrees by transferring the powers
previously vested in the Special Prosecutor directly to
the Tanodbayan himself.92
This was the state of the law at the time the 1987
Constitution was ratified. Under the 1987 Constitution,
an "independent Office of the Ombudsman" is
created.93 The existing Tanodbayan is made the
Office of the Special Prosecutor, "who shall continue
to function and exercise its powers as now94 or
hereafter may be provided by law."95
Other than the Ombudsman’s Deputies, the
Ombudsman shall appoint all other officials and
employees of the Office of the Ombudsman.96 Section
13(8), Article XI of the 1987 Constitution provides that
the Ombudsman may exercise "such other powers or
perform such functions or duties as may be provided
by law." Pursuant to this constitutional command,
Congress enacted RA No. 6770 to provide for the
functional and structural organization of the Office of
the Ombudsman and the extent of its disciplinary
authority.
In terms of composition, Section 3 of RA No. 6770
defines the composition of the Office of the
Ombudsman, including in this Office not only the
offices of the several Deputy Ombudsmen but the
Office of the Special Prosecutor as well. In terms of
appointment, the law gave the President the authority
to appoint the Ombudsman, his Deputies and the
Special Prosecutor, from a list of nominees prepared
by the Judicial and Bar Council. In case of vacancy in
these positions, the law requires that the vacancy be
filled within three (3) months from occurrence.97
The law also imposes on the Special Prosecutor the
same qualifications it imposes on the Ombudsman
himself/herself and his/her deputies.98 Their terms of
office,99 prohibitions and qualifications,100 rank and
salary are likewise the same.101 The requirement on
disclosure102 is imposed on the Ombudsman, the
Deputies and the Special Prosecutor as well. In case
of vacancy in the Office of the Ombudsman, the
Overall Deputy cannot assume the role of Acting
Ombudsman; the President may designate any of the
Deputies or the Special Prosecutor as Acting
Ombudsman.103 The power of the Ombudsman and
his or her deputies to require other government
agencies to render assistance to the Office of the
Ombudsman is likewise enjoyed by the Special
Prosecutor.104
Given this legislative history, the present overall legal
structure of the Office of the Ombudsman, both under
the 1987 Constitution and RA No. 6770, militates
against an interpretation that would insulate the
Deputy Ombudsman from the disciplinary authority of
the OP and yet expose the Special Prosecutor to the
same ills that a grant of independence to the Office of
the Ombudsman was designed for.
Congress recognized the importance of the Special
Prosecutor as a necessary adjunct of the
Ombudsman, aside from his or her deputies, by
making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman
and by granting the Ombudsman control and
supervision over that office.105 This power of control
and supervision includes vesting the Office of the
Ombudsman with the power to assign duties to the
Special Prosecutor as he/she may deem
fit.1âwphi1 Thus, by constitutional design, the Special
Prosecutor is by no means an ordinary subordinate
but one who effectively and directly aids the
Ombudsman in the exercise of his/her duties, which
include investigation and prosecution of officials in the
Executive Department.
Under Section 11(4) of RA No. 6770, the Special
Prosecutor handles the prosecution of criminal cases
within the jurisdiction of the Sandiganbayan and this
prosecutorial authority includes high-ranking
executive officials. For emphasis, subjecting the
Special Prosecutor to disciplinary and removal
powers of the President, whose own alter egos and
officials in the Executive Department are subject to
the prosecutorial authority of the Special Prosecutor,
would seriously place the independence of the Office
of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is
not expressly made part of the composition of the
Office of the Ombudsman, the role it performs as an
organic component of that Office militates against a
differential treatment between the Ombudsman’s
Deputies, on one hand, and the Special Prosecutor
himself, on the other. What is true for the
Ombudsman must be equally true, not only for her
Deputies but, also for other lesser officials of that
Office who act directly as agents of the Ombudsman
herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was
confronted with an argument that, at bottom, the
Office of the Special Prosecutor is not a subordinate
agency of the Office of the Ombudsman and is, in
fact, separate and distinct from the latter. In
debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner
Romulo's statement as authority to advocate that the
intent of the framers of the 1987 Constitution was to
place the Office of the Special Prosecutor under the
Office of the President. Xxx
In the second place, Section 7 of Article XI expressly
provides that the then existing Tanodbayan, to be
henceforth known as the Office of the Special
Prosecutor, "shall continue to function and exercise its
powers as now or hereafter may be provided by law,
except those conferred on the Office of the
Ombudsman created under this Constitution." The
underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or
subsequent amendatory legislation. It follows then
that Congress may remove any of the
Tanodbayan's/Special Prosecutor's powers under
P.D. N0. 1630 or grant it other powers, except those
powers conferred by the Constitution on the Office of
the Ombudsman.
Pursuing the present line of reasoning, when one
considers that by express mandate of paragraph 8,
Section 13, Article XI of the Constitution, the
Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by
law," it is indubitable then that Congress has the
power to place the Office of the Special Prosecutor
under the Office of the Ombudsman.107
Thus, under the present Constitution, there is every
reason to treat the Special Prosecutor to be at par
with the Ombudsman's deputies, at least insofar as an
extraneous disciplinary authority is concerned, and
must also enjoy the same grant of independence
under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-
7,108 the Court resolved to reverse its September 4,
2012 Decision insofar as petitioner Gonzales is
concerned (G.R. No. 196231). We declared Section
8(2) of RA No. 6770 unconstitutional by granting
disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the
Office of the Ombudsman.
However, by another vote of 8-7,109 the Court
resolved to maintain the validity of Section 8(2) of RA
No. 6770 insofar as Sulit is concerned. The Court did
not consider the Office of the Special Prosecutor to be
constitutionally within the Office of the Ombudsman
and is, hence, not entitled to the independence the
latter enjoys under the Constitution.
WHEREFORE, premises considered, the Court
resolves to declare Section 8(2)
UNCONSTITUTIONAL. This ruling renders any
further ruling on the dismissal of Deputy Ombudsman
Emilio Gonzales III unnecessary, but is without
prejudice to the power of the Ombudsman to conduct
an administrative investigation, if warranted, into the
possible administrative liability of Deputy Ombudsman
Emilio Gonzales III under pertinent Civil Service laws,
rules and regulations.
SO ORDERED.
Case No. 10
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 170139 August 5, 2014
SAMEER OVERSEAS PLACEMENT AGENCY,
INC., Petitioner,
vs.
JOY C. CABILES, Respondent.
DECISION
LEONEN, J.:
This case involves an overseas Filipino worker with
shattered dreams. It is our duty, given the facts and
the law, to approximate justice for her.
We are asked to decide a petition for review1 on
certiorari assailing the Court of Appeals’
decision2 dated June 27, 2005. This decision partially
affirmed the National Labor RelationsCommission’s
resolution dated March 31, 2004,3declaring
respondent’s dismissal illegal, directing petitioner to
pay respondent’s three-month salary equivalent to
New Taiwan Dollar (NT$) 46,080.00, and ordering it
to reimburse the NT$3,000.00 withheld from
respondent, and pay her NT$300.00 attorney’s fees.4
Petitioner, Sameer Overseas Placement Agency, Inc.,
is a recruitment and placement agency.5 Responding
to an ad it published, respondent, Joy C. Cabiles,
submitted her application for a quality control job in
Taiwan.6
Joy’s application was accepted.7 Joy was later asked
to sign a oneyear employment contract for a monthly
salary of NT$15,360.00.8 She alleged that Sameer
Overseas Agency required her to pay a placement fee
of ₱70,000.00 when she signed the employment
contract.9
Joy was deployed to work for TaiwanWacoal, Co. Ltd.
(Wacoal) on June 26, 1997.10 She alleged that in her
employment contract, she agreed to work as quality
control for one year.11 In Taiwan, she was asked to
work as a cutter.12
Sameer Overseas Placement Agencyclaims that on
July 14, 1997, a certain Mr. Huwang from Wacoal
informedJoy, without prior notice, that she was
terminated and that "she should immediately report to
their office to get her salary and passport."13 She was
asked to "prepare for immediate repatriation." 14
Joy claims that she was told that from June 26 to July
14, 1997, she only earned a total of
NT$9,000.15 According to her, Wacoal deducted
NT$3,000 to cover her plane ticket to Manila.16
On October 15, 1997, Joy filed a complaint17 with the
National Labor Relations Commission against
petitioner and Wacoal. She claimed that she was
illegally dismissed.18 She asked for the return of her
placement fee, the withheld amount for repatriation
costs, payment of her salary for 23 months as well as
moral and exemplary damages.19 She identified
Wacoal as Sameer Overseas Placement Agency’s
foreign principal.20
Sameer Overseas Placement Agency alleged that
respondent's termination was due to her inefficiency,
negligence in her duties, and her "failure to comply
with the work requirements [of] her foreign
[employer]."21 The agency also claimed that it did not
ask for a placement fee of ₱70,000.00.22 As evidence,
it showedOfficial Receipt No. 14860 dated June 10,
1997, bearing the amount of ₱20,360.00.23 Petitioner
added that Wacoal's accreditation with petitioner had
already been transferred to the Pacific Manpower &
Management Services, Inc. (Pacific) as of August 6,
1997.24 Thus, petitioner asserts that it was already
substituted by Pacific Manpower.25
Pacific Manpower moved for the dismissal of
petitioner’s claims against it.26 It alleged that there
was no employer-employee relationship between
them.27 Therefore, the claims against it were outside
the jurisdiction of the Labor Arbiter.28 Pacific
Manpower argued that the employment contract
should first be presented so that the employer’s
contractual obligations might be identified.29 It further
denied that it assumed liability for petitioner’s illegal
acts.30
On July 29, 1998, the Labor Arbiter dismissed Joy’s
complaint.31 Acting Executive Labor Arbiter Pedro
C.Ramos ruled that her complaint was based on
mereallegations.32 The Labor Arbiter found that there
was no excess payment of placement fees, based on
the official receipt presented by petitioner.33 The
Labor Arbiter found unnecessary a discussion on
petitioner’s transfer of obligations to Pacific34 and
considered the matter immaterial in view of the
dismissal of respondent’s complaint.35
Joy appealed36 to the National Labor Relations
Commission.
In a resolution37 dated March 31, 2004, the National
Labor Relations Commission declared that Joy was
illegally dismissed.38 It reiterated the doctrine that the
burden of proof to show that the dismissal was based
on a just or valid cause belongs to the employer.39 It
found that Sameer Overseas Placement Agency
failed to prove that there were just causes for
termination.40 There was no sufficient proofto show
that respondent was inefficient in her work and that
she failed to comply with company
requirements.41 Furthermore, procedural dueprocess
was not observed in terminating respondent.42
The National Labor Relations Commission did not rule
on the issue of reimbursement of placement fees for
lack of jurisdiction.43 It refused to entertain the issue
of the alleged transfer of obligations to Pacific.44 It did
not acquire jurisdiction over that issue because
Sameer Overseas Placement Agency failed to appeal
the Labor Arbiter’s decision not to rule on the
matter.45
The National Labor Relations Commission awarded
respondent only three (3) months worth of salaryin the
amount of NT$46,080, the reimbursement of the
NT$3,000 withheld from her, and attorney’s fees of
NT$300.46
The Commission denied the agency’s motion for
reconsideration47 dated May 12, 2004 through a
resolution48 dated July 2, 2004.
Aggrieved by the ruling, Sameer Overseas Placement
Agency caused the filing of a petition49 for certiorari
with the Court of Appeals assailing the National Labor
Relations Commission’s resolutions dated March 31,
2004 and July 2, 2004.
The Court of Appeals50 affirmed the decision of the
National Labor Relations Commission with respect to
the finding of illegal dismissal, Joy’s entitlement to the
equivalent of three months worth of salary,
reimbursement of withheld repatriation expense, and
attorney’s fees.51 The Court of Appeals remanded the
case to the National Labor Relations Commission to
address the validity of petitioner's allegations against
Pacific.52 The Court of Appeals held, thus: Although
the public respondent found the dismissal of the
complainant-respondent illegal, we should point out
that the NLRC merely awarded her three (3) months
backwages or the amount of NT$46,080.00, which
was based upon its finding that she was dismissed
without due process, a finding that we uphold, given
petitioner’s lack of worthwhile discussion upon the
same in the proceedings below or before us. Likewise
we sustain NLRC’s finding in regard to the
reimbursement of her fare, which is squarely based
on the law; as well as the award of attorney’s fees.
But we do find it necessary to remand the instant
case to the public respondent for further proceedings,
for the purpose of addressing the validity or propriety
of petitioner’s third-party complaint against the
transferee agent or the Pacific Manpower &
Management Services, Inc. and Lea G. Manabat. We
should emphasize that as far as the decision of the
NLRC on the claims of Joy Cabiles, is concerned, the
same is hereby affirmed with finality, and we hold
petitioner liable thereon, but without prejudice to
further hearings on its third party complaint against
Pacific for reimbursement.
WHEREFORE, premises considered, the assailed
Resolutions are hereby partly AFFIRMED in
accordance with the foregoing discussion, but subject
to the caveat embodied inthe last sentence. No costs.
SO ORDERED.53
Dissatisfied, Sameer Overseas Placement Agency
filed this petition.54
We are asked to determine whether the Court of
Appeals erred when it affirmed the ruling of the
National Labor Relations Commission finding
respondent illegally dismissed and awarding her three
months’ worth of salary, the reimbursement of the
cost ofher repatriation, and attorney’s fees despite the
alleged existence of just causes of termination.
Petitioner reiterates that there was just cause for
termination because there was a finding of Wacoal
that respondent was inefficient in her work.55
Therefore, it claims that respondent’s dismissal was
valid.56
Petitioner also reiterates that since Wacoal’s
accreditation was validly transferred to Pacific at the
time respondent filed her complaint, it should be
Pacific that should now assume responsibility for
Wacoal’s contractual obligations to the workers
originally recruited by petitioner.57
Sameer Overseas Placement Agency’spetition is
without merit. We find for respondent.
I
Sameer Overseas Placement Agency failed to show
that there was just cause for causing Joy’s dismissal.
The employer, Wacoal, also failed to accord her due
process of law.
Indeed, employers have the prerogative to impose
productivity and quality standards at work.58 They
may also impose reasonable rules to ensure that the
employees comply with these standards.59 Failure to
comply may be a just cause for their
dismissal.60 Certainly, employers cannot be
compelled to retain the services of anemployee who
is guilty of acts that are inimical to the interest of the
employer.61 While the law acknowledges the plight
and vulnerability of workers, it does not "authorize the
oppression or self-destruction of the
employer."62 Management prerogative is recognized
in law and in our jurisprudence.
This prerogative, however, should not be abused. It is
"tempered with the employee’s right to security of
tenure."63Workers are entitled to substantive and
procedural due process before termination. They may
not be removed from employment without a validor
just cause as determined by law and without going
through the proper procedure.
Security of tenure for labor is guaranteed by our
Constitution.64
Employees are not stripped of their security of tenure
when they move to work in a different jurisdiction.
With respect to the rights of overseas Filipino
workers, we follow the principle of lex loci
contractus.Thus, in Triple Eight Integrated Services,
Inc. v. NLRC,65 this court noted:
Petitioner likewise attempts to sidestep the medical
certificate requirement by contending that since
Osdana was working in Saudi Arabia, her
employment was subject to the laws of the host
country. Apparently, petitioner hopes tomake it
appear that the labor laws of Saudi Arabia do not
require any certification by a competent public health
authority in the dismissal of employees due to illness.
Again, petitioner’s argument is without merit.
First, established is the rule that lex loci contractus
(the law of the place where the contract is made)
governs in this jurisdiction. There is no question that
the contract of employment in this case was perfected
here in the Philippines. Therefore, the Labor Code, its
implementing rules and regulations, and other laws
affecting labor apply in this case.Furthermore, settled
is the rule that the courts of the forum will not enforce
any foreign claim obnoxious to the forum’s public
policy. Herein the Philippines, employment
agreements are more than contractual in nature. The
Constitution itself, in Article XIII, Section 3,
guarantees the special protection of workers, to wit:
The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote
full employment and equality of employment
opportunities for all.
It shall guarantee the rights of all workers to
selforganization, collective bargaining and
negotiations, and peaceful concerted activities,
including the right to strike in accordance with law.
They shall be entitled to security of tenure, humane
conditions of work, and a living wage. Theyshall also
participate in policy and decision-making processes
affecting their rights and benefits as may be provided
by law.
....
This public policy should be borne in mind in this case
because to allow foreign employers to determine for
and by themselves whether an overseas contract
worker may be dismissed on the ground of illness
would encourage illegal or arbitrary pretermination of
employment contracts.66 (Emphasis supplied, citation
omitted)
Even with respect to fundamental procedural rights,
this court emphasized in PCL Shipping Philippines,
Inc. v. NLRC,67 to wit:
Petitioners admit that they did notinform private
respondent in writing of the charges against him and
that they failed to conduct a formal investigation to
give him opportunity to air his side. However,
petitioners contend that the twin requirements
ofnotice and hearing applies strictly only when the
employment is within the Philippines and that these
need not be strictly observed in cases of international
maritime or overseas employment.
The Court does not agree. The provisions of the
Constitution as well as the Labor Code which afford
protection to labor apply to Filipino employees
whether working within the Philippines or abroad.
Moreover, the principle of lex loci contractus (the law
of the place where the contract is made) governs in
this jurisdiction. In the present case, it is not disputed
that the Contract of Employment entered into by and
between petitioners and private respondent was
executed here in the Philippines with the approval of
the Philippine Overseas Employment Administration
(POEA). Hence, the Labor Code together with its
implementing rules and regulations and other laws
affecting labor apply in this case.68 (Emphasis
supplied, citations omitted)
By our laws, overseas Filipino workers (OFWs) may
only be terminated for a just or authorized cause and
after compliance with procedural due process
requirements.
Article 282 of the Labor Code enumerates the just
causes of termination by the employer. Thus:
Art. 282. Termination by employer. An employer may
terminate an employment for any of the following
causes:
 (a) Serious misconduct or willful
disobedience by the employee of the lawful
orders of his employer or representative in
connection with his work;
(b) Gross and habitual neglect by the
employee of his duties;
(c) Fraud or willful breach by the employee
of the trust reposed in him by his employer
or duly authorized representative;
(d) Commission of a crime or offense by the
employee against the person of his employer
or any immediate member of his family or his
duly authorized representatives; and
(e) Other causes analogous to the foregoing.
Petitioner’s allegation that respondentwas inefficient
in her work and negligent in her duties69 may,
therefore, constitute a just cause for termination under
Article 282(b), but only if petitioner was able to prove
it.
