Administrative and Election Laws Cases 1

Creation, Establishment and Abolition of Administrative Agencies
SECOND DIVISION
G.R. No. 106296 July 5, 1996
ISABELO T. CRISOSTOMO, petitioner,

vs.
THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.
MENDOZA, J.:p
This is a petition to review the decision of the Court of Appeals dated July 15, 1992, the dispositive portion of which reads:
WHEREFORE, the present petition is partially granted. The questioned Orders and
writs directing (1) "reinstatement" of respondent Isabelo T. Crisostomo to the position
of "President of the Polytechnic University of the Philippines", and (2) payment of
"salaries and benefits" which said respondent failed to receive during his suspension
insofar as such payment includes those accruing after the abolition of the PCC and
its transfer to the PUP, are hereby set aside. Accordingly, further proceedings
consistent with this decision may be taken by the court a quo to determine the
correct amounts due and payable to said respondent by the said university.
The background of this case is as follows:
Petitioner Isabelo Crisostomo was President of the Philippine College of Commerce (PCC), having
been appointed to that position by the President of the Philippines on July 17, 1974.
During his incumbency as president of the PCC, two administrative cases were filed against
petitioner for illegal use of government vehicles, misappropriation of construction materials belonging
to the college, oppression and harassment, grave misconduct, nepotism and dishonesty. The
administrative cases, which were filed with the Office of the President, were subsequently referred to
the Office of the Solicitor General for investigation.
Charges of violations of R.A. No. 3019, §3(e) and R.A. No. 992, §§20-21 and R.A. No. 733, §14
were likewise filed against him with the Office of Tanodbayan.
On June 14, 1976, three (3) informations for violation of Sec. 3(e) of the Anti-Graft and Corrupt
Practices Act (R.A. No. 3019, as amended) were filed against him. The informations alleged that he
appropriated for himself a bahay kubo, which was intended for the College, and construction
materials worth P250,000.00, more or less. Petitioner was also accused of using a driver of the
College as his personal and family driver. 1
On October 22, 1976, petitioner was preventively suspended from office pursuant to R.A. No. 3019,
§13, as amended. In his place Dr. Pablo T. Mateo, Jr. was designated as officer-in-charge on
November 10, 1976, and then as Acting President on May 13, 1977.
On April 1, 1978, P.D. No. 1341 was issued by then President Ferdinand E. Marcos, CONVERTING
THE PHILIPPINE COLLEGE OF COMMERCE INTO A POLYTECHNIC UNIVERSITY, DEFINING
ITS OBJECTIVES, ORGANIZATIONAL STRUCTURE AND FUNCTIONS, AND EXPANDING ITS
CURRICULAR OFFERINGS.
Mateo continued as the head of the new University. On April 3, 1979, he was appointed Acting
President and on March 28, 1980, as President for a term of six (6) years.
On July 11, 1980, the Circuit Criminal Court of Manila rendered judgment acquitting petitioner of the
charges against him. The dispositive portion of the decision reads:
WHEREFORE, the Court finds the accused, Isabelo T. Crisostomo, not guilty of the
violations charged in all these three cases and hereby acquits him therefrom, with
costs de officio. The bail bonds filed by said accused for his provisional liberty are
hereby cancelled and released.
Pursuant to the provisions of Section 13, R.A. No. 3019, as amended, otherwise
known as The Anti-Graft and Corrupt Practices Act, and under which the accused
has been suspended by this Court in an Order dated October 22, 1976, said accused
is hereby ordered reinstated to the position of President of the Philippine College of
Commerce, now known as the Polytechnic University of the Philippines, from which
he has been suspended. By virtue of said reinstatement, he is entitled to receive the
salaries and other benefits which he failed to receive during suspension, unless in
the meantime administrative proceedings have been filed against him.
The bail bonds filed by the accused for his provisional liberty in these cases are
hereby cancelled and released.
SO ORDERED.
The cases filed before the Tanodbayan (now the Ombudsman) were likewise dismissed on August 8,
1991 on the ground that they had become moot and academic. On the other hand, the
administrative cases were dismissed for failure of the complainants to prosecute them.
On February 12, 1992, petitioner filed with the Regional Trial Court a motion for execution of the
judgment, particularly the part ordering his reinstatement to the position of president of the PUP and
the payment of his salaries and other benefits during the period of suspension.
The motion was granted and a partial writ of execution was issued by the trial court on March 6,
1992. On March 26, 1992, however, President Corazon C. Aquino appointed Dr. Jaime Gellor as
acting president of the PUP, following the expiration of the term of office of Dr. Nemesio Prudente,
who had succeeded Dr. Mateo. Petitioner was one of the five nominees considered by the President
of the Philippines for the position.
On April 24, 1992, the Regional Trial Court, through respondent Judge Teresita Dy-Liaco Flores,
issued another order, reiterating her earlier order for the reinstatement of petitioner to the position of
PUP president. A writ of execution, ordering the sheriff to implement the order of reinstatement, was
issued.
In his return dated April 28, 1992, the sheriff stated that he had executed the writ by installing
petitioner as President of the PUP, although Dr. Gellor did not vacate the office as he wanted to
consult with the President of the Philippines first. This led to a contempt citation against Dr. Gellor. A
hearing was set on May 7, 1992. On May 5, 1992, petitioner also moved to cite Department of
Education, Culture and Sports Secretary Isidro Cariño in contempt of court. Petitioner assumed the
office of president of the PUP.
On May 18, 1992, therefore, the People of the Philippines filed a petition for certiorari and prohibition
(CA G.R. No. 27931), assailing the two orders and the writs of execution issued by the trial court. It
also asked for a temporary restraining order.
On June 25, 1992, the Court of Appeals issued a temporary restraining order, enjoining petitioner to
cease and desist from acting as president of the PUP pursuant to the reinstatement orders of the
trial court, and enjoining further proceedings in Criminal Cases Nos. VI-2329-2331.
On July 15, 1992, the Seventh Division of the Court of Appeals rendered a decision, the dispositive
2
portion of which is set forth at the beginning of this opinion. Said decision set aside the orders and
writ of reinstatement issued by the trial court. The payment of salaries and benefits to petitioner
accruing after the conversion of the PCC to the PUP was disallowed. Recovery of salaries and
benefits was limited to those accruing from the time of petitioner's suspension until the conversion of
the PCC to the PUP. The case was remanded to the trial court for a determination of the amounts
due and payable to petitioner.
Hence this petition. Petitioner argues that P.D. No. 1341, which converted the PCC into the PUP, did
not abolish the PCC. He contends that if the law had intended the PCC to lose its existence, it would
have specified that the PCC was being "abolished" rather than "converted" and that if the PUP was
intended to be a new institution, the law would have said it was being "created." Petitioner claims
that the PUP is merely a continuation of the existence of the PCC, and, hence, he could be
reinstated to his former position as president.
In part the contention is well taken, but, as will presently be explained, reinstatement is no longer
possible because of the promulgation of P.D. No. 1437 by the President of the Philippines on June
10, 1978.
P.D. No. 1341 did not abolish, but only changed, the former Philippine College of Commerce into
what is now the Polytechnic University of the Philippines, in the same way that earlier in 1952, R.A.
No. 778 had converted what was then the Philippine School of Commerce into the Philippine College
of Commerce. What took place was a change in academic status of the educational institution, not in
its corporate life. Hence the change in its name, the expansion of its curricular offerings, and the
changes in its structure and organization.
As petitioner correctly points out, when the purpose is to abolish a department or an office or an
organization and to replace it with another one, the lawmaking authority says so. He cites the
following examples:
E.O. No. 709:
§1. There is hereby created a Ministry of Trade and Industry, hereinafter referred to
as the Ministry. The existing Ministry of Trade established pursuant to Presidential
Decree No. 721 as amended, and the existing Ministry established pursuant to
Presidential Decree No. 488 as amended, are abolished together with their services,
bureaus and similar agencies, regional offices, and all other entities under their
supervision and control.
E.O. No. 710:
§1. There is hereby created a Ministry of Public Works and Highways, hereinafter
referred to as the Ministry. The existing Ministry of Public Works established pursuant
to Executive Order No. 546 as amended, and the existing Ministry of Public
Highways established pursuant to Presidential Decree No. 458 as amended, are
abolished together with their services, bureaus and similar agencies, regional offices,
and all other entities within their supervision and control. . . .
R.A. No. 6975:
§13. Creation and Composition. -- A National Police Commission, hereinafter referred

to as the Commission, is hereby created for the purpose of effectively discharging
the functions prescribed in the Constitution and provided in this Act. The Commission
shall be a collegial body within the Department. It shall be composed of a Chairman
and four (4) regular commissioners, one (1) of whom shall be designated as Vice-
Chairman by the President. The Secretary of the Department shall be the ex-
officio Chairman of the Commission, while the Vice-Chairman shall act as the
executive officer of the Commission.
xxx xxx xxx
§90. Status of Present NAPOLCOM, PC-INP. - Upon the effectivity of this Act, the
present National Police Commission, and the Philippine Constabulary-Integrated
National Police shall cease to exist. The Philippine Constabulary, which is the
nucleus of the integrated Philippine Constabulary-Integrated National Police, shall
cease to be a major service of the Armed Forces of the Philippines. The Integrated
National Police, which is the civilian component of the Philippine Constabulary-
Integrated National Police, shall cease to be the national police force and in lieu
thereof, a new police force shall be established and constituted pursuant to this Act.
In contrast, P.D. No. 1341, provides:
§1. The present Philippine College of Commerce is hereby converted into a

university to be known as the "Polytechnic University of the Philippines," hereinafter
referred to in this Decree as the University.
As already noted, R.A. No. 778 earlier provided:
§1. The present Philippine School of Commerce, located in the City of Manila,
Philippines, is hereby granted full college status and converted into the Philippine
College of Commerce, which will offer not only its present one-year and two-year
vocational commercial curricula, the latter leading to the titles of Associate in
Business Education and/or Associate in Commerce, but also four-year courses
leading to the degrees of Bachelor of Science in Business in Education and Bachelor
of Science in Commerce, and five-year courses leading to the degrees of Master of
Arts in Business Education and Master of Arts in Commerce, respectively.
The appellate court ruled, however, that the PUP and the PCC are not "one and the same institution"
but "two different entities" and that since petitioner Crisostomo's term was coterminous with the legal
existence of the PCC, petitioner's term expired upon the abolition of the PCC. In reaching this
conclusion, the Court of Appeals took into account the following:
a) After respondent Crisostomo's suspension, P.D. No. 1341 (entitled "CONVERTING

THE PHILIPPINE COLLEGE OF COMMERCE INTO A POLYTECHNIC
UNIVERSITY, DEFINING ITS OBJECTIVES, ORGANIZATIONAL STRUCTURE AND
FUNCTIONS, AND EXPANDING ITS CURRICULAR OFFERINGS") was issued on
April 1, 1978. This decree explicitly provides that PUP's objectives and purposes
cover not only PCC's offering of programs "in the field of commerce and business
administration" but also "programs in other polytechnic areas" and "in other fields
such as agriculture, arts and trades and fisheries . . ." (section 2). Being a university,
PUP was conceived as a bigger institution absorbing, merging and integrating the
entire PCC and other "national schools" as may be "transferred" to this new state
university.
b) The manner of selection and appointment of the university head is substantially

different from that provided by the PCC Charter. The PUP President "shall be
appointed by the President of the Philippines upon recommendation of the Secretary
of Education and Culture after consultation with the University Board of Regents"
(section 4, P.D. 1341). The President of PCC, on the other hand, was appointed "by
the President of the Philippines upon recommendation of the Board of Trustees"
(Section 4, R.A. 778).
c) The composition of the new university's Board of Regents in likewise different from
that of the PCC Board of Trustees (which included the chairman of the Senate
Committee on Education and the chairman of the House Committee on Education,
the President of the PCC Alumni Association as well as the President of the Chamber
of Commerce of the Philippines). Whereas, among others, the NEDA Director-
General, the Secretary of Industry and the Secretary of Labor are members of the
PUP Board of Regents. (section 6, P.D. 1341)
d) The decree moreover transferred to the new university all the properties including
"equipment and facilities:"
". . . owned by the Philippine College of Commerce and such other

National Schools as may be integrated . . . including
their obligations and appropriations . . ." (sec. 12; emphasis supplied) 3
But these are hardly indicia of an intent to abolish an existing institution and to create a new one.
New course offerings can be added to the curriculum of a school without affecting its legal existence.
Nor will changes in its existing structure and organization bring about its abolition and the creation of
a new one. Only an express declaration to that effect by the lawmaking authority will.
The Court of Appeals also cites the provision of P.D. No. 1341 as allegedly implying the abolition of
the PCC and the creation of a new one - the PUP - in its stead:
§12. All parcels of land, buildings, equipment and facilities owned by the Philippine
College of Commerce and such other national schools as may be integrated by virtue
of this decree, including their obligations and appropriations thereof, shall stand
transferred to the Polytechnic University of the Philippines, provided, however, that
said national schools shall continue to receive their corresponding shares from the
special education fund of the municipal/provincial/city government concerned as are
now enjoyed by them in accordance with existing laws and/or decrees.
The law does not state that the lands, buildings and equipment owned by the PCC were being
"transferred" to the PUP but only that they "stand transferred" to it. "Stand transferred" simply
means, for example, that lands transferred to the PCC were to be understood as transferred to the
PUP as the new name of the institution.
But the reinstatement of petitioner to the position of president of the PUP could not be ordered by
the trial court because on June 10, 1978, P.D. No. 1437 had been promulgated fixing the term of
office of presidents of state universities and colleges at six (6) years, renewable for another term of
six (6) years, and authorizing the President of the Philippines to terminate the terms of incumbents
who were not reappointed. P.D. No. 1437 provides:
§6. The head of the university or college shall be known as the President of the
university or college. He shall be qualified for the position and appointed for a term of
six (6) years by the President of the Philippines upon recommendation of the
Secretary of Education and Culture after consulting with the Board which may be
renewed for another term upon recommendation of the Secretary of Education and
Culture after consulting the Board. In case of vacancy by reason of death, absence
or resignation, the Secretary of Education and Culture shall have the authority to
designate an officer in charge of the college or university pending the appointment of
the President.
The powers and duties of the President of the university or college, in addition to
those specifically provided for in this Decree shall be those usually pertaining to the
office of the president of a university or college.
§7. The incumbent president of a chartered state college or university whose term
may be terminated according to this Decree, shall be entitled to full retirement
benefits: provided that he has served the government for at least twenty (20) years;
and provided, further that in case the number of years served is less than 20 years,
he shall be entitled to one month pay for every year of service.
In this case, Dr. Pablo T. Mateo Jr., who had been acting president of the university since April 3,
1979, was appointed president of PUP for a term of six (6) years on March 28, 1980, with the result
that petitioner's term was cut short. In accordance with §7 of the law, therefore, petitioner became
entitled only to retirement benefits or the payment of separation pay. Petitioner must have
recognized this fact, that is why in 1992 he asked then President Aquino to consider him for
appointment to the same position after it had become vacant in consequence of the retirement of Dr.
Prudente.
WHEREFORE, the decision of the Court of Appeals is MODIFIED by SETTING ASIDE the
questioned orders of the Regional Trial Court directing the reinstatement of the petitioner Isabelo T.
Crisostomo to the position of president of the Polytechnic University of the Philippines and the
payment to him of salaries and benefits which he failed to receive during his suspension in so far as
such payment would include salaries accruing after March 28, 1980 when petitioner Crisostomo's
term was terminated. Further proceedings in accordance with this decision may be taken by the trial
court to determine the amount due and payable to petitioner by the university up to March 28, 1980.
SO ORDERED.
Regalado, Romero and Torres, Jr., JJ., concur.
Puno, J., took no part.
Footnotes
* The original title of this case, "Hon. Teresita Dy-Liaco Flores, as Presiding Judge, RTC,
Branch 46, Manila, Elmer R. Melgas, as Sheriff IV of Manila and Isabelo T. Crisostomo,
petitioners, v. The Court of Appeals and the People of the Philippines, respondents," has
been changed by omitting the names of the first two petitioners who were merely nominal
parties in the Court of Appeals.
1 Judgment in CCC-VI-2329-2331, pp. 2-3.
2 Per Justice Lorna Lombos-De la Fuente, chairman, and concurred in by Justices Cesar D.
Francisco and Cancio C. Garcia, members.
3 Rollo, p. 148, Decision, p. 4.
EN BANC
G.R. No. 115844 August 15, 1997
CESAR G. VIOLA, Chairman, Brgy. 167, Zone 15, District II, Manila, petitioner,
vs.
HON. RAFAEL M. ALUNAN III, Secretary DILG, ALEX L. DAVID, President/Secretary General,
National Liga ng mga Barangay, LEONARDO L. ANGAT, President, City of Manila, Liga ng mga
Barangay, respondents.
MENDOZA, J.:
This is a petition for prohibition challenging the validity of Art. III, §§ 1-2 of the Revised Implementing
Rules and Guidelines for the General Elections of the Liga ng mga Barangay Officers so far as they
provide for the election of first, second and third vice presidents and for auditors for the National Liga
ng mga Barangay and its chapters. The provisions in question read:
§1. Local Liga Chapters. The Municipal, City, Metropolitan and Provincial Chapters
shall directly elect the following officers and directors to constitute their respective
Board of Directors, namely:
1.1 President
1.2 Executive Vice-President
1.3 First Vice-President

1.4 Second Vice-President
1.5 Third Vice-President
1.6 Auditor
1.7 Five (5) Directors
§2. National Liga. The National Liga shall directly elect the following officers and
directors to constitute the National Liga Board of Directors namely:
2.1 President
2.6 Secretary General
2.7 Auditor
Petitioner Cesar G. Viola brought this action as barangay chairman of Brgy. 167, Zone 15, District II,
Manila against then Secretary of Interior and Local Government Rafael M. Alunan III, Alex L. David,
president/secretary general of the National Liga ng mga Barangay, and Leonardo L. Angat, president
of the City of Manila Liga ng mga Barangay, to restrain them from carrying out the elections for the
questioned positions on July 3, 1994.
Petitioner's contention is that the positions in question are in excess of those provided in the Local
Government Code (R.A. No. 7160), §493 of which mentions as elective positions only those of
president, vice president, and five members of the board of directors in each chapter at the
municipal, city, provincial, metropolitan political subdivision, and national levels. Petitioner argues
that, in providing for the positions of first, second and third vice presidents and auditor for each
chapter, §§1-2 of the Implementing Rules expand the number of positions authorized in §493 of the
Local Government Code in violation of the principle that implementing rules and regulations cannot
add or detract from the provisions of the law they are designed to implement.
Although the elections are now over, the issues raised in this case are likely to arise again in future
elections of officers of the Liga ng mga Barangay. For one thing, doubt may be cast on the validity of
the acts of those elected. For another, this comes within the rule that courts will decide a question
which is otherwise moot and academic if it is "capable of repetition, yet evading review." 1
We will therefore proceed to the merits of this case.

Petitioner's contention that the additional positions in question have been created without authority of
law is untenable. To begin with, the creation of these positions was actually made in the Constitution
and By-laws of the Liga ng Mga Barangay, which was adopted by the First Barangay National
Assembly on January 11, 1994. This Constitution and By-laws provide in pertinent parts:
ARTICLE VI
OFFICERS AND DIRECTORS
Sec. 1. Organization of Board of Directors of Local Chapters. — The chapters shall

directly elect their respective officers, namely, a president; executive vice president;
first, second, and third vice presidents; auditor; and five (5) members to constitute
the Board of Directors of their respective chapter. Thereafter, the Board shall appoint
a secretary, treasurer, and public relations officer from among the five (5) members,
with the rest serving as Directors of Board. The Board may create such other
positions as it may deem necessary for the management of the chapter. Pending
elections of the president of the municipal, city, provincial and metropolitan chapters
of the Liga, the incumbent presidents of the ABCs of the municipality, city province
and Metropolitan Manila shall continue to act as presidents of the corresponding Liga
chapters, subject to the provisions of the Local Government Code of 1991.
Sec. 2. Organization of Board of Directors of the National Liga. — The National Liga
shall be composed of the presidents of the provincial Liga chapters, highly urbanized
and independent component city chapters, and the metropolitan chapter who shall
directly elect their respective officers, namely, a president, executive vice president;
first, second, and third vice president, auditor, secretary general; and five (5)
members to constitute the Board of Directors of the National Liga. Thereafter, the
Board shall appoint a treasurer, secretary and public relations officers from among
the five (5) members with the rest serving as directors of the Board. The Board may
create such other positions as it may deem necessary for the management of the
National Liga. Pending election of Secretary-General, the incumbent president of the
Pambansang Katipunan ng mga Barangay (PKB) shall act as the Secretary-General.
The incumbent members of the Board of the PKB, headed by the Secretary-General
who continue to be presidents of the respective chapters of the Liga to which they
belong, shall constitute a committee to exercise the powers and duties of the
National Liga and with the primordial responsibility of drafting a Constitution and By-
Laws needed for the organization of the Liga as a whole pursuant to the provisions of
the Local Government Code of 1991.
The post of executive vice president is in reality that of the vice president in §493 of the LGC, so that
the only additional positions created for each chapter in the Constitution and By-laws are those of
first, second and third vice presidents and auditor. Contrary to petitioner's contention, the creation of
the additional positions is authorized by the LGC which provides as follows:
§493. Organization. The liga at the municipal, city, provincial, Metropolitan political
subdivision, and national levels directly elect a president, a vice-president, and five
(5) members of the board of directors. The board shall appoint its secretary and
treasurer and create such other positions as it may deem necessary for the
management of the chapter. A secretary-general shall be elected form among the
members of the national liga and shall be charged with the overall operation of the
liga on the national level. The board shall coordinate the activities of the chapters of
the liga. (emphasis added)
This provision in fact requires — and not merely authorizes the board of directors to "create such
other positions as it may deem necessary for the management of the chapter" and belies petitioner's
claim that said provision (§493) limits the officers of a chapter to the president, vice president, five
members of the board of directors, secretary, and treasurer. That Congress can delegate the power
to create positions such as these has been settled by our decisions upholding the validity of
reorganization statutes authorizing the President of the Philippines to create, abolish or merge
officers in the executive department. The question is whether, in making a delegation of this power
2
to the board of directors of each chapter of the Liga ng Mga Barangay, Congress provided a
sufficient standard so that, in the phrase of Justice Cardozo, administrative discretion may be
"canalized within proper banks that keep it from overflowing." 3
Statutory provisions authorizing the President of the Philippines to make reforms and changes in
government owned or controlled corporations for the purpose of promoting "simplicity, economy and
efficiency" in their operations and empowering the Secretary of Education to prescribe minimum
4
standards of "adequate and efficient instruction" in private schools and colleges have been found to
5
be sufficient for the purpose of valid delegation. Judged by these cases, we hold that §493 of the
Local Government Code, in directing the board of directors of the liga to "create such other positions
as may be deemed necessary for the management of the chapter[s]," embodies a fairly intelligible
standard. There is no undue delegation of power by Congress.
Justice Davide contends in dissent, however, that "only the Board of Directors — and not any other
body — is vested with the power to create other positions as may be necessary for the management
of the chapter" and that, in any case, there is no showing that the Barangay National Assembly was
authorized to draft the Constitution and By-laws because he is unable to find any creating it. The
Barangay National Assembly is actually the Pambansang Katipunan ng mga Barangay (PKB)
referred to in Art. 210(f)(2)(3) of the Rules and Regulations Implementing the Local Government
Code of 1991, which Justice Davide's dissent cites. It will be helpful to quote these provisions:
(2) A secretary-general shall be elected from among the members of the national liga
who shall be responsible for the overall operation of the liga. Pending election of a
secretary-general under this rule, the incumbent president of the pambansang
katipunan ng mga barangay shall act as the secretary-general. The incumbent
members of the board of the pambansang katipunan ng mga barangay, headed by
the secretary-general, who continue to be presidents of the respective chapters of
the liga to which they belong, shall constitute a committee to exercise the powers
and duties of the national liga and draft or amend the constitution and by-laws of the
national liga to conform to the provisions of this Rule.
(3) The board of directors shall coordinate the activities of the various chapters of the
liga.
(Emphasis added)
Pursuant to these provisions, pending the organization of the Liga ng mga Barangay, the board of
directors of the PKB was constituted into a committee, headed by the PKB president, who acted as
secretary general, with a two-fold mandate: "[I] exercise the powers and duties of the national liga
and [2] draft or amend the constitution and by-laws of the national liga to conform to the provisions of
this Rule." The board of directors of the PKB, functioning in place of the board of directors of the
National Liga ng mga Barangay, exercised one of these powers of the National Liga board, namely,
to create additional positions which it deemed necessary for the management of a chapter. There is
therefore no basis for the claim that because the power to create additional positions in the Liga on
its chapters is vested only in the board of directors the exercise of this power by the Barangay
National Assembly is unauthorized and illegal and positions created are void. The Barangay National
Assembly was actually the Pambansang Katipunan ng mga Barangay or PKB. Pending the
organization of the Liga ng mga Barangay, it served as the Liga.
But it is contended in the dissent that "Section 493 of the LGC . . . vests the power to create
additional positions in the Board of Directors of the chapter." The implication seems to be that the
board of the directors at the national level did not have that power. It is necessary to consider the
organizational structure of the Liga ng mga Barangay as provided in the LGC, as follows:
§492. Representation, Chapters, National Liga. — Every barangay shall be

represented in said liga by the punong barangay, or in his absence or incapacity, by
a sangguniang member duly elected for the purpose among its members, who shall
attend all meetings or deliberations called by the different chapters of the liga.
The liga shall have chapters at the municipal, city, provincial and metropolitan
political subdivision levels.
The municipal and city chapters of the liga shall be composed of the barangay
representatives of municipal and city barangays, respectively. The duly elected
presidents of component municipal and city chapters shall constitute the provincial
chapter or the metropolitan political subdivision chapter. The duly elected presidents
of highly-urbanized cities, provincial chapters, the Metropolitan Manila chapter and
metropolitan political subdivision chapters shall constitute the National Liga ng mga
Barangay.
§493. Organization. — The liga at the municipal, city, provincial, metropolitan political
management of the chapter. A secretary-general shall be elected from among the
the liga.
(Emphasis added)
While the board of directors of a local chapter can create additional positions to provide for the
needs of the chapter, the board of directors of the National Liga must be deemed to have the power
to create additional positions not only for its management but also for that of all the chapters at the
municipal, city, provincial and metropolitan political subdivision levels. Otherwise the National Liga
would be no different from the local chapters. There would then be only so many local chapters
without a national one, when what is contemplated in the above-quoted provisions of the LGC is that
there should be one Liga ng mga Barangay with local chapters at all levels of local government
units. The dissent, by denying to the board of directors at the National Liga the power to create
additional positions in the local chapters, would reduce such board to a board of a local chapter. The
fact is that §493 grants the power to create positions not only to the boards of the local chapters but
to the board of the Liga at the national level as well.
Indeed what was done in the Constitution and By-laws of their liga was to create additional positions
in each chapters, whether national or local, without however precluding the boards of directors of the
chapters as well as that of the national liga from creating other positions for their peculiar needs. The
creation by the board of the National Liga of the positions of first, second and third vice presidents,
auditors and public relations officers was intended to provide uniform officers for the various
chapters in line with the mandate in Art. 210(g)(2) of the Rules and Regulations Implementing the
Local Government Code of 1991 to the Barangay National Assembly to
"formulate uniform constitution and by-laws applicable to the national liga and all local chapters." The
various chapters could have different minor officers depending on their local needs, but they must
have the same major elective officers, meaning to say, the additional vice-presidents and auditors.
The dissent further argues that, following the rule of ejusdem generis, what may be created as
additional positions can only be appointive ones because the positions of secretary and treasurer
are appointive positions. The rule might apply if what is involved is the appointment of other officers.
But what we are dealing with in this case is the creation of additional positions. Section 493 actually
gives the board the power to "[1] appoint its secretary and treasurer and [2] create such other
positions as it may deem necessary for the management of the chapter." The additional positions to
be created need not therefore be appointive positions.
Nor is it correct to say that §493, in providing that additional positions to be created must be those
which are "deemed necessary for the management of the chapter," contemplates only appointive
positions. Management positions are not necessarily limited to appointive positions. Elective officers,
such as the president and vice-president, can be expected to be involved in the general
administration or management of the chapter. Hence, the creation of other elective positions which
may be deemed necessary for the management of the chapter is within the purview of §493.
WHEREFORE, the petition for prohibition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Bellosillo, Melo, Puno, Kapunan, Francisco and Hermosisima, Jr.,
JJ., concur.
Torres, Jr., J., is on leave.
Separate Opinions
DAVIDE, JR., J., dissenting;
In light of the disclosure in the revised ponencia that the creation of the questioned additional
positions of Executive Vice-President, First, Second and Third Vice-Presidents, and Auditor,
embodied in Article III of the Revised Implementing Rules and Guidelines for the General Elections
of Liga ng Mga Barangay Officers was made by way of the Constitution and By Laws adopted by the
First Barangay National Assembly on 11 January 1994, the ultimate issue then to be resolved is
whether or not the Barangay Assembly is empowered to create said additional positions.
Section 493 of the Local Government Code of 1991 (LGC) specifically provides as follows:
§493. Organization. The liga at the municipality, city, provincial, metropolitan political
the liga. (Emphasis supplied).
Article VI of the Constitution and By-Laws of the Liga ng Mga Barangay provides as follows:
ARTICLE VI
Sec. 1. Organization of Board of Directors of Local Chapters. — The chapter shall

directly elect their respective officers, namely a president; executive vice
president; first, second, and third vice-presidents; auditor; and five (5) members to
constitute the Board of Directors of their respective chapter. Thereafter, the Board
shall appoint a secretary, treasurer, and public relations officers from among the five
(5) members, with rest serving as Directors of Board. The Board may create such
other positions as it may deem necessary for the management of the chapter.
Pending elections of the president of the municipality, city, provincial and
metropolitan chapters of the Liga, the incumbent presidents of the ABCs of the
municipality, city, province and Metropolitan Manila shall continue to act as
presidents of the corresponding Liga chapters, subject to the provisions of the Local
Government Code of 1991.
directly elect their respective officers, namely, a president, executive vice
president; first, second, and third vice presidents, auditor, secretary general; and five
(5) members to constitute the Board of Directors of the National Liga. Thereafter, the
Pambansang Katipunan ng mga Barangay (PKB) shall act as the Secretary-General
the Local Government Code of 1991. (Emphasis supplied).
Sections 1 and 2 of Article III of the Revised Implementing Rules and Guidelines for the General
Elections of Liga ng Mga Barangay Officers read as follows:
§1. Local Liga Chapters. The Municipal City Metropolitan and Provincial Chapters
1.1 President

1.6 Auditor
2.1 President
2.7 Auditor
To implement Section 493 of the Local Government Code, Article 211(f) of the Rules and
Regulations Implementing the Local Government Code of 1991 provides:
(f) Organizational Structure —
(1) The national liga and its local chapters shall

directly elect their respective officers, namely: a
president, vice president, and five (5) members of the
board of directors. The board shall appoint its
secretary and treasurer and create such other
positions as it may deem necessary for the
management of the chapter. Pending election of
presidents of the municipal, city, provincial, and
metropolitan chapters of the liga, the incumbent
presidents of the association of barangay councils in
the municipality, city, province, and Metropolitan
Manila shall continue to act as presidents of the
corresponding chapters under this Rule. (Emphasis
supplied).
(2) A secretary-general shall be elected from among
the members of the national liga who shall be
responsible for the overall operation of the liga.
Pending election of a secretary-general under this
rule, the incumbent president of the pambansang
katipunan ng mga barangay shall act as the
secretary-general. This incumbent members of the
board of the pambansang katipunan ng mga
barangay, headed by the secretary-general, who
continue to be presidents of the respective chapters
of the liga to which they belong, shall constitute a
committee to exercise the powers and duties of the
national liga and draft or amend the constitution and
by-laws of the national liga to conform to the
provisions of this Rule.
(3) The board of directors shall coordinate the

activities of the various chapters of the liga.
It may readily be observed that Section 493 of the LGC and Article 211(f) of the Implementing Rules
are clear that the officers of the national liga and its local chapters are: (1) the President, (2) Vice
President and (3) five (5) members of the Board of Directors. In turn, it is the Board of Directors
which appoints the secretary and treasurer and is empowered to "create such other positions as it
may deem necessary for the management of the chapter concerned." It is, therefore, unequivocally
clear that only the Board of Directors — and not any other body — which is vested with the power to
create other positions as may be necessary for the management of the chapter.
The ponencia maintains that since the questioned positions were provided for in the Constitution and
By-Laws of the Liga ng Mga Barangay adopted during its First Barangay National Assembly on 11
January 1994, then such additional positions "were as much the creations of the local chapters as of
the national league. The barangay themselves, through the constitution and by-laws of their liga,
created the additional positions without precluding the boards of directors of the chapters as well as
that of the national liga from creating other positions."
I beg to differ. In the first place, I am unable to find any provision of the LGC creating or establishing
the Barangay National Assembly. What the LGC has created is the Liga ng Mga Barangay (Sec.
491) with local chapters at the municipal, city, provincial and metropolitan subdivision levels (Sec.
492). Under the Implementing Rules of the LGC (Art. 211[e][4]), the National Liga Ng Mga Barangay
is composed of the duly elected presidents of highly urbanized city chapters, provincial chapters and
metropolitan chapters.
Pursuant to Article 211[f][2] of the Implementing Rules, the members of the Board of the
Pambansang Katipunan ng Mga Barangay, headed by the Secretary-General, were constituted into
a committee to exercise the powers and duties of the national liga and draft or amend the
Constitution and By-Laws of the Liga. There is at all no showing that this committee was the so-
called First Barangay National Assembly which convened on 11 January 1994.
Second, even assuming that the committee was the so-called First Barangay National Assembly of
11 January 1994, said committee was not authorized to create, by virtue of the Constitution and By-
Laws it enacted additional positions for the national liga and the liga at the local levels. The
aforementioned Article 211(g), limits the power of this committee, as follows:
(g) Constitution and By-Laws of the Liga —
(1) All other matters not provided under this Rule

affecting the internal organization of the liga shall be
governed by its constitution and by-laws, unless
inconsistent with the Constitution and applicable laws,
rules and regulations.
(2) The committee created in this Article shall

formulate uniform constitution and by-laws applicable
to the national liga and all local chapters. The
committee shall convene the national liga to ratify the
constitution and by-laws within six (6) months from
issuance of these Rules.
Note that the constitution and by-laws which the committee may enact must not be inconsistent
with . . . "applicable laws, rules and regulations." Of course, one of the laws that come to mind is the
LGC of 1991 and the rules and regulations could nothing be than the Rules Implementing the Local
Government Code of 1991. It goes without saying that the LGC and its Implementing Rules must
perforce be heeded. It bears repeating that as they stand, Section 493 of the LGC and Article 211 (f)
of the Implementing Rules limit the officers to the: President, Vice President and the board of
directors composed of five (5) members. The latter then appoints a secretary and a treasurer and
may create such other positions as it may deem necessary for the management of the chapter.
Plainly, neither the LGC nor the Implementing Rules authorizes any person or entity, other than the
Board of Directors, to create additional positions.
Third, it would be a clear case of judicial legislation to declare that since the additional positions
were created in the Constitution and By-Laws of the Liga ng Mga Barangay, then they "were as
much as the creations of the local chapters as of the national league." This runs afoul of Section 493
of the LGC which vests the power to create additional positions only in the Board of Director of the
chapter.
The claim in the ponencia that the creation of additional positions in the Constitution and By-Laws
does not preclude the board of directors of the chapter as well as that of the national liga from
creating other positions, is inconsistent with the earlier proposition that such new positions, "were as
much the creations of the local chapters and the league" and the further justification proferred that
the creation of the national positions "was intended to provide uniform officers for the various
chapters and the national liga was in line with the mandate of the assembly to "formulate uniform
constitution and by-laws applicable to the national liga and all local chapters." If this were so, then
the chapters are barred from creating additional positions other than those created in the
Constitution and By-Laws of the Liga ng Mga Barangay.
Finally, it may likewise be observed that Section 493 merely allows the creation of
other appointive positions "as it may deem necessary for the management of the chapter." I lay
stress on the term "appointive," in light of the clause preceding the grant of the power, which reads:
"The board shall appoint its secretary and treasurer. Following the rule of ejusdem generis in
statutory construction, the "other positions" which may be created must be of the same
category, viz., APPOINTIVE, as that of secretary and treasurer. These other positions may then be
that of an assistant secretary, assistant treasurer, auditor, public relations officer, or information
officer, or even a sergeant-at-arms. Further, under Section 493, the new positions which may be
created are those "deemed necessary for the management of the chapter," which may only pertain
to the day-to-day business and affairs of the liga chapter, and not to policy formulation which may be
exercised the executive officers and Board of Directors. In short, the section does not empower the
local liga to create elective positions other than that of President, Vice-President and Board of
Directors.
For the foregoing reasons, I vote to declare void, for lack of legislative authority Sections 1 and 2 of
Article III of the Implementing Rules and Guidelines for the General Elections of the Liga ng Mga
Barangay Officers, and Sections 1 and 2 of Article VI of the Constitution and By-Laws of the Liga ng
Mga Barangay, insofar as they relate to the creation of the positions of executive vice president, first,
second and third vice-presidents, and auditor.
Romero, Vitug and Panganiban, JJ., concur.
Separate Opinions
DAVIDE, JR., J., dissenting;
In light of the disclosure in the revised ponencia that the creation of the questioned additional
positions of Executive Vice-President, First, Second and Third Vice-Presidents, and Auditor,
embodied in Article III of the Revised Implementing Rules and Guidelines for the General Elections
of Liga ng Mga Barangay Officers was made by way of the Constitution and By Laws adopted by the
First Barangay National Assembly on 11 January 1994, the ultimate issue then to be resolved is
whether or not the Barangay Assembly is empowered to create said additional positions.
Section 493 of the Local Government Code of 1991 (LGC) specifically provides as follows:
§493. Organization. The liga at the municipality, city, provincial, metropolitan political
the liga. (Emphasis supplied).
Article VI of the Constitution and By-Laws of the Liga ng Mga Barangay provides as follows:
ARTICLE VI
Sec. 1. Organization of Board of Directors of Local Chapters. — The chapter shall

directly elect their respective officers, namely a president; executive vice
president; first, second, and third vice-presidents; auditor; and five (5) members to
constitute the Board of Directors of their respective chapter. Thereafter, the Board
shall appoint a secretary, treasurer, and public relations officers from among the five
(5) members, with rest serving as Directors of Board. The Board may create such
other positions as it may deem necessary for the management of the chapter.
Pending elections of the president of the municipality, city, provincial and
metropolitan chapters of the Liga, the incumbent presidents of the ABCs of the
municipality, city, province and Metropolitan Manila shall continue to act as
presidents of the corresponding Liga chapters, subject to the provisions of the Local
Government Code of 1991.
directly elect their respective officers, namely, a president, executive vice
president; first, second, and third vice presidents, auditor, secretary general; and five
(5) members to constitute the Board of Directors of the National Liga. Thereafter, the
Pambansang Katipunan ng mga Barangay (PKB) shall act as the Secretary-General
the Local Government Code of 1991. (Emphasis supplied).
Sections 1 and 2 of Article III of the Revised Implementing Rules and Guidelines for the General
Elections of Liga ng Mga Barangay Officers read as follows:
§1. Local Liga Chapters. The Municipal City Metropolitan and Provincial Chapters
1.1 President
1.6 Auditor
2.1 President

2.7 Auditor
To implement Section 493 of the Local Government Code, Article 211(f) of the Rules and
Regulations Implementing the Local Government Code of 1991 provides:
(f) Organizational Structure —
(1) The national liga and its local chapters shall

directly elect their respective officers, namely: a
president, vice president, and five (5) members of the
board of directors. The board shall appoint its
secretary and treasurer and create such other
positions as it may deem necessary for the
management of the chapter. Pending election of
presidents of the municipal, city, provincial, and
metropolitan chapters of the liga, the incumbent
presidents of the association of barangay councils in
the municipality, city, province, and Metropolitan
Manila shall continue to act as presidents of the
corresponding chapters under this Rule. (Emphasis
supplied).
(2) A secretary-general shall be elected from among

the members of the national liga who shall be
responsible for the overall operation of the liga.
Pending election of a secretary-general under this
rule, the incumbent president of the pambansang
katipunan ng mga barangay shall act as the
secretary-general. This incumbent members of the
board of the pambansang katipunan ng mga
barangay, headed by the secretary-general, who
continue to be presidents of the respective chapters
of the liga to which they belong, shall constitute a
committee to exercise the powers and duties of the
national liga and draft or amend the constitution and
by-laws of the national liga to conform to the
provisions of this Rule.
(3) The board of directors shall coordinate the

activities of the various chapters of the liga.
It may readily be observed that Section 493 of the LGC and Article 211(f) of the Implementing Rules
are clear that the officers of the national liga and its local chapters are: (1) the President, (2) Vice
President and (3) five (5) members of the Board of Directors. In turn, it is the Board of Directors
which appoints the secretary and treasurer and is empowered to "create such other positions as it
may deem necessary for the management of the chapter concerned." It is, therefore, unequivocally
clear that only the Board of Directors — and not any other body — which is vested with the power to
create other positions as may be necessary for the management of the chapter.
The ponencia maintains that since the questioned positions were provided for in the Constitution and
By-Laws of the Liga ng Mga Barangay adopted during its First Barangay National Assembly on 11
January 1994, then such additional positions "were as much the creations of the local chapters as of
the national league. The barangay themselves, through the constitution and by-laws of their liga,
created the additional positions without precluding the boards of directors of the chapters as well as
that of the national liga from creating other positions."
I beg to differ. In the first place, I am unable to find any provision of the LGC creating or establishing
the Barangay National Assembly. What the LGC has created is the Liga ng Mga Barangay (Sec.
491) with local chapters at the municipal, city, provincial and metropolitan subdivision levels (Sec.
492). Under the Implementing Rules of the LGC (Art. 211[e][4]), the National Liga Ng Mga Barangay
is composed of the duly elected presidents of highly urbanized city chapters, provincial chapters and
metropolitan chapters.
Pursuant to Article 211[f][2] of the Implementing Rules, the members of the Board of the
Pambansang Katipunan ng Mga Barangay, headed by the Secretary-General, were constituted into
a committee to exercise the powers and duties of the national liga and draft or amend the
Constitution and By-Laws of the Liga. There is at all no showing that this committee was the so-
called First Barangay National Assembly which convened on 11 January 1994.
Second, even assuming that the committee was the so-called First Barangay National Assembly of
11 January 1994, said committee was not authorized to create, by virtue of the Constitution and By-
Laws it enacted additional positions for the national liga and the liga at the local levels. The
aforementioned Article 211(g), limits the power of this committee, as follows:
(g) Constitution and By-Laws of the Liga —
(1) All other matters not provided under this Rule

affecting the internal organization of the liga shall be
governed by its constitution and by-laws, unless
inconsistent with the Constitution and applicable laws,
rules and regulations.
(2) The committee created in this Article shall

formulate uniform constitution and by-laws applicable
to the national liga and all local chapters. The
committee shall convene the national liga to ratify the
constitution and by-laws within six (6) months from
issuance of these Rules.
Note that the constitution and by-laws which the committee may enact must not be inconsistent
with . . . "applicable laws, rules and regulations." Of course, one of the laws that come to mind is the
LGC of 1991 and the rules and regulations could nothing be than the Rules Implementing the Local
Government Code of 1991. It goes without saying that the LGC and its Implementing Rules must
perforce be heeded. It bears repeating that as they stand, Section 493 of the LGC and Article 211 (f)
of the Implementing Rules limit the officers to the: President, Vice President and the board of
directors composed of five (5) members. The latter then appoints a secretary and a treasurer and
may create such other positions as it may deem necessary for the management of the chapter.
Plainly, neither the LGC nor the Implementing Rules authorizes any person or entity, other than the
Board of Directors, to create additional positions.
Third, it would be a clear case of judicial legislation to declare that since the additional positions
were created in the Constitution and By-Laws of the Liga ng Mga Barangay, then they "were as
much as the creations of the local chapters as of the national league." This runs afoul of Section 493
of the LGC which vests the power to create additional positions only in the Board of Director of the
chapter.
The claim in the ponencia that the creation of additional positions in the Constitution and By-Laws
does not preclude the board of directors of the chapter as well as that of the national liga from
creating other positions, is inconsistent with the earlier proposition that such new positions, "were as
much the creations of the local chapters and the league" and the further justification proferred that
the creation of the national positions "was intended to provide uniform officers for the various
chapters and the national liga was in line with the mandate of the assembly to "formulate uniform
constitution and by-laws applicable to the national liga and all local chapters." If this were so, then
the chapters are barred from creating additional positions other than those created in the
Constitution and By-Laws of the Liga ng Mga Barangay.
Finally, it may likewise be observed that Section 493 merely allows the creation of
other appointive positions "as it may deem necessary for the management of the chapter." I lay
stress on the term "appointive," in light of the clause preceding the grant of the power, which reads:
"The board shall appoint its secretary and treasurer. Following the rule of ejusdem generis in
statutory construction, the "other positions" which may be created must be of the same
category, viz., APPOINTIVE, as that of secretary and treasurer. These other positions may then be
that of an assistant secretary, assistant treasurer, auditor, public relations officer, or information
officer, or even a sergeant-at-arms. Further, under Section 493, the new positions which may be
created are those "deemed necessary for the management of the chapter," which may only pertain
to the day-to-day business and affairs of the liga chapter, and not to policy formulation which may be
exercised the executive officers and Board of Directors. In short, the section does not empower the
local liga to create elective positions other than that of President, Vice-President and Board of
Directors.
For the foregoing reasons, I vote to declare void, for lack of legislative authority Sections 1 and 2 of
Article III of the Implementing Rules and Guidelines for the General Elections of the Liga ng Mga
Barangay Officers, and Sections 1 and 2 of Article VI of the Constitution and By-Laws of the Liga ng
Mga Barangay, insofar as they relate to the creation of the positions of executive vice president, first,
second and third vice-presidents, and auditor.
Romero, Vitug and Panganiban, JJ., concur.
Footnotes
1 Southern Pac. Terminal Co. v. ICC. 219 U.S. 498. 55 L.Ed. 310 (1911): Moore v.
Ogilvie, 394 U.S. 814, 23 L.Ed. 2d 1 (1969) (challenge to signature requirement on
nominating petitions, election had been held before the U.S. Supreme Court could
decide case): Dunn v. Blumstein, 405 U.S. 330, 31 L.Ed.2d 274 (1972) (U.S.
Supreme Court decided merits of a challenge to durational residency requirement for
voting even though Blumstein had in the meantime satisfied that requirement).
2 See Cervantes v. Auditor General, 91 Phil. 359 (1952) (R.A. No. 51 valid). Cf.
David v. Alaska Lumber Co., 115 Phil. 191 (1962) (impliedly holding R.A. No. 997, the
Reorganization Act Valid). Corominas and Co. v. Labor Standards Commission, 112
Phil. 551 (1961); San Miguel Corp. v. Sobremesana, 113 Phil 14 (1961).
3 Panama Refining Co. v. Ryan, 293 U.S. 388, 440, 79 L.Ed. 446, 469 (1935)
(dissenting). A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 79 L.Ed.
1570, 1591 (1985) (concurring).
4 Cervantes v. Auditor General, 91 Phil. at 364.
5 PACU v. Secretary of Educ., 97 Phil. 806, 814 (1955).
SECOND DIVISION
G.R. No. 131255. May 20, 1998
HON. EDUARDO NONATO JOSON, in his capacity as the

Governor of the Province of Nueva
Ecija, Petitioner, v. EXECUTIVE SECRETARY RUBEN D. TORRES,
the DEPARTMENT OF THE INTERIOR & LOCAL
GOVERNMENTS, represented by SECRETARY ROBERT Z.
BARBERS and UNDERSECRETARY MANUEL R. SANCHEZ, MR.
OSCAR C. TINIO, in his capacity as Provincial Vice-Governor
of Nueva Ecija, and MR. LORETO P. PANGILINAN, MR.
CRISPULO S. ESGUERRA, MS. SOLITA C. SANTOS,
MR.VICENTE C. PALILIO, and MR. NAPOLEON G. INTERIOR, in
their capacity as Provincial Board Members of Nueva
Ecija, Respondents.
DECISION
PUNO, J.:
The case at bar involves the validity of the suspension from office of
petitioner Eduardo Nonato Joson as Governor of the province of
Nueva Ecija. Private respondent Oscar C. Tinio is the Vice-Governor
of said province while private respondents Loreto P. Pangilinan,
Crispulo S. Esguerra, Solita C. Santos, Vicente C. Palilio and
Napoleon G. Interior are members of the Sangguniang
Panlalawigan.
On September 17, 1996, private respondents filed with the Office of

the President a letter-complaint dated September 13, 1997 charging
petitioner with grave misconduct and abuse of authority. Private
respondents alleged that in the morning of September 12, 1996,
they were at the session hall of the provincial capitol for a scheduled
session of the Sangguniang Panlalawigan when petitioner
belligerently barged into the Hall; petitioner angrily kicked the door
and chairs in the Hall and uttered threatening words at them; close
behind petitioner were several men with long and short firearms
who encircled the area. Private respondents claim that this incident
was an offshoot of their resistance to a pending legislative measure
supported by petitioner that the province of Nueva Ecija obtain a
loan of P150 million from the Philippine National Bank; that
petitioner's acts were intended to harass them into approving this
loan; that fortunately, no session of the Sangguniang Panlalawigan
was held that day for lack of quorum and the proposed legislative
measure was not considered; that private respondents opposed the
loan because the province of Nueva Ecija had an unliquidated
obligation of more than P70 million incurred without prior
authorization from the Sangguniang Panlalawigan; that the
provincial budget officer and treasurer had earlier disclosed that the
province could not afford to contract another obligation; that
petitioner's act of barging in and intimidating private respondents
was a serious insult to the integrity and independence of the
Sangguniang Panlalawigan; and that the presence of his private
army posed grave danger to private respondents' lives and safety.
Private respondents prayed for the suspension or removal of
petitioner; for an emergency audit of the provincial treasury of
Nueva Ecija; and for the review of the proposed loan in light of the
financial condition of the province, to wit:
"In this regard, we respectfully request for the following assistance

from your good office:
1. To immediately suspend Governor N. [sic] Joson considering the

actual dangers that we are facing now, and provide adequate police
security detail for the Sangguniang Panlalawigan of Nueva Ecija.
Should the evidence warrant after investigation, to order his
removal from office.
2. To conduct an emergency audit of the provincial treasury of
Nueva Ecija by the auditors from the Commission on Audit Central
Office with adequate police security assistance. Should the evidence
so warrant, to file necessary charges against responsible and
accountable officers.
3. To advise the Philippine National Bank to review the capability of

the province of Nueva Ecija to secure more loans and the feasibility
of the same in the light of the present financial condition of the
province. Or if said loan will be contrary to sound banking practice,
recommend its disapproval."1 cräläwvirtualibräry
The letter-complaint was submitted with the joint affidavit of Elnora