The burden of proving that there is just cause for
termination is on the employer. "The employer must
affirmatively show rationally adequate evidence that
the dismissal was for a justifiable cause."70 Failure to
show that there was valid or just cause for termination
would necessarily mean that the dismissal was
illegal.71
To show that dismissal resulting from inefficiency in
work is valid, it must be shown that: 1) the employer
has set standards of conduct and workmanship
against which the employee will be judged; 2) the
standards of conduct and workmanship must have
been communicated tothe employee; and 3) the
communication was made at a reasonable time prior
to the employee’s performance assessment.
This is similar to the law and jurisprudence on
probationary employees, which allow termination
ofthe employee only when there is "just cause or
when [the probationary employee] fails to qualify as a
regular employee in accordance with reasonable
standards made known by the employer to the
employee at the time of his [or her] engagement." 72
However, we do not see why the application of that
ruling should be limited to probationary employment.
That rule is basic to the idea of security of tenure and
due process, which are guaranteed to all employees,
whether their employment is probationary or regular.
The pre-determined standards that the employer sets
are the bases for determining the probationary
employee’s fitness, propriety, efficiency, and
qualifications as a regular employee. Due process
requires that the probationary employee be informed
of such standards at the time of his or her
engagement so he or she can adjusthis or her
character or workmanship accordingly. Proper
adjustment to fit the standards upon which the
employee’s qualifications will be evaluated will
increase one’s chances of being positively assessed
for regularization by his or her employer.
Assessing an employee’s work performance does not
stop after regularization. The employer, on a regular
basis, determines if an employee is still qualified and
efficient, based on work standards. Based on that
determination, and after complying with the due
process requirements of notice and hearing, the
employer may exercise its management prerogative
of terminating the employee found unqualified.
The regular employee must constantlyattempt to
prove to his or her employer that he or she meets all
the standards for employment. This time, however,
the standards to be met are set for the purpose of
retaining employment or promotion. The employee
cannot be expected to meet any standard of character
or workmanship if such standards were not
communicated to him or her. Courts should remain
vigilant on allegations of the employer’s failure to
communicatework standards that would govern one’s
employment "if [these are] to discharge in good faith
[their] duty to adjudicate."73
In this case, petitioner merely alleged that respondent
failed to comply with her foreign employer’s work
requirements and was inefficient in her work.74 No
evidence was shown to support such allegations.
Petitioner did not even bother to specify what
requirements were not met, what efficiency standards
were violated, or what particular acts of respondent
constituted inefficiency.
There was also no showing that respondent was
sufficiently informed of the standards against which
her work efficiency and performance were judged.
The parties’ conflict as to the position held by
respondent showed that even the matter as basic as
the job title was not clear.
The bare allegations of petitioner are not sufficient to
support a claim that there is just cause for
termination. There is no proof that respondent was
legally terminated.
Petitioner failed to comply with
the due process requirements
Respondent’s dismissal less than one year from hiring
and her repatriation on the same day show not
onlyfailure on the partof petitioner to comply with the
requirement of the existence of just cause for
termination. They patently show that the employersdid
not comply with the due process requirement.
A valid dismissal requires both a valid cause and
adherence to the valid procedure of dismissal.75 The
employer is required to give the charged employee at
least two written notices before termination.76 One of
the written notices must inform the employee of the
particular acts that may cause his or her
dismissal.77 The other notice must "[inform] the
employee of the employer’s decision."78 Aside from
the notice requirement, the employee must also be
given "an opportunity to be heard."79
Petitioner failed to comply with the twin notices and
hearing requirements. Respondent started working on
June 26, 1997. She was told that she was terminated
on July 14, 1997 effective on the same day and barely
a month from her first workday. She was also
repatriated on the same day that she was informed of
her termination. The abruptness of the termination
negated any finding that she was properly notified and
given the opportunity to be heard. Her constitutional
right to due process of law was violated.
II
Respondent Joy Cabiles, having been illegally
dismissed, is entitled to her salary for the unexpired
portion ofthe employment contract that was violated
together with attorney’s fees and reimbursement of
amounts withheld from her salary.
Section 10 of Republic Act No. 8042,otherwise known
as the Migrant Workers and Overseas Filipinos Act
of1995, states thatoverseas workers who were
terminated without just, valid, or authorized cause
"shall be entitled to the full reimbursement of his
placement fee with interest of twelve (12%) per
annum, plus his salaries for the unexpired portion of
his employment contract or for three (3) months for
every year of the unexpired term, whichever is less."
Sec. 10. MONEY CLAIMS. – Notwithstanding any
provision of law to the contrary, the Labor Arbiters of
the National Labor Relations Commission (NLRC)
shall have the original and exclusive jurisdiction to
hear and decide, within ninety (90) calendar days
after filing of the complaint, the claims arising out of
an employer-employee relationship or by virtue of any
law or contract involving Filipino workers for overseas
deployment including claims for actual, moral,
exemplary and other forms of damages.
The liability of the principal/employer and the
recruitment/placement agency for any and all claims
under this section shall be joint and several. This
provisions [sic] shall be incorporated in the contract
for overseas employment and shall be a condition
precedent for its approval. The performance bond to
be filed by the recruitment/placementagency, as
provided by law, shall be answerable for all money
claims or damages that may be awarded to the
workers. If the recruitment/placement agency is a
juridical being, the corporate officers and directors
and partners as the case may be, shall themselves be
jointly and solidarily liable with the corporation
orpartnership for the aforesaid claims and damages.
Such liabilities shall continue during the entire period
or duration of the employment contract and shall not
be affected by any substitution, amendment or
modification made locally or in a foreign country of the
said contract.
Any compromise/amicable settlement or voluntary
agreement on money claims inclusive of damages
under this section shall be paid within four (4) months
from the approval of the settlement by the appropriate
authority.
In case of termination of overseas employment
without just, valid or authorized cause as defined by
law or contract, the workers shall be entitled to the full
reimbursement of his placement fee with interest of
twelve (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for
three (3) months for every year of the unexpired term,
whichever is less.
....
(Emphasis supplied)
Section 15 of Republic Act No. 8042 states that
"repatriation of the worker and the transport of his [or
her] personal belongings shall be the primary
responsibility of the agency which recruited or
deployed the worker overseas." The exception is
when "termination of employment is due solely to the
fault of the worker,"80 which as we have established,
is not the case. It reads: SEC. 15. REPATRIATION
OF WORKERS; EMERGENCY REPATRIATION
FUND. – The repatriation of the worker and the
transport of his personal belongings shall be the
primary responsibility of the agency which recruited or
deployed the worker overseas. All costs attendant to
repatriation shall be borne by or charged to the
agency concerned and/or its principal. Likewise, the
repatriation of remains and transport of the personal
belongings of a deceased worker and all costs
attendant thereto shall be borne by the principal
and/or local agency. However, in cases where the
termination of employment is due solely to the fault of
the worker, the principal/employer or agency shall not
in any manner be responsible for the repatriation of
the former and/or his belongings.
....
The Labor Code81 also entitles the employee to 10%
of the amount of withheld wages as attorney’s
feeswhen the withholding is unlawful.
The Court of Appeals affirmedthe National Labor
Relations Commission’s decision to award
respondent NT$46,080.00 or the threemonth
equivalent of her salary, attorney’s fees of
NT$300.00, and the reimbursement of the withheld
NT$3,000.00 salary, which answered for her
repatriation.
We uphold the finding that respondent is entitled to all
of these awards. The award of the three-month
equivalent of respondent’s salary should, however, be
increased to the amount equivalent to the unexpired
term of the employment contract.
In Serrano v. Gallant Maritime Services, Inc. and
Marlow Navigation Co., Inc.,82 this court ruled that the
clause "or for three (3) months for every year of the
unexpired term, whichever is less"83 is
unconstitutional for violating the equal protection
clause and substantive due process.84
A statute or provision which was declared
unconstitutional is not a law. It "confers no rights; it
imposes no duties; it affords no protection; it creates
no office; it is inoperative as if it has not been passed
at all."85
We are aware that the clause "or for three (3) months
for every year of the unexpired term, whichever is
less"was reinstated in Republic Act No. 8042 upon
promulgation of Republic Act No. 10022 in 2010.
Section 7 of Republic Act No. 10022 provides:
Section 7.Section 10 of Republic Act No. 8042, as
amended, is hereby amended to read as follows:
SEC. 10. Money Claims.– Notwithstanding any
provision of law to the contrary, the Labor Arbiters of
the National Labor Relations Commission (NLRC)
shall have the original and exclusive jurisdiction to
hear and decide, within ninety (90) calendar days
after the filing of the complaint, the claims arising out
of an employer-employee relationship or by virtue of
any law or contract involving Filipino workers for
overseas deployment including claims for actual,
moral, exemplary and other forms of damage.
Consistent with this mandate, the NLRC shall
endeavor to update and keep abreast with the
developments in the global services industry.
The liability of the principal/employer and the
recruitment/placement agency for any and all claims
under this section shall be joint and several. This
provision shall be incorporated in the contract for
overseas employment and shall be a condition
precedent for its approval. The performance bond to
de [sic] filed by the recruitment/placement agency, as
provided by law, shall be answerable for all money
claims or damages that may be awarded to the
workers. If the recruitment/placement agency is a
juridical being, the corporate officers and directors
and partners as the case may be, shall themselves be
jointly and solidarily liable with the corporation or
partnership for the aforesaid claims and damages.
Such liabilities shall continue during the entire period
or duration of the employment contract and shall not
be affected by any substitution, amendment or
modification made locally or in a foreign country of the
said contract.
Any compromise/amicable settlement or voluntary
agreement on money claims inclusive of damages
under this section shall be paid within thirty (30) days
from approval of the settlement by the appropriate
authority.
In case of termination of overseas employment
without just, valid or authorized cause as defined by
law or contract, or any unauthorized deductions from
the migrant worker’s salary, the worker shall be
entitled to the full reimbursement if [sic] his placement
fee and the deductions made with interest at twelve
percent (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for
three (3) months for every year of the unexpired term,
whichever is less.
In case of a final and executory judgement against a
foreign employer/principal, it shall be automatically
disqualified, without further proceedings, from
participating in the Philippine Overseas Employment
Program and from recruiting and hiring Filipino
workers until and unless it fully satisfies the
judgement award.
Noncompliance with the mandatory periods for
resolutions of case providedunder this section shall
subject the responsible officials to any or all of the
following penalties:
(a) The salary of any such official who fails to
render his decision or resolution within the
prescribed period shall be, or caused to be,
withheld until the said official complies
therewith;
(b) Suspension for not more than ninety (90)
days; or
(c) Dismissal from the service with
disqualification to hold any appointive public
office for five (5) years.
Provided, however,That the penalties herein provided
shall be without prejudice to any liability which any
such official may have incured [sic] under other
existing laws or rules and regulations as a
consequence of violating the provisions of this
paragraph. (Emphasis supplied)
Republic Act No. 10022 was promulgated on March 8,
2010. This means that the reinstatement of the clause
in Republic Act No. 8042 was not yet in effect at the
time of respondent’s termination from work in
1997.86 Republic Act No. 8042 before it was amended
byRepublic Act No. 10022 governs this case.
When a law is passed, this court awaits an actual
case that clearly raises adversarial positions in their
proper context before considering a prayer to declare
it as unconstitutional.
However, we are confronted with a unique situation.
The law passed incorporates the exact clause already
declared as unconstitutional, without any perceived
substantial change in the circumstances.
This may cause confusion on the part of the National
Labor Relations Commission and the Court of
Appeals.At minimum, the existence of Republic Act
No. 10022 may delay the execution of the judgment in
this case, further frustrating remedies to assuage the
wrong done to petitioner.
Hence, there is a necessity to decide this
constitutional issue.
Moreover, this court is possessed with the
constitutional duty to "[p]romulgate rules concerning
the protection and enforcement of constitutional
rights."87 When cases become mootand academic, we
do not hesitate to provide for guidance to bench and
bar in situations where the same violations are
capable of repetition but will evade review. This is
analogous to cases where there are millions of
Filipinos working abroad who are bound to suffer from
the lack of protection because of the restoration of an
identical clause in a provision previously declared as
unconstitutional.
In the hierarchy of laws, the Constitution is supreme.
No branch or office of the government may exercise
its powers in any manner inconsistent with the
Constitution, regardless of the existence of any law
that supports such exercise. The Constitution cannot
be trumped by any other law. All laws must be read in
light of the Constitution. Any law that is inconsistent
with it is a nullity.
Thus, when a law or a provision of law is null because
it is inconsistent with the Constitution,the nullity
cannot be cured by reincorporation or reenactment of
the same or a similar law or provision. A law or
provision of law that was already declared
unconstitutional remains as such unless
circumstances have sochanged as to warrant a
reverse conclusion.
We are not convinced by the pleadings submitted by
the parties that the situation has so changed so as to
cause us to reverse binding precedent.
Likewise, there are special reasons of judicial
efficiency and economy that attend to these cases.
The new law puts our overseas workers in the same
vulnerable position as they were prior to Serrano.
Failure to reiterate the very ratio decidendi of that
case will result in the same untold economic
hardships that our reading of the Constitution
intended to avoid. Obviously, we cannot countenance
added expenses for further litigation thatwill reduce
their hardearned wages as well as add to the indignity
of having been deprived of the protection of our laws
simply because our precedents have not been
followed. There is no constitutional doctrine that
causes injustice in the face of empty procedural
niceties. Constitutional interpretation is complex, but it
is never unreasonable.
Thus, in a resolution88 dated October 22, 2013, we
ordered the parties and the Office of the Solicitor
General to comment on the constitutionality of the
reinstated clause in Republic Act No. 10022.
In its comment,89 petitioner argued that the clause
was constitutional.90 The legislators intended a
balance between the employers’ and the employees’
rights by not unduly burdening the local recruitment
agency.91 Petitioner is also of the view that the clause
was already declared as constitutional in Serrano.92
The Office of the Solicitor General also argued that
the clause was valid and constitutional.93 However,
since the parties never raised the issue of the
constitutionality of the clause asreinstated in Republic
Act No. 10022, its contention is that it is beyond
judicial review.94
On the other hand, respondentargued that the clause
was unconstitutional because it infringed on workers’
right to contract.95
We observe that the reinstated clause, this time as
provided in Republic Act. No. 10022, violates the
constitutional rights to equal protection and due
process.96 Petitioner as well as the Solicitor General
have failed to show any compelling changein the
circumstances that would warrant us to revisit the
precedent.
We reiterate our finding in Serrano v. Gallant Maritime
that limiting wages that should be recovered by
anillegally dismissed overseas worker to three months
is both a violation of due process and the equal
protection clauses of the Constitution.
Equal protection of the law is a guarantee that
persons under like circumstances and falling within
the same class are treated alike, in terms of
"privileges conferred and liabilities enforced." 97 It is a
guarantee against "undue favor and individual or
class privilege, as well as hostile discrimination or the
oppression of inequality."98
In creating laws, the legislature has the power "to
make distinctions and classifications."99
In exercising such power, it has a wide discretion.100
The equal protection clause does not infringe on this
legislative power.101 A law is void on this basis, only if
classifications are made arbitrarily.102 There is no
violation of the equal protection clause if the law
applies equally to persons within the same class and
if there are reasonable grounds for distinguishing
between those falling within the class and those who
do not fall within the class.103 A law that does not
violate the equal protection clause prescribesa
reasonable classification.104
A reasonable classification "(1) must rest on
substantial distinctions; (2) must be germane to the
purposes of the law; (3) must not be limited to existing
conditions only; and (4) must apply equally to all
members of the same class."105
The reinstated clause does not satisfy the
requirement of reasonable classification.
In Serrano, we identified the classifications made by
the reinstated clause. It distinguished between fixed-
period overseas workers and fixedperiod local
workers.106 It also distinguished between overseas
workers with employment contracts of less than one
year and overseas workers with employment
contracts of at least one year.107 Within the class of
overseas workers with at least one-year employment
contracts, there was a distinction between those with
at least a year left in their contracts and those with
less than a year left in their contracts when they were
illegally dismissed.108
The Congress’ classification may be subjected to
judicial review. In Serrano, there is a "legislative
classification which impermissibly interferes with the
exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class." 109
Under the Constitution, labor is afforded special
protection.110 Thus, this court in Serrano, "[i]mbued
with the same sense of ‘obligation to afford protection
to labor,’ . . . employ[ed] the standard of strict judicial
scrutiny, for it perceive[d] in the subject clause a
suspect classification prejudicial to OFWs."111
We also noted in Serranothat before the passage of
Republic Act No. 8042, the money claims of illegally
terminated overseas and local workers with fixed-term
employment werecomputed in the same
manner.112 Their money claims were computed based
onthe "unexpired portions of their contracts."113 The
adoption of the reinstated clause in Republic Act No.
8042 subjected the money claims of illegally
dismissed overseas workers with an unexpired term
of at least a year to a cap of three months worth of
their salary.114 There was no such limitation on the
money claims of illegally terminated local workers with
fixed-term employment.115
We observed that illegally dismissed overseas
workers whose employment contracts had a term of
less than one year were granted the amount
equivalent to the unexpired portion of their
employment contracts.116 Meanwhile, illegally
dismissed overseas workers with employment terms
of at least a year were granted a cap equivalent to
three months of their salary for the unexpired portions
of their contracts.117
Observing the terminologies used inthe clause, we
also found that "the subject clause creates a sub-layer
of discrimination among OFWs whose contract
periods are for more than one year: those who are
illegally dismissed with less than one year left in their
contracts shall be entitled to their salaries for the
entire unexpired portion thereof, while those who are
illegally dismissed with one year or more remaining in
their contracts shall be covered by the reinstated
clause, and their monetary benefits limited to their
salaries for three months only."118
We do not need strict scrutiny to conclude that these
classifications do not rest on any real or substantial
distinctions that would justify different treatments in
terms of the computation of money claims resulting
from illegal termination.
Overseas workers regardless of their classifications
are entitled to security of tenure, at least for the period
agreed upon in their contracts. This means that they
cannot be dismissed before the end of their contract
terms without due process. If they were illegally
dismissed, the workers’ right to security of tenure is
violated.
The rights violated when, say, a fixed-period local
worker is illegally terminated are neither greater than
norless than the rights violated when a fixed-period
overseas worker is illegally terminated. It is state
policy to protect the rights of workers
withoutqualification as to the place of
employment.119 In both cases, the workers are
deprived of their expected salary, which they could
have earned had they not been illegally dismissed.