Escombien and Jacqueline Jane Perez, two (2) employees of the
Sangguniang Panlalawigan who witnessed the incident. The letter
was endorsed by Congressmen Eleuterio Violago and Pacifico
Fajardo of the Second and Third Districts of Nueva Ecija, former
Congressman Victorio Lorenzo of the Fourth District, and Mayor
Placido Calma, President of the Mayors' League of said province.2 cräläwvirtualibräry
The President acted on the complaint by writing on its margin the

following:
"17 Sep 96
To: SILG info Exec. Sec. and Sec. of Justice:
1. Noted. There appears no justification for the use of

force, intimidation or armed followers in the situation of 12
Sep at the Session Hall. 2. Take appropriate preemptive
and investigative actions. 3. BREAK NOT the PEACE.
FIDEL V. RAMOS
(Signed)."3
cräläwvirtualibräry
President Ramos noted that the situation of "12 Sep at the Session
Hall," i.e., the refusal of the members of the Sangguniang
Panlalawigan to approve the proposed loan, did not appear to justify
"the use of force, intimidation or armed followers." He thus
instructed the then Secretary of the Interior and Local Governments
(SILG) Robert Barbers to "[t]ake appropriate preemptive and
investigative actions," but to "[b]reak not the peace."
The letter-complaint together with the President's marginal notes

were sent to Secretary Robert Z. Barbers on September 20, 1996.
Acting upon the instructions of the President, Secretary Barbers
notified petitioner of the case against him4 and attached to the
notice a copy of the complaint and its annexes. In the same notice,
Secretary Barbers directed petitioner "to submit [his] verified/sworn
answer thereto, not a motion to dismiss, together with such
documentary evidence that [he] has in support thereof, within
fifteen (15) days from receipt."5cräläwvirtualibräry
Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija

and summoned petitioner and private respondents to a conference
to settle the controversy. The parties entered into an agreement
whereby petitioner promised to maintain peace and order in the
province while private respondents promised to refrain from filing
cases that would adversely affect their peaceful co-existence.6 cräläwvirtualibräry
The peace agreement was not respected by the parties and the
private respondents reiterated their letter-complaint. Petitioner was
again ordered to file his answer to the letter-complaint within fifteen
days from receipt. Petitioner received a copy of this order on
November 13, 1996. On the same day, petitioner requested for an
extension of thirty (30) days to submit his answer because he was
"trying to secure the services of legal counsel experienced in
administrative law practice."7 The Department of the Interior and
Local Government (DILG), acting through Director Almario de los
Santos, Officer-In-Charge of the Legal Service, granted the motion,
with the thirty-day extension to be reckoned, however, from
November 13, 1996, i.e., the day petitioner received the order to
answer.8cräläwvirtualibräry
In a letter dated December 9, 1996, petitioner moved for another

extension of thirty (30) days to file his answer. He stated that he
had already sent letters to various law firms in Metro Manila but
that he had not yet contracted their services; that the advent of the
Christmas season kept him busy with "numerous and inevitable
official engagements."9 The DILG granted the request for extension
"for the last time up to January 13 only."10
On January 7, 1997, petitioner requested for another extension of

thirty (30) days to file his answer. According to him, the Christmas
season kept him very busy and preoccupied with his numerous
official engagements; that the law firms he invited to handle his
case have favorably replied but that he needed time to confer with
them personally; and that during this period, he, with the help of
his friends, was exploring the possibility of an amicable settlement
of the case.11 The DILG granted petitioner's request "for the last
time" but gave him an extension of only ten (10) days from January
13, 1997 to January 23, 1997. The DILG also informed him that his
"failure to submit answer will be considered a waiver and that the
plaintiff [shall] be allowed to present his evidence ex-parte."12 cräläwvirtualibräry
Petitioner moved for reconsideration of the order. He reiterated his

prayer for an extension of thirty (30) days on the following grounds:
(a) that he was still in the process of choosing competent and
experienced counsel; (b) that some law firms refused to accept his
case because it was perceived to be politically motivated; and (c)
the multifarious activities, appointments and official functions of his
office hindered his efforts to secure counsel of choice.13 cräläwvirtualibräry
Three months later, on April 22, 1997, Undersecretary Manuel

Sanchez, then Acting Secretary of the DILG, issued an order
declaring petitioner in default and to have waived his right to
present evidence. Private respondents were ordered to present their
evidence ex-parte. The order reads as follows:
"ORDER
It appearing that respondent failed to submit his answer to the

complaint despite the grant to him of three (3) extensions, such
unreasonable failure is deemed a waiver of his right to present
evidence in his behalf pursuant to Section 4, Rule 4 of
Administrative Order No. 23 dated December 17, 1992, as
amended.
Respondent is hereby declared in default, meanwhile, complainants
are directed to present their evidence ex-parte. However,
considering the prohibition on the conduct of administrative
investigation due to the forthcoming barangay elections,
complainants will be notified on the date after the barangay election
for them to present their evidence.
SO ORDERED."14 cräläwvirtualibräry
Two days later, on April 24, 1997, the law firm of Padilla, Jimenez,
Kintanar & Asuncion, representing petitioner, filed with the DILG an
"Entry of Appearance with Motion for Time to File Answer Ad
Cautelam."
Petitioner received a copy of the order of default on May 2, 1997.

Through counsel, he moved for reconsideration. On May 19, 1997,
Undersecretary Sanchez reconsidered the order of default in the
interest of justice. He noted the appearance of petitioner's counsel
and gave petitioner "for the last time" fifteen (15) days from receipt
to file his answer.15 cräläwvirtualibräry
On June 23, 1997, Undersecretary Sanchez issued an order stating

that petitioner's counsel, whose office is in Manila, should have
received a copy of the May 19, 1997 order ten days after mailing on
May 27, 1997. Since petitioner still failed to file his answer, he was
deemed to have waived his right to present evidence in his behalf.
Undersecretary Sanchez reinstated the order of default and directed
private respondents to present their evidence ex-parte on July 15,
1997.16cräläwvirtualibräry
The following day, June 24, 1997, Petitioner, through counsel, filed
a "Motion to Dismiss." Petitioner alleged that the letter-complaint
was not verified on the day it was filed with the Office of the
President; and that the DILG had no jurisdiction over the case and
no authority to require him to answer the complaint.
On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for

Reconsideration" of the order of June 23, 1997 reinstating the order
of default. Petitioner also prayed that the hearing on the merits of
the case be held in abeyance until after the "Motion to Dismiss"
shall have been resolved.
On July 11, 1997, on recommendation of Secretary Barbers,

Executive Secretary Ruben Torres issued an order, by authority of
the President, placing petitioner under preventive suspension for
sixty (60) days pending investigation of the charges against him.17 cräläwvirtualibräry
Secretary Barbers directed the Philippine National Police to assist in

the implementation of the order of preventive suspension. In
petitioner's stead, Secretary Barbers designated Vice-Governor
Oscar Tinio as Acting Governor until such time as petitioner's
temporary legal incapacity shall have ceased to exist.18 cräläwvirtualibräry
Forthwith, petitioner filed a petition for certiorari and prohibition

with the Court of Appeals challenging the order of preventive
suspension and the order of default.19 cräläwvirtualibräry
Meanwhile, the proceedings before the DILG continued. On August

20, 1997, Undersecretary Sanchez issued an order denying
petitioner's "Motion to Dismiss" and "Urgent Ex-Parte Motion for
Reconsideration." In the same order, he required the parties to
submit their position papers within an inextendible period of ten
days from receipt after which the case shall be deemed submitted
for resolution, to wit:
"WHEREFORE, for lack of merit, both motions are denied. However,

for this office to have a better appreciation of the issues raised in
the instant case, the parties, through their respective counsels are
hereby directed to submit their position papers within a period of
ten (10) days from receipt hereof, which period is inextendible,
after which the case is deemed submitted for resolution."20 cräläwvirtualibräry
On August 27, 1997, petitioner filed with the DILG a "Motion to Lift
Order of Preventive Suspension." On September 10, 1997,
petitioner followed this with a "Motion to Lift Default Order and
Admit Answer Ad Cautelam."21 Attached to the motion was the
"Answer Ad Cautelam"22 and sworn statements of his witnesses. On
the other hand, complainants (private respondents herein)
manifested that they were submitting the case for decision based on
the records, the complaint and affidavits of their witnesses.23cräläwvirtualibräry
In his Answer Ad Cautelam, petitioner alleged that in the morning of

September 12, 1996, while he was at his district office in the town
of Munoz, he received a phone call from Sangguniang Panlalawigan
member Jose del Mundo. Del Mundo, who belonged to petitioner's
political party, informed him that Vice-Governor Tinio was enraged
at the members of the Sangguniang Panlalawigan who were in
petitioner's party because they refused to place on the agenda the
ratification of the proposed P150 million loan of the province.
Petitioner repaired to the provincial capitol to advise his party-
mates on their problem and at the same time attend to his official
functions. Upon arrival, he went to the Session Hall and asked the
members present where Vice-Governor Tinio was. However, without
waiting for their reply, he left the Hall and proceeded to his office.
Petitioner claimed that there was nothing in his conduct that

threatened the members of the Sangguniang Panlalawigan or
caused alarm to the employees. He said that like Vice-Governor
Tinio, he was always accompanied by his official security escorts
whenever he reported for work. He also alleged that the joint
affidavit of Elnora Escombien and Jacqueline Jane Perez was false.
Escombien was purportedly not inside the session hall during the
incident but was at her desk at the office and could not in any way
have seen petitioner in the hall. To attest to the truth of his
allegations, petitioner submitted three (3) joint affidavits -- two (2)
affidavits executed by six (6) and ten (10) employees, respectively,
of the provincial government, and a third by four members of the
Sangguniang Panlalawigan.24 cräläwvirtualibräry
On September 11, 1997, petitioner filed an "Urgent Motion for

Reconsideration" of the order of August 20, 1997 denying his
motion to dismiss. The "Urgent Motion for Reconsideration" was
rejected by Undersecretary Sanchez on October 8, 1997.
Undersecretary Sanchez, however, granted the "Motion to Lift
Default Order and to Admit Answer Ad Cautelam" and admitted the
"Answer Ad Cautelam" as petitioner's position paper pursuant to the
order of August 20, 1997.25
On October 15, 1997, petitioner filed a "Motion to Conduct Formal
Investigation." Petitioner prayed that a formal investigation of his
case be conducted pursuant to the provisions of the Local
Government Code of 1991 and Rule 7 of Administrative Order No.
23; and that this be held at the province of Nueva Ecija.26 On
October 29, 1997, petitioner submitted a "Manifestation and Motion"
before the DILG reiterating his right to a formal investigation.
In the meantime, on October 24, 1997, the Court of Appeals

dismissed petitioner's petition.27 cräläwvirtualibräry
Hence this recourse.
The proceedings before the DILG continued however. In an order

dated November 11, 1997, the DILG denied petitioner's "Motion to
Conduct Formal Investigation" declaring that the submission of
position papers substantially complies with the requirements of
procedural due process in administrative proceedings.28 cräläwvirtualibräry
A few days after filing the petition before this Court, petitioner filed
a "Motion for Leave to File Herein Incorporated Urgent Motion for
the Issuance of a Temporary Restraining Order and/or a Writ of
Preliminary Injunction." Petitioner alleged that subsequent to the
institution of this petition, the Secretary of the Interior and Local
Governments rendered a resolution on the case finding him guilty of
the offenses charged.29 His finding was based on the position papers
and affidavits of witnesses submitted by the parties. The DILG
Secretary found the affidavits of complainants' witnesses to be
"more natural, reasonable and probable" than those of herein
petitioner Joson's.30
On January 8, 1998, the Executive Secretary, by authority of the

President, adopted the findings and recommendation of the DILG
Secretary. He imposed on petitioner the penalty of suspension from
office for six (6) months without pay, to wit:
"WHEREFORE, as recommended by the Secretary of the Interior and

Local Government, respondent Nueva Ecija Governor Eduardo
Nonato Joson is hereby found guilty of the offenses charged and is
meted the penalty of suspension from office for a period of six (6)
months without pay."31 cräläwvirtualibräry
On January 14, 1998, we issued a temporary restraining order

enjoining the implementation of the order of the Executive
Secretary.
On January 19, 1998, private respondents submitted a

Manifestation informing this Court that the suspension of petitioner
was implemented on January 9, 1998; that on the same day,
private respondent Oscar Tinio was installed as Acting Governor of
the province; and that in view of these events, the temporary
restraining order had lost its purpose and effectivity and was fait
accompli.32 We noted this Manifestation.
In his petition, petitioner alleges that:
"I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT

RULES OF PROCEDURE AND EVIDENCE SHOULD NOT BE STRICTLY
APPLIED IN THE ADMINISTRATIVE DISCIPLINARY AND CLEARLY
PUNITIVE PROCEEDINGS IN THE CASE AGAINST PETITIONER
GOVERNOR EDNO JOSON;
II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE

ALTER-EGO PRINCIPLE BECAUSE, CONTRARY TO LAW, IT WAS THE
SECRETARY OF THE DILG WHO WAS EXERCISING THE POWERS OF
THE PRESIDENT WHICH ARE CLEARLY VESTED BY LAW ONLY UPON
HIM OR THE EXECUTIVE SECRETARY.
III THE COURT OF APPEALS ERRED IN RULING THAT THE

PETITIONER WAS PROPERLY DECLARED IN DEFAULT WHEN HE
FILED A MOTION TO DISMISS INSTEAD OF AN ANSWER, AS
DIRECTED BY THE DILG, BECAUSE A MOTION TO DISMISS BASED
ON JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE [sic]
PLEADING IN ADMINISTRATIVE DISCIPLINARY CASES.
IV THE COURT OF APPEALS ERRED IN RULING THAT THE

IMPOSITION OF PREVENTIVE SUSPENSION AGAINST THE
PETITIONER WAS PROPER BECAUSE THERE WAS NO JOINDER OF
ISSUES YET UPON ITS IMPOSITION AND THERE WAS NO EVIDENCE
OF GUILT AGAINST PETITIONER."33 cräläwvirtualibräry
In his "Motion for Leave to File Herein Incorporated Urgent Motion

for the Issuance of a Temporary Restraining Order and/or a Writ of
Preliminary Injunction," petitioner also claims that:
"I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA

ISSUED PURSUANT THERETO (i.e., ANNEXES "C," "D," "E," "F," AND
"G" HEREOF) WERE ISSUED WITH UNDUE HASTE, IN VIOLATION OF
THE PERTINENT PROVISIONS OF THE 1991 LOCAL GOVERNMENT
CODE AND ADMINISTRATIVE ORDER NO. 23, AND IN COMPLETE
DISREGARD OF PETITIONER'S CONSTITUTIONAL RIGHT TO DUE
PROCESS.
II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF

JANUARY 8, 1998 (ANNEX "C" HEREOF) BY THE PUBLIC
RESPONDENTS ENTITLES PETITIONER TO THE IMMEDIATE
ISSUANCE OF THE TEMPORARY RESTRAINING ORDER/WRIT OF
PRELIMINARY INJUNCTION HEREIN PRAYED FOR."34 cräläwvirtualibräry
We find merit in the petition.
Administrative disciplinary proceedings against elective local officials

are governed by the Local Government Code of 1991, the Rules and
Regulations Implementing the Local Government Code of 1991, and
Administrative Order No. 23 entitled "Prescribing the Rules and
Procedures on the Investigation of Administrative Disciplinary Cases
Against Elective Local Officials of Provinces, Highly Urbanized Cities,
Independent Component Cities, and Cities and Municipalities in
Metropolitan Manila."35 In all matters not provided in A.O. No. 23,
the Rules of Court and the Administrative Code of 1987 apply in a
suppletory character.36
Section 60 of Chapter 4, Title II, Book I of the Local Government

Code enumerates the grounds for which an elective local official
may be disciplined, suspended or removed from office. Section 60
reads:
"Sec. 60. Grounds for Disciplinary Actions. -- An elective local
official may be disciplined, suspended, or removed from office on
any of the following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence,

or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an

offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days,

except in the case of members of the sangguniang panlalawigan,
sangguniang panlunsod, sangguniang bayan, and sangguniang
barangay;
(g) Application for, or acquisition of, foreign citizenship or residence

or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other
laws.
An elective local official may be removed from office on the grounds

enumerated above by order of the proper court."
When an elective local official commits an act that falls under the
grounds for disciplinary action, the administrative complaint against
him must be verified and filed with any of the following:
"Sec. 61. Form and Filing of Administrative Complaints.-- A verified

complaint against any erring local elective official shall be prepared
as follows:
(a) A complaint against any elective official of a province, a highly

urbanized city, an independent component city or component city
shall be filed before the Office of the President.
(b) A complaint against any elective official of a municipality shall
be filed before the sangguniang panlalawigan whose decision may
be appealed to the Office of the President; and
(c) A complaint against any elective barangay official shall be filed

before the sangguniang panlungsod or sangguniang bayan
concerned whose decision shall be final and executory."37 chanroblesvirtuallawlibrary
An administrative complaint against an erring elective official must

be verified and filed with the proper government office. A complaint
against an elective provincial or city official must be filed with the
Office of the President. A complaint against an elective municipal
official must be filed with the Sangguniang Panlalawigan while that
of a barangay official must be filed before the Sangguniang
Panlungsod or Sangguniang Bayan.
In the instant case, petitioner Joson is an elective official of the

province of Nueva Ecija. The letter-complaint against him was
therefore properly filed with the Office of the President. According to
petitioner, however, the letter-complaint failed to conform with the
formal requirements set by the Code. He alleges that the complaint
was not verified by private respondents and was not supported by
the joint affidavit of the two witnesses named therein; that private
respondents later realized these defects and surreptitiously inserted
the verification and sworn statement while the complaint was still
pending with the Office of the President.38 To prove his allegations,
petitioner submitted: (a) the sworn statement of private respondent
Solita C. Santos attesting to the alleged fact that after the letter-
complaint was filed, Vice-Governor Tinio made her and the other
members of the Sangguniang Panlalawigan sign an additional page
which he had later notarized; and (b) the fact that the verification of
the letter-complaint and the joint affidavit of the witnesses do not
indicate the document, page or book number of the notarial register
of the notary public before whom they were made.39 cräläwvirtualibräry
We find no merit in the contention of the petitioner. The absence of

the document, page or book number of the notarial register of the
subscribing officer is insufficient to prove petitioner's claim. The lack
of these entries may constitute proof of neglect on the part of the
subscribing officer in complying with the requirements for
notarization and proper verification. They may give grounds for the
revocation of his notarial commission.40 But they do not indubitably
prove that the verification was inserted or intercalated after the
letter-complaint was filed with the Office of the President.
Nor is the fact of intercalation sufficiently established by the

affidavit of Solita C. Santos. Private respondent Santos was one of
the signatories to the letter-complaint. In her affidavit, she prayed
that she be dropped as one of the complainants since she had just
joined the political party of petitioner Joson. She decided to reveal
the intercalation because she was disillusioned with the "dirty
tactics" of Vice-Governor Tinio to grab power from petitioner
Joson.41 Private respondent Santos cannot in any way be considered
an unbiased witness. Her motive and change of heart render her
affidavit suspect.
Assuming, nonetheless, that the letter-complaint was unverified

when submitted to the Office of the President, the defect was not
fatal. The requirement of verification was deemed waived by the
President himself when he acted on the complaint.
Verification is a formal, not jurisdictional requisite.42 Verification is

mainly intended to secure an assurance that the allegations therein
made are done in good faith or are true and correct and not mere
speculation.43 The lack of verification is a mere formal defect.44 The
court may order the correction of the pleading, if not verified, or act
on the unverified pleading if the attending circumstances are such
that a strict compliance with the rule may be dispensed with in
order that the ends of justice may be served.45
II
In his second assigned error, petitioner questions the jurisdiction

and authority of the DILG Secretary over the case. He contends that
under the law, it is the Office of the President that has jurisdiction
over the letter-complaint and that the Court of Appeals erred in
applying the alter-ego principle because the power to discipline
elective local officials lies with the President, not with the DILG
Secretary.
Jurisdiction over administrative disciplinary actions against elective
local officials is lodged in two authorities: the Disciplining Authority
and the Investigating Authority. This is explicit from A.O. No. 23, to
wit:
"Sec. 2. Disciplining Authority. All administrative complaints, duly

verified, against elective local officials mentioned in the preceding
Section shall be acted upon by the President. The President, who
may act through the Executive Secretary, shall hereinafter be
referred to as the Disciplining Authority."
Sec. 3. Investigating Authority . The Secretary of the Interior and

Local Government is hereby designated as the Investigating
Authority. He may constitute an Investigating Committee in the
Department of the Interior and Local Government for the purpose.
The Disciplining Authority may, however, in the interest of the

service, constitute a Special Investigating Committee in lieu of the
Secretary of the Interior and Local Government."46 cräläwvirtualibräry
Pursuant to these provisions, the Disciplining Authority is the

President of the Philippines, whether acting by himself or through
the Executive Secretary. The Secretary of the Interior and Local
Government is the Investigating Authority, who may act by himself
or constitute an Investigating Committee. The Secretary of the
DILG, however, is not the exclusive Investigating Authority. In lieu
of the DILG Secretary, the Disciplining Authority may designate a
Special Investigating Committee.
The power of the President over administrative disciplinary cases

against elective local officials is derived from his power of general
supervision over local governments. Section 4, Article X of the 1987
Constitution provides:
"Sec. 4. The President of the Philippines shall exercise general

supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities
with respect to component barangays shall ensure that the acts of
their component units are within the scope of their prescribed
powers and functions."47 cräläwvirtualibräry
The power of supervision means "overseeing or the authority of an
officer to see that the subordinate officers perform their duties."48 If
the subordinate officers fail or neglect to fulfill their duties, the
official may take such action or step as prescribed by law to make
them perform their duties.49 The President's power of general
supervision means no more than the power of ensuring that laws
are faithfully executed, or that subordinate officers act within the
law.50 Supervision is not incompatible with discipline.51 And the
power to discipline and ensure that the laws be faithfully executed
must be construed to authorize the President to order an
investigation of the act or conduct of local officials when in his
opinion the good of the public service so requires.52 Thus:
"Independently of any statutory provision authorizing the President

to conduct an investigation of the nature involved in this
proceeding, and in view of the nature and character of the executive
authority with which the President of the Philippines is invested, the
constitutional grant to him of power to exercise general supervision
over all local governments and to take care that the laws be
faithfully executed must be construed to authorize him to order an
investigation of the act or conduct of the petitioner herein.
Supervision is not a meaningless thing. It is an active power. It is
certainly not without limitation, but it at least implies authority to
inquire into facts and conditions in order to render the power real
and effective. If supervision is to be conscientious and rational, and
not automatic and brutal, it must be founded upon a knowledge of
actual facts and conditions disclosed after careful study and
investigation."53
The power to discipline evidently includes the power to investigate.

As the Disciplining Authority, the President has the power derived
from the Constitution itself to investigate complaints against local
government officials. A. O. No. 23, however, delegates the power to
investigate to the DILG or a Special Investigating Committee, as
may be constituted by the Disciplining Authority. This is not undue
delegation, contrary to petitioner Joson's claim. The President
remains the Disciplining Authority. What is delegated is the power
to investigate, not the power to discipline.54cräläwvirtualibräry
Moreover, the power of the DILG to investigate administrative
complaints is based on the alter-ego principle or the doctrine of
qualified political agency. Thus:
"Under this doctrine, which recognizes the establishment of a single

executive, all executive and administrative organizations are
adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is
required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the
multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments,
and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive presumptively the
acts of the Chief Executive."55 cräläwvirtualibräry
This doctrine is corollary to the control power of the President. 56 The

power of control is provided in the Constitution, thus:
"Sec. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed."57
Control is said to be the very heart of the power of the

presidency.58 As head of the Executive Department, the President,
however, may delegate some of his powers to the Cabinet members
except when he is required by the Constitution to act in person or
the exigencies of the situation demand that he acts
personally.59 The members of Cabinet may act for and in behalf of
the President in certain matters because the President cannot be
expected to exercise his control (and supervisory) powers
personally all the time. Each head of a department is, and must be,
the President's alter ego in the matters of that department where
the President is required by law to exercise authority.60 cräläwvirtualibräry
The procedure how the Disciplining and Investigating Authorities

should exercise their powers is distinctly set forth in the Local
Government Code and A.O. No. 23. Section 62 of the Code
provides:
"Sec. 62. Notice of Hearing.-- (a) Within seven (7) days after the
administrative complaint is filed, the Office of the President or the
sanggunian concerned, as the case may be, shall require the
respondent to submit his verified answer within fifteen (15) days
from receipt thereof, and commence investigation of the case within
ten (10) days after receipt of such answer of the respondent.
xxx."
Sections 1 and 3, Rule 561 of A.O. No. 23 provide:
"Sec. 1. Commencement. Within forty-eight (48) hours from receipt

of the answer, the Disciplining Authority shall refer the complaint
and answer, together with their attachments and other relevant
papers, to the Investigating Authority who shall commence the
investigation of the case within ten (10) days from receipt of the
same.
"x x x
"Sec. 3. Evaluation . Within twenty (20) days from receipt of the

complaint and answer, the Investigating Authority shall determine
whether there is a prima facie case to warrant the institution of
formal administrative proceedings."
When an administrative complaint is therefore filed, the Disciplining

Authority shall issue an order requiring the respondent to submit his
verified answer within fifteen (15) days from notice. Upon filing of
the answer, the Disciplining Authority shall refer the case to the
Investigating Authority for investigation.
In the case at bar, petitioner claims that the DILG Secretary

usurped the power of the President when he required petitioner to
answer the complaint. Undisputably, the letter-complaint was filed
with the Office of the President but it was the DILG Secretary who
ordered petitioner to answer.
Strictly applying the rules, the Office of the President did not comply
with the provisions of A.O. No. 23. The Office should have first
required petitioner to file his answer. Thereafter, the complaint and
the answer should have been referred to the Investigating Authority
for further proceedings. Be that as it may, this procedural lapse is
not fatal. The filing of the answer is necessary merely to enable the
President to make a preliminary assessment of the case.62 The
President found the complaint sufficient in form and substance to
warrant its further investigation. The judgment of the President on
the matter is entitled to respect in the absence of grave abuse of
discretion.
III
In his third assigned error, petitioner also claims that the DILG
erred in declaring him in default for filing a motion to dismiss. He
alleges that a motion to dismiss is not a pleading prohibited by the
law or the rules and therefore the DILG Secretary should have
considered it and given him time to file his answer.
It is true that a motion to dismiss is not a pleading prohibited under

the Local Government Code of 1991 nor in A.O. No. 23. Petitioner,
however, was instructed not to file a motion to dismiss in the order
to file answer. Thrice, he requested for extension of time to file his
answer citing as reasons the search for competent counsel and the
demands of his official duties. And thrice, his requests were
granted. Even the order of default was reconsidered and petitioner
was given additional time to file answer. After all the requests and
seven months later, he filed a motion to dismiss!
Petitioner should know that the formal investigation of the case is

required by law to be finished within one hundred twenty (120)
days from the time of formal notice to the respondent. The
extensions petitioner requested consumed fifty-five (55) days of this
period.63 Petitioner, in fact, filed his answer nine (9) months after
the first notice. Indeed, this was more than sufficient time for
petitioner to comply with the order to file answer.
The speedy disposition of administrative complaints is required by

public service. The efficiency of officials under investigation is
impaired when a case hangs over their heads. Officials deserve to
be cleared expeditiously if they are innocent, also expeditiously if
guilty, so that the business of government will not be prejudiced. 64
IV
In view of petitioner's inexcusable failure to file answer, the DILG

did not err in recommending to the Disciplining Authority his
preventive suspension during the investigation. Preventive
suspension is authorized under Section 63 of the Local Government
Code, viz:
"Sec. 63. Preventive Suspension.-- (a) Preventive suspension may

be imposed:
(1) By the President, if the respondent is an elective

official of a province, a highly urbanized or an
independent component city;
x x x.
(b) Preventive suspension may be imposed at any time after the

issues are joined, when the evidence of guilt is strong, and given
the gravity of the offense, there is great probability that the
continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the records
and other evidence; Provided, That, any single preventive
suspension of local elective officials shall not extend beyond sixty
(60) days: Provided, further, That in the event that several
administrative cases are filed against an elective official, he cannot
be preventively suspended for more than ninety (90) days within a
single year on the same ground or grounds existing and known at
the time of the first suspension.
x x x."
In sum, preventive suspension may be imposed by the Disciplining

Authority at any time (a) after the issues are joined; (b) when the
evidence of guilt is strong; and (c) given the gravity of the offense,
there is great probability that the respondent, who continues to hold
office, could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence.
Executive Secretary Torres, on behalf of the President, imposed

preventive suspension on petitioner Joson after finding that:
"x x x
DILG Secretary Robert Z. Barbers, in a memorandum for the

President, dated 23 June 1997, recommends that respondent be
placed under preventive suspension considering that all the
requisites to justify the same are present. He stated therein that:
'Preventive suspension may be imposed at any time

after the issues are joined, that is, after respondent
has answered the complaint, when the evidence of guilt
is strong and, given the gravity of the offense, there is
a great possibility that the continuance in office of the
respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and
other evidence (Sec. 3, Rule 6 of Administrative Order
No. 23).
The failure of respondent to file his answer despite
several opportunities given him is construed as a
waiver of his right to present evidence in his behalf
(Sec. 4, Rule 4 of Administrative Order No. 23). The
requisite of joinder of issues is squarely met with
respondent's waiver of right to submit his answer. The
act of respondent in allegedly barging violently into the
session hall of the Sangguniang Panlalawigan in the
company of armed men constitutes grave misconduct.
The allegations of complainants are bolstered by the
joint-affidavit of two (2) employees of the Sangguniang
Panlalawigan. Respondent who is the chief executive of
the province is in a position to influence the witnesses.
Further, the history of violent confrontational politics in
the province dictates that extreme precautionary
measures be taken.'
Upon scrutiny of the records and the facts and circumstances
attendant to this case, we concur with the findings of the Secretary
of the Interior and Local Government and find merit in the aforesaid
recommendation.
WHEREFORE, and as recommended by the Department of the

Interior and Local Government, respondent EDUARDO N. JOSON,
Governor of Nueva Ecija, is hereby placed under PREVENTIVE
SUSPENSION FOR A PERIOD OF SIXTY (60) DAYS, effective 11 July
1997, pending investigation of the charges filed against him.
Executive Secretary Torres found that all the requisites for the
imposition of preventive suspension had been complied with.
Petitioner's failure to file his answer despite several opportunities
given him was construed as a waiver of his right to file answer and
present evidence; and as a result of this waiver, the issues were
deemed to have been joined. The Executive Secretary also found
that the evidence of petitioner Joson's guilt was strong and that his
continuance in office during the pendency of the case could
influence the witnesses and pose a threat to the safety and integrity
of the evidence against him.
We now come to the validity of the January 8, 1998 Resolution of

the Executive Secretary finding petitioner guilty as charged and
imposing on him the penalty of suspension from office for six (6)
months from office without pay.
Petitioner claims that the suspension was made without formal

investigation pursuant to the provisions of Rule 7 of A.O. No. 23.
Petitioner filed a "Motion To Conduct Formal Investigation" three
months before the issuance of the order of suspension and this
motion was denied by the DILG for the following reasons:
"On November 19, 1997, complainants, through counsel, filed

a Manifestation calling our attention to the Decision dated
October 24, 1997 of the Court of Appeals, Fifth Division in CA-
G.R. SP No. 44694, entitled "Eduardo Nonato Joson versus
Executive Secretary Ruben D. Torres, et. al." In the
aforestated decision, the Court of Appeals resolved to sustain
the authority of this Department to investigate this
administrative case and has likewise validated the order of
default as well as the order of preventive suspension of the
respondent.
We offer no objection and concur with the assertion of
respondent that he has the right for the conduct of formal
investigation. However, before there shall be a formal
investigation, joinder of issues must already be present or
respondent's answer has already been filed. In the case at
bar, the admission of respondent's answer after having been
declared in default was conditioned on the fact of submission
of position papers by the parties, after which, the case shall
be deemed submitted for resolution. Respondent, instead of
submitting his position paper filed his subject motion while
complainants manifested to forego the submission of position
paper and submit the case for resolution on the basis of the
pleadings on hand.
Settled is the rule that in administrative proceedings,
technical rules of procedure and evidence are not strictly
applied (Concerned Officials of the Metropolitan Waterworks
and Sewerage System v. Vasquez, 240 SCRA 502). The
essence of due process is to be found in the reasonable
opportunity to be heard and to submit evidence one may have
in support of one's defense (Tajonera v. Lamaroza, 110 SCRA
438). To be heard does not only mean verbal arguments in
court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or
pleadings, is accorded, there is no denial of procedural due
process (Juanita Y. Say, et. al;. v. IAC, G.R. No. 73451).
Thus, when respondent failed to submit his position paper as
directed and insisted for the conduct of formal investigation,
he was not denied of his right of procedural process.
WHEREFORE, the Motion for the Conduct of Formal
Investigation, for lack of merit, is DENIED.
The denial of petitioner's Motion to Conduct Formal Investigation is

erroneous. Petitioner's right to a formal investigation is spelled out
in the following provisions of A.O. No. 23, viz:
"SEC. 3 Evaluation. Within twenty (20) days from receipt of

the complaint and answer, the Investigating Authority shall
determine whether there is a prima facie case to warrant the
institution of formal administrative proceedings.
SEC. 4. Dismissal motu proprio. If the Investigating Authority
determines that there is no prima facie case to warrant the
institution of formal administrative proceedings, it shall,
within the same period prescribed under the preceding
Section, submit its recommendation to the Disciplining
Authority for the motu proprio dismissal of the case, together
with the recommended decision, resolution, and order.
SEC. 5. Preliminary conference. If the Investigating Authority
determines that there is prima facie case to warrant the
institution of formal administrative proceedings, it shall,
within the same period prescribed under the preceding
Section, summon the parties to a preliminary conference to
consider the following:
a) whether the parties desire a formal investigation or
are willing to submit the case for resolution on the
basis of the evidence on record; and
b) If the parties desire a formal investigation, to
consider the simplification of issues, the possibility
of obtaining stipulation or admission of facts and of
documents, specifically affidavits and depositions,
to avoid unnecessary proof, the limitation of
number of witnesses, and such other matters as
may be aid the prompt disposition of the case.
The Investigating Authority shall encourage the parties and
their counsels to enter, at any stage of the proceedings, into
amicable settlement, compromise and arbitration, the terms
and conditions of which shall be subject to the approval of the
Disciplining Authority.
After the preliminary conference, the Investigating Authority
shall issue an order reciting the matters taken up thereon,
including the facts stipulated and the evidences marked, if
any. Such order shall limit the issues for hearing to those not
disposed of by agreement or admission of the parties, and
shall schedule the formal investigation within ten (10) days
from its issuance, unless a later date is mutually agreed in
writing by the parties concerned."67cräläwvirtualibräry
The records show that on August 27, 1997, petitioner submitted his
Answer Ad Cautelam where he disputed the truth of the allegations
that he barged into the session hall of the capitol and committed
physical violence to harass the private respondents who were
opposed to any move for the province to contract a P150 million
loan from PNB. In his Order of October 8, 1997, Undersecretary
Sanchez admitted petitioner's Answer Ad Cautelam but treated it as
a position paper. On October 15, 1997, petitioner filed a Motion to
Conduct Formal Investigation. Petitioner reiterated this motion on
October 29, 1997. Petitioner's motion was denied on November 11,
1997. Secretary Barbers found petitioner guilty as charged on the
basis of the parties' position papers. On January 8, 1998, Executive
Secretary Torres adopted Secretary Barbers' findings and
recommendations and imposed on petitioner the penalty of six (6)
months suspension without pay.
The rejection of petitioner's right to a formal investigation denied

him procedural due process. Section 5 of A. O. No. 23 provides that
at the preliminary conference, the Investigating Authority shall
summon the parties to consider whether they desire a formal
investigation. This provision does not give the Investigating
Authority the discretion to determine whether a formal investigation
would be conducted. The records show that petitioner filed a motion
for formal investigation. As respondent, he is accorded several
rights under the law, to wit:
"Sec. 65. Rights of Respondent. -- The respondent shall be

accorded full opportunity to appear and defend himself in
person or by counsel, to confront and cross-examine the
witnesses against him, and to require the attendance of
witnesses and the production of documentary evidence in his
favor through compulsory process of subpoena or subpoena
duces tecum."
An erring elective local official has rights akin to the constitutional

rights of an accused.68 These rights are essentially part of
procedural due process.69 The local elective official has the (1) right
to appear and defend himself in person or by counsel; (2) the right
to confront and cross-examine the witnesses against him; and (3)
the right to compulsory attendance of witness and the production of
documentary evidence. These rights are reiterated in the Rules
Implementing the Local Government Code70 and in A.O. No.
23.71 Well to note, petitioner formally claimed his right to a formal
investigation after his Answer Ad Cautelam has been admitted by
Undersecretary Sanchez.
Petitioner's right to a formal investigation was not satisfied when

the complaint against him was decided on the basis of position
papers. There is nothing in the Local Government Code and its
Implementing Rules and Regulations nor in A.O. No. 23 that provide
that administrative cases against elective local officials can be
decided on the basis of position papers. A.O. No. 23 states that the
Investigating Authority may require the parties to submit their
respective memoranda but this is only after formal investigation and
hearing.72 A.O. No. 23 does not authorize the Investigating
Authority to dispense with a hearing especially in cases involving
allegations of fact which are not only in contrast but contradictory to
each other. These contradictions are best settled by allowing the
examination and cross-examination of witnesses. Position papers
are often-times prepared with the assistance of lawyers and their
artful preparation can make the discovery of truth difficult. The
jurisprudence cited by the DILG in its order denying petitioner's
motion for a formal investigation applies to appointive officials and
employees. Administrative disciplinary proceedings against elective
government officials are not exactly similar to those
against appointive officials. In fact, the provisions that apply to
elective local officials are separate and distinct from appointive
government officers and employees. This can be gleaned from the
Local Government Code itself.
In the Local Government Code, the entire Title II of Book I of the

Code is devoted to elective officials. It provides for their
qualifications and election,73 vacancies and succession,74 local
legislation,75 disciplinary actions,76 and recall.77 Appointive officers
and employees are covered in Title III of Book I of the Code entitled
"Human Resources and Development." All matters pertinent to
human resources and development in local government units are
regulated by "the civil service law and such rules and regulations
and other issuances promulgated thereto, unless otherwise provided
in the Code."78 The "investigation and adjudication of administrative
complaints against appointive local officials and employees as well
as their suspension and removal" are "in accordance with the civil
service law and rules and other pertinent laws," the results of which
"shall be reported to the Civil Service Commission."79 cräläwvirtualibräry
It is the Administrative Code of 1987, specifically Book V on the

Civil Service, that primarily governs appointive officials and
employees. Their qualifications are set forth in the Omnibus Rules
Implementing Book V of the said Code. The grounds for
administrative disciplinary action in Book V are much more in
number and are specific than those enumerated in the Local
Government Code against elective local officials.80 The disciplining
authority in such actions is the Civil Service Commission81 although
the Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities are also given the power to
investigate and decide disciplinary actions against officers and
employees under their jurisdiction.82 When a complaint is filed and
the respondent answers, he must "indicate whether or not he elects
a formal investigation if his answer is not considered
satisfactory."83 If the officer or employee elects a formal
investigation, the direct evidence for the complainant and the
respondent "consist[s] of the sworn statement and documents
submitted in support of the complaint and answer, as the case may
be, without prejudice to the presentation of additional evidence
deemed necessary x x x, upon which the cross-examination by
respondent and the complainant, respectively, is based."84 The
investigation is conducted without adhering to the technical rules
applicable in judicial proceedings."85 Moreover, the appointive
official or employee may be removed or dismissed summarily if (1)
the charge is serious and the evidence of guilt is strong; (2) when
the respondent is a recidivist; and (3) when the respondent is
notoriously undesirable.86 cräläwvirtualibräry
The provisions for administrative disciplinary actions against elective

local officials are markedly different from appointive officials.87 The
rules on the removal and suspension of elective local officials are
more stringent. The procedure of requiring position papers in lieu of
a hearing in administrative cases is expressly allowed with respect
to appointive officials but not to those elected. An elective official,
elected by popular vote, is directly responsible to the community
that elected him. The official has a definite term of office fixed by
law which is relatively of short duration. Suspension and removal
from office definitely affects and shortens this term of office. When
an elective official is suspended or removed, the people are
deprived of the services of the man they had elected. Implicit in the
right of suffrage is that the people are entitled to the services of the
elective official of their choice.88 Suspension and removal are thus
imposed only after the elective official is accorded his rights and the
evidence against him strongly dictates their imposition.
IN VIEW WHEREOF, the Resolution of January 8, 1998 of the

public respondent Executive Secretary is declared null and void and
is set aside. No Cost.
SO ORDERED.
Regalado, (Chairman), Melo, Mendoza, and Martinez, JJ.,

concur.
Endnotes:
1
Letter-complaint, Annex "E" to the Petition, Rollo, pp. 80-81.
2
Cover-page of Letter-complaint, Annex "D" to the Petition, Rollo, pp. 78-79.
3
Annex "E" to the Petition, Rollo, p. 80.
4
The complaint was docketed as DILG Administrative Case No. P-02-96.
5
Order dated September 20, 1996, Annex "H" to the Petition, Rollo, p. 85.
6
Motion to Dismiss of Petitioner Joson, Annex "O" to the Petition, Rollo, p. 107.
7
DILG Records, pp. 148, 149.
8
DILG Records, p. 188.
9
10
11
12
13
14
Annex "J" to the Petition, Rollo, p. 88.
15
Annex "N" to the Petition, Rollo, pp. 101-102.
16
Order, Annex "P" to the Petition, Rollo, pp. 114-115.
17
Order dated July 11, 1997, Annex "T" to the Petition, Rollo, pp. 125-126.
18
Memoranda of Secretary Barbers, Annexes "U," "V," and "W" to the Petition, Rollo, pp. 127-129.
19
CA-G.R. SP No. 44694.
20
Order dated August 20, 1997, Annex "Z" to the Petition, Rollo, pp. 175-177.
21
Annex "AA" to the Petition, Rollo, pp. 178-181.
22
Annex "AA-1" to the Petition, Rollo, pp. 182-187.
23
Resolution of the Executive Secretary suspending Governor Joson, Annex "C" to the Motion for Leave to File Herein
Incorporated Urgent Motion for the Issuance of a TRO and/or Writ of preliminary Injunction, p. 3, Rollo, p. 246.
24
Annexes "II," "JJ," and "KK," to the Petition, Rollo, pp. 209- 212.
25
Order dated October 8, 1997, Annex "DD" to the Petition, Rollo, p. 201.
26
Annex "CC" to the Petition, Rollo, pp. 195-200.
27
The Decision was penned by Associate Justice Portia Alino-Hormachuelos and concurred by Associate Justices Emeterio
Cui and Buenaventura Guerrero.
28
Annex "A" to the Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance of TRO and/or Writ of
Preliminary Injunction, Rollo, pp. 239-242.
29
The Resolution reads:
"x x x. The complained acts tested against the foregoing, we find respondent to be liable for the acts complained of and
consequently, must be sanctioned administratively."(Resolution of the Executive Secretary quoting the Resolution of the
DILG Secretary, pp. 4-5, Rollo, pp 247-248).
30
Resolution of the Executive Secretary, p. 3, Rollo, p. 246.
31
Order of Executive Secretary Ruben Torres, Annex "C" to the Motion for Leave to File Herein Incorporated Urgent Motion
for the Issuance of a TRO and/or a Writ of Preliminary Injunction" Rollo, pp. 244-248.
32
Rollo, pp. 289- 291.
33
Petition, pp. 16-17, Rollo, pp. 26-27.
34
Motion for Leave to File Herein Incorporated Urgent Motion for the Issuance, etc., pp. 6-7, Rollo, pp. 226-227.
35
Issued by President Ramos on December 17, 1992 and took effect in February 1993. This has been amended by A.O.
No. 159, Nov. 25, 1994.
36
Section 1, Rule 13, A.O. No. 23.
37
Local Government Code of 1991.
38
Petition, pp. 19, 21, Rollo, pp. 29, 31.
39
Petition, pp. 22-23, Rollo, pp. 32-33.
40
Section 249 in relation to Section 246, Article II, Chapter 11, Title IV, Book II, Revised Administrative Code.
41
Annex "FF" to the Petition, Rollo, p. 206.
42
Vda. de Gabriel v. Court of Appeals, 264 SCRA 137, 143 [1996]; Sy v. Habacon-Garayblas, 228 SCRA 644, 647 [1993];
Oshita v. Republic, 19 SCRA 700, 702 [1967].
43
Id.
44
Buenaventura v. Halili-Uy, 149 SCRA 22, 26 [1987]; Quimpo v. de la Victoria, 46 SCRA 139, 145 [1972];
Oshita v. Republic, 19 SCRA 700 [1967].
45
Buenaventura v. Halili-Uy, supra, at 26; Oshita v. Republic, supra, at 703.
46
Sections 2 and 3, A.O. No. 23 as amended by A.O. No. 159 which took effect on November 25, 1994.
47
The President's power of supervision over local governments was taken from Section 10 (1), Article VII of
the 1935 Constitution which reads:
"Section 10 (1). The President shall have control of all the executive departments, bureaus, or offices, exercise general
supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed."
The 1935 Constitution lumped both the power of control and supervision in one provision. The 1987 Constitution carries
the two powers in separate provisions.
48
Ganzon v. Court of Appeals, 200 SCRA 271, 283-284 [1991]; Mondano v. Silvosa, 97 Phil. 143, 147 [1955].
49
Mondano v. Silvosa, supra, at 147-148.
50
Bernas, the 1987 Constitution of the Republic of the Philippines: A Commentary, pp. 968-969[1996]; III Record of the
Constitutional Commission 451-452, 453-454.
51
Ganzon v. Court of Appeals, supra, at 283.
Hebron v. Reyes, 104 Phil. 175, 186-189 [1958]; Ganzon v. Kayanan, 104 Phil. 483, 488-489 [1958]; also cited in
52
Martin, the Revised Administrative Code, vol. 1, pp. 299-301 [1961].
53
Planas v. Gil, 67 Phil. 62, 77-78 [1939]; see also Villena v. Secretary of the Interior, 67 Phil. 451, 459 [1939].
54
Pimentel, The Local Government Code of 1991, p. 173. [1993].
55
Carpio v. Executive Secretary, 206 SCRA 290, 295-296 [1992].
56
Id., at 295.
57
Section 17, Article VII, 1987 Constitution.
58
Carpio v. Executive Secretary, supra, at 295.
59
Id.
60
Villena v. Secretary of the Interior, 67 Phil. 451, 464 [1939].
61
Rule 5 is entitled "Preliminary Investigation."
62
See Pimentel, supra, at 174 -- "[T]he Office of the President may conduct a preliminary assessment of the case."
63
He was granted three extensions or a total of 60 days less fifteen (15) days -- fifteen days because his first extension of
30 days was counted from the time he received a copy of the complaint, not from the time the first 15-day period expired.
64
Id.
65
Annex "T" to the Petition, Rollo, pp. 125-126.
66
Order of Undersecretary Sanchez, Annex "A" to the Motion for Leave to File Herein Incorporated Motion for the Issuance
of a TRO and/or a Writ of Preliminary Injunction, Rollo, pp. 241-242.
67
Sections 3 to 5, Rule 5, A.O. No. 23.
68
Section 14 (2), Bill of Rights, 1987 Constitution.
69
See Section 1, Rule 7, A.O. No. 23.
70
Article 129.
71
Section 1, Rule 7.
72
Section 13, Rule 7, A.O. No. 23.
73
Chapter 1.
74
Chapter 2.
75
Chapter 3.
76
Chapter 4.
77
Chapter 5.
78
Section 78, Title III, Book I, Local Government Code of 1991.
79
Section 84, Id.
80
Section 46, Chapter 6, Book V of the Administrative Code of 1987 lists 30 grounds for the suspension or dismissal of an
officer or employee in the Civil Service.
81
Section 47 (1), Id.
82
Section 47, (2), Id.
83
Section 48 (2), Id.
84
Section 48 (5), Id.
85
Section 48 (7), Id.
86
Section 50, Id.
87
Nera v. Garcia and Elicano, 106 Phil. 1031, 1037 [1960].
88
Nera v. Garcia and Elicano, supra; see also Layno, Sr. v. Sandiganbayan, 136 SCRA 536, 541 [1985].
EN BANC
[G.R. NO. 164527 : August 15, 2007]
FRANCISCO I. CHAVEZ, Petitioner, v. NATIONAL HOUSING AUTHORITY, R-II