For both workers, this deprivation translates to
economic insecurity and disparity.120 The same is true
for the distinctions between overseas workers with an
employment contract of less than one year and
overseas workers with at least one year of
employment contract, and between overseas workers
with at least a year left in their contracts and overseas
workers with less than a year left in their contracts
when they were illegally dismissed.
For this reason, we cannot subscribe to the argument
that "[overseas workers] are contractual
employeeswho can never acquire regular
employment status, unlike local workers"121 because it
already justifies differentiated treatment in terms ofthe
computation of money claims.122
Likewise, the jurisdictional and enforcement issues on
overseas workers’ money claims do not justify a
differentiated treatment in the computation of their
money claims.123 If anything, these issues justify an
equal, if not greater protection and assistance to
overseas workers who generally are more prone to
exploitation given their physical distance from our
government.
We also find that the classificationsare not relevant to
the purpose of the law, which is to "establish a higher
standard of protection and promotion of the welfare of
migrant workers, their families and overseas Filipinos
in distress, and for other purposes."124 Further, we
find specious the argument that reducing the liability
of placement agencies "redounds to the benefit of the
[overseas] workers."125
Putting a cap on the money claims of certain
overseas workers does not increase the standard of
protection afforded to them. On the other hand,
foreign employers are more incentivizedby the
reinstated clause to enter into contracts of at least a
year because it gives them more flexibility to violate
our overseas workers’ rights. Their liability for
arbitrarily terminating overseas workers is decreased
at the expense of the workers whose rights they
violated. Meanwhile, these overseas workers who are
impressed with an expectation of a stable job
overseas for the longer contract period disregard
other opportunities only to be terminated earlier. They
are left with claims that are less than what others in
the same situation would receive. The reinstated
clause, therefore, creates a situation where the law
meant to protect them makes violation of rights easier
and simply benign to the violator.
As Justice Brion said in his concurring opinion in
Serrano:
Section 10 of R.A. No. 8042 affects these well-laid
rules and measures, and in fact provides a hidden
twist affecting the principal/employer’s liability. While
intended as an incentive accruing to
recruitment/manning agencies, the law, as worded,
simply limits the OFWs’ recovery in wrongfuldismissal
situations. Thus, it redounds to the benefit of whoever
may be liable, including the principal/employer – the
direct employer primarily liable for the wrongful
dismissal. In this sense, Section 10 – read as a grant
of incentives to recruitment/manning agencies –
oversteps what it aims to do by effectively limiting
what is otherwise the full liability of the foreign
principals/employers. Section 10, in short, really
operates to benefit the wrong party and allows that
party, without justifiable reason, to mitigate its liability
for wrongful dismissals. Because of this hidden twist,
the limitation ofliability under Section 10 cannot be an
"appropriate" incentive, to borrow the term that R.A.
No. 8042 itself uses to describe the incentive it
envisions under its purpose clause.
What worsens the situation is the chosen mode of
granting the incentive: instead of a grant that, to
encourage greater efforts at recruitment, is directly
related to extra efforts undertaken, the law simply
limits their liability for the wrongful dismissals of
already deployed OFWs. This is effectively a legally-
imposed partial condonation of their liability to OFWs,
justified solely by the law’s intent to encourage
greater deployment efforts. Thus, the incentive,from a
more practical and realistic view, is really part of a
scheme to sell Filipino overseas labor at a bargain for
purposes solely of attracting the market. . . .
The so-called incentive is rendered particularly odious
by its effect on the OFWs — the benefits accruing to
the recruitment/manning agencies and their principals
are takenfrom the pockets of the OFWs to whom the
full salaries for the unexpired portion of the contract
rightfully belong. Thus, the principals/employers and
the recruitment/manning agencies even profit from
their violation of the security of tenure that an
employment contract embodies. Conversely, lesser
protection is afforded the OFW, not only because of
the lessened recovery afforded him or her by
operation of law, but also because this same
lessened recovery renders a wrongful dismissal
easier and less onerous to undertake; the lesser cost
of dismissing a Filipino will always bea consideration
a foreign employer will take into account in
termination of employment decisions. . . .126
Further, "[t]here can never be a justification for any
form of government action that alleviates the burden
of one sector, but imposes the same burden on
another sector, especially when the favored sector is
composed of private businesses suchas placement
agencies, while the disadvantaged sector is
composed ofOFWs whose protection no less than the
Constitution commands. The idea thatprivate
business interest can be elevated to the level of a
compelling state interest is odious."127
Along the same line, we held that the reinstated
clause violates due process rights. It is arbitrary as it
deprives overseas workers of their monetary claims
without any discernable valid purpose.128
Respondent Joy Cabiles is entitled to her salary for
the unexpired portion of her contract, in accordance
with Section 10 of Republic Act No. 8042. The award
of the three-month equivalence of respondent’s salary
must be modified accordingly. Since she started
working on June 26, 1997 and was terminated on July
14, 1997, respondent is entitled to her salary from
July 15, 1997 to June 25, 1998. "To rule otherwise
would be iniquitous to petitioner and other OFWs, and
would,in effect, send a wrong signal that
principals/employers and recruitment/manning
agencies may violate an OFW’s security of tenure
which an employment contract embodies and actually
profit from such violation based on an unconstitutional
provision of law."129
III
On the interest rate, the Bangko Sentral ng Pilipinas
Circular No. 799 of June 21, 2013, which revised the
interest rate for loan or forbearance from 12% to 6%
in the absence of stipulation,applies in this case. The
pertinent portions of Circular No. 799, Series of 2013,
read: The Monetary Board, in its Resolution No. 796
dated 16 May 2013, approved the following revisions
governing the rate of interest in the absence of
stipulation in loan contracts, thereby amending
Section 2 of Circular No. 905, Series of 1982:
Section 1. The rate of interest for the loan or
forbearance of any money, goods or credits and the
rate allowed in judgments, in the absence of an
express contract as to such rateof interest, shall be
six percent (6%) per annum.
Section 2. In view of the above, Subsection X305.1 of
the Manual of Regulations for Banks and Sections
4305Q.1, 4305S.3 and 4303P.1 of the Manual of
Regulations for Non-Bank Financial Institutions are
hereby amended accordingly.
This Circular shall take effect on 1 July 2013.
Through the able ponencia of Justice Diosdado
Peralta, we laid down the guidelines in computing
legal interest in Nacar v. Gallery Frames:130
II. With regard particularly to an award of interest in
the concept of actual and compensatory damages,
the rate of interest, as well as the accrual thereof, is
imposed, as follows:
1. When the obligation is breached, and it
consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the
interest due should be that which may have
been stipulated in writing. Furthermore, the
interest due shall itself earn legal interest
from the time it is judicially demanded. In the
absence of stipulation, the rate of interest
shall be 6% per annum to be computed from
default, i.e., from judicial or extrajudicial
demand under and subject to the provisions
of Article 1169 of the Civil Code.
2. When an obligation, not constituting a loan
or forbearance of money, is breached, an
interest on the amount of damages awarded
may be imposed at the discretion of the court
at the rate of 6% per annum. No interest,
however, shall be adjudged on unliquidated
claims or damages, except when or until the
demand can be established with reasonable
certainty. Accordingly, where the demand is
established with reasonable certainty, the
interest shall begin to run from the time the
claim is made judicially or extrajudicially (Art.
1169, Civil Code), but when such certainty
cannot be so reasonably established at the
time the demand is made, the interest shall
begin to run only from the date the judgment
of the court is made (at which time the
quantification of damages may be deemed to
have been reasonably ascertained). The
actual base for the computation of legal
interest shall, in any case, be on the amount
finally adjudged. 3. When the judgment of
the court awarding a sum of money becomes
final and executory, the rate of legal interest,
whether the case falls under paragraph 1 or
paragraph 2, above, shall be 6% per annum
from such finality until its satisfaction, this
interim period being deemed to be by then
an equivalent to a forbearance of credit.
And, in addition to the above, judgments that have
become final and executory prior to July 1, 2013, shall
not be disturbed and shall continue to be
implemented applying the rate of interest fixed
therein.131
Circular No. 799 is applicable only in loans and
forbearance of money, goods, or credits, and in
judgments when there is no stipulation on the
applicable interest rate. Further, it is only applicable if
the judgment did not become final and executory
before July 1, 2013.132
We add that Circular No. 799 is not applicable when
there is a law that states otherwise. While the Bangko
Sentral ng Pilipinas has the power to set or limit
interest rates,133 these interest rates do not apply
when the law provides that a different interest rate
shall be applied. "[A] Central Bank Circular cannot
repeal a law. Only a law can repeal another law." 134
For example, Section 10 of Republic Act No. 8042
provides that unlawfully terminated overseas workers
are entitled to the reimbursement of his or her
placement fee with an interest of 12% per annum.
Since Bangko Sentral ng Pilipinas circulars
cannotrepeal Republic Act No. 8042, the issuance of
Circular No. 799 does not have the effect of changing
the interest on awards for reimbursement of
placement fees from 12% to 6%. This is despite
Section 1 of Circular No. 799, which provides that the
6% interest rate applies even to judgments.
Moreover, laws are deemed incorporated in contracts.
"The contracting parties need not repeat them. They
do not even have to be referred to. Every contract,
thus, contains not only what has been explicitly
stipulated, but the statutory provisions that have any
bearing on the matter."135 There is, therefore, an
implied stipulation in contracts between the placement
agency and the overseasworker that in case the
overseas worker is adjudged as entitled to
reimbursement of his or her placement fees, the
amount shall be subject to a 12% interest per annum.
This implied stipulation has the effect of removing
awards for reimbursement of placement fees from
Circular No. 799’s coverage.
The same cannot be said for awardsof salary for the
unexpired portion of the employment contract under
Republic Act No. 8042. These awards are covered by
Circular No. 799 because the law does not provide for
a specific interest rate that should apply.
In sum, if judgment did not become final and
executory before July 1, 2013 and there was no
stipulation in the contract providing for a different
interest rate, other money claims under Section 10 of
Republic Act No. 8042 shall be subject to the 6%
interest per annum in accordance with Circular No.
799.
This means that respondent is also entitled to an
interest of 6% per annum on her money claims from
the finality of this judgment.
IV
Finally, we clarify the liabilities ofWacoal as principal
and petitioner as the employment agency that
facilitated respondent’s overseas employment.
Section 10 of the Migrant Workers and Overseas
Filipinos Act of 1995 provides that the foreign
employer and the local employment agency are jointly
and severally liable for money claims including claims
arising out of an employer-employee relationship
and/or damages. This section also provides that the
performance bond filed by the local agency shall be
answerable for such money claims or damages if they
were awarded to the employee.
This provision is in line with the state’s policy of
affording protection to labor and alleviating workers’
plight.136
In overseas employment, the filing of money claims
against the foreign employer is attended by practical
and legal complications.1âwphi1 The distance of the
foreign employer alonemakes it difficult for an
overseas worker to reach it and make it liable for
violations of the Labor Code. There are also possible
conflict of laws, jurisdictional issues, and procedural
rules that may be raised to frustrate an overseas
worker’sattempt to advance his or her claims.
It may be argued, for instance, that the foreign
employer must be impleaded in the complaint as an
indispensable party without which no final
determination can be had of an action.137
The provision on joint and several liability in the
Migrant Workers and Overseas Filipinos Act of 1995
assures overseas workers that their rights will not be
frustrated with these complications. The fundamental
effect of joint and several liability is that "each of the
debtors is liable for the entire obligation."138 A final
determination may, therefore, be achieved even if
only oneof the joint and several debtors are
impleaded in an action. Hence, in the case of
overseas employment, either the local agency or the
foreign employer may be sued for all claims arising
from the foreign employer’s labor law violations. This
way, the overseas workers are assured that someone
— the foreign employer’s local agent — may be made
to answer for violationsthat the foreign employer may
have committed.
The Migrant Workers and Overseas Filipinos Act of
1995 ensures that overseas workers have recourse in
law despite the circumstances of their employment.
By providing that the liability of the foreign employer
may be "enforced to the full extent"139 against the
local agent,the overseas worker is assured of
immediate and sufficientpayment of what is due
them.140
Corollary to the assurance of immediate recourse in
law, the provision on joint and several liability in the
Migrant Workers and Overseas Filipinos Act of 1995
shifts the burden of going after the foreign employer
from the overseas worker to the local employment
agency. However, it must be emphasized that the
local agency that is held to answer for the overseas
worker’s money claims is not leftwithout remedy. The
law does not preclude it from going after the foreign
employer for reimbursement of whatever payment it
has made to the employee to answer for the money
claims against the foreign employer.
A further implication of making localagencies jointly
and severally liable with the foreign employer is
thatan additional layer of protection is afforded to
overseas workers. Local agencies, which are
businesses by nature, are inoculated with interest in
being always on the lookout against foreign
employers that tend to violate labor law. Lest they risk
their reputation or finances, local agenciesmust
already have mechanisms for guarding against
unscrupulous foreign employers even at the level
prior to overseas employment applications.
With the present state of the pleadings, it is not
possible to determine whether there was indeed a
transfer of obligations from petitioner to Pacific. This
should not be an obstacle for the respondent
overseas worker to proceed with the enforcement of
this judgment. Petitioner is possessed with the
resources to determine the proper legal remedies to
enforce its rights against Pacific, if any.
V Agency is ORDERED to pay respondent Joy C.
Many times, this court has spoken on what Filipinos
may encounter as they travel into the farthest and
mostdifficult reaches of our planet to provide for their
families. In Prieto v. NLRC:141
The Court is not unaware of the many abuses
suffered by our overseas workers in the foreign land
where they have ventured, usually with heavy hearts,
in pursuit of a more fulfilling future. Breach of contract,
maltreatment, rape, insufficient nourishment, sub-
human lodgings, insults and other forms of
debasement, are only a few of the inhumane acts
towhich they are subjected by their foreign employers,
who probably feel they can do as they please in their
own country. Whilethese workers may indeed have
relatively little defense against exploitation while they
are abroad, that disadvantage must not continue to
burden them when they return to their own territory to
voice their muted complaint. There is no reason why,
in their very own land, the protection of our own laws
cannot be extended to them in full measure for the
redress of their grievances.142
But it seems that we have not said enough.
We face a diaspora of Filipinos. Their travails and
their heroism can be told a million times over; each of
their stories as real as any other. Overseas Filipino
workers brave alien cultures and the heartbreak of
families left behind daily. They would count the
minutes, hours, days, months, and years yearning to
see their sons and daughters. We all know of the joy
and sadness when they come home to see them all
grown up and, being so, they remember what their
work has cost them. Twitter accounts, Facetime, and
many other gadgets and online applications will never
substitute for their lost physical presence.
Unknown to them, they keep our economy afloat
through the ebb and flow of political and economic
crises. They are our true diplomats, they who show
the world the resilience, patience, and creativity of our
people. Indeed, we are a people who contribute much
to the provision of material creations of this world.
This government loses its soul if we fail to ensure
decent treatment for all Filipinos. We default by
limiting the contractual wages that should be paid to
our workers when their contracts are breached by the
foreign employers. While we sit, this court will ensure
that our laws will reward our overseas workers with
what they deserve: their dignity.
Inevitably, their dignity is ours as weil.
WHEREFORE, the petition is DENIED. The decision
of the Court of Appeals is AFFIRMED with
modification. Petitioner Sameer Overseas Placement
Cabiles the amount equivalent to her salary for the
unexpired portion of her employment contract at an
interest of 6% per annum from the finality of this
judgment. Petitioner is also ORDERED to reimburse
respondent the withheld NT$3,000.00 salary and pay
respondent attorney's fees of NT$300.00 at an
interest of 6% per annum from the finality of this
judgment.
The clause, "or for three (3) months for every year of
the unexpired term, whichever is less" in Section 7 of
Republic Act No. 10022 amending Section 10 of
Republic Act No. 8042 is declared unconstitutional
and, therefore, null and void.
SO ORDERED.

Case No. 011
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 209287 July 1, 2014
MARIA CAROLINA P. ARAULLO, CHAIRPERSON,
BAGONG ALYANSANG MAKABAYAN; JUDY M.
TAGUIWALO, PROFESSOR, UNIVERSITY OF THE
PHILIPPINES DILIMAN, CO-CHAIRPERSON,
PAGBABAGO; HENRI KAHN, CONCERNED
CITIZENS MOVEMENT; REP. LUZ ILAGAN,
GABRIELA WOMEN'S PARTY REPRESENTATIVE;
REP. CARLOS ISAGANI ZARATE, BAY AN MUNA
PARTY-LIST REPRESENTATIVE; RENATO M.
REYES, JR., SECRETARY GENERAL OF BAYAN;
MANUEL K. DAYRIT, CHAIRMAN, ANG
KAPATIRAN PARTY; VENCER MARI E.
CRISOSTOMO, CHAIRPERSON, ANAKBAYAN;
VICTOR VILLANUEVA, CONVENOR, YOUTH ACT
NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES; PAQUITO
N. OCHOA, JR., EXECUTIVE SECRETARY; AND
FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209135
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner,
vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE
SECRETARY OF DEPARTMENT OF BUDGET AND
MANAGEMENT; AND HON. FRANKLIN
MAGTUNAO DRILON, IN HIS CAP A CITY AS THE
SENATE PRESIDENT OF THE
PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,
vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL
CAPACITY AS HEAD OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT; AND EXECUTIVE
SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL
CAPACITY AS ALTER EGO OF THE
PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,
vs.
THE HONORABLE EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR.; AND THE SECRETARY
OF BUDGET AND MANAGEMENT FLORENCIO B.
ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), REPRESENTED BY DEAN
FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO
AND LEONOR M. BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT
AND/OR HON. FLORENCIO B.
ABAD, Respondents.
x-----------------------x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES
(IBP), Petitioner,
vs.
SECRETARY FLORENCIO B. ABAD OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT
(DBM),Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP
REUBEN MABANTE AND REV. JOSE L.