BUILDERS, INC., R-II HOLDINGS, INC., HARBOUR CENTRE PORT TERMINAL,
INC., and MR. REGHIS ROMERO II, Respondents.
DECISION
VELASCO, JR., J.:
In this Petition for Prohibition and Mandamus with Prayer for Temporary Restraining
Order and/or Writ of Preliminary Injunction under Rule 65, petitioner, in his capacity as
taxpayer, seeks:
to declare NULL AND VOID the Joint Venture Agreement (JVA) dated March 9, 1993
between the National Housing Authority and R-II Builders, Inc. and the Smokey
Mountain Development and Reclamation Project embodied therein; the subsequent
amendments to the said JVA; and all other agreements signed and executed in relation
thereto - including, but not limited to the Smokey Mountain Asset Pool Agreement
dated 26 September 1994 and the separate agreements for Phase I and Phase II of the
Project as well as all other transactions which emanated therefrom, for being
UNCONSTITUTIONAL and INVALID;
to enjoin respondents'particularly respondent NHA from further implementing and/or

enforcing the said project and other agreements related thereto, and from further
deriving and/or enjoying any rights, privileges and interest therefrom x x x; and cralawlibrary
to compel respondents to disclose all documents and information relating to the project
including, but not limited to, any subsequent agreements with respect to the different
phases of the project, the revisions over the original plan, the additional works incurred
thereon, the current financial condition of respondent R-II Builders, Inc., and the
transactions made respecting the project.1
The Facts
On March 1, 1988, then President Corazon C. Aquino issued Memorandum Order No.
(MO) 1612 approving and directing the implementation of the Comprehensive and
Integrated Metropolitan Manila Waste Management Plan (the Plan). The Metro Manila
Commission, in coordination with various government agencies, was tasked as the lead
agency to implement the Plan as formulated by the Presidential Task Force on Waste
Management created by Memorandum Circular No. 39. A day after, on March 2, 1988,
MO 161-A3 was issued, containing the guidelines which prescribed the functions and
responsibilities of fifteen (15) various government departments and offices tasked to
implement the Plan, namely: Department of Public Works and Highway (DPWH),
Department of Health (DOH), Department of Environment and Natural Resources
(DENR), Department of Transportation and Communication, Department of Budget and
Management, National Economic and Development Authority (NEDA), Philippine
Constabulary Integrated National Police, Philippine Information Agency and the Local
Government Unit (referring to the City of Manila), Department of Social Welfare and
Development, Presidential Commission for Urban Poor, National Housing Authority
(NHA), Department of Labor and Employment, Department of Education, Culture and
Sports (now Department of Education), and Presidential Management Staff.
Specifically, respondent NHA was ordered to "conduct feasibility studies and develop
low-cost housing projects at the dumpsite and absorb scavengers in NHA
resettlement/low-cost housing projects." 4 On the other hand, the DENR was tasked to
"review and evaluate proposed projects under the Plan with regard to their
environmental impact, conduct regular monitoring of activities of the Plan to ensure
compliance with environmental standards and assist DOH in the conduct of the study on
hospital waste management." 5
At the time MO 161-A was issued by President Aquino, Smokey Mountain was a
wasteland in Balut, Tondo, Manila, where numerous Filipinos resided in subhuman
conditions, collecting items that may have some monetary value from the garbage. The
Smokey Mountain dumpsite is bounded on the north by the Estero Marala, on the south
by the property of the National Government, on the east by the property of B and I
Realty Co., and on the west by Radial Road 10 (R-10).
Pursuant to MO 161-A, NHA prepared the feasibility studies of the Smokey Mountain
low-cost housing project which resulted in the formulation of the "Smokey Mountain
Development Plan and Reclamation of the Area Across R-10" or the Smokey Mountain
Development and Reclamation Project (SMDRP; the Project). The Project aimed to
convert the Smokey Mountain dumpsite into a habitable housing project, inclusive of
the reclamation of the area across R-10, adjacent to the Smokey Mountain as the
enabling component of the project.6 Once finalized, the Plan was submitted to President
Aquino for her approval.
On July 9, 1990, the Build-Operate-and-Transfer (BOT) Law (Republic Act No. [RA]
6957) was enacted.7 Its declared policy under Section 1 is "[t]o recognize the
indispensable role of the private sector as the main engine for national growth and
development and provide the most appropriate favorable incentives to mobilize private
resources for the purpose." Sec. 3 authorized and empowered "[a]ll government
infrastructure agencies, including government-owned and controlled corporations and
local government units x x x to enter into contract with any duly pre-qualified private
contractor for the financing, construction, operation and maintenance of any financially
viable infrastructure facilities through the build-operate-transfer or build and transfer
scheme."
RA 6957 defined "build-and-transfer" scheme as "[a] contractual arrangement whereby

the contractor undertakes the construction, including financing, of a given infrastructure
facility, and its turnover after the completion to the government agency or local
government unit concerned which shall pay the contractor its total investment
expended on the project, plus reasonable rate of return thereon." The last paragraph of
Sec. 6 of the BOT Law provides that the repayment scheme in the case of "land
reclamation or the building of industrial estates" may consist of "[t]he grant of a portion
or percentage of the reclaimed land or industrial estate built, subject to the
constitutional requirements with respect to the ownership of lands."
On February 10, 1992, Joint Resolution No. 03 8 was passed by both houses of
Congress. Sec. 1 of this resolution provided, among other things, that:
Section 1. There is hereby approved the following national infrastructure projects for
implementation under the provisions of Republic Act No. 6957 and its implementing
rules and regulations:
xxx
(d) Port infrastructure like piers, wharves, quays, storage handling, ferry service and
related facilities;
xxx
(k) Land reclamation, dredging and other related development facilities;
(l) Industrial estates, regional industrial centers and export processing zones including
steel mills, iron-making and petrochemical complexes and related infrastructure and
utilities;
xxx
(p) Environmental and solid waste management-related facilities such as collection

equipment, composting plants, incinerators, landfill and tidal barriers, among others;
andcralawlibrary
(q) Development of new townsites and communities and related facilities.

This resolution complied with and conformed to Sec. 4 of the BOT Law requiring the
approval of all national infrastructure projects by the Congress.
On January 17, 1992, President Aquino proclaimed MO 415 9 approving and directing the
implementation of the SMDRP. Secs. 3 and 4 of the Memorandum Order stated:
Section 3. The National Housing Authority is hereby directed to implement the Smokey
Mountain Development Plan and Reclamation of the Area Across R-10 through a private
sector joint venture scheme at the least cost to the government.
Section 4. The land area covered by the Smokey Mountain dumpsite is hereby
conveyed to the National Housing Authority as well as the area to be reclaimed across
R-10. (Emphasis supplied.)
In addition, the Public Estates Authority (PEA) was directed to assist in the evaluation of
proposals regarding the technical feasibility of reclamation, while the DENR was
directed to (1) facilitate titling of Smokey Mountain and of the area to be reclaimed and
(2) assist in the technical evaluation of proposals regarding environmental impact
statements.10
In the same MO 415, President Aquino created an Executive Committee (EXECOM) to

oversee the implementation of the Plan, chaired by the National Capital Region-Cabinet
Officer for Regional Development (NCR-CORD) with the heads of the NHA, City of
Manila, DPWH, PEA, Philippine Ports Authority (PPA), DENR, and Development Bank of
the Philippines (DBP) as members.11 The NEDA subsequently became a member of the
EXECOM. Notably, in a September 2, 1994 Letter,12 PEA General Manager Amado
Lagdameo approved the plans for the reclamation project prepared by the NHA.
In conformity with Sec. 5 of MO 415, an inter-agency technical committee (TECHCOM)

was created composed of the technical representatives of the EXECOM "[t]o assist the
NHA in the evaluation of the project proposals, assist in the resolution of all issues and
problems in the project to ensure that all aspects of the development from squatter
relocation, waste management, reclamation, environmental protection, land and house
construction meet governing regulation of the region and to facilitate the completion of
the project."13
Subsequently, the TECHCOM put out the Public Notice and Notice to Pre-Qualify and Bid
for the right to become NHA's joint venture partner in the implementation of the
SMDRP. The notices were published in newspapers of general circulation on January 23
and 26 and February 1, 14, 16, and 23, 1992, respectively. Out of the thirteen (13)
contractors who responded, only five (5) contractors fully complied with the required
pre-qualification documents. Based on the evaluation of the pre-qualification
documents, the EXECOM declared the New San Jose Builders, Inc. and R-II Builders,
Inc. (RBI) as the top two contractors.14
Thereafter, the TECHCOM evaluated the bids (which include the Pre-feasibility Study
and Financing Plan) of the top two (2) contractors in this manner:
(1) The DBP, as financial advisor to the Project, evaluated their Financial Proposals;
(2) The DPWH, PPA, PEA and NHA evaluated the Technical Proposals for the Housing
Construction and Reclamation;
(3) The DENR evaluated Technical Proposals on Waste Management and Disposal by
conducting the Environmental Impact Analysis; and cralawlibrary
(4) The NHA and the City of Manila evaluated the socio-economic benefits presented by
the proposals.
On June 30, 1992, Fidel V. Ramos assumed the Office of the President (OP) of the
Philippines.
On August 31, 1992, the TECHCOM submitted its recommendation to the EXECOM to
approve the R-II Builders, Inc. (RBI) proposal which garnered the highest score of
88.475%.
Subsequently, the EXECOM made a Project briefing to President Ramos. As a result,

President Ramos issued Proclamation No. 3915 on September 9, 1992, which reads:
WHEREAS, the National Housing Authority has presented a viable conceptual plan to
convert the Smokey Mountain dumpsite into a habitable housing project, inclusive of
the reclamation of the area across Road Radial 10 (R-10) adjacent to the Smokey
Mountain as the enabling component of the project;
xxx
These parcels of land of public domain are hereby placed under the administration and
disposition of the National Housing Authority to develop, subdivide and dispose to
qualified beneficiaries, as well as its development for mix land use
(commercial/industrial) to provide employment opportunities to on-site families and
additional areas for port-related activities.
In order to facilitate the early development of the area for disposition, the Department
of Environment and Natural Resources, through the Lands and Management Bureau, is
hereby directed to approve the boundary and subdivision survey and to issue a special
patent and title in the name of the National Housing Authority, subject to final survey
and private rights, if any there be. (Emphasis supplied.)
On October 7, 1992, President Ramos authorized NHA to enter into a Joint Venture
Agreement with RBI "[s]ubject to final review and approval of the Joint Venture
Agreement by the Office of the President." 16
On March 19, 1993, the NHA and RBI entered into a Joint Venture Agreement 17 (JVA)
for the development of the Smokey Mountain dumpsite and the reclamation of the area
across R-10 based on Presidential Decree No. (PD) 757 18 which mandated NHA "[t]o
undertake the physical and socio-economic upgrading and development of lands of the
public domain identified for housing," MO 161-A which required NHA to conduct the
feasibility studies and develop a low-cost housing project at the Smokey Mountain, and
MO 415 as amended by MO 415-A which approved the Conceptual Plan for Smokey
Mountain and creation of the EXECOM and TECHCOM. Under the JVA, the Project
"involves the clearing of Smokey Mountain for eventual development into a low cost
medium rise housing complex and industrial/commercial site with the reclamation of
the area directly across [R-10] to act as the enabling component of the Project." 19 The
JVA covered a lot in Tondo, Manila with an area of two hundred twelve thousand two
hundred thirty-four (212,234) square meters and another lot to be reclaimed also in
Tondo with an area of four hundred thousand (400,000) square meters.
The Scope of Work of RBI under Article II of the JVA is as follows:
a) To fully finance all aspects of development of Smokey Mountain and reclamation of

no more than 40 hectares of Manila Bay area across Radial Road 10.
b) To immediately commence on the preparation of feasibility report and detailed

engineering with emphasis to the expedient acquisition of the Environmental Clearance
Certificate (ECC) from the DENR.
c) The construction activities will only commence after the acquisition of the ECC, and
d) Final details of the contract, including construction, duration and delivery timetables,
shall be based on the approved feasibility report and detailed engineering.
Other obligations of RBI are as follows:
2.02 The [RBI] shall develop the PROJECT based on the Final Report and Detailed
Engineering as approved by the Office of the President. All costs and expenses for
hiring technical personnel, date gathering, permits, licenses, appraisals, clearances,
testing and similar undertaking shall be for the account of the [RBI].
2.03 The [RBI] shall undertake the construction of 3,500 temporary housing units
complete with basic amenities such as plumbing, electrical and sewerage facilities
within the temporary housing project as staging area to temporarily house the squatter
families from the Smokey Mountain while development is being undertaken. These
temporary housing units shall be turned over to the [NHA] for disposition.
2.04 The [RBI] shall construct 3,500 medium rise low cost permanent housing units on
the leveled Smokey Mountain complete with basic utilities and amenities, in accordance
with the plans and specifications set forth in the Final Report approved by the [NHA].
Completed units ready for mortgage take out shall be turned over by the [RBI] to NHA
on agreed schedule.
2.05 The [RBI] shall reclaim forty (40) hectares of Manila Bay area directly across [R-
10] as contained in Proclamation No. 39 as the enabling component of the project and
payment to the [RBI] as its asset share.
2.06 The [RBI] shall likewise furnish all labor materials and equipment necessary to
complete all herein development works to be undertaken on a phase to phase basis in
accordance with the work program stipulated therein.
The profit sharing shall be based on the approved pre-feasibility report submitted to the
EXECOM, viz:
For the developer (RBI):
1. To own the forty (40) hectares of reclaimed land.
2. To own the commercial area at the Smokey Mountain area composed of 1.3
hectares, and
3. To own all the constructed units of medium rise low cost permanent housing units
beyond the 3,500 units share of the [NHA].
For the NHA:
1. To own the temporary housing consisting of 3,500 units.
2. To own the cleared and fenced incinerator site consisting of 5 hectares situated at
the Smokey Mountain area.
3. To own the 3,500 units of permanent housing to be constructed by [RBI] at the

Smokey Mountain area to be awarded to qualified on site residents.
4. To own the Industrial Area site consisting of 3.2 hectares, and
5. To own the open spaces, roads and facilities within the Smokey Mountain area.
In the event of "extraordinary increase in labor, materials, fuel and non-recoverability

of total project expenses,"20 the OP, upon recommendation of the NHA, may approve a
corresponding adjustment in the enabling component.
The functions and responsibilities of RBI and NHA are as follows:
For RBI:
4.01 Immediately commence on the preparation of the FINAL REPORT with emphasis to
the expedient acquisition, with the assistance of the [NHA] of Environmental
Compliance Certificate (ECC) from the Environmental Management Bureau (EMB) of the
[DENR]. Construction shall only commence after the acquisition of the ECC. The
Environment Compliance Certificate (ECC) shall form part of the FINAL REPORT.
The FINAL REPORT shall provide the necessary subdivision and housing plans, detailed
engineering and architectural drawings, technical specifications and other related and
required documents relative to the Smokey Mountain area.
With respect to the 40-hectare reclamation area, the [RBI] shall have the discretion to
develop the same in a manner that it deems necessary to recover the [RBI's]
investment, subject to environmental and zoning rules.
4.02 Finance the total project cost for land development, housing construction and
reclamation of the PROJECT.
4.03 Warrant that all developments shall be in compliance with the requirements of the
FINAL REPORT.
4.04 Provide all administrative resources for the submission of project accomplishment
reports to the [NHA] for proper evaluation and supervision on the actual
implementation.
4.05 Negotiate and secure, with the assistance of the [NHA] the grant of rights of way
to the PROJECT, from the owners of the adjacent lots for access road, water, electrical
power connections and drainage facilities.
4.06 Provide temporary field office and transportation vehicles (2 units), one (1)
complete set of computer and one (1) unit electric typewriter for the [NHA's] field
personnel to be charged to the PROJECT.
For the NHA:
4.07 The [NHA] shall be responsible for the removal and relocation of all squatters
within Smokey Mountain to the Temporary Housing Complex or to other areas prepared
as relocation areas with the assistance of the [RBI]. The [RBI] shall be responsible in
releasing the funds allocated and committed for relocation as detailed in the FINAL
REPORT.
4.08 Assist the [RBI] and shall endorse granting of exemption fees in the acquisition of
all necessary permits, licenses, appraisals, clearances and accreditations for the
PROJECT subject to existing laws, rules and regulations.
4.09 The [NHA] shall inspect, evaluate and monitor all works at the Smokey Mountain
and Reclamation Area while the land development and construction of housing units are
in progress to determine whether the development and construction works are
undertaken in accordance with the FINAL REPORT. If in its judgment, the PROJECT is
not pursued in accordance with the FINAL REPORT, the [NHA] shall require the [RBI] to
undertake necessary remedial works. All expenses, charges and penalties incurred for
such remedial, if any, shall be for the account of the [RBI].
4.10 The [NHA] shall assist the [RBI] in the complete electrification of the PROJECT. x x
x
4.11 Handle the processing and documentation of all sales transactions related to its
assets shares from the venture such as the 3,500 units of permanent housing and the
allotted industrial area of 3.2 hectares.
4.12 All advances outside of project costs made by the [RBI] to the [NHA] shall be
deducted from the proceeds due to the [NHA].
4.13 The [NHA] shall be responsible for the acquisition of the Mother Title for the
Smokey Mountain and Reclamation Area within 90 days upon submission of Survey
returns to the Land Management Sector. The land titles to the 40-hectare reclaimed
land, the 1.3 hectare commercial area at the Smokey Mountain area and the
constructed units of medium-rise permanent housing units beyond the 3,500 units
share of the [NHA] shall be issued in the name of the [RBI] upon completion of the
project. However, the [RBI] shall have the authority to pre-sell its share as indicated in
this agreement.
The final details of the JVA, which will include the construction duration, costs, extent of
reclamation, and delivery timetables, shall be based on the FINAL REPORT which will be
contained in a Supplemental Agreement to be executed later by the parties.
The JVA may be modified or revised by written agreement between the NHA and RBI
specifying the clauses to be revised or modified and the corresponding amendments.
If the Project is revoked or terminated by the Government through no fault of RBI or by

mutual agreement, the Government shall compensate RBI for its actual expenses
incurred in the Project plus a reasonable rate of return not exceeding that stated in the
feasibility study and in the contract as of the date of such revocation, cancellation, or
termination on a schedule to be agreed upon by both parties.
As a preliminary step in the project implementation, consultations and dialogues were

conducted with the settlers of the Smokey Mountain Dumpsite Area. At the same time,
DENR started processing the application for the Environmental Clearance Certificate
(ECC) of the SMDRP. As a result however of the consultative dialogues, public hearings,
the report on the on-site field conditions, the Environmental Impact Statement (EIS)
published on April 29 and May 12, 1993 as required by the Environmental Management
Bureau of DENR, the evaluation of the DENR, and the recommendations from other
government agencies, it was discovered that design changes and additional work have
to be undertaken to successfully implement the Project. 21
Thus, on February 21, 1994, the parties entered into another agreement denominated
as the Amended and Restated Joint Venture Agreement 22 (ARJVA) which delineated the
different phases of the Project. Phase I of the Project involves the construction of
temporary housing units for the current residents of the Smokey Mountain dumpsite,
the clearing and leveling-off of the dumpsite, and the construction of medium-rise low-
cost housing units at the cleared and leveled dumpsite. 23 Phase II of the Project
involves the construction of an incineration area for the on-site disposal of the garbage
at the dumpsite.24 The enabling component or consideration for Phase I of the Project
was increased from 40 hectares of reclaimed lands across R-10 to 79 hectares. 25 The
revision also provided for the enabling component for Phase II of 119 hectares of
reclaimed lands contiguous to the 79 hectares of reclaimed lands for Phase
I.26 Furthermore, the amended contract delineated the scope of works and the terms
and conditions of Phases I and II, thus:
The PROJECT shall consist of Phase I and Phase II.
Phase I shall involve the following:

A. the construction of 2,992 units of temporary housing for the affected residents while
clearing and development of Smokey Mountain [are] being undertaken
b. the clearing of Smokey Mountain and the subsequent construction of 3,520 units of
medium rise housing and the development of the industrial/commercial site within the
Smokey Mountain area
c. the reclamation and development of a 79 hectare area directly across Radial Road 10
to serve as the enabling component of Phase I
Phase II shall involve the following:
A. the construction and operation of an incinerator plant that will conform to the
emission standards of the DENR
b. the reclamation and development of 119-hectare area contiguous to that to be

reclaimed under Phase I to serve as the enabling component of Phase II.
Under the ARJVA, RBI shall construct 2,992 temporary housing units, a reduction from
3,500 units under the JVA.27 However, it was required to construct 3,520 medium-rise
low-cost permanent housing units instead of 3,500 units under the JVA. There was a
substantial change in the design of the permanent housing units such that a "loft shall
be incorporated in each unit so as to increase the living space from 20 to 32 square
meters. The additions and changes in the Original Project Component are as follows:
ORIGINAL CHANGES/REVISIONS
1. TEMPORARY HOUSING
Wood/Plywood, ga. 31 G.I. Concrete/Steel Frame Structure Sheet usable life of 3 years,
gauge 26 G.I. roofing sheets future 12 SM floor area. use as permanent structures for
factory and warehouses mixed 17 sm & 12 sm floor area.
2. MEDIUM RISE MASS
HOUSING
Box type precast Shelter Conventional and precast component 20 square meter
concrete structures, 32 square floor area with 2.4 meter meter floor area with loft floor
height; bare type, 160 units/ (sleeping quarter) 3.6 m. floor building. height, painted
and improved
architectural faÃ§ade, 80 units/building.
3. MITIGATING MEASURES
3.1 For reclamation work Use of clean dredgefill material below the MLLW and SM
material mixed with dredgefill above MLLW.
A. 100% use of Smokey Mountain material as dredgefill Use of Steel Sheet Piles needed
for longer depth of embedment.
b. Concrete Sheet Piles short depth of embedment
c. Silt removal approximately Need to remove more than 3.0
1.0 meter only meters of silt after sub-soil investigation. 28
These material and substantial modifications served as justifications for the increase in
the share of RBI from 40 hectares to 79 hectares of reclaimed land.
Under the JVA, the specific costs of the Project were not stipulated but under the
ARJVA, the stipulated cost for Phase I was pegged at six billion six hundred ninety-
three million three hundred eighty-seven thousand three hundred sixty-four pesos (PhP
6,693,387,364).
In his February 10, 1994 Memorandum, the Chairperson of the SMDRP EXECOM
submitted the ARJVA for approval by the OP. After review of said agreement, the OP
directed that certain terms and conditions of the ARJVA be further clarified or amended
preparatory to its approval. Pursuant to the President's directive, the parties reached an
agreement on the clarifications and amendments required to be made on the ARJVA.
On August 11, 1994, the NHA and RBI executed an Amendment To the Amended and
Restated Joint Venture Agreement (AARJVA)29 clarifying certain terms and condition of
the ARJVA, which was submitted to President Ramos for approval, to wit:
Phase II shall involve the following:
A. the construction and operation of an incinerator plant that will conform to the
emission standards of the DENR
b. the reclamation and development of 119-hectare area contiguous to that to be

reclaimed under Phase I to serve as the enabling component of Phase II, the exact size
and configuration of which shall be approved by the SMDRP Committee 30
Other substantial amendments are the following:
4. Paragraph 2.05 of Article II of the ARJVA is hereby amended to read as follows:
2.05. The DEVELOPER shall reclaim seventy nine (79) hectares of the Manila Bay area
directly across Radial Road 10 (R-10) to serve as payment to the DEVELOPER as its
asset share for Phase I and to develop such land into commercial area with port
facilities; provided, that the port plan shall be integrated with the Philippine Port
Authority's North Harbor plan for the Manila Bay area and provided further, that the
final reclamation and port plan for said reclaimed area shall be submitted for approval
by the Public Estates Authority and the Philippine Ports Authority, respectively:
provided finally, that subject to par. 2.02 above, actual reclamation work may
commence upon approval of the final reclamation plan by the Public Estates Authority.
xxx
9. A new paragraph to be numbered 5.05 shall be added to Article V of the ARJVA, and
shall read as follows:
5.05. In the event this Agreement is revoked, cancelled or terminated by the

AUTHORITY through no fault of the DEVELOPER, the AUTHORITY shall compensate the
DEVELOPER for the value of the completed portions of, and actual expenditures on the
PROJECT plus a reasonable rate of return thereon, not exceeding that stated in the Cost
Estimates of Items of Work previously approved by the SMDRP Executive Committee
and the AUTHORITY and stated in this Agreement, as of the date of such revocation,
cancellation, or termination, on a schedule to be agreed upon by the parties, provided
that said completed portions of Phase I are in accordance with the approved FINAL
REPORT.
Afterwards, President Ramos issued Proclamation No. 465 dated August 31,
199431 increasing the proposed area for reclamation across R-10 from 40 hectares to 79
hectares,32 to wit:
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by

virtue of the powers vested in me by the law, and as recommended by the SMDRP
Executive Committee, do hereby authorize the increase of the area of foreshore or
submerged lands of Manila Bay to be reclaimed, as previously authorized under
Proclamation No. 39 (s. 1992) and Memorandum Order No. 415 (s. 1992), from Four
Hundred Thousand (400,000) square meters, more or less, to Seven Hundred Ninety
Thousand (790,000) square meters, more or less.
On September 1, 1994, pursuant to Proclamation No. 39, the DENR issued Special
Patent No. 3591 conveying in favor of NHA an area of 211,975 square meters covering
the Smokey Mountain Dumpsite.
In its September 7, 1994 letter to the EXECOM, the OP through then Executive
Secretary Teofisto T. Guingona, Jr., approved the ARJVA as amended by the AARJVA.
On September 8, 1994, the DENR issued Special Patent 3592 pursuant to Proclamation
No. 39, conveying in favor of NHA a 401,485-square meter area.
On September 26, 1994, the NHA, RBI, Home Insurance and Guaranty Corporation
(HIGC), now known as the Home Guaranty Corporation, and the Philippine National
Bank (PNB)33 executed the Smokey Mountain Asset Pool Formation Trust Agreement
(Asset Pool Agreement).34 Thereafter, a Guaranty Contract was entered into by NHA,
RBI, and HIGC.
On June 23, 1994, the Legislature passed the Clean Air Act. 35 The Act made the
establishment of an incinerator illegal and effectively barred the implementation of the
planned incinerator project under Phase II. Thus, the off-site disposal of the garbage at
the Smokey Mountain became necessary.36
The land reclamation was completed in August 1996. 37