GONZALEZ,Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III,
THE SENATE OF THE PHILIPPINES,
REPRESENTED BY SENATE PRESIDENT
FRANKLIN M. DRILON; THE HOUSE OF
REPRESENTATIVES, REPRESENTED BY
SPEAKER FELICIANO BELMONTE, JR.; THE
EXECUTIVE OFFICE, REPRESENTED BY
EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR.; THE DEPARTMENT OF BUDGET AND
MANAGEMENT, REPRESENTED BY SECRETARY
FLORENCIO ABAD; THE DEPARTMENT OF
FINANCE, REPRESENTED BY SECRETARY
CESAR V. PURISIMA; AND THE BUREAU OF
TREASURY, REPRESENTED BY ROSALIA V. DE
LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION
AND ADV AN CEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), REPRESENTED BY ITS
1ST VICE PRESIDENT, SANTIAGO DASMARINAS,
JR.; ROSALINDA NARTATES, FOR HERSELF AND
AS NATIONAL PRESIDENT OF THE
CONSOLIDATED UNION OF EMPLOYEES
NATIONAL HOUSING AUTHORITY (CUENHA);
MANUEL BACLAGON, FOR HIMSELF AND AS
PRESIDENT OF THE SOCIAL WELFARE
EMPLOYEES ASSOCIATION OF THE
PHILIPPINES, DEPARTMENT OF SOCIAL
WELFARE AND DEVELOPMENT CENTRAL
OFFICE (SWEAP-DSWD CO); ANTONIA PASCUAL,
FOR HERSELF AND AS NATIONAL PRESIDENT
OF THE DEPARTMENT OF AGRARIAN REFORM
EMPLOYEES ASSOCIATION (DAREA); ALBERT
MAGALANG, FOR HIMSELF AND AS PRESIDENT
OF THE ENVIRONMENT AND MANAGEMENT
BUREAU EMPLOYEES UNION (EMBEU); AND
MARCIAL ARABA, FOR HIMSELF AND AS
PRESIDENT OF THE KAPISANAN PARA SA
KAGALINGAN NG MGA KAW ANI NG MMDA
(KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES; PAQUITO
OCHOA, JR., EXECUTIVE SECRETARY; AND
HON. FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND
CORRUPTION (VACC), REPRESENTED BY DANTE
L. JIMENEZ,Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY,
AND FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing
the constitutionality of the Disbursement Acceleration
Program(DAP), National Budget Circular (NBC) No.
541, and related issuances of the Department of
Budget and Management (DBM) implementing the
DAP.
At the core of the controversy is Section 29(1) of
Article VI of the 1987 Constitution, a provision of the
fundamental law that firmly ordains that "[n]o money
shall be paid out of the Treasury except in pursuance
of an appropriation made by law." The tenor and
context of the challenges posed by the petitioners
against the DAP indicate that the DAP contravened
this provision by allowing the Executive to allocate
public money pooled from programmed and
unprogrammed funds of its various agencies in the
guise of the President exercising his constitutional
authority under Section 25(5) of the 1987 Constitution
to transfer funds out of savings to augment the
appropriations of offices within the Executive Branch
of the Government. But the challenges are further
complicated by the interjection of allegations of
transfer of funds to agencies or offices outside of the
Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito
Estrada delivered a privilege speech in the Senate of
the Philippines to reveal that some Senators,
including himself, had been allotted an additional ₱50
Million each as "incentive" for voting in favor of the
impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary
Florencio Abad of the DBM issued a public statement
entitled Abad: Releases to Senators Part of Spending
Acceleration Program,1 explaining that the funds
released to the Senators had been part of the DAP, a
program designed by the DBM to ramp up spending
to accelerate economic expansion. He clarified that
the funds had been released to the Senators based
on their letters of request for funding; and that it was
not the first time that releases from the DAP had been
made because the DAP had already been instituted in
2011 to ramp up spending after sluggish
disbursements had caused the growth of the gross
domestic product (GDP) to slow down. He explained
that the funds under the DAP were usually taken from
(1) unreleased appropriations under Personnel
Services;2 (2) unprogrammed funds; (3) carry-over
appropriations unreleased from the previous year;
and (4) budgets for slow-moving items or projects that
had been realigned to support faster-disbursing
projects.
The DBM soon came out to claim in its website3 that
the DAP releases had been sourced from savings
generated by the Government, and from
unprogrammed funds; and that the savings had been
derived from (1) the pooling of unreleased
appropriations, like unreleased Personnel
Services4 appropriations that would lapse at the end
of the year, unreleased appropriations of slow-moving
projects and discontinued projects per zero based
budgeting findings;5 and (2) the withdrawal of
unobligated allotments also for slow-moving programs
and projects that had been earlier released to the
agencies of the National Government.
The DBM listed the following as the legal bases for
the DAP’s use of savings,6 namely: (1) Section 25(5),
Article VI of the 1987 Constitution, which granted to
the President the authority to augment an item for his
office in the general appropriations law; (2) Section 49
(Authority to Use Savings for Certain Purposes) and
Section 38 (Suspension of Expenditure
Appropriations), Chapter 5, Book VI of Executive
Order (EO) No. 292 (Administrative Code of 1987);
and (3) the General Appropriations Acts (GAAs) of
2011, 2012 and 2013, particularly their provisions on
the (a) use of savings; (b) meanings of savings and
augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the
DAP, the DBM cited as legal bases the special
provisions on unprogrammed fund contained in the
GAAs of 2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of
Sec. Abad and the DBM brought the DAP to the
consciousness of the Nation for the first time, and
made this present controversy inevitable. That the
issues against the DAP came at a time when the
Nation was still seething in anger over Congressional
pork barrel – "an appropriation of government
spending meant for localized projects and secured
solely or primarily to bring money to a representative’s
district"7 – excited the Nation as heatedly as the pork
barrel controversy.
Nine petitions assailing the constitutionality of the
DAP and the issuances relating to the DAP were filed
within days of each other, as follows: G.R. No.
209135 (Syjuco), on October 7, 2013; G.R. No.
209136 (Luna), on October 7, 2013; G.R. No. 209155
(Villegas),8 on October 16, 2013; G.R. No. 209164
(PHILCONSA), on October 8, 2013; G.R. No. 209260
(IBP), on October 16, 2013; G.R. No. 209287
(Araullo), on October 17, 2013; G.R. No. 209442
(Belgica), on October 29, 2013; G.R. No. 209517
(COURAGE), on November6, 2013; and G.R. No.
209569 (VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought
to the Court’s attention NBC No. 541 (Adoption of
Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30,
2012), alleging that NBC No. 541, which was issued
to implement the DAP, directed the withdrawal of
unobligated allotments as of June 30, 2012 of
government agencies and offices with low levels of
obligations, both for continuing and current
allotments.
In due time, the respondents filed their Consolidated
Comment through the Office of the Solicitor General
(OSG).
The Court directed the holding of oral arguments on
the significant issues raised and joined.
Issues
Under the Advisory issued on November 14, 2013,
the presentations of the parties during the oral
arguments were limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and
mandamus are proper remedies to assail the
constitutionality and validity of the Disbursement
Acceleration Program (DAP), National Budget
Circular (NBC) No. 541, and all other executive
issuances allegedly implementing the DAP.
Subsumed in this issue are whether there is a
controversy ripe for judicial determination, and the
standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of
the 1987 Constitution, which provides: "No money
shall be paid out of the Treasury except in pursuance
of an appropriation made by law."
C. Whether or not the DAP, NBC No. 541, and all
other executive issuances allegedly implementing the
DAP violate Sec. 25(5), Art. VI of the 1987
Constitution insofar as:
(a)They treat the unreleased appropriations and
unobligated allotments withdrawn from government
agencies as "savings" as the term is used in Sec.
25(5), in relation to the provisions of the GAAs of
2011, 2012 and 2013;
(b)They authorize the disbursement of funds for
projects or programs not provided in the GAAs for the
Executive Department; and
(c)They "augment" discretionary lump sum
appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal
Protection Clause, (2) the system of checks and
balances, and (3) the principle of public accountability
enshrined in the 1987 Constitution considering that it
authorizes the release of funds upon the request of
legislators.
E. Whether or not factual and legal justification exists
to issue a temporary restraining order to restrain the
implementation of the DAP, NBC No. 541, and all
other executive issuances allegedly implementing the
DAP.
In its Consolidated Comment, the OSG raised the
matter of unprogrammed funds in order to support its
argument regarding the President’s power to spend.
During the oral arguments, the propriety of releasing
unprogrammed funds to support projects under the
DAP was considerably discussed. The petitioners in
G.R. No. 209287 (Araullo) and G.R. No. 209442
(Belgica) dwelled on unprogrammed funds in their
respective memoranda. Hence, an additional issue for
the oral arguments is stated as follows:
F. Whether or not the release of unprogrammed funds
under the DAP was in accord with the GAAs.
During the oral arguments held on November 19,
2013, the Court directed Sec. Abad to submit a list of
savings brought under the DAP that had been
sourced from (a) completed programs; (b)
discontinued or abandoned programs; (c) unpaid
appropriations for compensation; (d) a certified copy
of the President’s directive dated June 27, 2012
referred to in NBC No. 541; and (e) all circulars or
orders issued in relation to the DAP.9
In compliance, the OSG submitted several
documents, as follows:
(1) A certified copy of the Memorandum for the
President dated June 25, 2012 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their
Realignment);10
(2) Circulars and orders, which the respondents
identified as related to the DAP, namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on
the Release of Funds for FY 2011);
b. NBC No. 535 dated December 29, 2011
(Guidelines on the Release of Funds for FY 2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of
Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30,
2012);
d. NBC No. 545 dated January 2, 2013 (Guidelines on
the Release of Funds for FY 2013);
e. DBM Circular Letter No. 2004-2 dated January 26,
2004 (Budgetary Treatment of
Commitments/Obligations of the National
Government);
f. COA-DBM Joint Circular No. 2013-1 dated March
15, 2013 (Revised Guidelines on the Submission of
Quarterly Accountability Reports on Appropriations,
Allotments, Obligations and Disbursements);
g. NBC No. 440 dated January 30, 1995 (Adoption of
a Simplified Fund Release System in the
Government).
(3) A breakdown of the sources of savings, including
savings from discontinued projects and unpaid
appropriations for compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the
Resolution issued on January 21, 2014 directing the
respondents to submit the documents not yet
submitted in compliance with the directives of the
Court or its Members, submitted several evidence
packets to aid the Court in understanding the factual
bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven
memoranda issued by the DBM through Sec. Abad,
inclusive of annexes, listing in detail the 116 DAP
identified projects approved and duly signed by the
President, as follows:
a. Memorandum for the President dated October 12,
2011 (FY 2011 Proposed Disbursement Acceleration
Program (Projects and Sources of Funds);
b. Memorandum for the President dated December
12, 2011 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and its Realignment);
c. Memorandum for the President dated June 25,
2012 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and their Realignment);
d. Memorandum for the President dated September 4,
2012 (Release of funds for other priority projects and
expenditures of the Government);
e. Memorandum for the President dated December
19, 2012 (Proposed Priority Projects and
Expenditures of the Government);
f. Memorandum for the President dated May 20, 2013
(Omnibus Authority to Consolidate Savings/Unutilized
Balances and their Realignment to Fund the Quarterly Procedural Issue:
Disbursement Acceleration Program); and
a) The petitions under Rule 65 are proper remedies
g. Memorandum for the President dated September
25, 2013 (Funding for the Task Force Pablo All the petitions are filed under Rule 65 of the Rules of
Rehabilitation Plan). Court, and include applications for the issuance of
writs of preliminary prohibitory injunction or temporary
(2) Second Evidence Packet12 – consisting of 15 restraining orders. More specifically, the nature of the
applications of the DAP, with their corresponding petitions is individually set forth hereunder, to wit:
Special Allotment Release Orders (SAROs) and
appropriation covers;
Certiorari,
G.R. No. 209135
Prohibition and
(3) Third Evidence Packet13 – containing a list and (Syjuco)
Mandamus
descriptions of 12 projects under the DAP;
G.R. No. 209136 Certiorariand
(4) Fourth Evidence Packet14 – identifying the DAP- (Luna) Prohibition
related portions of the Annual Financial Report (AFR)
G.R. No. 209155 Certiorariand
of the Commission on Audit for 2011 and 2012;
(Villegas) Prohibition

(5) Fifth Evidence Packet15 – containing a letter of G.R. No. 209164 Certiorariand
Department of Transportation and (PHILCONSA) Prohibition
Communications(DOTC) Sec. Joseph Abaya
addressed to Sec. Abad recommending the G.R. No. 209260
Prohibition
withdrawal of funds from his agency, inclusive of (IBP)
annexes; and G.R. No. 209287 Certiorariand
(Araullo) Prohibition
(6) Sixth Evidence Packet16 – a print-out of the
Solicitor General’s visual presentation for the January G.R. No. 209442
Certiorari
28, 2014 oral arguments. (Belgica)
G.R. No. 209517 Certiorari and
On February 5, 2014,17 the OSG forwarded the (COURAGE) Prohibition
Seventh Evidence Packet,18 which listed the sources
of funds brought under the DAP, the uses of such G.R. No. 209569 Certiorari and
funds per project or activity pursuant to DAP, and the (VACC) Prohibition
legal bases thereof.
The respondents submit that there is no actual
On February 14, 2014, the OSG submitted another controversy that is ripe for adjudication in the absence
set of documents in further compliance with the of adverse claims between the parties;19 that the
Resolution dated January 28, 2014, viz: petitioners lacked legal standing to sue because no
allegations were made to the effect that they had
(1) Certified copies of the certifications issued by the suffered any injury as a result of the adoption of the
Bureau of Treasury to the effect that the revenue DAP and issuance of NBC No. 541; that their being
collections exceeded the original revenue targets for taxpayers did not immediately confer upon the
the years 2011, 2012 and 2013, including collections petitioners the legal standing to sue considering that
arising from sources not considered in the original the adoption and implementation of the DAP and the
revenue targets, which certifications were required for issuance of NBC No. 541 were not in the exercise of
the release of the unprogrammed funds as provided the taxing or spending power of Congress;20 and that
in Special Provision No. 1 of Article XLV, Article XVI, even if the petitioners had suffered injury, there were
and Article XLV of the 2011, 2012 and 2013 GAAs; plain, speedy and adequate remedies in the ordinary
and (2) A report on releases of savings of the course of law available to them, like assailing the
Executive Department for the use of the Constitutional regularity of the DAP and related issuances before
Commissions and other branches of the Government, the Commission on Audit (COA) or in the trial
as well as the fund releases to the Senate and the courts.21
Commission on Elections (COMELEC).
The respondents aver that the special civil actions of
RULING certiorari and prohibition are not proper actions for
directly assailing the constitutionality and validity of
I. the DAP, NBC No. 541, and the other executive
issuances implementing the DAP.22
In their memorandum, the respondents further
contend that there is no authorized proceeding under
the Constitution and the Rules of Court for
questioning the validity of any law unless there is an
actual case or controversy the resolution of which
requires the determination of the constitutional
question; that the jurisdiction of the Court is largely
appellate; that for a court of law to pass upon the
constitutionality of a law or any act of the Government
when there is no case or controversy is for that court
to set itself up as a reviewer of the acts of Congress
and of the President in violation of the principle of
separation of powers; and that, in the absence of a
pending case or controversy involving the DAP and
NBC No. 541, any decision herein could amount to a
mere advisory opinion that no court can validly
render.23
The respondents argue that it is the application of the
DAP to actual situations that the petitioners can
question either in the trial courts or in the COA; that if
the petitioners are dissatisfied with the ruling either of
the trial courts or of the COA, they can appeal the
decision of the trial courts by petition for review on
certiorari, or assail the decision or final order of the
COA by special civil action for certiorari under Rule 64
of the Rules of Court.24
The respondents’ arguments and submissions on the
procedural issue are bereft of merit.
Section 1, Article VIII of the 1987 Constitution
expressly provides:
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
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.
Thus, the Constitution vests judicial power in the
Court and in such lower courts as may be established
by law. In creating a lower court, Congress
concomitantly determines the jurisdiction of that court,
and that court, upon its creation, becomes by
operation of the Constitution one of the repositories of
judicial power.25 However, only the Court is a
constitutionally created court, the rest being created
by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes
the duty of the courts of justice not only "to settle
actual controversies involving rights which are legally
demandable and enforceable" but also "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." It has thereby expanded the concept of
judicial power, which up to then was confined to its
traditional ambit of settling actual controversies
involving rights that were legally demandable and
enforceable.
The background and rationale of the expansion of
judicial power under the 1987 Constitution were laid
out during the deliberations of the 1986 Constitutional
Commission by Commissioner Roberto R.
Concepcion (a former Chief Justice of the Philippines)
in his sponsorship of the proposed provisions on the
Judiciary, where he said:–
The Supreme Court, like all other courts, has one
main function: to settle actual controversies involving
conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed
by law but cannot be enforced by a judicial party. In a
decided case, a husband complained that his wife
was unwilling to perform her duties as a wife. The
Court said: "We can tell your wife what her duties as
such are and that she is bound to comply with them,
but we cannot force her physically to discharge her
main marital duty to her husband. There are some
rights guaranteed by law, but they are so personal
that to enforce them by actual compulsion would be
highly derogatory to human dignity." This is why the
first part of the second paragraph of Section 1
provides that: Judicial power includes the duty of
courts to settle actual controversies involving rights
which are legally demandable or enforceable…
The courts, therefore, cannot entertain, much less
decide, hypothetical questions. In a presidential
system of government, the Supreme Court has, also,
another important function. The powers of
government are generally considered divided into
three branches: the Legislative, the Executive and the
Judiciary. Each one is supreme within its own sphere
and independent of the others. Because of that
supremacy power to determine whether a given law is
valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of
power of the agencies and offices of the government
as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or
not a branch of government or any of its officials has
acted without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack
of jurisdiction. This is not only a judicial power but a
duty to pass judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1,
which means that the courts cannot hereafter evade
the duty to settle matters of this nature, by claiming
that such matters constitute a political question. (Bold
emphasis supplied)26
Upon interpellation by Commissioner Nolledo,
Commissioner Concepcion clarified the scope of
judicial power in the following manner:–
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial
power includes the duty of courts of justice to settle
actual controversies…" The term "actual
controversies" according to the Commissioner should
refer to questions which are political in nature and,
therefore, the courts should not refuse to decide those
political questions. But do I understand it right that this
is restrictive or only an example? I know there are
cases which are not actual yet the court can assume
jurisdiction. An example is the petition for declaratory
relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no
jurisdiction to grant declaratory judgments.
MR. NOLLEDO. The Gentleman used the term
"judicial power" but judicial power is not vested in the
Supreme Court alone but also in other lower courts as
may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The
Gentleman seems to identify political questions with
jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial
power"?
MR. CONCEPCION. No. Judicial power, as I said,
refers to ordinary cases but where there is a question
as to whether the government had authority or had
abused its authority to the extent of lacking jurisdiction
or excess of jurisdiction, that is not a political
question. Therefore, the court has the duty to
decide.27
Our previous Constitutions equally recognized the
extent of the power of judicial review and the great
responsibility of the Judiciary in maintaining the
allocation of powers among the three great branches
of Government. Speaking for the Court in Angara v.
Electoral Commission,28 Justice Jose P. Laurel
intoned:
x x x In times of social disquietude or political
excitement, the great landmarks of the Constitution
are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can
be called upon to determine the proper allocation of
powers between the several department and among
the integral or constituent units thereof.
xxxx
The Constitution is a definition of the powers of
government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself
has provided for the instrumentality of the judiciary as
the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert
any superiority over the other department; it does not
in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution
and to establish for the parties in an actual
controversy the rights which that instrument secures
and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the
Constitution. x x x29
What are the remedies by which the grave abuse of
discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Government may be determined under the
Constitution?
The present Rules of Court uses two special civil
actions for determining and correcting grave abuse of
discretion amounting to lack or excess of jurisdiction.
These are the special civil actions for certiorari and
prohibition, and both are governed by Rule 65. A
similar remedy of certiorari exists under Rule 64, but
the remedy is expressly applicable only to the
judgments and final orders or resolutions of the
Commission on Elections and the Commission on
Audit.
The ordinary nature and function of the writ of
certiorari in our present system are aptly explained in
Delos Santos v. Metropolitan Bank and Trust
Company:30
In the common law, from which the remedy of
certiorari evolved, the writ of certiorari was issued out
of Chancery, or the King’s Bench, commanding
agents or officers of the inferior courts to return the
record of a cause pending before them, so as to give
the party more sure and speedy justice, for the writ
would enable the superior court to determine from an
inspection of the record whether the inferior court’s
judgment was rendered without authority. The errors
were of such a nature that, if allowed to stand, they
would result in a substantial injury to the petitioner to
whom no other remedy was available. If the inferior
court acted without authority, the record was then
revised and corrected in matters of law. The writ of
certiorari was limited to cases in which the inferior
court was said to be exceeding its jurisdiction or was
not proceeding according to essential requirements of
law and would lie only to review judicial or quasi-
judicial acts.
The concept of the remedy of certiorari in our judicial
system remains much the same as it has been in the
common law. In this jurisdiction, however, the
exercise of the power to issue the writ of certiorari is
largely regulated by laying down the instances or
situations in the Rules of Court in which a superior
court may issue the writ of certiorari to an inferior
court or officer. Section 1, Rule 65 of the Rules of
Court compellingly provides the requirements for that
purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction
of errors of jurisdiction, which includes the
commission of grave abuse of discretion amounting to
lack of jurisdiction. In this regard, mere abuse of
discretion is not enough to warrant the issuance of the
writ. The abuse of discretion must be grave, which
means either that the judicial or quasi-judicial power
was exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive
duty, or virtually refused to perform the duty enjoined
or to act in contemplation of law, such as when such
judge, tribunal or board exercising judicial or quasi-
judicial powers acted in a capricious or whimsical
manner as to be equivalent to lack of jurisdiction.31
Although similar to prohibition in that it will lie for want
or excess of jurisdiction, certiorari is to be
distinguished from prohibition by the fact that it is a
corrective remedy used for the re-examination of
some action of an inferior tribunal, and is directed to
the cause or proceeding in the lower court and not to
the court itself, while prohibition is a preventative
remedy issuing to restrain future action, and is
directed to the court itself.32 The Court expounded on
the nature and function of the writ of prohibition in
Holy Spirit Homeowners Association, Inc. v.
Defensor:33
A petition for prohibition is also not the proper remedy
to assail an IRR issued in the exercise of a quasi-
legislative function. Prohibition is an extraordinary writ
directed against any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, ordering said entity or
person to desist from further proceedings when said
proceedings are without or in excess of said entity’s
or person’s jurisdiction, or are accompanied with
grave abuse of discretion, and there is no appeal or
any other plain, speedy and adequate remedy in the
ordinary course of law. Prohibition lies against judicial
or ministerial functions, but not against legislative or
quasi-legislative functions. Generally, the purpose of
a writ of prohibition is to keep a lower court within the
limits of its jurisdiction in order to maintain the
administration of justice in orderly channels.
Prohibition is the proper remedy to afford relief
against usurpation of jurisdiction or power by an
inferior court, or when, in the exercise of jurisdiction in
handling matters clearly within its cognizance the
inferior court transgresses the bounds prescribed to it
by the law, or where there is no adequate remedy
available in the ordinary course of law by which such
relief can be obtained. Where the principal relief
sought is to invalidate an IRR, petitioners’ remedy is
an ordinary action for its nullification, an action which
properly falls under the jurisdiction of the Regional
Trial Court. In any case, petitioners’ allegation that
"respondents are performing or threatening to perform
functions without or in excess of their jurisdiction" may
appropriately be enjoined by the trial court through a
writ of injunction or a temporary restraining order.
With respect to the Court, however, the remedies of
certiorari and prohibition are necessarily broader in
scope and reach, and the writ of certiorari or
prohibition may be issued to correct errors of
jurisdiction committed not only by a tribunal,
corporation, board or officer exercising judicial, quasi-
judicial or ministerial functions but also to set right,
undo and restrain any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any
branch or instrumentality of the Government, even if
the latter does not exercise judicial, quasi-judicial or
ministerial functions. This application is expressly
authorized by the text of the second paragraph of
Section 1, supra.
Thus, petitions for certiorari and prohibition are
appropriate remedies to raise constitutional issues
and to review and/or prohibit or nullify the acts of
legislative and executive officials.34
Necessarily, in discharging its duty under Section 1,
supra, to set right and undo any act of grave abuse of
discretion amounting to lack or excess of jurisdiction
by any branch or instrumentality of the Government,
the Court is not at all precluded from making the
inquiry provided the challenge was properly brought
by interested or affected parties. The Court has been
thereby entrusted expressly or by necessary
implication with both the duty and the obligation of
determining, in appropriate cases, the validity of any
assailed legislative or executive action. This
entrustment is consistent with the republican system
of checks and balances.35
Following our recent dispositions concerning the
congressional pork barrel, the Court has become
more alert to discharge its constitutional duty. We will
not now refrain from exercising our expanded judicial
power in order to review and determine, with
authority, the limitations on the Chief Executive’s
spending power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial
review are the following, namely: (1) there must bean
actual case or justiciable controversy before the
Court; (2) the question before the Court must be ripe
for adjudication; (3) the person challenging the act
must be a proper party; and (4) the issue of
constitutionality must be raised at the earliest
opportunity and must be the very litis mota of the
case.36
The first requisite demands that there be an actual
case calling for the exercise of judicial power by the
Court.37 An actual case or controversy, in the words of
Belgica v. Executive Secretary Ochoa:38
x x x is one which 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. In other words,
"[t]here must be a contrariety of legal rights that can
be interpreted and enforced on the basis of existing
law and jurisprudence." Related to the requirement of
an actual case or controversy is the requirement of
"ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for
adjudication. "A question is ripe for adjudication when
the act being challenged has had a direct adverse
effect on the individual challenging it. It is a
prerequisite that something had then been
accomplished or performed by either branch before a
court may come into the picture, and the petitioner
must allege the existence of an immediate or
threatened injury to itself as a result of the challenged
action." "Withal, courts will decline to pass upon
constitutional issues through advisory opinions, bereft
as they are of authority to resolve hypothetical or
moot questions."
An actual and justiciable controversy exists in these
consolidated cases. The incompatibility of the
perspectives of the parties on the constitutionality of
the DAP and its relevant issuances satisfy the
requirement for a conflict between legal rights. The
issues being raised herein meet the requisite ripeness
considering that the challenged executive acts were
already being implemented by the DBM, and there
are averments by the petitioners that such
implementation was repugnant to the letter and spirit
of the Constitution. Moreover, the implementation of
the DAP entailed the allocation and expenditure of
huge sums of public funds. The fact that public funds
have been allocated, disbursed or utilized by reason
or on account of such challenged executive acts gave
rise, therefore, to an actual controversy that is ripe for
adjudication by the Court.
It is true that Sec. Abad manifested during the
January 28, 2014 oral arguments that the DAP as a
program had been meanwhile discontinued because it
had fully served its purpose, saying: "In conclusion,
Your Honors, may I inform the Court that because the
DAP has already fully served its purpose, the
Administration’s economic managers have
recommended its termination to the President. x x
x."39
The Solicitor General then quickly confirmed the
termination of the DAP as a program, and urged that
its termination had already mooted the challenges to
the DAP’s constitutionality, viz:
DAP as a program, no longer exists, thereby mooting
these present cases brought to challenge its
constitutionality. Any constitutional challenge should
no longer be at the level of the program, which is now
extinct, but at the level of its prior applications or the
specific disbursements under the now defunct policy.
We challenge the petitioners to pick and choose
which among the 116 DAP projects they wish to
nullify, the full details we will have provided by
February 5. We urge this Court to be cautious in
limiting the constitutional authority of the President
and the Legislature to respond to the dynamic needs
of the country and the evolving demands of
governance, lest we end up straight jacketing our
elected representatives in ways not consistent with
our constitutional structure and democratic
principles.40
A moot and academic case is one that ceases to
present a justiciable controversy by virtue of
supervening events, so that a declaration thereon
would be of no practical use or value.41
The Court cannot agree that the termination of the
DAP as a program was a supervening event that
effectively mooted these consolidated cases. Verily,
the Court had in the past exercised its power of
judicial review despite the cases being rendered moot
and academic by supervening events, like: (1) when
there was a grave violation of the Constitution; (2)
when the case involved a situation of exceptional
character and was of paramount public interest; (3)
when the constitutional issue raised required the
formulation of controlling principles to guide the
Bench, the Bar and the public; and (4) when the case
was capable of repetition yet evading review.42
Assuming that the petitioners’ several submissions
against the DAP were ultimately sustained by the
Court here, these cases would definitely come under
all the exceptions. Hence, the Court should not
abstain from exercising its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of
judicial review, refers to "a right of appearance in a
court of justice on a given question."43 The concept of
legal standing, or locus standi, was particularly
discussed in De Castro v. Judicial and Bar
Council,44 where the Court said:
In public or constitutional litigations, the Court is often
burdened with the determination of the locus standi of
the petitioners due to the ever-present need to
regulate the invocation of the intervention of the Court
to correct any official action or policy in order to avoid
obstructing the efficient functioning of public officials
and offices involved in public service. It is required,
therefore, that the petitioner must have a personal
stake in the outcome of the controversy, for, as
indicated in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.:
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."
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.
It is true that as early as in 1937, in People v. Vera,
the Court adopted the direct injury test for determining
whether a petitioner in a public action had locus
standi. There, the Court held that the person who
would assail 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." Vera was followed in Custodio v. President of
the Senate, Manila Race Horse Trainers’ Association
v. De la Fuente, Anti-Chinese League of the
Philippines v. Felix, and Pascual v. Secretary of
Public Works.
Yet, the Court has also held that the requirement of
locus standi, being a mere procedural technicality,
can be waived by the Court in the exercise of its
discretion. For instance, in 1949, in Araneta v.
Dinglasan, the Court liberalized the approach when
the cases had "transcendental importance." Some
notable controversies whose petitioners did not pass
the direct injury test were allowed to be treated in the
same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on
Elections, this Court decided to resolve the issues
raised by the petition due to their "far reaching
implications," even if the petitioner had no personality
to file the suit. The liberal approach of Aquino v.
Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens,
legislators, and civic organizations to bring their suits
involving the constitutionality or validity of laws,
regulations, and rulings.
However, the assertion of a public right as a predicate
for challenging a supposedly illegal or unconstitutional
executive or legislative action rests on the theory that
the petitioner represents the public in general.
Although such petitioner may not be as adversely
affected by the action complained against as are
others, it is enough that he sufficiently demonstrates
in his petition that he is entitled to protection or relief
from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action
sues as a citizen or taxpayer to gain locus standi.
That is not surprising, for even if the issue may
appear to concern only the public in general, such
capacities nonetheless equip the petitioner with
adequate interest to sue. In David v. Macapagal-
Arroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both
"citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v.
Silk, where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by
the expenditure of public funds, while in the latter, he
is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel
Case v. Collins: "In matter of mere public right,
however…the people are the real parties…It is at
least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly
pursued and punished, and that a public grievance be
remedied." With respect to taxpayer’s suits, Terr v.
Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful
use of public funds to his injury cannot be denied." 45
The Court has cogently observed in Agan, Jr. v.
Philippine International Air Terminals Co., Inc.46 that
"[s]tanding 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."
Except for PHILCONSA, a petitioner in G.R. No.
209164, the petitioners have invoked their capacities
as taxpayers who, by averring that the issuance and
implementation of the DAP and its relevant issuances
involved the illegal disbursements of public funds,
have an interest in preventing the further dissipation
of public funds. The petitioners in G.R. No. 209287
(Araullo) and G.R. No. 209442 (Belgica) also assert
their right as citizens to sue for the enforcement and
observance of the constitutional limitations on the
political branches of the Government.47
On its part, PHILCONSA simply reminds that the
Court has long recognized its legal standing to bring
cases upon constitutional issues.48 Luna, the
petitioner in G.R. No. 209136, cites his additional
capacity as a lawyer. The IBP, the petitioner in G.R.
No. 209260, stands by "its avowed duty to work for
the rule of law and of paramount importance of the
question in this action, not to mention its civic duty as
the official association of all lawyers in this country." 49
Under their respective circumstances, each of the
petitioners has established sufficient interest in the
outcome of the controversy as to confer locus standi
on each of them.
In addition, considering that the issues center on the
extent of the power of the Chief Executive to disburse
and allocate public funds, whether appropriated by
Congress or not, these cases pose issues that are of
transcendental importance to the entire Nation, the
petitioners included. As such, the determination of
such important issues call for the Court’s exercise of
its broad and wise discretion "to waive the
requirement and so remove the impediment to its
addressing and resolving the serious constitutional
questions raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the
Philippines will aid the Court in properly appreciating
and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English
word bouget that had derived from the Latin word
bulga (which means bag or purse).51
In the Philippine setting, Commonwealth Act (CA) No.
246 (Budget Act) defined "budget" as the financial
program of the National Government for a designated
fiscal year, consisting of the statements of estimated
receipts and expenditures for the fiscal year for which
it was intended to be effective based on the results of
operations during the preceding fiscal years. The term
was given a different meaning under Republic Act No.
992 (Revised Budget Act) by describing the budget as
the delineation of the services and products, or
benefits that would accrue to the public together with
the estimated unit cost of each type of service,
product or benefit.52 For a forthright definition, budget
should simply be identified as the financial plan of the
Government,53 or "the master plan of government."54
The concept of budgeting has not been the product of
recent economies. In reality, financing public goals
and activities was an idea that existed from the
creation of the State.55 To protect the people, the
territory and sovereignty of the State, its government
must perform vital functions that required public
expenditures. At the beginning, enormous public
expenditures were spent for war activities,
preservation of peace and order, security,
administration of justice, religion, and supply of limited
goods and services.56 In order to finance those
expenditures, the State raised revenues through
taxes and impositions.57 Thus, budgeting became
necessary to allocate public revenues for specific
government functions.58 The State’s budgeting
mechanism eventually developed through the years
with the growing functions of its government and
changes in its market economy.
The Philippine Budget System has been greatly
influenced by western public financial institutions. This
is because of the country’s past as a colony
successively of Spain and the United States for a long
period of time. Many aspects of the country’s public
fiscal administration, including its Budget System,
have been naturally patterned after the practices and
experiences of the western public financial
institutions. At any rate, the Philippine Budget System
is presently guided by two principal objectives that are
vital to the development of a progressive democratic
government, namely: (1) to carry on all government
activities under a comprehensive fiscal plan
developed, authorized and executed in accordance
with the Constitution, prevailing statutes and the
principles of sound public management; and (2) to
provide for the periodic review and disclosure of the
budgetary status of the Government in such detail so
that persons entrusted by law with the responsibility
as well as the enlightened citizenry can determine the
adequacy of the budget actions taken, authorized or
proposed, as well as the true financial position of the
Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from
the early years of the American Regime up to the
passage of the Jones Law in 1916. A Budget Office
was created within the Department of Finance by the
Jones Law to discharge the budgeting function, and
was given the responsibility to assist in the
preparation of an executive budget for submission to
the Philippine Legislature.60
As early as under the 1935 Constitution, a budget
policy and a budget procedure were established, and
subsequently strengthened through the enactment of
laws and executive acts.61 EO No. 25, issued by
President Manuel L. Quezon on April 25, 1936,
created the Budget Commission to serve as the
agency that carried out the President’s responsibility
of preparing the budget.62 CA No. 246, the first budget
law, went into effect on January 1, 1938 and
established the Philippine budget process. The law
also provided a line-item budget as the framework of
the Government’s budgeting system,63 with emphasis
on the observance of a "balanced budget" to tie up
proposed expenditures with existing revenues.
CA No. 246 governed the budget process until the
passage on June 4, 1954 of Republic Act (RA) No.
992,whereby Congress introduced performance-
budgeting to give importance to functions, projects
and activities in terms of expected results.64 RA No.
992 also enhanced the role of the Budget
Commission as the fiscal arm of the Government.65
The 1973 Constitution and various presidential
decrees directed a series of budgetary reforms that
culminated in the enactment of PD No. 1177 that
President Marcos issued on July30, 1977, and of PD
No. 1405, issued on June 11, 1978. The latter decree
converted the Budget Commission into the Ministry of
Budget, and gave its head the rank of a Cabinet
member.
The Ministry of Budget was later renamed the Office
of Budget and Management (OBM) under EO No.
711. The OBM became the DBM pursuant to EO No.
292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process,
specifically: (1) Budget Preparation; (2) Budget
Legislation; (3) Budget Execution; and (4)
Accountability. Each phase is distinctly separate from
the others but they overlap in the implementation of
the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through
the issuance of a Budget Call by the DBM. The
Budget Call contains budget parameters earlier set by
the Development Budget Coordination Committee
(DBCC) as well as policy guidelines and procedures
to aid government agencies in the preparation and
submission of their budget proposals. The Budget
Call is of two kinds, namely: (1) a National Budget
Call, which is addressed to all agencies, including
state universities and colleges; and (2) a Corporate
Budget Call, which is addressed to all government-
owned and -controlled corporations (GOCCs) and
government financial institutions (GFIs).
Following the issuance of the Budget Call, the various
departments and agencies submit their respective
Agency Budget Proposals to the DBM. To boost
citizen participation, the current administration has
tasked the various departments and agencies to
partner with civil society organizations and other
citizen-stakeholders in the preparation of the Agency
Budget Proposals, which proposals are then
presented before a technical panel of the DBM in
scheduled budget hearings wherein the various
departments and agencies are given the opportunity
to defend their budget proposals. DBM bureaus
thereafter review the Agency Budget Proposals and
come up with recommendations for the Executive
Review Board, comprised by the DBM Secretary and
the DBM’s senior officials. The discussions of the
Executive Review Board cover the prioritization of
programs and their corresponding support vis-à-vis
the priority agenda of the National Government, and
their implementation.