Sometime later in 1996, pursuant likewise to Proclamation No. 39, the DENR issued
Special Patent No. 3598 conveying in favor of NHA an additional 390,000 square meter
area.
During the actual construction and implementation of Phase I of the SMDRP, the Inter-
Agency Technical Committee found and recommended to the EXECOM on December 17,
1997 that additional works were necessary for the completion and viability of the
Project. The EXECOM approved the recommendation and so, NHA instructed RBI to
implement the change orders or necessary works.38
Such necessary works comprised more than 25% of the original contract price and as a
result, the Asset Pool incurred direct and indirect costs. Based on C1 12 A of the
Implementing Rules and Regulations of PD 1594, a supplemental agreement is required
for "all change orders and extra work orders, the total aggregate cost of which being
more than twenty-five (25%) of the escalated original contract price."
The EXECOM requested an opinion from the Department of Justice (DOJ) to determine
whether a bidding was required for the change orders and/or necessary works. The
DOJ, through DOJ Opinion Nos. 119 and 155 dated August 26, 1993 and November 12,
1993, opined that "a rebidding, pursuant to the aforequoted provisions of the
implementing rules (referring to PD 1594) would not be necessary where the change
orders inseparable from the original scope of the project, in which case, a negotiation
with the incumbent contractor may be allowed."
Thus, on February 19, 1998, the EXECOM issued a resolution directing NHA to enter
into a supplemental agreement covering said necessary works.
On March 20, 1998, the NHA and RBI entered into a Supplemental Agreement covering
the aforementioned necessary works and submitted it to the President on March 24,
1998 for approval.
Outgoing President Ramos decided to endorse the consideration of the Supplemental

Agreement to incoming President Joseph E. Estrada. On June 30, 1998, Estrada became
the 13th Philippine President.
However, the approval of the Supplemental Agreement was unacted upon for five
months. As a result, the utilities and the road networks were constructed to cover only
the 79-hectare original enabling component granted under the ARJVA. The 220-hectare
extension of the 79-hectare area was no longer technically feasible. Moreover, the
financial crises and unreliable real estate situation made it difficult to sell the remaining
reclaimed lots. The devaluation of the peso and the increase in interest cost led to the
substantial increase in the cost of reclamation.
On August 1, 1998, the NHA granted RBI's request to suspend work on the SMDRP due
to "the delay in the approval of the Supplemental Agreement, the consequent absence
of an enabling component to cover the cost of the necessary works for the project, and
the resulting inability to replenish the Asset Pool funds partially used for the completion
of the necessary works."39
As of August 1, 1998 when the project was suspended, RBI had "already accomplished
a portion of the necessary works and change orders which resulted in [RBI] and the
Asset Pool incurring advances for direct and indirect cost which amount can no longer
be covered by the 79-hectare enabling component under the ARJVA." 40
Repeated demands were made by RBI in its own capacity and on behalf of the asset
pool on NHA for payment for the advances for direct and indirect costs subject to NHA
validation.
In November 1998, President Estrada issued Memorandum Order No. 33 reconstituting

the SMDRP EXECOM and further directed it to review the Supplemental Agreement and
submit its recommendation on the completion of the SMDRP.
The reconstituted EXECOM conducted a review of the project and recommended the
amendment of the March 20, 1998 Supplemental Agreement "to make it more feasible
and to identify and provide new sources of funds for the project and provide for a new
enabling component to cover the payment for the necessary works that cannot be
covered by the 79-hectare enabling component under the ARJVA." 41
The EXECOM passed Resolution Nos. 99-16-01 and 99-16-02 42 which approved the
modification of the Supplemental Agreement, to wit:
a) Approval of 150 hectares additional reclamation in order to make the reclamation

feasible as part of the enabling component.
b) The conveyance of the 15-hectare NHA Vitas property (actually 17 hectares based on
surveys) to the SMDRP Asset Pool.
c) The inclusion in the total development cost of other additional, necessary and
indispensable infrastructure works and the revision of the original cost stated in the
Supplemental Agreement dated March 20, 1998 from PhP 2,953,984,941.40 to PhP
2,969,134,053.13.
d) Revision in the sharing agreement between the parties.
In the March 23, 2000 OP Memorandum, the EXECOM was authorized to proceed and
complete the SMDRP subject to certain guidelines and directives.
After the parties in the case at bar had complied with the March 23, 2000
Memorandum, the NHA November 9, 2000 Resolution No. 4323 approved "the
conveyance of the 17-hectare Vitas property in favor of the existing or a newly created
Asset Pool of the project to be developed into a mixed commercial-industrial area,
subject to certain conditions."
On January 20, 2001, then President Estrada was considered resigned. On the same
day, President Gloria M. Arroyo took her oath as the 14th President of the Philippines.
As of February 28, 2001, "the estimated total project cost of the SMDRP has reached
P8.65 billion comprising of P4.78 billion in direct cost and P3.87 billion in indirect
cost,"43 subject to validation by the NHA.
On August 28, 2001, NHA issued Resolution No. 4436 to pay for "the various necessary
works/change orders to SMDRP, to effect the corresponding enabling component
consisting of the conveyance of the NHA's Vitas Property and an additional 150-hectare
reclamation area" and to authorize the release by NHA of PhP 480 million "as advance
to the project to make the Permanent Housing habitable, subject to reimbursement
from the proceeds of the expanded enabling component." 44
On November 19, 2001, the Amended Supplemental Agreement (ASA) was signed by
the parties, and on February 28, 2002, the Housing and Urban Development
Coordinating Council (HUDCC) submitted the agreement to the OP for approval.
In the July 20, 2002 Cabinet Meeting, HUDCC was directed "to submit the works
covered by the PhP 480 million [advance to the Project] and the ASA to public
bidding."45 On August 28, 2002, the HUDCC informed RBI of the decision of the Cabinet.
In its September 2, 2002 letter to the HUDCC Chairman, RBI lamented the decision of
the government "to bid out the remaining works under the ASA thereby unilaterally
terminating the Project with RBI and all the agreements related thereto." RBI
demanded the payment of just compensation "for all accomplishments and costs
incurred in developing the SMDRP plus a reasonable rate of return thereon pursuant to
Section 5.05 of the ARJVA and Section 6.2 of the ASA." 46
Consequently, the parties negotiated the terms of the termination of the JVA and other
subsequent agreements.
On August 27, 2003, the NHA and RBI executed a Memorandum of Agreement (MOA)
whereby both parties agreed to terminate the JVA and other subsequent agreements,
thus:
1. TERMINATION
1.1 In compliance with the Cabinet directive dated 30 July 2002 to submit the works
covered by the P480 Million and the ASA to public bidding, the following agreements
executed by and between the NHA and the DEVELOPER are hereby terminated, to wit:
A. Joint Venture Agreement (JVA) dated 19 March 1993
b. Amended and Restated Joint Venture Agreement (ARJVA) dated 21 February 1994
c. Amendment and Restated Joint Venture Agreement dated 11 August 1994
d. Supplemental Agreement dated 24 March 1998
e. Amended Supplemental Agreement (ASA) dated 19 November 2001.

xxx
5. SETTLEMENT OF CLAIMS
5.1 Subject to the validation of the DEVELOPER's claims, the NHA hereby agrees to
initially compensate the Developer for the abovementioned costs as follows:
A. Direct payment to DEVELOPER of the amounts herein listed in the following manner:
a.1 P250 Million in cash from the escrow account in accordance with Section 2
herewith;
a.2 Conveyance of a 3 hectare portion of the Vitas Industrial area immediately after
joint determination of the appraised value of the said property in accordance with the
procedure herein set forth in the last paragraph of Section 5.3. For purposes of all
payments to be made through conveyance of real properties, the parties shall secure
from the NHA Board of Directors all documents necessary and sufficient to effect the
transfer of title over the properties to be conveyed to RBI, which documents shall be
issued within a reasonable period.
5.2 Any unpaid balance of the DEVELOPERS claims determined after the validation
process referred to in Section 4 hereof, may be paid in cash, bonds or through the
conveyance of properties or any combination thereof. The manner, terms and
conditions of payment of the balance shall be specified and agreed upon later within a
period of three months from the time a substantial amount representing the unpaid
balance has been validated pursuant hereto including, but not limited to the
programming of quarterly cash payments to be sourced by the NHA from its budget for
debt servicing, from its income or from any other sources.
5.3 In any case the unpaid balance is agreed to be paid, either partially or totally
through conveyance of properties, the parties shall agree on which properties shall be
subject to conveyance. The NHA and DEVELOPER hereby agree to determine the
valuation of the properties to be conveyed by getting the average of the appraisals to
be made by two (2) mutually acceptable independent appraisers.
Meanwhile, respondent Harbour Centre Port Terminal, Inc. (HCPTI) entered into an
agreement with the asset pool for the development and operations of a port in the
Smokey Mountain Area which is a major component of SMDRP to provide a source of
livelihood and employment for Smokey Mountain residents and spur economic growth.
A Subscription Agreement was executed between the Asset Pool and HCPTI whereby
the asset pool subscribed to 607 million common shares and 1,143 million preferred
shares of HCPTI. The HCPTI preferred shares had a premium and penalty interest of
7.5% per annum and a mandatory redemption feature. The asset pool paid the
subscription by conveying to HCPTI a 10-hectare land which it acquired from the NHA
being a portion of the reclaimed land of the SMDRP. Corresponding certificates of titles
were issued to HCPTI, namely: TCT Nos. 251355, 251356, 251357, and 251358.
Due to HCPTI's failure to obtain a license to handle foreign containerized cargo from
PPA, it suffered a net income loss of PhP 132,621,548 in 2002 and a net loss of PhP
15,540,063 in 2003. The Project Governing Board of the Asset Pool later conveyed by
way of dacion en pago a number of HCPTI shares to RBI in lieu of cash payment for the
latter's work in SMDRP.
On August 5, 2004, former Solicitor General Francisco I. Chavez, filed the instant
petition which impleaded as respondents the NHA, RBI, R-II Holdings, Inc. (RHI),
HCPTI, and Mr. Reghis Romero II, raising constitutional issues.
The NHA reported that thirty-four (34) temporary housing structures and twenty-one
(21) permanent housing structures had been turned over by respondent RBI. It claimed
that 2,510 beneficiary-families belonging to the poorest of the poor had been
transferred to their permanent homes and benefited from the Project.
The Issues
The grounds presented in the instant petition are:
Neither respondent NHA nor respondent R-II builders may validly reclaim foreshore and
submerged land because:
1. Respondent NHA and R-II builders were never granted any power and authority to
reclaim lands of the public domain as this power is vested exclusively with the PEA.
2. Even assuming that respondents NHA and R-II builders were given the power and
authority to reclaim foreshore and submerged land, they were never given the authority
by the denr to do so.
II
Respondent R-II builders cannot acquire the reclaimed foreshore and submerged land
areas because:
1. The reclaimed foreshore and submerged parcels of land are inalienable public lands
which are beyond the commerce of man.
2. Assuming arguendo that the subject reclaimed foreshore and submerged parcels of
land were already declared alienable lands of the public domain, respondent R-II
builders still could not acquire the same because there was never any declaration that
the said lands were no longer needed for public use.
3. Even assuming that the subject reclaimed lands are alienable and no longer needed
for public use, respondent R-II builders still cannot acquire the same because there was
never any law authorizing the sale thereof.
4. There was never any public bidding awarding ownership of the subject land to
respondent R-II builders.
5. Assuming that all the requirements for a valid transfer of alienable public had been
performed, respondent R-II Builders, being private corporation is nonetheless
expresslyprohibited by the Philippine Constitution to acquire lands of the public domain.
III
Respondent harbour, being a private corporation whose majority stocks are owned and
controlled by respondent Romero's Corporations - R-II builders and R-II Holdings - is
disqualified from being a transferee of public land.
IV
Respondents must be compelled to disclose all information related to the smokey

mountain development and reclamation project.
The Court's Ruling
Before we delve into the substantive issues raised in this petition, we will first deal with
several procedural matters raised by respondents.
Whether petitioner has the requisite locus standi to file this case
Respondents argue that petitioner Chavez has no legal standing to file the petition.
Only a person who stands to be benefited or injured by the judgment in the suit or
entitled to the avails of the suit can file a complaint or petition. 47 Respondents claim
that petitioner is not a proper party-in-interest as he was unable to show that "he has
sustained or is in immediate or imminent danger of sustaining some direct and personal
injury as a result of the execution and enforcement of the assailed contracts or
agreements."48 Moreover, they assert that not all government contracts can justify a
taxpayer's suit especially when no public funds were utilized in contravention of the
Constitution or a law.
We explicated in Chavez v. PCGG49 that in cases where issues of transcendental public

importance are presented, there is no necessity to show that petitioner has experienced
or is in actual danger of suffering direct and personal injury as the requisite injury is
assumed. We find our ruling in Chavez v. PEA50 as conclusive authority on locus standi
in the case at bar since the issues raised in this petition are averred to be in breach of
the fair diffusion of the country's natural resources and the constitutional right of a
citizen to information which have been declared to be matters of transcendental public
importance. Moreover, the pleadings especially those of respondents readily reveal that
public funds have been indirectly utilized in the Project by means of Smokey Mountain
Project Participation Certificates (SMPPCs) bought by some government agencies.
Hence, petitioner, as a taxpayer, is a proper party to the instant petition before the
court.
Whether petitioner's direct recourse to this Court was proper

Respondents are one in asserting that petitioner circumvents the principle of hierarchy
of courts in his petition. Judicial hierarchy was made clear in the case of People v.
Cuaresma, thus:
There is after all a hierarchy of courts. That hierarchy is determinative of the venue of
appeals, and should also serve as a general determinant of the appropriate forum for
petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of extraordinary writs against first
level ("inferior") courts should be filed with the Regional Trial Court, and those against
the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original
jurisdiction to issue these writs should be allowed only when there are special and
important reasons therefor, clearly and specifically set out in the petition. This is
established policy. It is a policy that is necessary to prevent inordinate demands upon
the Court's time and attention which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. 51 x x
x
The OSG claims that the jurisdiction over petitions for prohibition and mandamus is
concurrent with other lower courts like the Regional Trial Courts and the Court of
Appeals. Respondent NHA argues that the instant petition is misfiled because it does
not introduce special and important reasons or exceptional and compelling
circumstances to warrant direct recourse to this Court and that the lower courts are
more equipped for factual issues since this Court is not a trier of facts. Respondents RBI
and RHI question the filing of the petition as this Court should not be unduly burdened
with "repetitions, invocation of jurisdiction over constitutional questions it had
previously resolved and settled."
In the light of existing jurisprudence, we find paucity of merit in respondents'

postulation.
While direct recourse to this Court is generally frowned upon and discouraged, we have
however ruled in Santiago v. Vasquez that such resort to us may be allowed in certain
situations, wherein this Court ruled that petitions for certiorari, prohibition,
or mandamus, though cognizable by other courts, may directly be filed with us if "the
redress desired cannot be obtained in the appropriate courts or where exceptional
compelling circumstances justify availment of a remedy within and calling for the
exercise of [this Court's] primary jurisdiction." 52
chanrobles virtual law library
The instant petition challenges the constitutionality and legality of the SMDRP involving
several hectares of government land and hundreds of millions of funds of several
government agencies. Moreover, serious constitutional challenges are made on the
different aspects of the Project which allegedly affect the right of Filipinos to the
distribution of natural resources in the country and the right to information of a citizen
matters which have been considered to be of extraordinary significance and grave
consequence to the public in general. These concerns in the instant action compel us to
turn a blind eye to the judicial structure meant to provide an orderly dispensation of
justice and consider the instant petition as a justified deviation from an established
precept.
Core factual matters undisputed

Respondents next challenge the projected review by this Court of the alleged factual
issues intertwined in the issues propounded by petitioner. They listed a copious number
of questions seemingly factual in nature which would make this Court a trier of facts. 53
We find the position of respondents bereft of merit.
For one, we already gave due course to the instant petition in our January 18, 2005
Resolution.54 In said issuance, the parties were required to make clear and concise
statements of established facts upon which our decision will be based.
Secondly, we agree with petitioner that there is no necessity for us to make any factual
findings since the facts needed to decide the instant petition are well established from
the admissions of the parties in their pleadings 55 and those derived from the documents
appended to said submissions. Indeed, the core facts which are the subject matter of
the numerous issues raised in this petition are undisputed.
Now we will tackle the issues that prop up the instant petition.
Since petitioner has cited our decision in PEA as basis for his postulations in a number
of issues, we first resolve the query is PEA applicable to the case at bar?
cralaw library
A juxtaposition of the facts in the two cases constrains the Court to rule in the negative.
The Court finds that PEA is not a binding precedent to the instant petition because the
facts in said case are substantially different from the facts and circumstances in the
case at bar, thus:
(1) The reclamation project in PEA was undertaken through a JVA entered into between
PEA and AMARI. The reclamation project in the instant NHA case was undertaken by the
NHA, a national government agency in consultation with PEA and with the approval of
two Philippine Presidents;
(2) In PEA, AMARI and PEA executed a JVA to develop the Freedom Islands and reclaim
submerged areas without public bidding on April 25, 1995. In the instant NHA case, the
NHA and RBI executed a JVA after RBI was declared the winning bidder on August 31,
1992 as the JVA partner of the NHA in the SMDRP after compliance with the requisite
public bidding.
(3) In PEA, there was no law or presidential proclamation classifying the lands to be
reclaimed as alienable and disposal lands of public domain. In this RBI case, MO 415 of
former President Aquino and Proclamation No. 39 of then President Ramos, coupled
with Special Patents Nos. 3591, 3592, and 3598, classified the reclaimed lands as
alienable and disposable;
(4) In PEA, the Chavez petition was filed before the amended JVA was executed by PEA
and AMARI. In this NHA case, the JVA and subsequent amendments were already
substantially implemented. Subsequently, the Project was terminated through a MOA

signed on August 27, 2003. Almost one year later on August 5, 2004, the Chavez
petition was filed;
(5) In PEA, AMARI was considered to be in bad faith as it signed the amended JVA after
the Chavez petition was filed with the Court and after Senate Committee Report No.
560 was issued finding that the subject lands are inalienable lands of public domain. In
the instant petition, RBI and other respondents are considered to have signed the
agreements in good faith as the Project was terminated even before the Chavez petition
was filed;
(6) The PEA-AMARI JVA was executed as a result of direct negotiation between the
parties and not in accordance with the BOT Law. The NHA-RBI JVA and subsequent
amendments constitute a BOT contract governed by the BOT Law; and cralawlibrary
(7) In PEA, the lands to be reclaimed or already reclaimed were transferred to PEA, a
government entity tasked to dispose of public lands under Executive Order No. (EO)
525.56 In the NHA case, the reclaimed lands were transferred to NHA, a government
entity NOT tasked to dispose of public land and therefore said alienable lands were
converted to patrimonial lands upon their transfer to NHA. 57
Thus the PEA Decision58 cannot be considered an authority or precedent to the instant
case. The principle of stare decisis59 has no application to the different factual setting of
the instant case.
We will now dwell on the substantive issues raised by petitioner. After a perusal of the
grounds raised in this petition, we find that most of these issues are moored on our PEA
Decision which, as earlier discussed, has no application to the instant petition. For this
reason alone, the petition can already be rejected. Nevertheless, on the premise of the
applicability of said decision to the case at bar, we will proceed to resolve said issues.
First Issue: Whether respondents NHA and RBI have been granted
the power and authority to reclaim lands of the public domain as
this power is vested exclusively in PEA as claimed by petitioner
Petitioner contends that neither respondent NHA nor respondent RBI may validly
reclaim foreshore and submerged land because they were not given any power and
authority to reclaim lands of the public domain as this power was delegated by law to
PEA.
Asserting that existing laws did not empower the NHA and RBI to reclaim lands of
public domain, the Public Estates Authority (PEA), petitioner claims, is "the primary
authority for the reclamation of all foreshore and submerged lands of public domain,"
and relies on PEA where this Court held:
Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily
responsible for integrating, directing, and coordinating all reclamation projects for and
on behalf of the National Government." The same section also states that "[A]ll
reclamation projects shall be approved by the President upon recommendation of the
PEA, and shall be undertaken by the PEA or through a proper contract executed by it
with any person or entity; x x x." Thus, under EO No. 525, in relation to PD No. 3-A and
PD No. 1084, PEA became the primary implementing agency of the National
Government to reclaim foreshore and submerged lands of the public domain. EO No.
525 recognized PEA as the government entity "to undertake the reclamation of lands
and ensure their maximum utilization in promoting public welfare and interests." Since
large portions of these reclaimed lands would obviously be needed for public service,
there must be a formal declaration segregating reclaimed lands no longer needed for
public service from those still needed for public service. 60
In the Smokey Mountain Project, petitioner clarifies that the reclamation was not done
by PEA or through a contract executed by PEA with another person or entity but by the
NHA through an agreement with respondent RBI. Therefore, he concludes that the
reclamation is null and void.
Petitioner's contention has no merit.
EO 525 reads:
Section 1. The Public Estates Authority (PEA) shall be primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of the
National Government. All reclamation projects shall be approved by the President upon
recommendation of the PEA, and shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity; Provided, that, reclamation projects
of any national government agency or entity authorized under its charter shall be
undertaken in consultation with the PEA upon approval of the President. (Emphasis
supplied.)
The aforequoted provision points to three (3) requisites for a legal and valid
reclamation project, viz:
(1) approval by the President;
(2) favorable recommendation of PEA; and cralawlibrary
(3) undertaken by any of the following:
A. by PEA
b. by any person or entity pursuant to a contract it executed with PEA
c. by the National Government agency or entity authorized under its charter to reclaim
lands subject to consultation with PEA
Without doubt, PEA under EO 525 was designated as the agency primarily responsible
for integrating, directing, and coordinating all reclamation projects. Primarily means
"mainly, principally, mostly, generally." Thus, not all reclamation projects fall under
PEA's authority of supervision, integration, and coordination. The very charter of PEA,
PD 1084,61 does not mention that PEA has the exclusive and sole power and authority
to reclaim lands of public domain. EO 525 even reveals the exception reclamation
projects by a national government agency or entity authorized by its charter to reclaim
land. One example is EO 405 which authorized the Philippine Ports Authority (PPA) to
reclaim and develop submerged areas for port related purposes. Under its charter, PD
857, PPA has the power "to reclaim, excavate, enclose or raise any of the lands" vested
in it.
Thus, while PEA under PD 1084 has the power to reclaim land and under EO 525 is
primarily responsible for integrating, directing and coordinating reclamation projects,
such authority is NOT exclusive and such power to reclaim may be granted or delegated
to another government agency or entity or may even be undertaken by the National
Government itself, PEA being only an agency and a part of the National Government.
Let us apply the legal parameters of Sec. 1, EO 525 to the reclamation phase of
SMDRP. After a scrutiny of the facts culled from the records, we find that the project
met all the three (3) requirements, thus:
1. There was ample approval by the President of the Philippines; as a matter of fact,
two Philippine Presidents approved the same, namely: Presidents Aquino and Ramos.
President Aquino sanctioned the reclamation of both the SMDRP housing and
commercial-industrial sites through MO 415 (s. 1992) which approved the SMDRP under
Sec. 1 and directed NHA "x x x to implement the Smokey Mountain Development Plan
and Reclamation of the Area across R-10 through a private sector joint venture scheme
at the least cost to government" under Section 3.
For his part, then President Ramos issued Proclamation No. 39 (s. 1992) which
expressly reserved the Smokey Mountain Area and the Reclamation Area for a housing
project and related commercial/industrial development.
Moreover, President Ramos issued Proclamation No. 465 (s. 1994) which authorized the
increase of the Reclamation Area from 40 hectares of foreshore and submerged land of
the Manila Bay to 79 hectares. It speaks of the reclamation of 400,000 square meters,
more or less, of the foreshore and submerged lands of Manila Bay adjoining R-10 as an
enabling component of the SMDRP.
As a result of Proclamations Nos. 39 and 465, Special Patent No. 3591 covering
211,975 square meters of Smokey Mountain, Special Patent No. 3592 covering 401,485
square meters of reclaimed land, and Special Patent No. 3598 covering another
390,000 square meters of reclaimed land were issued by the DENR.
Thus, the first requirement of presidential imprimatur on the SMDRP has been satisfied.
2. The requisite favorable endorsement of the reclamation phase was impliedly granted
by PEA. President Aquino saw to it that there was coordination of the project with PEA
by designating its general manager as member of the EXECOM tasked to supervise the
project implementation. The assignment was made in Sec. 2 of MO 415 which provides:
Section 2. An Executive Committee is hereby created to oversee the implementation of

the Plan, chaired by the NCR-CORD, with the heads of the following agencies as
members: The National Housing Authority, the City of Manila, the Department of Public
Works and Highways, the Public Estates Authority, the Philippine Ports Authority, the
Department of Environment and Natural Resources and the Development Bank of the
Philippines. (Emphasis supplied.)
The favorable recommendation by PEA of the JVA and subsequent amendments were
incorporated as part of the recommendations of the EXECOM created under MO 415.
While there was no specific recommendation on the SMDRP emanating solely from PEA,
we find that the approbation of the Project and the land reclamation as an essential
component by the EXECOM of which PEA is a member, and its submission of the SMDRP
and the agreements on the Project to the President for approval amply met the second
requirement of EO 525.
3. The third element was also present the reclamation was undertaken either by PEA or
any person or entity under contract with PEA or by the National Government agency or
entity authorized under its charter to reclaim lands subject to consultation with PEA. It
cannot be disputed that the reclamation phase was not done by PEA or any person or
entity under contract with PEA. However, the reclamation was implemented by the
NHA, a national government agency whose authority to reclaim lands under
consultation with PEA is derived from its charter PD 727 and other pertinent laws'RA
727962 and RA 6957 as amended by RA 7718.
While the authority of NHA to reclaim lands is challenged by petitioner, we find that the
NHA had more than enough authority to do so under existing laws. While PD 757, the
charter of NHA, does not explicitly mention "reclamation" in any of the listed powers of
the agency, we rule that the NHA has an implied power to reclaim land as this is vital or
incidental to effectively, logically, and successfully implement an urban land reform and
housing program enunciated in Sec. 9 of Article XIII of the 1987 Constitution.
Basic in administrative law is the doctrine that a government agency or office has
express and implied powers based on its charter and other pertinent statutes. Express
powers are those powers granted, allocated, and delegated to a government agency or
office by express provisions of law. On the other hand, implied powers are those that
can be inferred or are implicit in the wordings of the law 63 or conferred by necessary or
fair implication in the enabling act.64 In Angara v. Electoral Commission, the Court
clarified and stressed that when a general grant of power is conferred or duty enjoined,
every particular power necessary for the exercise of the one or the performance of the
other is also conferred by necessary implication.65 It was also explicated that when the
statute does not specify the particular method to be followed or used by a government
agency in the exercise of the power vested in it by law, said agency has the authority to
adopt any reasonable method to carry out its functions. 66
The power to reclaim on the part of the NHA is implicit from PD 757, RA 7279, MO 415,
RA 6957, and PD 3-A,67 viz:
1. NHA's power to reclaim derived from PD 757 provisions:
A. Sec. 3 of PD 757 implies that reclamation may be resorted to in order to attain the
goals of NHA:
Section 3. Progress and Objectives. The Authority shall have the following purposes and
objectives:
xxx
b) To undertake housing, development, resettlement or other activities as would
enhance the provision of housing to every Filipino;
c) To harness and promote private participation in housing ventures in terms of capital

expenditures, land, expertise, financing and other facilities for the sustained growth of
the housing industry. (Emphasis supplied.)
Land reclamation is an integral part of the development of resources for some of the
housing requirements of the NHA. Private participation in housing projects may also
take the form of land reclamation.
b. Sec. 5 of PD 757 serves as proof that the NHA, as successor of the Tondo Foreshore
Development Authority (TFDA), has the power to reclaim, thus:
Section 5. Dissolution of Existing Housing Agencies. The People's Homesite and