The DBM next consolidates the recommended
agency budgets into the National Expenditure
Program (NEP)and a Budget of Expenditures and
Sources of Financing (BESF). The NEP provides the
details of spending for each department and agency
by program, activity or project (PAP), and is submitted
in the form of a proposed GAA. The Details of
Selected Programs and Projects is the more detailed
disaggregation of key PAPs in the NEP, especially
those in line with the National Government’s
development plan. The Staffing Summary provides
the staffing complement of each department and
agency, including the number of positions and
amounts allocated.
The NEP and BESF are thereafter presented by the
DBM and the DBCC to the President and the Cabinet
for further refinements or reprioritization. Once the
NEP and the BESF are approved by the President
and the Cabinet, the DBM prepares the budget
documents for submission to Congress. The budget
documents consist of: (1) the President’s Budget
Message, through which the President explains the
policy framework and budget priorities; (2) the BESF,
mandated by Section 22, Article VII of the
Constitution,68 which contains the macroeconomic
assumptions, public sector context, breakdown of the
expenditures and funding sources for the fiscal year
and the two previous years; and (3) the NEP.
Public or government expenditures are generally
classified into two categories, specifically: (1) capital
expenditures or outlays; and (2) current operating
expenditures. Capital expenditures are the expenses
whose usefulness lasts for more than one year, and
which add to the assets of the Government, including
investments in the capital of government-owned or
controlled corporations and their
subsidiaries.69 Current operating expenditures are the
purchases of goods and services in current
consumption the benefit of which does not extend
beyond the fiscal year.70 The two components of
current expenditures are those for personal services
(PS), and those for maintenance and other operating
expenses(MOOE).
Public expenditures are also broadly grouped
according to their functions into: (1) economic
development expenditures (i.e., expenditures on
agriculture and natural resources, transportation and
communications, commerce and industry, and other
economic development efforts);71 (2) social services
or social development expenditures (i.e., government
outlay on education, public health and medicare, labor
and welfare and others);72 (3) general government or
general public services expenditures (i.e.,
expenditures for the general government, legislative
services, the administration of justice, and for
pensions and gratuities);73 (4) national defense
expenditures (i.e., sub-divided into national security
expenditures and expenditures for the maintenance of
peace and order);74 and (5) public debt.75
Public expenditures may further be classified
according to the nature of funds, i.e., general fund,
special fund or bond fund.76
On the other hand, public revenues complement
public expenditures and cover all income or receipts
of the government treasury used to support
government expenditures.77
Classical economist Adam Smith categorized public
revenues based on two principal sources, stating:
"The revenue which must defray…the necessary
expenses of government may be drawn either, first
from some fund which peculiarly belongs to the
sovereign or commonwealth, and which is
independent of the revenue of the people, or,
secondly, from the revenue of the people." 78 Adam
Smith’s classification relied on the two aspects of the
nature of the State: first, the State as a juristic person
with an artificial personality, and, second, the State as
a sovereign or entity possessing supreme power.
Under the first aspect, the State could hold property
and engage in trade, thereby deriving what is called
its quasi private income or revenues, and which
"peculiarly belonged to the sovereign." Under the
second aspect, the State could collect by imposing
charges on the revenues of its subjects in the form of
taxes.79
In the Philippines, public revenues are generally
derived from the following sources, to wit: (1) tax
revenues(i.e., compulsory contributions to finance
government activities); 80 (2) capital revenues(i.e.,
proceeds from sales of fixed capital assets or scrap
thereof and public domain, and gains on such sales
like sale of public lands, buildings and other
structures, equipment, and other properties recorded
as fixed assets); 81 (3) grants(i.e., voluntary
contributions and aids given to the Government for its
operation on specific purposes in the form of money
and/or materials, and do not require any monetary
commitment on the part of the recipient);82 (4)
extraordinary income(i.e., repayment of loans and
advances made by government corporations and
local governments and the receipts and shares in
income of the Banko Sentral ng Pilipinas, and other
receipts);83 and (5) public borrowings(i.e., proceeds of
repayable obligations generally with interest from
domestic and foreign creditors of the Government in
general, including the National Government and its
political subdivisions).84
More specifically, public revenues are classified as
follows:85
c.2. Budget Legislation86
The Budget Legislation Phase covers the period
commencing from the time Congress receives the
President’s Budget, which is inclusive of the NEPand
the BESF, up to the President’s approval of the GAA.
This phase is also known as the Budget Authorization
Phase, and involves the significant participation of the
Legislative through its deliberations.
Initially, the President’s Budget is assigned to the
House of Representatives’ Appropriations Committee
on First Reading. The Appropriations Committee and
its various Sub-Committees schedule and conduct
budget hearings to examine the PAPs of the
departments and agencies. Thereafter, the House of
Representatives drafts the General Appropriations Bill
(GAB).87
The GABis sponsored, presented and defended by
the House of Representatives’ Appropriations
Committee and Sub-Committees in plenary session.
As with other laws, the GAB is approved on Third
Reading before the House of Representatives’
version is transmitted to the Senate.88
After transmission, the Senate conducts its own
committee hearings on the GAB. To expedite
proceedings, the Senate may conduct its committee
hearings simultaneously with the House of
Representatives’ deliberations. The Senate’s Finance
Committee and its Sub-Committees may submit the
proposed amendments to the GAB to the plenary of
the Senate only after the House of Representatives
has formally transmitted its version to the Senate. The
Senate version of the GAB is likewise approved on
Third Reading.89
The House of Representatives and the Senate then
constitute a panel each to sit in the Bicameral
Conference Committee for the purpose of discussing
and harmonizing the conflicting provisions of their
versions of the GAB. The "harmonized" version of the
GAB is next presented to the President for
approval.90 The President reviews the GAB, and
prepares the Veto Message where budget items are
subjected to direct veto,91 or are identified for
conditional implementation.
If, by the end of any fiscal year, the Congress shall
have failed to pass the GAB for the ensuing fiscal
year, the GAA for the preceding fiscal year shall be
deemed re-enacted and shall remain in force and
effect until the GAB is passed by the Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next
step is the implementation of the budget. The Budget
Execution Phase is primarily the function of the DBM,
which is tasked to perform the following procedures,
namely: (1) to issue the programs and guidelines for
the release of funds; (2) to prepare an Allotment and
Cash Release Program; (3) to release allotments; and
(4) to issue disbursement authorities.
The implementation of the GAA is directed by the
guidelines issued by the DBM. Prior to this, the
various departments and agencies are required to
submit Budget Execution Documents(BED) to outline
their plans and performance targets by laying down
the physical and financial plan, the monthly cash
program, the estimate of monthly income, and the list
of obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release
Program (ARP)and a Cash Release Program
(CRP).The ARP sets a limit for allotments issued in
general and to a specific agency. The CRP fixes the
monthly, quarterly and annual disbursement levels.
Allotments, which authorize an agency to enter into
obligations, are issued by the DBM. Allotments are
lesser in scope than appropriations, in that the latter
embrace the general legislative authority to spend.
Allotments may be released in two forms – through a
comprehensive Agency Budget Matrix (ABM),94 or,
individually, by SARO.95
Armed with either the ABM or the SARO, agencies
become authorized to incur obligations96 on behalf of
the Government in order to implement their PAPs.
Obligations may be incurred in various ways, like
hiring of personnel, entering into contracts for the
supply of goods and services, and using utilities.
In order to settle the obligations incurred by the
agencies, the DBM issues a disbursement authority
so that cash may be allocated in payment of the
obligations. A cash or disbursement authority that is
periodically issued is referred to as a Notice of Cash
Allocation (NCA),97 which issuance is based upon an
agency’s submission of its Monthly Cash Program
and other required documents. The NCA specifies the
maximum amount of cash that can be withdrawn from
a government servicing bank for the period indicated.
Apart from the NCA, the DBM may issue a Non-Cash
Availment Authority(NCAA) to authorize non-cash
disbursements, or a Cash Disbursement
Ceiling(CDC) for departments with overseas
operations to allow the use of income collected by
their foreign posts for their operating requirements.
Actual disbursement or spending of government funds
terminates the Budget Execution Phase and is usually
accomplished through the Modified Disbursement
Scheme under which disbursements chargeable
against the National Treasury are coursed through the
government servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget
cycle because it ensures that the government funds
have been effectively and efficiently utilized to
achieve the State’s socio-economic goals. It also
allows the DBM to assess the performance of
agencies during the fiscal year for the purpose of
implementing reforms and establishing new policies.
An agency’s accountability may be examined and
evaluated through (1) performance targets and
outcomes; (2) budget accountability reports; (3)
review of agency performance; and (4) audit
conducted by the Commission on Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to
promote economic growth
Policy is always a part of every budget and fiscal
decision of any Administration.99 The national budget
the Executive prepares and presents to Congress
represents the Administration’s "blueprint for public
policy" and reflects the Government’s goals and
strategies.100 As such, the national budget becomes a
tangible representation of the programs of the
Government in monetary terms, specifying therein the
PAPs and services for which specific amounts of
public funds are proposed and allocated.101 Embodied
in every national budget is government spending.102
When he assumed office in the middle of 2010,
President Aquino made efficiency and transparency in
government spending a significant focus of his
Administration. Yet, although such focus resulted in
an improved fiscal deficit of 0.5% in the gross
domestic product (GDP) from January to July of 2011,
it also unfortunately decelerated government project
implementation and payment schedules.103 The World
Bank observed that the Philippines’ economic growth
could be reduced, and potential growth could be
weakened should the Government continue with its
underspending and fail to address the large
deficiencies in infrastructure.104 The economic
situation prevailing in the middle of 2011 thus paved
the way for the development and implementation of
the DAP as a stimulus package intended to fast-track
public spending and to push economic growth by
investing on high-impact budgetary PAPs to be
funded from the "savings" generated during the year
as well as from unprogrammed funds.105 In that
respect, the DAP was the product of "plain executive
policy-making" to stimulate the economy by way of
accelerated spending.106The Administration would
thereby accelerate government spending by: (1)
streamlining the implementation process through the
clustering of infrastructure projects of the Department
of Public Works and Highways (DPWH) and the
Department of Education (DepEd),and (2) front
loading PPP-related projects107 due for
implementation in the following year.108
Did the stimulus package work?
The March 2012 report of the World Bank,109 released
after the initial implementation of the DAP, revealed
that the DAP was partially successful. The
disbursements under the DAP contributed 1.3
percentage points to GDP growth by the fourth
quarter of 2011.110 The continued implementation of
the DAP strengthened growth by 11.8% year on year
while infrastructure spending rebounded from a 29%
contraction to a 34% growth as of September 2013.111
The DAP thus proved to be a demonstration that
expenditure was a policy instrument that the
Government could use to direct the economies
towards growth and development.112 The
Government, by spending on public infrastructure,
would signify its commitment of ensuring profitability
for prospective investors.113 The PAPs funded under
the DAP were chosen for this reason based on their:
(1) multiplier impact on the economy and
infrastructure development; (2) beneficial effect on the
poor; and (3) translation into disbursements.114
b. History of the implementation of
the DAP, and sources of funds
under the DAP
How the Administration’s economic managers
conceptualized and developed the DAP, and finally
presented it to the President remains unknown
because the relevant documents appear to be scarce.
The earliest available document relating to the
genesis of the DAP was the memorandum of October
12,2011 from Sec. Abad seeking the approval of the
President to implement the proposed DAP. The
memorandum, which contained a list of the funding
sources for ₱72.11 billion and of the proposed priority
projects to be funded,115 reads:
MEMORANDUM FOR THE PRESIDENT
xxxx B. Projects in the Disbursement Acceleration Program

SUBJECT: FY 2011 PROPOSED DISBURSEMENT

ACCELERATION PROGRAM (PROJECTS AND
SOURCES OF FUNDS)

DATE: OCTOBER 12, 2011

Mr. President, this is to formally confirm your approval

of the Disbursement Acceleration Program totaling
₱72.11 billion. We are already working with all the
agencies concerned for the immediate execution of
the projects therein.

A. Fund Sources for the Acceleration Program

Case No. 012
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. SCC-13-18-J July 1, 2015
(Formerly A.M. OCA IPI No. 11-36-SCC)
BAGUAN M. MAMISCAL, Complainant,
vs.
CLERK OF COURT MACALINOG S. ABDULLAH,
SHARI'A CIRCUIT COURT, MARAWI
CITY, Respondent.
DECISION
MENDOZA, J.:
This resolves the complaint1 of Baguan M. Mamiscal
(Mamiscal) against respondent Macalinog S. Abdullah
(Abdullah), Clerk of Court, Shari'a Circuit Court,
Marawi City, for partiality, violation of due process,
dishonesty, and conduct unbecoming of a court
employee. Originally, the complaint also charged
Judge Aboali J. Cali (Judge Cali), Presiding Judge,
Shari'a Circuit Court, Marawi City, for his participation
in the subject controversy. On January 9, 2013, the
Court resolved to dismiss the charges against Judge
Cali for lack of merit.2
The Facts
In his complaint, Mamiscal averred that on September
26, 2010, he and his wife, Adelaidah Lomondot
(Adelaidah) had a heated argument. In a fit of anger,
Mamiscal decided to divorce his wife by repudiating
her (talaq).3 The repudiation was embodied in an
agreement4 (kapasadan) signed by Mamiscal and
Adelaidah.
The next day, Adelaidah left their conjugal dwelling in
Iligan City and went back to her family’s home in
Marinaut, Marawi City. A few days later, during the
obligatory period of waiting (‘iddah),5 Mamiscal had a
change of heart and decided to make peace with his
wife. For the purpose, he sent their common relatives
to see Adelaidah and make peace with her on his
behalf.6
Almost five (5) months later, however, on February
23, 2011, Adelaidah filed7 the Certificate of Divorce
(COD),8dated September 26, 2010, with the office of
Abdullah for registration. Although unsigned, the
certificate, purportedly executed by Mamiscal,
certified that he had pronounced talaq in the presence
of two (2) witnesses and in accordance with Islamic
Law for the purpose of effecting divorce from
Adelaidah. A notation on the certificate stated that it
was being filed together with the kapasadan.
On the same day, Abdullah, in the exercise of his duty
as both Clerk of Court and Circuit Civil
Registrar,9 issued the Invitation10 notifying the couple
and their representatives to appear before the Shari’a
Circuit Court on February 28, 2011, in order to
constitute the Agama Arbitration Council (AAC)that
would explore the possibility of reconciling the
spouses.11
On March 24, 2011, Abdullah issued the Certificate of
Registration of Divorce12 (CRD)finalizing the divorce
between Mamiscal and Adelaidah.
Mamiscal sought the revocation of the CRD,
questioning the validity of the kapasadan on which the
CRD was based. In his motion, Mamiscal contended
that the kapasadan was invalid considering that he
did not prepare the same. Moreover, there wereno
witnesses to its execution. He claimed that he only
signed the kapasadan because of Adelaidah’s
threats.
Mamiscal also questioned the validity of the COD,
denying that he had executed and filed the same
before the office of Abdullah. Insisting that he never
really intended to divorce his wife, Mamiscal pointed
out the fact that on December 13, 2010, before the
expiration of the ‘iddah, he wrote his wife13 to inform
her that he was revoking the repudiation he made on
September 26, 2010 and the kapasadan they entered
into on the same day because he did it on the "spur of
the moment."14
For Mamiscal, the CRD should be declared invalid
considering that: a) he was deprived of due process
because the AAC, before which he and his children
were supposed to express their sentiments regarding
the divorce, was yet to be constituted; b) three days
before the issuance of the CRD, Professor Mustafa
Lomala M. Dimaro, appeared before Judge Cali to
discuss the possibility of reconciliation between the
parties; and c) their children, Adelah Rima and Naim
Mamiscal, prayed that the trial court advise their
mother not to proceed with the divorce.15 In addition
to the revocation of the CRD, Mamiscal also prayed
that Abdullah order the reconvening of the AAC and,
thereafter, grant the restoration of his marital rights
with Adelaidah.
On April 20, 2011, Abdullah denied Mamiscal’s
motion.16 In sustaining the divorce between Mamiscal
and Abdullah, Abdullah opined that it was simply his
ministerial duty to receive the COD and the attached
kapasadan filed by Adelaidah. Abdullah also noted
that when the AAC was convened during the
February 28, 2010 hearing, only Mamiscal and his
representatives appeared. Considering the fact that
Adelaidah manifested her opposition in writing to any
reconciliation with her husband and the fact that the
90-day period of ‘iddah had already lapsed, Abdullah
ruled that any move to reconstitute the AAC would
have been futile because the divorce between
Mamiscal and his wife had already become final and
irrevocable.
Contending that the issuance of the CRD was tainted
with irregularity, Mamiscal comes to this Court,
through the subject complaint, charging Abdullah with
partiality, violation of due process, dishonesty, and
conduct unbecoming of a court employee.
The Charge
In his complaint, Mamiscal averred that Abdullah
should not have entertained or acted upon the COD
and the kapasadan filed by Adelaidah. He contended
that under the Code of Muslim Personal Laws, a
divorce under talaq could only be filed and registered
by the male spouse, considering that female Muslims
could do so only if the divorce was through
tafwid.17 Moreover, Mamiscal alleged that Abdullah
"fabricated and twisted the facts"18 when he declared
that only Mamiscal and his representative appeared
when the AAC was convened. Mamiscal insisted that
Adelaidah and her relatives were also present during
the hearing of February 28, 2010, and that the AAC
was never convened because the parties agreed to
reset the proceedings so that they could explore the
possibility of reconciling the differences between
them. Notwithstanding the ongoing mediation
proceedings, Abdullah proceeded to act on the COD
and finalized the divorce by issuing the CRD.
Finally, it was averred that Abdullah violated the
Shari’a rules of procedure when he initially refused to
receive Mamiscal’s motion for reconsideration when it
was first filed. Mamiscal also argued that Abdullah
should not have considered the opposition of
Adelaidah when he denied his attempt to seek
reconsideration because he was never furnished a
copy of Adelaidah’s opposition.