Housing Corporation (PHHC), the Presidential Assistant on Housing Resettlement
Agency (PAHRA), the Tondo Foreshore Development Authority (TFDA), the Central
Institute for the Training and Relocation of Urban Squatters (CITRUS), the Presidential
Committee for Housing and Urban Resettlement (PRECHUR), Sapang Palay
Development Committee, Inter-Agency Task Force to Undertake the Relocation of
Families in Barrio Nabacaan, Villanueva, Misamis Oriental and all other existing
government housing and resettlement agencies, task forces and ad-hoc committees,
are hereby dissolved. Their powers and functions, balance of appropriations, records,
assets, rights, and choses in action, are transferred to, vested in, and assumed by the
Authority. x x x (Emphasis supplied.)
PD 570 dated October 30, 1974 created the TFDA, which defined its objectives, powers,
and functions. Sec. 2 provides:
Section 2. Objectives and Purposes. The Authority shall have the following purposes
and objectives:
a) To undertake all manner of activity, business or development projects for the

establishment of harmonious, comprehensive, integrated and healthy living community
in the Tondo Foreshoreland and its resettlement site;
b) To undertake and promote the physical and socio-economic amelioration of the

Tondo Foreshore residents in particular and the nation in general (Emphasis supplied.)
The powers and functions are contained in Sec. 3, to wit:
a) To develop and implement comprehensive and integrated urban renewal programs

for the Tondo Foreshore and Dagat-dagatan lagoon and/or any other
additional/alternative resettlement site and to formulate and enforce general and
specific policies for its development which shall ensure reasonable degree of compliance
with environmental standards.
b) To prescribe guidelines and standards for the reservation, conservation and

utilization of public lands covering the Tondo Foreshore land and its resettlement sites;
c) To construct, acquire, own, lease, operate and maintain infrastructure facilities,
housing complex, sites and services;
d) To determine, regulate and supervise the establishment and operation of housing,

sites, services and commercial and industrial complexes and any other enterprises to be
constructed or established within the Tondo Foreshore and its resettlement sites;
e) To undertake and develop, by itself or through joint ventures with other public or
private entities, all or any of the different phases of development of the Tondo
Foreshore land and its resettlement sites;
f) To acquire and own property, property-rights and interests, and encumber or

otherwise dispose of the same as it may deem appropriate (Emphasis supplied.)
From the foregoing provisions, it is readily apparent that the TFDA has the explicit
power to develop public lands covering the Tondo foreshore land and any other
additional and alternative resettlement sites under letter b, Sec. 3 of PD 570. Since the
additional and/or alternative sites adjacent to Tondo foreshore land cover foreshore and
submerged areas, the reclamation of said areas is necessary in order to convert them
into a comprehensive and integrated resettlement housing project for the slum dwellers
and squatters of Tondo. Since the powers of TFDA were assumed by the NHA, then the
NHA has the power to reclaim lands in the Tondo foreshore area which covers the 79-
hectare land subject of Proclamations Nos. 39 and 465 and Special Patents Nos. 3592
and 3598.
c. Sec. 6 of PD 757 delineates the functions and powers of the NHA which embrace the
authority to reclaim land, thus:
Sec. 6. Powers and functions of the Authority. The Authority shall have the following
powers and functions to be exercised by the Board in accordance with its established
national human settlements plan prepared by the Human Settlements Commission:
(a) Develop and implement the comprehensive and integrated housing program
provided for in Section hereof;
xxx
(c) Prescribe guidelines and standards for the reservation, conservation and utilization
of public lands identified for housing and resettlement;
xxx
(e) Develop and undertake housing development and/or resettlement projects through
joint ventures or other arrangements with public and private entities;
xxx
(k) Enter into contracts whenever necessary under such terms and conditions as it may
deem proper and reasonable;
(l) Acquire property rights and interests and encumber or otherwise dispose the same
as it may deem appropriate;
xxx
(s) Perform such other acts not inconsistent with this Decree, as may be necessary to
effect the policies and objectives herein declared. (Emphasis supplied.)
The NHA's authority to reclaim land can be inferred from the aforequoted provisions. It
can make use of public lands under letter (c) of Sec. 6 which includes reclaimed land as
site for its comprehensive and integrated housing projects under letter (a) which can be
undertaken through joint ventures with private entities under letter (e). Taken together
with letter (s) which authorizes NHA to perform such other activities "necessary to
effect the policies and objectives" of PD 757, it is safe to conclude that the NHA's power
to reclaim lands is a power that is implied from the exercise of its explicit powers under
Sec. 6 in order to effectively accomplish its policies and objectives under Sec. 3 of its
charter. Thus, the reclamation of land is an indispensable component for the
development and construction of the SMDRP housing facilities.
2. NHA's implied power to reclaim land is enhanced by RA 7279.
PD 757 identifies NHA's mandate to "[d]evelop and undertake housing development

and/or resettlement projects through joint ventures or other arrangements with public
and private entities."
The power of the NHA to undertake reclamation of land can be inferred from Secs. 12
and 29 of RA 7279, which provide:
Section 12. Disposition of Lands for Socialized Housing.' The National Housing
Authority, with respect to lands belonging to the National Government, and the local
government units with respect to other lands within their respective localities, shall
coordinate with each other to formulate and make available various alternative
schemes for the disposition of lands to the beneficiaries of the Program. These schemes
shall not be limited to those involving transfer of ownership in fee simple but shall
include lease, with option to purchase, usufruct or such other variations as the local
government units or the National Housing Authority may deem most expedient in
carrying out the purposes of this Act.
xxx
Section 29. Resettlement.' With two (2) years from the effectivity of this Act, the local
government units, in coordination with the National Housing Authority, shall implement
the relocation and resettlement of persons living in danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and in other public
places as sidewalks, roads, parks, and playgrounds. The local government unit, in
coordination with the National Housing Authority, shall provide relocation or
resettlement sites with basic services and facilities and access to employment and
livelihood opportunities sufficient to meet the basic needs of the affected families.
(Emphasis supplied.)
Lands belonging to the National Government include foreshore and submerged lands
which can be reclaimed to undertake housing development and resettlement projects.
3. MO 415 explains the undertaking of the NHA in SMDRP:
WHEREAS, Memorandum Order No. 161-A mandated the National Housing Authority to
conduct feasibility studies and develop low-cost housing projects at the dumpsites of
Metro Manila;
WHEREAS, the National Housing Authority has presented a viable Conceptual Plan to
convert the Smokey Mountain dumpsite into a habitable housing project inclusive of the
reclamation area across R-10 as enabling component of the Project;
WHEREAS, the said Plan requires the coordinated and synchronized efforts of the City of
Manila and other government agencies and instrumentalities to ensure effective and
efficient implementation;
WHEREAS, the government encourages private sector initiative in the implementation

of its projects. (Emphasis supplied.)
Proceeding from these "whereas" clauses, it is unequivocal that reclamation of land in

the Smokey Mountain area is an essential and vital power of the NHA to effectively
implement its avowed goal of developing low-cost housing units at the Smokey
Mountain dumpsites. The interpretation made by no less than the President of the
Philippines as Chief of the Executive Branch, of which the NHA is a part, must
necessarily command respect and much weight and credit.
4. RA 6957 as amended by RA 7718 the BOT Law'serves as an exception to PD 1084

and EO 525.
Based on the provisions of the BOT Law and Implementing Rules and Regulations, it is
unequivocal that all government infrastructure agencies like the NHA can undertake
infrastructure or development projects using the contractual arrangements prescribed
by the law, and land reclamation is one of the projects that can be resorted to in the
BOT project implementation under the February 10, 1992 Joint Resolution No. 3 of the
8th Congress.
From the foregoing considerations, we find that the NHA has ample implied authority to
undertake reclamation projects.
Even without an implied power to reclaim lands under NHA's charter, we rule that the
authority granted to NHA, a national government agency, by the President under PD 3-
A reinforced by EO 525 is more than sufficient statutory basis for the reclamation of
lands under the SMDRP.
PD 3-A is a law issued by then President Ferdinand E. Marcos under his martial law
powers on September 23, 1972. It provided that "[t]he provisions of any law to the
contrary notwithstanding, the reclamation of areas, underwater, whether foreshore or
inland, shall be limited to the National Government or any person authorized by it
under the proper contract." It repealed, in effect, RA 1899 which previously delegated
the right to reclaim lands to municipalities and chartered cities and revested it to the
National Government.68 Under PD 3-A, "national government" can only mean the
Executive Branch headed by the President. It cannot refer to Congress as it was
dissolved and abolished at the time of the issuance of PD 3-A on September 23, 1972.
Moreover, the Executive Branch is the only implementing arm in the government with
the equipment, manpower, expertise, and capability by the very nature of its assigned
powers and functions to undertake reclamation projects. Thus, under PD 3-A, the
Executive Branch through the President can implement reclamation of lands through
any of its departments, agencies, or offices.
Subsequently, on February 4, 1977, President Marcos issued PD 1084 creating the PEA,
which was granted, among others, the power "to reclaim land, including foreshore and
submerged areas by dredging, filling or other means or to acquire reclaimed lands." The
PEA's power to reclaim is not however exclusive as can be gleaned from its charter, as
the President retained his power under PD 3-A to designate another agency to reclaim
lands.
On February 14, 1979, EO 525 was issued. It granted PEA primary responsibility for
integrating, directing, and coordinating reclamation projects for and on behalf of the
National Government although other national government agencies can be designated
by the President to reclaim lands in coordination with the PEA. Despite the issuance of
EO 525, PD 3-A remained valid and subsisting. Thus, the National Government through
the President still retained the power and control over all reclamation projects in the
country.
The power of the National Government through the President over reclamation of areas,
that is, underwater whether foreshore or inland, was made clear in EO 543 69 which took
effect on June 24, 2006. Under EO 543, PEA was renamed the Philippine Reclamation
Authority (PRA) and was granted the authority to approve reclamation projects, a
power previously reposed in the President under EO 525. EO 543 reads:
Section 1. The power of the President to approve reclamation projects is hereby

delegated to the Philippine Reclamation Authority [formerly PEA], through its governing
board, subject to compliance with existing laws and rules and subject to the condition
that reclamation contracts to be executed with any person or entity go through public
bidding.
Section 2. Nothing in the Order shall be construed as diminishing the President's

authority to modify, amend or nullify PRA's action.
Section 3. All executive issuances inconsistent with this Executive Order are hereby
repealed or amended accordingly. (Emphasis supplied.)
Sec. 2 of EO 543 strengthened the power of control and supervision of the President
over reclamation of lands as s/he can modify, amend, or nullify the action of PEA (now
PRA).
From the foregoing issuances, we conclude that the President's delegation to NHA, a
national government agency, to reclaim lands under the SMDRP, is legal and valid,
firmly anchored on PD 3-A buttressed by EO 525 notwithstanding the absence of any
specific grant of power under its charter, PD 757.
Second Issue: Whether respondents NHA and RBI were given the
power and authority by DENR to reclaim foreshore and submerged
lands
Petitioner Chavez puts forth the view that even if the NHA and RBI were granted the
authority to reclaim, they were not authorized to do so by the DENR.
Again, reliance is made on our ruling in PEA where it was held that the DENR's authority
is necessary in order for the government to validly reclaim foreshore and submerged
lands. In PEA, we expounded in this manner:
As manager, conservator and overseer of the natural resources of the State, DENR
exercises "supervision and control over alienable and disposable public lands." DENR
also exercises "exclusive jurisdiction on the management and disposition of all lands of
the public domain." Thus, DENR decides whether areas under water, like foreshore or
submerged areas of Manila Bay, should be reclaimed or not. This means that PEA needs
authorization from DENR before PEA can undertake reclamation projects in Manila Bay,
or in any part of the country.
DENR also exercises exclusive jurisdiction over the disposition of all lands of the public
domain. Hence, DENR decides whether reclaimed lands of PEA should be classified as
alienable under Sections 6 and 7 of CA No. 141. Once DENR decides that the reclaimed
lands should be so classified, it then recommends to the President the issuance of a
proclamation classifying the lands as alienable or disposable lands of the public domain
open to disposition. We note that then DENR Secretary Fulgencio S. Factoran, Jr.
countersigned Special Patent No. 3517 in compliance with the Revised Administrative
Code and Sections 6 and 7 of CA No. 141.
In short, DENR is vested with the power to authorize the reclamation of areas under
water, while PEA is vested with the power to undertake the physical reclamation of
areas under water, whether directly or through private contractors. DENR is also
empowered to classify lands of the public domain into alienable or disposable lands
subject to the approval of the President. On the other hand, PEA is tasked to develop,
sell or lease the reclaimed alienable lands of the public domain. 70
Despite our finding that PEA is not a precedent to the case at bar, we find after all that
under existing laws, the NHA is still required to procure DENR's authorization before a
reclamation project in Manila Bay or in any part of the Philippines can be undertaken.
The requirement applies to PEA, NHA, or any other government agency or office
granted with such power under the law.
Notwithstanding the need for DENR permission, we nevertheless find petitioner's

position bereft of merit.
The DENR is deemed to have granted the authority to reclaim in the Smokey Mountain
Project for the following reasons:
1. Sec. 17, Art. VII of the Constitution provides that "the President shall have control of
all executive departments, bureaus and offices." The President is assigned the task of
seeing to it that all laws are faithfully executed. "Control," in administrative law, means
"the power of an officer to alter, modify, nullify or set aside what a subordinate officer
has done in the performance of his duties and to substitute the judgment of the former
for that of the latter."71
As such, the President can exercise executive power motu proprio and can supplant the
act or decision of a subordinate with the President's own. The DENR is a department in
the executive branch under the President, and it is only an alter ego of the latter.
Ordinarily the proposed action and the staff work are initially done by a department like
the DENR and then submitted to the President for approval. However, there is nothing
infirm or unconstitutional if the President decides on the implementation of a certain
project or activity and requires said department to implement it. Such is a presidential
prerogative as long as it involves the department or office authorized by law to
supervise or execute the Project. Thus, as in this case, when the President approved
and ordered the development of a housing project with the corresponding reclamation
work, making DENR a member of the committee tasked to implement the project, the
required authorization from the DENR to reclaim land can be deemed satisfied. It
cannot be disputed that the ultimate power over alienable and disposable public lands is
reposed in the President of the Philippines and not the DENR Secretary. To still require
a DENR authorization on the Smokey Mountain when the President has already
authorized and ordered the implementation of the Project would be a derogation of the
powers of the President as the head of the executive branch. Otherwise, any
department head can defy or oppose the implementation of a project approved by the
head of the executive branch, which is patently illegal and unconstitutional.
In Chavez v. Romulo, we stated that when a statute imposes a specific duty on the
executive department, the President may act directly or order the said department to
undertake an activity, thus:
[A]t the apex of the entire executive officialdom is the President. Section 17, Article VII
of the Constitution specifies [her] power as Chief executive departments, bureaus and
offices. [She] shall ensure that the laws be faithfully executed. As Chief Executive,
President Arroyo holds the steering wheel that controls the course of her government.
She lays down policies in the execution of her plans and programs. Whatever policy she
chooses, she has her subordinates to implement them. In short, she has the power of
control. Whenever a specific function is entrusted by law or regulation to her
subordinate, she may act directly or merely direct the performance of a duty x x x.
Such act is well within the prerogative of her office (emphasis supplied).72
Moreover, the power to order the reclamation of lands of public domain is reposed first
in the Philippine President. The Revised Administrative Code of 1987 grants authority to
the President to reserve lands of public domain for settlement for any specific purpose,
thus:
Section 14. Power to Reserve Lands of the Public and Private Domain of the
Government.' (1) The President shall have the power to reserve for settlement or public
use, and for specific public purposes, any of the lands of the public domain, the use of
which is not otherwise directed by law. The reserved land shall thereafter remain
subject to the specific public purpose indicated until otherwise provided by law or
proclamation. (Emphasis supplied.)
President Aquino reserved the area of the Smokey Mountain dumpsite for settlement
and issued MO 415 authorizing the implementation of the Smokey Mountain
Development Project plus the reclamation of the area across R-10. Then President
Ramos issued Proclamation No. 39 covering the 21-hectare dumpsite and the 40-
hectare commercial/industrial area, and Proclamation No. 465 and MO 415 increasing
the area of foreshore and submerged lands of Manila Bay to be reclaimed from 40 to 79
hectares. Having supervision and control over the DENR, both Presidents directly
assumed and exercised the power granted by the Revised Administrative Code to the
DENR Secretary to authorize the NHA to reclaim said lands. What can be done indirectly
by the DENR can be done directly by the President. It would be absurd if the power of
the President cannot be exercised simply because the head of a department in the
executive branch has not acted favorably on a project already approved by the
President. If such arrangement is allowed then the department head will become more
powerful than the President.
2. Under Sec. 2 of MO 415, the DENR is one of the members of the EXECOM chaired by
the NCR-CORD to oversee the implementation of the Project. The EXECOM was the one
which recommended approval of the project plan and the joint venture agreements.
Clearly, the DENR retained its power of supervision and control over the laws affected
by the Project since it was tasked to "facilitate the titling of the Smokey Mountain and
of the area to be reclaimed," which shows that it had tacitly given its authority to the
NHA to undertake the reclamation.
3. Former DENR Secretary Angel C. Alcala issued Special Patents Nos. 3591 and 3592
while then Secretary Victor O. Ramos issued Special Patent No. 3598 that embraced the
areas covered by the reclamation. These patents conveyed the lands to be reclaimed to
the NHA and granted to said agency the administration and disposition of said lands for
subdivision and disposition to qualified beneficiaries and for development for mix land
use (commercial/industrial) "to provide employment opportunities to on-site families
and additional areas for port related activities." Such grant of authority to administer
and dispose of lands of public domain under the SMDRP is of course subject to the
powers of the EXECOM of SMDRP, of which the DENR is a member.
4. The issuance of ECCs by the DENR for SMDRP is but an exercise of its power of
supervision and control over the lands of public domain covered by the Project.
Based on these reasons, it is clear that the DENR, through its acts and issuances, has
ratified and confirmed the reclamation of the subject lands for the purposes laid down
in Proclamations Nos. 39 and 465.
Third Issue: Whether respondent RBI can acquire reclaimed
foreshore and submerged lands considered as inalienable and

outside the commerce of man
Petitioner postulates that respondent RBI cannot acquire the reclaimed foreshore and
submerged areas as these are inalienable public lands beyond the commerce of man
based on Art. 1409 of the Civil Code which provides:
Article 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy;
xxx
(7) Those expressly prohibited or declared void by law.
These contracts cannot be ratified. Neither can the right to set up the defense of
illegality be waived.
Secs. 2 and 3, Art. XII of the Constitution declare that all natural resources are owned
by the State and they cannot be alienated except for alienable agricultural lands of the
public domain. One of the State's natural resources are lands of public domain which
include reclaimed lands.
Petitioner contends that for these reclaimed lands to be alienable, there must be a law
or presidential proclamation officially classifying these reclaimed lands as alienable and
disposable and open to disposition or concession. Absent such law or proclamation, the
reclaimed lands cannot be the enabling component or consideration to be paid to RBI as
these are beyond the commerce of man.
We are not convinced of petitioner's postulation.
The reclaimed lands across R-10 were classified alienable and disposable lands of public
domain of the State for the following reasons, viz:
First, there were three (3) presidential proclamations classifying the reclaimed lands
across R-10 as alienable or disposable hence open to disposition or concession, to wit:
(1) MO 415 issued by President Aquino, of which Sec. 4 states that "[t]he land covered
by the Smokey Mountain Dumpsite is hereby conveyed to the National Housing
Authority as well as the area to be reclaimed across R-10."
The directive to transfer the lands once reclaimed to the NHA implicitly carries with it
the declaration that said lands are alienable and disposable. Otherwise, the NHA cannot
effectively use them in its housing and resettlement project.
(2) Proclamation No. 39 issued by then President Ramos by which the reclaimed lands
were conveyed to NHA for subdivision and disposition to qualified beneficiaries and for
development into a mixed land use (commercial/industrial) to provide employment
opportunities to on-site families and additional areas for port-related activities. Said
directive carries with it the pronouncement that said lands have been transformed to
alienable and disposable lands. Otherwise, there is no legal way to convey it to the
beneficiaries.
(3) Proclamation No. 465 likewise issued by President Ramos enlarged the reclaimed
area to 79 hectares to be developed and disposed of in the implementation of the
SMDRP. The authority put into the hands of the NHA to dispose of the reclaimed lands
tacitly sustains the conversion to alienable and disposable lands.
Secondly, Special Patents Nos. 3591, 3592, and 3598 issued by the DENR anchored on
Proclamations Nos. 39 and 465 issued by President Ramos, without doubt, classified the
reclaimed areas as alienable and disposable.
Admittedly, it cannot be said that MO 415, Proclamations Nos. 39 and 465 are explicit
declarations that the lands to be reclaimed are classified as alienable and disposable.
We find however that such conclusion is derived and implicit from the authority given to
the NHA to transfer the reclaimed lands to qualified beneficiaries.
The query is, when did the declaration take effect? It did so only after the special
patents covering the reclaimed areas were issued. It is only on such date that the
reclaimed lands became alienable and disposable lands of the public domain. This is in
line with the ruling in PEA where said issue was clarified and stressed:
PD No. 1085, coupled with President Aquino's actual issuance of a special patent
covering the Freedom Islands, is equivalent to an official proclamation classifying the
Freedom Islands as alienable or disposable lands of the public domain. PD No. 1085 and
President Aquino's issuance of a land patent also constitute a declaration that the
Freedom Islands are no longer needed for public service. The Freedom Islands are thus
alienable or disposable lands of the public domain, open to disposition or concession to
qualified parties.73 (Emphasis supplied.)
Thus, MO 415 and Proclamations Nos. 39 and 465 cumulatively and jointly taken
together with Special Patent Nos. 3591, 3592, and 3598 more than satisfy the
requirement in PEA that "[t]here must be a law or presidential proclamation officially
classifying these reclaimed lands as alienable or disposable and open to disposition or
concession (emphasis supplied)."74
Apropos the requisite law categorizing reclaimed land as alienable or disposable, we