Abdullah’s Comment
In his comment,19 Abdullah countered that although
he had the authority to process the registration of the
divorce as court registrar, he could not be held
responsible for the contents of the COD and the
kapasadan because his functions were only
ministerial. Nevertheless, Abdullah asserted that the
divorce between Mamiscal and Adelaidah had already
attained finality, not only because of the lapse of the
required ‘iddah, but also because the kapasadan and
Adelaidah’s opposition both proved that there could
be no reconciliation between the spouses. Abdullah
also discounted any impropriety for processing the
unsigned COD, arguing that since it was
accompanied by the kasapadan which bore the
signature of Mamiscal and his declaration that he was
divorcing his wife by talaq– there was nothing wrong
with Adelaidah filing it with his office. Moreover, with
the lapse of the ‘iddah, Abdullah argued that the COD
had remained to be nothing more than a formality for
the purpose of registering the divorce with the
National Statistics Office (NSO)and its issuance using
the NSO security paper.
As to the allegations pertaining to the February 28,
2010 hearing, Abdullah stated that he only conducted
the same because it was required under the Muslim
Personal Code. Abdullah explained that he did not
convene the ACC anymore not only because
Adelaidah or her representatives were not present,
but also because the divorcing couple’s own children
wrote to him opposing the convening of the council.
As to Mamiscal’s contention that he already revoked
his repudiation of his wife, Abdullah pointed out that
his office was not informed of any revocation of the
divorce. According to Abdullah, if Mamiscal had
indeed revoked his repudiation, he should have
complied with the provisions of Rule II (1)(2) of NSO
Administrative Order No. 1, series of 2001, which
required the husband to file five (5) copies of his
sworn statement attesting to the fact of revocation,
together with the written consent of his wife.
In its report,20 the Office of the Court Administrator
(OCA)found Abdullah guilty of gross ignorance of the
law and recommended that he be fined in the amount
of 10,000.00 with a stern warning that a repetition of
the same offense shall be dealt with severely.
On January 30, 2014, Abdullah filed a
motion,21 praying for the early resolution of the
complaint filed against him. Reiterating his plea for
the dismissal of the said complaint, Abdullah claimed
that he was due for compulsory retirement on June 5,
2014.
The Court’s Ruling
At the outset, it must first be pointed out that while it
may seem to be a related issue, the validity of the
divorce between Mamiscal and Adelaidah is not in
issue here. Whether or not Mamiscal had validly
effected a divorce from his wife is a matter that must
first be addressed by the Shari’a Circuit Court which,
under the Code of Muslim Personal Laws of the
Philippines (Muslim Code),22 enjoys exclusive original
jurisdiction to resolve disputes relating to divorce.
Thus, Article 155 of the Muslim Code provides:
Article 155. Jurisdiction. The Shari'a Circuit Courts
shall have exclusive original jurisdiction over;
(1) All cases involving offenses defined and
punished under this Code.
(2) All civil actions and proceedings between
parties who are Muslims or have been
married in accordance with Article 13
involving disputes relating to:
(a) Marriage;
(b) Divorce recognized under this
Code;
(c) Betrothal or breach of contract
to marry;
(d) Customary dower (mahr);
(e) Disposition and distribution of
property upon divorce;
(f) Maintenance and support, and
consolatory gifts, (mut'a); and
(g) Restitution of marital rights.
(3) All cases involving disputes relative to
communal properties.
[Emphases Supplied]
Consequently, in resolving the subject complaint, the
Court shall confine itself to the sole issue of whether
or not Abdullah should be held administratively liable
for his actions in connection with the registration of
the divorce between Mamiscal and Adelaidah. A priori
to the resolution of the foregoing issue is the question
of whether this Court has jurisdiction to impose
administrative sanction against Abdullah for his acts.
The Court rules in the negative.
The civil registrar is the person charged by law for the
recording of vital events and other documents
affecting the civil status of persons. The Civil Registry
Law embraces all acts of civil life affecting the status
of persons and is applicable to all persons residing in
the Philippines.23
To ensure the proper registration of all facets of the
civil life of Muslim Filipinos throughout the country,
Article 81 of the Muslim Code provides:
Article 81. District Registrar. The Clerk of Court of the
Shari' a District Court shall, in addition to his regular
functions, act as District Registrar of Muslim
Marriages, Divorces, Revocations of Divorces, and
Conversions within the territorial jurisdiction of said
court. The Clerk of Court of the Shari'a Circuit Court
shall act as Circuit Registrar of Muslim Marriages,
Divorces, Revocations of Divorces, and Conversions
within his jurisdiction.
[Emphasis Supplied]
In view of the above-quoted provision, it becomes
apparent that the Clerk of Court of the Shari'a Circuit
Court enjoys the privilege of wearing two hats: first, as
Clerk of Court of the Shari'a Circuit Court, and
second, as Circuit Registrar within his territorial
jurisdiction. Although the Constitution vests the Court
with the power of administrative supervision over all
courts and its personnel,24 this power must be taken
with due regard to other prevailing laws.
Thus, Article 185 of the Muslim Code provides:
Article 185. Neglect of duty by registrars. Any district
registrar or circuit registrar who fails to perform
properly his duties in accordance with this Code shall
be penalized in accordance with Section 18 of Act
3753.
Commonwealth Act (C.A.) No. 375325 is the primary
law that governs the registry of civil status of persons.
To ensure that civil registrars perform their duties
under the law, Section 18 of C.A. No. 3753 provides:
Section 18. Neglect of duty with reference to the
provisions of this Act. – Any local registrar who fails to
properly perform his duties in accordance with the
provisions of this Act and of the regulations issued
hereunder, shall be punished for the first offense, by
an administrative fine in a sum equal to his salary for
not less than fifteen days nor more than three months,
and for a second or repeated offense, by removal
from the service.
[Emphasis Supplied]
The same Act provides:
Section 2. Civil Registrar-General his duties and
powers. – The director of the National Library shall be
Civil Registrar-General and shall enforce the
provisions of this Act. The Director of the National
Library, in his capacity as Civil Registrar-General, is
hereby authorized to prepare and issue, with the
approval of the Secretary of Justice, regulations for
carrying out the purposes of this Act, and to prepare
and order printed the necessary forms for its proper
compliance. In the exercise of his functions as Civil
Registrar-General, the Director of the National Library
shall have the power to give orders and instructions to
the local Civil registrars with reference to the
performance of their duties as such. It shall be the
duty of the Director of the National Library to report
any violation of the provisions of this Act and all
irregularities, negligence or incompetency on the part
of the officers designated as local civil registrars to
the (Chief of the Executive Bureau or the Director of
the Non-Christian Tribes) Secretary of the Interior, as
the case may be, who shall take the proper
disciplinary action against the offenders.
[Emphasis and Underscoring Supplied]
Prescinding from the foregoing, it becomes apparent
that this Court does not have jurisdiction to impose
the proper disciplinary action against civil registrars.
While he is undoubtedly a member of the Judiciary as
Clerk of Court of the Shari'a Circuit Court, a review of
the subject complaint reveals that Mamiscal seeks to
hold Abdullah liable for registering the divorce and
issuing the CRD pursuant to his duties as Circuit
Registrar of Muslim divorces. It has been said that the
test of jurisdiction is the nature of the offense and not
the personality of the offender.26 The fact that the
complaint charges Abdullah for "conduct unbecoming
of a court employee" is of no moment. Well-settled is
the rule that what controls is not the designation of the
offense but the actual facts recited in the complaint.
Verily, unless jurisdiction has been conferred by some
legislative act, no court or tribunal can act on a matter
submitted to it.27
It bears to stress at this point that this Court can
resolve the foregoing jurisdictional issue even if the
matter of jurisdiction was never raised by any of the
parties. Jurisprudence is replete with rulings that
jurisdiction, or the power and authority of a court to
hear, try and decide a case must first be acquired by
the court or an adjudicative body over the subject
matter and the parties in order to have authority to
dispose of the case on the merits.28 Elementary is the
distinction between jurisdiction over the subject matter
and jurisdiction over the person. Jurisdiction over the
subject matter is conferred by the Constitution or by
law. In contrast, jurisdiction over the person is
acquired by the court by virtue of the party's voluntary
submission to the authority of the court or through the
exercise of its coercive processes. Jurisdiction over
the person is waivable unlike jurisdiction over the
subject matter which is neither subject to agreement
nor conferred by consent of the parties.29
Having settled the foregoing issue, the following
question now confronts the Court: Who, among the
various agencies and instrumentalities of the
government, is empowered with administrative
supervisory powers in order to impose disciplinary
sanctions against erring civil registrars?
On this score, a recap of the legislative history
surrounding our system of civil registration is in order.
The system of civil registration was first established in
the Philippines by the revolutionary government on
June18, 1898 or barely six days after the declaration
of the country’s independence from Spain on June 12,
1898. Originally, the system was decentralized in the
sense that civil registration was purely a local
government responsibility. It was only on February 27,
1931, when C.A. No. 375330 took effect and
centralized the system of civil registration in the
country. Under this law, the director of the National
Library was made responsible as the Civil Registrar-
General to exercise technical supervision and ensure
the proper establishment and maintenance of our civil
registry system.
Then, following C.A. No. 591,31 the duties exercised
by the director of National Library with regard to
matters concerning the system of civil registration
were transferred to the Bureau of Census and
Statistics. This bureau subsequently became the
NSO,32 whose Administrator concurrently served as
the Civil Registrar-General.33 At present, the National
Statistician is empowered by Republic Act (R.A.) No.
10625, as Civil Registrar-General to exercise
technical supervision of civil registrars.34
Due to the need to address the cultural peculiarities
practiced by our Muslim brethren, however, Congress
saw the need to designate the Clerk of Court of the
Shari'a Circuit Court to act as the Circuit Registrar of
Muslim marriages, divorces, revocations of divorces,
and conversions to Islam within his jurisdiction. As
earlier cited, Article 181 of the Muslim Code provides
that: The Clerk of Court of the Shari'a Circuit Court
shall act as Circuit Registrar of Muslim Marriages,
Divorces, Revocations of Divorces, and Conversions
within his jurisdiction.
In order to ensure that Circuit Registrars remain
faithful to their duties, Article 82 of the Muslim Code
tasks the Clerks of Court of the Shari'a District Court
to act as District Registrars and exercise technical
supervision over Circuit Registrars by requiring them
to keep a proper recording of all matters pertaining to
the personal lives of Muslims. Thus:
Article 82. Duties of District Registrar. Every District
Registrar shall exercise supervision over Circuit
Registrars in every Shari'a District. He shall, in
addition to an entry book, keep and bind copies of
certificates of Marriage, Divorce, Revocation of
Divorce, and Conversion sent to him by the Circuit
Registrars in separate general registers. He shall
send copies in accordance with Act. No. 3753, as
amended, to the office of the Civil Registrar-General.
All these notwithstanding, the power of administrative
supervision over civil registrars remains with the
National Government.1âwphi1 As Section 2 of CA No.
3753 provides:
Section 2. Civil Registrar-General his duties and
powers. – The director of the National Library shall be
Civil Registrar-General and shall enforce the
provisions of this Act. The Director of the National
Library, in his capacity as Civil Registrar-General, is
hereby authorized to prepare and issue, with the
approval of the Secretary of Justice, regulations for
carrying out the purposes of this Act, and to prepare
and order printed the necessary forms for its proper
compliance. In the exercise of his functions as Civil
Registrar-General, the Director of the National Library
shall have the power to give orders and instructions to
the local Civil registrars with reference to the
performance of their duties as such. It shall be the
duty of the Director of the National Library to report
any violation of the provisions of this Act and all
irregularities, negligence or incompetency on the part
of the officers designated as local civil registrars to
the (Chief of the Executive Bureau or the Director of
the Non-Christian Tribes) Secretary of the Interior, as
the case may be, who shall take the proper
disciplinary action against the offenders.
[Emphasis Supplied]
It was only with the advent of the Local Government
Code that the power of administrative supervision
over civil registrars was devolved to the municipal and
city mayors of the respective local government units.
Under the "faithful execution clause" embodied in
Section 455(b)(1)(x)35 and Section 444(b)(1)(x)36 of
the Local Government Code, in relation to Section
47937 under Article IX, Title V38 of the same Code, the
municipal and city mayors of the respective local
government units, in addition to their power to appoint
city or municipal civil registrars are also given ample
authority to exercise administrative supervision over
civil registrars. Thus, when Administrative Order No.
1, Series of 1993 of the Office of the Civil Registrar-
General (OCRG)was passed to implement CA No.
3753 it was declared:
Rule 1. Duties and Powers of the Civil Registrar-
General. - The Civil Registrar-General shall have the
following duties and powers:
a) To enforce the provisions of Act No. 3753;
b) To prepare and issue regulations for
carrying out the purposes of Act No. 3753
and other laws relative to civil registration,
and to prepare and order printed the
necessary forms for its proper compliance;
c) To give orders and instructions to the
city/municipal civil registrars with reference
to the performance of their duties as such;
and
d) To report any violation of the provisions of
Act No. 3753 and other laws on civil
registration, and all irregularities, negligence
or incompetency of city/municipal civil
registrar to the concerned mayor who shall
take the proper disciplinary action against
the offender.
This authority of the Mayor to exercise administrative
jurisdiction over Circuit Registrars was also
recognized generally, under Section 47(2) of the
Administrative Code of 1987,39 and specifically, under
Rule 11 of Administrative Order No. 2, Series of
199340 of the OCRG, and the more recent
Administrative Order No. 5, Series of 200541 of the
same office, which applies specially to the registration
of acts and events concerning the civil status of
Muslim Filipinos.
At this juncture, it should be remembered that the
authority of the Mayor to exercise administrative
supervision over C/MCRs is not exclusive. The Civil
Service Commission (CSC), as the central personnel
agency of the government, has the power to appoint
and discipline its officials and employees and to hear
and decide administrative cases instituted by or
brought before it directly or on appeal.42 Under
Section 9 of the Revised Uniform Rules on
Administrative Cases in the Civil Service, the CSC is
granted original concurrent jurisdiction over
administrative cases. Thus:
Section 9. Jurisdiction of Heads of Agencies. - The
Secretaries and heads of agencies, and other
instrumentalities, provinces, cities and municipalities
shall have original concurrent jurisdiction with the
Commission over their respective officers and
employees. x x x
Consequently, it behooves the Court to also forward
the subject complaint to the Office of the Mayor,
Marawi City and to the CSC for appropriate action.
WHEREFORE, the administrative matter against
Macalinog S. Abdullah, Clerk of Court II, Shari' a
Circuit Court, Marawi City, for partiality, violation of
due process, dishonesty, and conduct unbecoming a
court employee is DISMISSED for lack of jurisdiction,
without prejudice. The complaint of Baguan M.
Mamiscal against Macalinog S. Abdullah is hereby
REFERRED to the Office of the Mayor, Marawi City
and the Civil Service Commission for appropriate
action.
SO ORDERED.
Case No. 13
EN BANC
September 26, 2017
G.R. No. 213953
ENGR. OSCAR A. MARMETO, Petitioner
vs.
COMMISSION ON ELECTIONS, Respondent
DECISION
DEL CASTILLO, J.:
Before the Court is a Petition for certiorari and
mandamus1 seeking to annul the Resolution No. 14-
0509 dated July 22, 20142 of the respondent
Commission of Elections (COMELEC). The assailed
resolution declared that the power of initiative could
not be invoked by the petitioner, Engr. Oscar A.
Marmeto (Marmeto ), for the passage of a proposed
ordinance in Muntinlupa City, citing the lack of
budgetary appropriation for the conduct of the
initiative process.3
THE FACTS
On January 21, 2013, Marmeto filed in behalf of the
Muntinlupa People Power4 (MPP) a proposed
ordinance with the Sangguniang Panlungsod of
Muntinlupa.5 The proposal sought the creation of a
sectoral council and the appropriation of the amount
of ₱200 million for the livelihood programs and
projects that would benefit the people of Muntinlupa
City.
For failure of the Sanggunian Panlungsod to act on
the proposition within 30 days from its filing, Marmeto
filed a petition for initiative with the same body to
invoke the power of initiative under the Republic Act
(RA) No. 7160, otherwise known as the Local
Government Code of 1991 (LGC).
The secretary of Sanggunian Panlungsod of
Muntinlupa wrote a letter dated June 11, 2013 to the
COMELEC stating that the proposal could not be
acted upon by the Sanggunian because the City's
budget for FY 2013 had already been enacted. Thus,
the secretary claimed that a new appropriation
ordinance was needed to provide funds for the
conduct of the initiative.
On July 31, 2013, the COMELEC issued Resolution
No. 13-0904 setting aside Marmeto' s initiative
petition because the propositions therein were beyond
the powers of the Sanggunian Panglunsod to enact
and were not in accordance with the provisions of
existing laws and rules.6
Marmeto sought reconsideration7 of
COMELEC's Resolution No. 13-0904 by contending
that the sectoral council sought to be created would
not constitute as a legislative body separate from
the Sanggunian Panlungsod. He clarified that the
sectoral council would merely act as the people's
representative, which would facilitate the exercise of
the people's power of initiative and referendum.
However, the COMELEC did not find Marmeto's
motion for reconsideration meritorious and issued
Resolution No. 13-1039 dated September 17,
2013,8 affirming its earlier ruling dismissing the
initiative petition. It ruled that the issues Marmeto
raised in his motion were mere reiterations of his
petition which it had already addressed. Nonetheless,
it noted that Marmeto might opt to re-file his initiative
petition, since the then newly-elected members of
the Sangguniang Panlungsod of Muntinlupa might be
more sympathetic to Marmeto' s propositions.
Accordingly, on December 2, 2013, Marmeto filed a
second proposed ordinance with the Sangguniang
Panlungsodof Muntinlupa. Again, no favorable action
was done by the Sanggunian within 30 days from the
filing of the proposal, prompting Marmeto file a
second initiative petition with the Office of the City
Election Officer on February 10, 2014.9
On April 1, 2014, Marmeto filed a Supplemental
Petition to comply with the requirements of
COMELEC Resolution No. 2300,10 which provided the
Rules and Regulations Governing the Conduct of
Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws.
The Assailed COMELEC Resolution
On July 22, 2014, the COMELEC issued the
assailed Resolution No. 14- 050911 which effectively
dismissed Marmeto's second initiative petition for lack
of budgetary allocation. The pertinent portion of the
assailed resolution reads as follows:
Considering the absence of any provision in the
Commission's FY 2014 budget for the expenses
for local initiative or any other election activity x x
x the Commission RESOLVED, as it hereby
RESOLVES, to adopt the foregoing recommendation
x x x that the power of local initiative cannot be
invoked by Engr. Oscar A. Marmeto x x x for the
passage of an ordinance for the appropriation of
funds for livelihood projects for the residents of
Muntinlupa City since the setting up of signature
stations, verification of signatures, the certification of
the number of registered voters, and all other acts to
be done in exercise thereof will entail expenses on
the part of the Commission.12(Emphasis supplied)
Disagreeing with Resolution No. 14-0509, Marmeto
filed the present certiorari and mandamus petition
contending that the COMELEC acted with grave
abuse of discretion amounting to lack or excess of
jurisdiction when it ' dismissed his second initiative
petition.
THE PARTIES' ARGUMENTS
Marmeto assails the COMELEC's Resolution No. 14-
0509, contending that the denial of an initiative
petition due to lack of appropriated funds constitutes a
gross neglecfaabandonment of the COMELEC's
duties under the Constitution.13
Marmeto believes that the COMELEC has a
ministerial duty to conduct the initiative proceedings
under pertinent laws upon compliance with the legal
requirements for the exercise of the right. He asserts
that the COMELEC evaded its mandated duty by
citing unavailability of funds as ground to frustrate the
conduct oflocal initiative.14
The COMELEC, on the other hand, claims that the
denial of Marmeto's initiative petition was proper,
since the propositions therein were beyond the legal
powers of the Sangguniang Panlungsod to enact. 15
Section 124(b) of the LGC provides that the
"[i]nitiative shall extend only to subjects or matters
which are within the legal powers of
the Sanggunian to enact." According to the
COMELEC, Marmeto's second initiative petition
proposed the creation of a council composed of 12
sectoral representatives. This sectoral council will act
as a legislative body that will directly propose, enact,
approve, or reject any ordinance through the power of
initiative and referendum.16
The COMELEC refers to Section 458 of the LGC
which enumerates the powers and duties of
the Sangguniang Panlungsod, noting that nothing in
the provision grants the Sanggunian the power to
create a separate local legislative body. Moreover,
Section 457 of the LGC allows only three sectoral
representatives to become members of
the Sangguniang Panlungsod. These sectoral
representatives are to be elected by the residents of
the city as members of the Sanggunian, and cannot
be appointed through an initiative election.
THE COURT'S RULING
The Court dismisses the Petition.
The COMELEC is mandated to enforce
and administer the laws on local
initiative and referendum
Initiative has been described as an instrument of
direct democracy whereby the citizens directly
propose and legislate laws.17 As it is the citizens
themselves who legislate the laws, direct legislation
through initiative (along with referendum) is
considered as an exercise of original legislative
power,18 as opposed to that of derivative legislative
power which has been delegated by the sovereign
people to
legislative bodies such as the Congress.19
Section 1 of Article VI of the Constitution recognizes
the distinction between original and derivative
legislative power by declaring that "legislative power
shall be vested in the Congress x x x except to the
extent reserved to the people by the provision on
initiative and referendum." The italicized clause
pertains to the original power of legislation which the
sovereign people have reserved for their exercise in
matters they consider fit. Considering that derivative
legislative power is merely delegated by the sovereign
people to its elected representatives, it is deemed
subordinate to the original power of the people.20
The Constitution further mandated the Congress to
"provide for a system of initiative and referendum, x x
x whereby the people can directly propose and enact
laws or approve or reject any act or law or part thereof
by the Congress or local legislative body x x x." 21 In
compliance, the Congress enacted RA No. 6735 on
August 4, 1989 which provided for a system of
initiative and referendum on national and local laws.
To implement RA No. 6735, the COMELEC
promulgated Resolution No. 2300 on January 16,
1991, which provided the rules and regulations
governing the conduct of initiative on the
Constitution,22and initiative and referendum on
national and local laws. Since the LGC codified all
laws pertaining to local governments,23 the provisions
on local initiative and referendum found in RA No.
6735 were reiterated, with slight modifications, in
Sections 120 to 127 of the LGC; all other provisions in
RA No. 6735 not inconsistent within the Sections 120
and 127 of the LGC remained valid and in effect.
RA No. 6735 and the LGC are thus the pertinent laws
on local initiative and referendum which the
COMELEC is mandated to enforce and administer
under Article IX-C, Section 2(1) of the Constitution.
Naturally, the conduct of initiative and referendum (as
with any election exercise) will entail expenses on the
part of the government. The budget for the conduct of
the exercise of political rights, specifically those on
suffrage and electoral rights, is given to the
COMELEC, whose approved annual appropriations
are automatically and regularly released.24
The COMELEC cannot defeat the
exercise of the people's original
legislative power for lack of budgetary
allocation for its conduct
In Goh v. Hon. Bayron,25 the Court has definitely ruled
the question of whether the COMELEC may prevent
the conduct of a recall election for lack of specific
budgetary allocation therefor. In as much as the issue
resolved in Goh is similar to the present one before
the Court, a brief summary thereof is necessary.
In 2014, Alroben Goh commenced the proceedings
for the conduct of recall elections against Puerto
Princessa City Mayor Lucilo Bayron. Although the
COMELEC found Goh 's petition sufficient in form and
substance, it resolved to suspend the recall election
because there was no appropriation provided for the
conduct of recall elections in the FY 2014 General
Appropriations Act (GAA). As there was no line item
in the GAA for recall elections, there could likewise be
no augmentation according to the COMELEC.
Contrary to the COMELEC's assertions, the Court
ruled that the FY 2014 GAA "actually expressly
provides for a line item appropriation for the conduct
and supervision of recall elections."26 Under the
Program category of the COMELEC's 2014
budget,27 the following amounts were provided:
Notably, for its Major Final Output (MFO) 1 on the
Regulation of Elections, the COMELEC was provided
with a total of Pl,401,501,000 for the "Conduct and
supervision of elections, referenda, recall votes
and plebiscites," which amount was subdivided
among the 15 administrative regions in the country.
The Court added that "[w]hen the COMELEC
receives a budgetary appropriation for its 'Current
Operating Expenditures,' such appropriation
includes expenditures to carry out its
constitutional functions x x x"28 The Court
considered the appropriation of P 1.4 billion as
specific enough to fund elections, which includes both
regular and special elections, including recall
elections.
Further, the allocation of a specific budget for the
conduct of elections constituted as "a line item which
can be augmented from the COMELEC's savings to
fund the conduct of recall elections in 2014."29 Thus,
the Court concluded that -
[c]onsidering that there is an existing line item
appropriation for the conduct of recall elections in the
2014 GAA, we see no reason why the COMELEC is
unable to perform its constitutional mandate to
'enforce and administer all laws and regulations
relative to the conduct of x x x recall.' Should the
funds appropriated in the 2014 GAA be deemed
insufficient, then the COMELEC Chairman may
exercise his authority to augment such line item
appropriation from the COMELEC's existing savings,
as this augmentation is expressly authorized in the
2014 GAA.30
There is no reason not to extend the Goh ruling to the
present case. In fact, Marmeto's second initiative
petition was also filed in 2014; in dismissing Marmeto'
s petition for lack of funds, the COMELEC was
referring to its budget under the FY 2014 GAA.
Although Goh involved the conduct of recall elections,
the ₱1.4 billion appropriation under the FY 2014 GAA
was for the "conduct and supervision of elections,
referenda, recall votes and plebiscites."31 The term
"election" is comprehensive enough to include other
kinds of electoral exercises, including initiative
elections. As earlier mentioned, the COMELEC's
constitutional mandate is to enforce and administer all
laws relative to the conduct of an election, plebiscite,
initiative, referendum, and recall. The Constitution
further states that the "[f]unds certified by the
[COMELEC] as necessary to defray the expenses for
holding regular and special elections, plebiscites,
initiatives, referenda, and recalls, shall be provided in
the regular or special appropriations and, once
approved shall be released automatically." 32 Thus, the
budgetary allocation for the "regulation of elections"
identified as the COMELEC's MFO 1 should
necessarily also cover expenses for the conduct of
initiative elections.
The Court also notes that, aside from the ₱1.4 billion
appropriation for the "conduct and supervision of
elections, referenda, recall votes and plebiscites," the
COMELEC was also given ₱1.6 billion in the FY 2014
GAA for the "management and supervision of
elections and other electoral exercises."33
Thus, as in Goh , the COMELEC was provided with
budgetary allocation for the conduct of initiative
elections. The COMELEC, therefore, committed grave
abuse of discretion in dismissing Marmeto' s second
initiative petition on the ground that there were no
funds allocated for the purpose.
The COMELEC has the power to
review whether the propositions in an
initiative petition are within the power
of the concerned Sanggunian to enact
The resolution of the present case, however, does not
end in applying the Court's ruling in Goh to the
present case. In its Comment and Memorandum, the
COMELEC defends the dismissal of Marmeto's
second initiative petition on the ground that the
propositions raised therein were matters that were not
within the powers of the Sangguiang Panlungsod to
enact. This petition purportedly proposed the creation
of another legislative body separate from
the Sanggunian, composed of 12 appointive sectoral
representatives. Not only does the LGC denies to
the Sanggunianthe power to create a separate
legislative body, but it also limits the number of
sectoral representatives in the Sanggunian itself to
only three elected members.34 For these reasons, the
COMELEC argues that the dismissal of Marmeto's
second initiative petition was proper.
Marmeto counters that the arguments the COMELEC
now raises were not the grounds which the
COMELEC cited in Resolution No. 14-0509 that is
assailed in the present certiorari and mandamus
petition. He points out that Resolution No. 14-0509
dismissed his second initiative petition solely for lack
of specific budgetary allocation. There was no
mention in the assailed resolution that the
propositions in his second initiative petition were not
within the powers of the Sanggunian to enact. This
ground was instead cited by the COMELEC in its
Resolution Nos. 13-0904 and 13-1039 which
dismissed Marmeto'sfirst initiative petition. Hence, he
opines that the propriety of the propositions contained
in his second initiative petition, not being covered by
the assailed COMELEC resolution, cannot be
reviewed in the present petition.
In several cases, this Court considered issues which
were not raised by either party when these issues are
necessary for the complete resolution of the
cases. 35 If the Court can review unassigned errors
which are necessary to arrive at a just resolution of
the case, with all the more reason can it review a
matter raised as a defense by a party to uphold the
validity of a resolution assailed in the case.
Section 124(b) of the LGC provides that "[i]nitiatives
shall extend only to subjects or matters which are
within the legal powers of the Sanggunian to enact."
Section 127 of the LGC gives the courts authority to
declare "null and void any proposition
approved pursuant to this Chapter36 for violation of
the Constitution or want of capacity of
the Sanggunian concerned to enact the said
measure."37 Significantly, the power of the courts to
nullify propositions for being ultra vires extends only
to those already approved, i.e. those which have
been approved by a majority of the votes cast in the
initiative election called for the purpose. In other
words, the courts can review the terms only of
an approved ordinance. It will be premature for the
courts to review the propositions contained in an
initiative petition that has yet to be voted for by the
people because at that point, there is no actual
controversy that the courts may adjudicate. This begs
the question of which tribunal can review the
sufficiency of an initiative petition?
Inasmuch as the COMELEC also has quasi-judicial
and administrative functions, it is the COMELEC
which has the power to determine whether the
propositions in an initiative petition are within the
powers of a concerned Sanggunian to enact.
In Subic Bay Metropolitan Authority v. Commission on
Elections,38 the Court ruled that -
while regular courts may take jurisdiction over
'approved propositions' per said Sec. 18 of R.A. 6735,
the Comelec in the exercise of its quasi-judicial
and administrative powers may adjudicate and
pass upon such proposals insofar as their form
and language are concerned x x x and it may be
added, even as to content, where the proposals or
parts thereof are patently and clearly outside the
'capacity of the local legislative body to enact.' x x
x (Emphasis supplied)
The COMELEC's power to review the substance of
the propositions is also implied in Section 12 of RA
No. 6735, which gives this Court appellate power to
review the COMELEC's "findings of the sufficiency or
insufficiency of the petition for initiative or referendum
x x x."
Marmeto 's propositions in his initiative
petition are beyond the powers of the
Sanggunian Panlungsod ng
Muntinlupa to enact
Accordingly, a review of the propositions put forth by
Marmeto in his second initiative petition becomes
imperative.
Unfortunately, the records do not contain a copy of
the proposed ordinance itself. Nevertheless,
Marmeto's pleadings and the annexes thereto
(particularly the Supplemental Petition39) refer to the
significant propositions put forth in his second
initiative petition.
The Court also notes that the propositions in
Marmeto' s second petition are closely related to
those in his first petition, which are mentioned in the
COMELEC Resolution Nos. 13-0904 and 13-1039. As
Marmeto never denied that the propositions in his
second initiative petition are completely different from
those in his first petition,40 it is not implausible to
presume that the propositions contained in both
petitions are more or less the same. Since the
COMELEC had already ruled on the propriety of
these propositions in its Resolution No. 13-0904 and
to avoid a remand of the case that will prolong these
proceedings, the Court will proceed to rule on the
issue of whether Marmeto's propositions are within
the power of the Sanggunian to enact and thus be
valid subjects of an initiative petition.
Marmeto's initiative petitions propose the following:
(1) The creation of a sectoral council composed of 12
members from various sectors who will serve as the
people's representatives for the implementation and
management of livelihood programs and projects;41
(2) The sectoral council will also stand as the people's
representatives that will directly propose, enact,
approve, or reject ordinances through initiative or
referendum;42
(3) An appropriation of ₱200 million to be allocated for
livelihood projects of the people and other purposes.
The net income from the projects will then be used for
the delivery of basic services and facility for
Muntinlupa residents;43
(4) The MPP will create the implementing guidelines
and procedure for the utilization of the appropriated
funds, and conduct programs and project feasibility
studies. It shall comply with the prescribed accounting
and auditing rules of, and submit monthly
accomplishment report to the local government unit
(LGU). It shall also observe transparency and
accountability in fund management.44
These propositions, however, are either sufficiently
covered by or violative of the LGC for reasons
explained below.
(A) The creation of a separate local legislative
body is ultra vires
Under the LGC, local legislative power within the city
is to be exercised by the Sangguniang
Panlungsod,45 which shall be comprised of elected
district and sectoral representatives.46 The sectoral
representatives, moreover, shall be limited to three
members, coming from enumerated/identified
sectors.47
Significantly, nothing in the LGC allows the creation of
another local legislative body that will enact, approve,
or reject local laws either through the regular
legislative process or through initiative or referendum.
Even Marmeto's claim that the sectoral council will not
legislate but will merely "facilitate" the people's
exercise of the power of initiative and referendum is
rendered unnecessary by the task the COMELEC
must assume under the LGC. Section 122(c) of the
LGC provides that the COMELEC (or its designated
representative) shall extend assistance in the
formulation of the proposition.
(B) The sectoral council VMPP's proposed
function overlaps with the Local Development
Council
The law recognizes the right of the people to organize
themselves and encourages the formation of non-
governmental, community-based, or sectoral
organizations that aim to promote the nation's
welfare.48 Even the LGC promotes relations between
the LGUs and people's and non-governmental
organizations (PO/NGOs ), and provides various
ways by which they can be active partners in pursuing
local autonomy.49
The LGC, moreover, requires the establishment in
each LGU of a local development council, whose
membership includes representatives of POs/NGOs
operating within the LGU.50 These local development
councils are primarily tasked with developing a
"comprehensive multi-sectoral development plan"51 in
their respective LGUs. City development councils are
specifically tasked to exercise the following functions:
(1) Formulate long-term, medium-term, and annual
development plans and policies;
(2) xxx;
(3) Appraise and prioritize socio-economic
development programs and projects;
(4) x x x;
(5) Coordinate, monitor, and evaluate the
implementation of development programs and
projects; and
(6) Perform such other functions as may be provided
by law or competent authority.52
Given these functions of the city development council,
there is a clear overlap with those proposed by
Marmeto to be performed by the sectoral council
and/or MPP.1âwphi1
(C) The LGC requires local government funds and
monies to be spent solely for public purposes,
and provides transparency and accountability
measures to ensure this end
The overlap in functions, by itself, does not suffice to
turn down Marmeto's proposal to create a sectoral
council or any similar organization. What the Court
finds disturbing in Marmeto' s initiative petitions is the
authority of the proposed sectoral council to utilize,
manage, and administer public funds as it sees fit.
The fundamental principles in local fiscal
administration provided in the LGC state that no
money shall be paid out of the local treasury except in
pursuance of an appropriations ordinance or
law,53 and that local government funds and monies
shall be spent solely for public purposes.54
Marmeto' s petition proposes the appropriation of
₱200 million for the livelihood programs and projects
of Muntinlupa residents. Significantly, the utilization
of this amount is subject to the guidelines to be
later implemented by Marmeto's MPP. That these
guidelines will be drafted and implemented
subsequent to the initiative elections denies the
Muntinlupa residents of the opportunity to assess and
scrutinize the utilization of local funds, and gives
Marmeto and his organization an almost complete
discretion in determining the allocation and
disbursement of the funds. It is no justification that the
funds will be used for public purposes on the claim
these will be applied to programs and projects that will
eventually redound to the benefit of the public.
and who may be held administratively and criminally
liable for the imprudent use thereof.
CONCLUSION
Initiative and referendum are the means by which the
sovereign people exercise their legislative power, and
the valid exercise thereof should not be easily
defeated by claiming lack of specific budgetary
appropriation for their conduct. The Court reiterates
its ruling in Goh that the grant of a line item in the FY
2014 GAA for the conduct and supervision of
elections constitutes as sufficient authority for the
COMELEC to use the amount for elections and other
political exercises, including initiative and recall, and
to augment this amount from the COMELEC's existing
savings.
Nonetheless, as the Court ruled in Subic Bay
Metropolitan Authority, the COMELEC is likewise
given the power to review the sufficiency of initiative
petitions, particularly the issue of whether the
propositions set forth therein are within the power of
the concerned Sanggunian to enact. In as much as a
sanggu,nian does not have the power to create a
separate local legislative body and that other
propositions in Marmeto's initiative petition clearly
contravene the existing laws, the COMELEC did not
commit grave abuse of discretion amounting to lack or
excess of jurisdiction in dismissing the petition and
cannot be ordered to conduct and supervise the
procedure for the conduct of initiative elections.
WHEREFORE, the Petition for certiorari and
mandamus is DISMISSED. The Resolution No. 14-
0509 of the Commission on Elections dated July 22,
2014 is AFFIRMED.
SO ORDERED.

Our laws have put in place measures to ensure

transparency and accountability in dealing with public
funds,55 since "[p]ublic funds are the property of the
people and must be used prudently at all times with a
view to prevent dissipation and waste." 56 These
measures may be subverted or rendered inapplicable
when the management and utilization of the funds is
turned over to private persons or entities. Although
comprised of Muntinlupa residents and voters,
Marmeto' s MPP remains a private organization and
its members cannot be considered as public officers
who are burdened with responsibility for public funds
Case No. 014

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