find that RA 6957 as amended by RA 7718 provides ample authority for the
classification of reclaimed land in the SMDRP for the repayment scheme of the BOT
project as alienable and disposable lands of public domain. Sec. 6 of RA 6957 as
amended by RA 7718 provides:
For the financing, construction, operation and maintenance of any infrastructure

projects undertaken through the build-operate-and transfer arrangement or any of its
variations pursuant to the provisions of this Act, the project proponent x x x may
likewise be repaid in the form of a share in the revenue of the project or other non-
monetary payments, such as, but not limited to, the grant of a portion or percentage of
the reclaimed land, subject to the constitutional requirements with respect to the
ownership of the land. (Emphasis supplied.)
While RA 6957 as modified by RA 7718 does not expressly declare that the reclaimed
lands that shall serve as payment to the project proponent have become alienable and
disposable lands and opened for disposition; nonetheless, this conclusion is necessarily
implied, for how else can the land be used as the enabling component for the Project if
such classification is not deemed made? cralaw library
It may be argued that the grant of authority to sell public lands, pursuant to PEA, does
not convert alienable lands of public domain into private or patrimonial lands. We ruled
in PEA that "alienable lands of public domain must be transferred to qualified private
parties, or to government entities not tasked to dispose of public lands, before these
lands can become private or patrimonial lands (emphasis supplied)."75 To lands
reclaimed by PEA or through a contract with a private person or entity, such reclaimed
lands still remain alienable lands of public domain which can be transferred only to
Filipino citizens but not to a private corporation. This is because PEA under PD 1084 and
EO 525 is tasked to hold and dispose of alienable lands of public domain and it is only
when it is transferred to Filipino citizens that it becomes patrimonial property. On the
other hand, the NHA is a government agency not tasked to dispose of public lands
under its charter The Revised Administrative Code of 1987. The NHA is an "end-user
agency" authorized by law to administer and dispose of reclaimed lands. The moment
titles over reclaimed lands based on the special patents are transferred to the NHA by
the Register of Deeds, they are automatically converted to patrimonial properties of the
State which can be sold to Filipino citizens and private corporations, 60% of which are
owned by Filipinos. The reason is obvious: if the reclaimed land is not converted to
patrimonial land once transferred to NHA, then it would be useless to transfer it to the
NHA since it cannot legally transfer or alienate lands of public domain. More
importantly, it cannot attain its avowed purposes and goals since it can only transfer
patrimonial lands to qualified beneficiaries and prospective buyers to raise funds for the
SMDRP.
From the foregoing considerations, we find that the 79-hectare reclaimed land has been
declared alienable and disposable land of the public domain; and in the hands of NHA, it
has been reclassified as patrimonial property.
Petitioner, however, contends that the reclaimed lands were inexistent prior to the
three (3) Presidential Acts (MO 415 and Proclamations Nos. 39 and 465) and hence, the
declaration that such areas are alienable and disposable land of the public domain,
citing PEA, has no legal basis.
Petitioner's contention is not well-taken.
Petitioner's sole reliance on Proclamations Nos. 39 and 465 without taking into
consideration the special patents issued by the DENR demonstrates the inherent
weakness of his proposition. As was ruled in PEA cited by petitioner himself, "PD No.
1085, coupled with President Aquino's actual issuance of a special patent covering the
Freedom Islands is equivalent to an official proclamation classifying the Freedom islands
as alienable or disposable lands of public domain." In a similar vein, the combined and
collective effect of Proclamations Nos. 39 and 465 with Special Patents Nos. 3592 and
3598 is tantamount to and can be considered to be an official declaration that the
reclaimed lots are alienable or disposable lands of the public domain.
The reclaimed lands covered by Special Patents Nos. 3591, 3592, and 3598, which
evidence transfer of ownership of reclaimed lands to the NHA, are official acts of the
DENR Secretary in the exercise of his power of supervision and control over alienable
and disposable public lands and his exclusive jurisdiction over the management and
disposition of all lands of public domain under the Revised Administrative Code of 1987.
Special Patent No. 3592 speaks of the transfer of Lots 1 and 2, and RI-003901-000012-
D with an area of 401,485 square meters based on the survey and technical description
approved by the Bureau of Lands. Lastly, Special Patent No. 3598 was issued in favor of
the NHA transferring to said agency a tract of land described in Plan RL-00-000013 with
an area of 390,000 square meters based on the survey and technical descriptions
approved by the Bureau of Lands.
The conduct of the survey, the preparation of the survey plan, the computation of the
technical description, and the processing and preparation of the special patent are
matters within the technical area of expertise of administrative agencies like the DENR
and the Land Management Bureau and are generally accorded not only respect but at
times even finality.76 Preparation of special patents calls for technical examination and a
specialized review of calculations and specific details which the courts are ill-equipped
to undertake; hence, the latter defer to the administrative agency which is trained and
knowledgeable on such matters.77
Subsequently, the special patents in the name of the NHA were submitted to the
Register of Deeds of the City of Manila for registration, and corresponding certificates of
titles over the reclaimed lots were issued based on said special patents. The issuance of
certificates of titles in NHA's name automatically converts the reclaimed lands to
patrimonial properties of the NHA. Otherwise, the lots would not be of use to the NHA's
housing projects or as payment to the BOT contractor as the enabling component of the
BOT contract. The laws of the land have to be applied and interpreted depending on the
changing conditions and times. Tempora mutantur et legis mutantur in illis (time
changes and laws change with it). One such law that should be treated differently is the
BOT Law (RA 6957) which brought about a novel way of implementing government
contracts by allowing reclaimed land as part or full payment to the contractor of a
government project to satisfy the huge financial requirements of the undertaking. The
NHA holds the lands covered by Special Patents Nos. 3592 and 3598 solely for the
purpose of the SMDRP undertaken by authority of the BOT Law and for disposition in
accordance with said special law. The lands become alienable and disposable lands of
public domain upon issuance of the special patents and become patrimonial properties
of the Government from the time the titles are issued to the NHA.
As early as 1999, this Court in Baguio v. Republic laid down the jurisprudence that:
It is true that, once a patent is registered and the corresponding certificate of title is
issued, the land covered by them ceases to be part of the public domain and becomes
private property, and the Torrens Title issued pursuant to the patent becomes
indefeasible upon the expiration of one year from the date of issuance of such patent. 78
The doctrine was reiterated in Republic v. Heirs of Felipe Alijaga, Sr., 79 Heirs of Carlos
Alcaraz v. Republic,80 and the more recent case of Doris Chiongbian-Oliva v. Republic of
the Philippines.81 Thus, the 79-hectare reclaimed land became patrimonial property
after the issuance of certificates of titles to the NHA based on Special Patents Nos. 3592
and 3598.
One last point. The ruling in PEA cannot even be applied retroactively to the lots
covered by Special Patents Nos. 3592 (40 hectare reclaimed land) and 3598 (39-
hectare reclaimed land). The reclamation of the land under SMDRP was completed in
August 1996 while the PEA decision was rendered on July 9, 2002. In the meantime,
subdivided lots forming parts of the reclaimed land were already sold to private
corporations for value and separate titles issued to the buyers. The Project was
terminated through a Memorandum of Agreement signed on August 27, 2003. The PEA
decision became final through the November 11, 2003 Resolution. It is a settled precept
that decisions of the Supreme Court can only be applied prospectively as they may
prejudice vested rights if applied retroactively.
In Benzonan v. Court of Appeals, the Court trenchantly elucidated the prospective

application of its decisions based on considerations of equity and fair play, thus:
At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as
amended was that enunciated in Monge and Tupas cited above. The petitioners
Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to
Article 8 of the Civil Code "judicial decisions applying or interpreting the laws of the
Constitution shall form a part of the legal system of the Philippines." But while our
decisions form part of the law of the land, they are also subject to Article 4 of the Civil
Code which provides that "laws shall have no retroactive effect unless the contrary is
provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the
law looks forward not backward. The rationale against retroactivity is easy to perceive.
The retroactive application of a law usually divests rights that have already become
vested or impairs the obligations of contract and hence, is unconstitutional.
The same consideration underlies our rulings giving only prospective effect to decisions
enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607
[1974] "x x x when a doctrine of this Court is overruled and a different view is adopted,
the new doctrine should be applied prospectively and should not apply to parties who
had relied on the old doctrine and acted on the faith thereof. 82
Fourth Issue: Whether respondent RBI can acquire reclaimed
lands when there was no declaration that said lands are no
longer needed for public use
Petitioner Chavez avers that despite the declaration that the reclaimed areas are
alienable lands of the public domain, still, the reclamation is flawed for there was never
any declaration that said lands are no longer needed for public use.
We are not moved by petitioner's submission.
Even if it is conceded that there was no explicit declaration that the lands are no longer
needed for public use or public service, there was however an implicit executive
declaration that the reclaimed areas R-10 are not necessary anymore for public use or
public service when President Aquino through MO 415 conveyed the same to the NHA
partly for housing project and related commercial/industrial development intended for
disposition to and enjoyment of certain beneficiaries and not the public in general and
partly as enabling component to finance the project.
President Ramos, in issuing Proclamation No. 39, declared, though indirectly, that the
reclaimed lands of the Smokey Mountain project are no longer required for public use or
service, thus:
These parcels of land of public domain are hereby placed under the administration and
disposition of the National Housing Authority to develop, subdivide and dispose to
qualified beneficiaries, as well as its development for mix land use
(commercial/industrial) to provide employment opportunities to on-site families and
additional areas for port related activities. (Emphasis supplied.)
While numerical count of the persons to be benefited is not the determinant whether
the property is to be devoted to public use, the declaration in Proclamation No. 39
undeniably identifies only particular individuals as beneficiaries to whom the reclaimed
lands can be sold, namely the Smokey Mountain dwellers. The rest of the Filipinos are
not qualified; hence, said lands are no longer essential for the use of the public in
general.
In addition, President Ramos issued on August 31, 1994 Proclamation No. 465
increasing the area to be reclaimed from forty (40) hectares to seventy-nine (79)
hectares, elucidating that said lands are undoubtedly set aside for the beneficiaries of
SMDRP and not the public declaring the power of NHA to dispose of land to be
reclaimed, thus: "The authority to administer, develop, or dispose lands identified and
reserved by this Proclamation and Proclamation No. 39 (s.1992), in accordance with the
SMDRP, as enhance, is vested with the NHA, subject to the provisions of existing laws."
(Emphasis supplied.)
MO 415 and Proclamations Nos. 39 and 465 are declarations that proclaimed the non-
use of the reclaimed areas for public use or service as the Project cannot be
successfully implemented without the withdrawal of said lands from public use or
service. Certainly, the devotion of the reclaimed land to public use or service conflicts
with the intended use of the Smokey Mountain areas for housing and employment of
the Smokey Mountain scavengers and for financing the Project because the latter
cannot be accomplished without abandoning the public use of the subject land. Without
doubt, the presidential proclamations on SMDRP together with the issuance of the
special patents had effectively removed the reclaimed lands from public use.
More decisive and not in so many words is the ruling in PEA which we earlier cited, that
"PD No. 1085 and President Aquino's issuance of a land patent also constitute a
declaration that the Freedom Islands are no longer needed for public service."
Consequently, we ruled in that case that the reclaimed lands are "open to disposition or
concession to qualified parties."83
In a similar vein, presidential Proclamations Nos. 39 and 465 jointly with the special
patents have classified the reclaimed lands as alienable and disposable and open to
disposition or concession as they would be devoted to units for Smokey Mountain
beneficiaries. Hence, said lands are no longer intended for public use or service and
shall form part of the patrimonial properties of the State under Art. 422 of the Civil
Code.84 As discussed a priori, the lands were classified as patrimonial properties of the
NHA ready for disposition when the titles were registered in its name by the Register of
Deeds.
Moreover, reclaimed lands that are made the enabling components of a BOT
infrastructure project are necessarily reclassified as alienable and disposable lands
under the BOT Law; otherwise, absurd and illogical consequences would naturally
result. Undoubtedly, the BOT contract will not be accepted by the BOT contractor since
there will be no consideration for its contractual obligations. Since reclaimed land will
be conveyed to the contractor pursuant to the BOT Law, then there is an implied
declaration that such land is no longer intended for public use or public service and,
hence, considered patrimonial property of the State.
Fifth Issue: Whether there is a law authorizing sale of
reclaimed lands
Petitioner next claims that RBI cannot acquire the reclaimed lands because there was
no law authorizing their sale. He argues that unlike PEA, no legislative authority was
granted to the NHA to sell reclaimed land.
This position is misplaced.
Petitioner relies on Sec. 60 of Commonwealth Act (CA) 141 to support his view that the
NHA is not empowered by any law to sell reclaimed land, thus:
Section 60. Any tract of land comprised under this title may be leased or sold, as the
case may be, to any person, corporation or association authorized to purchase or lease
public lands for agricultural purposes. The area of the land so leased or sold shall be
such as shall, in the judgment of the Secretary of Agriculture and Natural Resources, be
reasonably necessary for the purposes for which such sale or lease if requested and
shall in no case exceed one hundred and forty-four hectares: Provided, however, That
this limitation shall not apply to grants, donations, transfers, made to a province,
municipality or branch or subdivision of the Government for the purposes deemed by
said entities conducive to the public interest; but the land so granted donated or
transferred to a province, municipality, or branch or subdivision of the Government
shall not be alienated, encumbered, or otherwise disposed of in a manner affecting its
title, except when authorized by Congress; Provided, further, That any person,
corporation, association or partnership disqualified from purchasing public land for
agricultural purposes under the provisions of this Act, may lease land included under
this title suitable for industrial or residential purposes, but the lease granted shall only
be valid while such land is used for the purposes referred to. (Emphasis supplied.)
Reliance on said provision is incorrect as the same applies only to "a province,
municipality or branch or subdivision of the Government." The NHA is not a government
unit but a government corporation performing governmental and proprietary functions.
In addition, PD 757 is clear that the NHA is empowered by law to transfer properties
acquired by it under the law to other parties, thus:
Section 6. Powers and functions of the Authority. The Authority shall have the following
powers and functions to be exercised by the Boards in accordance with the established
national human settlements plan prepared by the Human Settlements Commission:
xxx
(k) Enter into contracts whenever necessary under such terms and conditions as it may
deem proper and reasonable;
(l) Acquire property rights and interests, and encumber or otherwise dispose the same
as it may deem appropriate (Emphasis supplied.)
Letter (l) is emphatic that the NHA can acquire property rights and interests and
encumber or otherwise dispose of them as it may deem appropriate. The transfer of the
reclaimed lands by the National Government to the NHA for housing, commercial, and
industrial purposes transformed them into patrimonial lands which are of course owned
by the State in its private or proprietary capacity. Perforce, the NHA can sell the
reclaimed lands to any Filipino citizen or qualified corporation.
Sixth Issue: Whether the transfer of reclaimed lands to RBI
was done by public bidding
Petitioner also contends that there was no public bidding but an awarding of ownership
of said reclaimed lands to RBI. Public bidding, he says, is required under Secs. 63 and
67 of CA 141 which read:
Section 63. Whenever it is decided that lands covered by this chapter are not needed
for public purposes, the Director of Lands shall ask the Secretary of Agriculture and
Commerce for authority to dispose of the same. Upon receipt of such authority, the
Director of Lands shall give notice by public advertisement in the same manner as in
the case of leases or sales of agricultural public land, that the Government will lease or
sell, as the case may be, the lots or blocks specified in the advertisement, for the
purpose stated in the notice and subject to the conditions specified in this chapter.
xxx
Section 67. The lease or sale shall be made through oral bidding; and adjudication shall
be made to the highest bidder. However, where an applicant has made improvements
on the land by virtue of a permit issued to him by competent authority, the sale or
lease shall be made by sealed bidding as prescribed in section twenty-six of this Act,
the provisions of which shall be applied whenever applicable. If all or part of the lots
remain unleased or unsold, the Director of Lands shall from time to time announce in
the Official Gazette or in any other newspapers of general circulation, the lease of sale
of those lots, if necessary.
He finds that the NHA and RBI violated Secs. 63 and 67 of CA 141, as the reclaimed
lands were conveyed to RBI by negotiated contract and not by public bidding as
required by law.
This stand is devoid of merit.
There is no doubt that respondent NHA conducted a public bidding of the right to
become its joint venture partner in the Smokey Mountain Project. Notices or Invitations
to Bid were published in the national dailies on January 23 and 26, 1992 and February
1, 14, 16, and 23, 1992. The bidding proper was done by the Bids and Awards
Committee (BAC) on May 18, 1992. On August 31, 1992, the Inter-Agency Techcom
made up of the NHA, PEA, DPWH, PPA, DBP, and DENR opened the bids and evaluated
them, resulting in the award of the contract to respondent RBI on October 7, 1992.
On March 19, 1993, respondents NHA and RBI signed the JVA. On February 23, 1994,
said JVA was amended and restated into the ARJVA. On August 11, 1994, the ARJVA
was again amended. On September 7, 1994, the OP approved the ARJVA and the
amendments to the ARJVA. From these factual settings, it cannot be gainsaid that there
was full compliance with the laws and regulations governing public biddings involving a
right, concession, or property of the government.
Petitioner concedes that he does not question the public bidding on the right to be a
joint venture partner of the NHA, but the absence of bidding in the sale of alienable and
disposable lands of public domain pursuant to CA 141 as amended.
Petitioner's theory is incorrect.
Secs. 63 and 67 of CA 141, as amended, are in point as they refer to government sale
by the Director of Lands of alienable and disposable lands of public domain. This is not
present in the case at bar. The lands reclaimed by and conveyed to the NHA are no
longer lands of public domain. These lands became proprietary lands or patrimonial
properties of the State upon transfer of the titles over the reclaimed lands to the NHA
and hence outside the ambit of CA 141. The NHA can therefore legally transfer
patrimonial land to RBI or to any other interested qualified buyer without any bidding
conducted by the Director of Lands because the NHA, unlike PEA, is a government
agency not tasked to sell lands of public domain. Hence, it can only hold patrimonial
lands and can dispose of such lands by sale without need of public bidding.
Petitioner likewise relies on Sec. 79 of PD 1445 which requires public bidding "when
government property has become unserviceable for any cause or is no longer needed."
It appears from the Handbook on Property and Supply Management System, Chapter 6,
that reclaimed lands which have become patrimonial properties of the State, whose
titles are conveyed to government agencies like the NHA, which it will use for its
projects or programs, are not within the ambit of Sec. 79. We quote the determining
factors in the Disposal of Unserviceable Property, thus:
Determining Factors in the Disposal of Unserviceable Property
 Property, which can no longer be repaired or reconditioned;

 Property whose maintenance costs of repair more than outweigh the benefits
and services that will be derived from its continued use;
 Property that has become obsolete or outmoded because of changes in
technology;
 Serviceable property that has been rendered unnecessary due to change in the
agency's function or mandate;
 Unused supplies, materials and spare parts that were procured in excess of
requirements; and
 Unused supplies and materials that [have] become dangerous to use because of
long storage or use of which is determined to be hazardous. 85
Reclaimed lands cannot be considered unserviceable properties. The reclaimed lands in

question are very much needed by the NHA for the Smokey Mountain Project because
without it, then the projects will not be successfully implemented. Since the reclaimed
lands are not unserviceable properties and are very much needed by NHA, then Sec. 79
of PD 1445 does not apply.
More importantly, Sec. 79 of PD 1445 cannot be applied to patrimonial properties like

reclaimed lands transferred to a government agency like the NHA which has entered
into a BOT contract with a private firm. The reason is obvious. If the patrimonial
property will be subject to public bidding as the only way of disposing of said property,
then Sec. 6 of RA 6957 on the repayment scheme is almost impossible or extremely
difficult to implement considering the uncertainty of a winning bid during public auction.
Moreover, the repayment scheme of a BOT contract may be in the form of non-
monetary payment like the grant of a portion or percentage of reclaimed land. Even if
the BOT partner participates in the public bidding, there is no assurance that he will win
the bid and therefore the payment in kind as agreed to by the parties cannot be
performed or the winning bid prize might be below the estimated valuation of the land.
The only way to harmonize Sec. 79 of PD 1445 with Sec. 6 of RA 6957 is to consider
Sec. 79 of PD 1445 as inapplicable to BOT contracts involving patrimonial lands. The
law does not intend anything impossible (lex non intendit aliquid impossibile).
Seventh Issue: Whether RBI, being a private corporation,

is barred by the Constitution to acquire lands of public domain
Petitioner maintains that RBI, being a private corporation, is expressly prohibited by the
1987 Constitution from acquiring lands of public domain.
Petitioner's proposition has no legal mooring for the following reasons:
1. RA 6957 as amended by RA 7718 explicitly states that a contractor can be paid "a
portion as percentage of the reclaimed land" subject to the constitutional requirement
that only Filipino citizens or corporations with at least 60% Filipino equity can acquire
the same. It cannot be denied that RBI is a private corporation, where Filipino citizens
own at least 60% of the stocks. Thus, the transfer to RBI is valid and constitutional.
2. When Proclamations Nos. 39 and 465 were issued, inalienable lands covered by said
proclamations were converted to alienable and disposable lands of public domain. When
the titles to the reclaimed lands were transferred to the NHA, said alienable and
disposable lands of public domain were automatically classified as lands of the private
domain or patrimonial properties of the State because the NHA is an agency NOT
tasked to dispose of alienable or disposable lands of public domain. The only way it can
transfer the reclaimed land in conjunction with its projects and to attain its goals is
when it is automatically converted to patrimonial properties of the State. Being
patrimonial or private properties of the State, then it has the power to sell the same to
any qualified person under the Constitution, Filipino citizens as private corporations,
60% of which is owned by Filipino citizens like RBI.
3. The NHA is an end-user entity such that when alienable lands of public domain are
transferred to said agency, they are automatically classified as patrimonial properties.
The NHA is similarly situated as BCDA which was granted the authority to dispose of
patrimonial lands of the government under RA 7227. The nature of the property
holdings conveyed to BCDA is elucidated and stressed in the May 6, 2003 Resolution in
Chavez v. PEA, thus:
BCDA is an entirely different government entity. BCDA is authorized by law to sell

specific government lands that have long been declared by presidential proclamations
as military reservations for use by the different services of the armed forces under the
Department of National Defense. BCDA's mandate is specific and limited in area, while
PEA's mandate is general and national. BCDA holds government lands that have been
granted to end-user government entitiesthe military services of the armed forces. In
contrast, under Executive Order No. 525, PEA holds the reclaimed public lands, not as
an end-user entity, but as the government agency "primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of the
National Government."
x x x Well-settled is the doctrine that public land granted to an end-user government

agency for a specific public use may subsequently be withdrawn by Congress from
public use and declared patrimonial property to be sold to private parties. R.A. No.
7227 creating the BCDA is a law that declares specific military reservations no longer
needed for defense or military purposes and reclassifies such lands as patrimonial
property for sale to private parties.
Government owned lands, as long as they are patrimonial property, can be sold to
private parties, whether Filipino citizens or qualified private corporations. Thus, the so-
called Friar Lands acquired by the government under Act No. 1120 are patrimonial
property which even private corporations can acquire by purchase. Likewise, reclaimed
alienable lands of the public domain if sold or transferred to a public or municipal
corporation for a monetary consideration become patrimonial property in the hands of
the public or municipal corporation. Once converted to patrimonial property, the land
may be sold by the public or municipal corporation to private parties, whether Filipino
citizens or qualified private corporations.86 (Emphasis supplied.)
The foregoing Resolution makes it clear that the SMDRP was a program adopted by the
Government under Republic Act No. 6957 (An Act Authorizing the Financing,
Construction, Operation and Maintenance of Infrastructure Projects by the Private
Sector, and For Other Purposes), as amended by RA 7718, which is a special law similar
to RA 7227. Moreover, since the implementation was assigned to the NHA, an end-user
agency under PD 757 and RA 7279, the reclaimed lands registered under the NHA are
automatically classified as patrimonial lands ready for disposition to qualified
beneficiaries.
The foregoing reasons likewise apply to the contention of petitioner that HCPTI, being a
private corporation, is disqualified from being a transferee of public land. What was
transferred to HCPTI is a 10-hectare lot which is already classified as patrimonial
property in the hands of the NHA. HCPTI, being a qualified corporation under the 1987
Constitution, the transfer of the subject lot to it is valid and constitutional.
Eighth Issue: Whether respondents can be compelled to disclose
all information related to the SMDRP
Petitioner asserts his right to information on all documents such as contracts, reports,
memoranda, and the like relative to SMDRP.
Petitioner asserts that matters relative to the SMDRP have not been disclosed to the
public like the current stage of the Project, the present financial capacity of RBI, the
complete list of investors in the asset pool, the exact amount of investments in the
asset pool and other similar important information regarding the Project.
He prays that respondents be compelled to disclose all information regarding the

SMDRP and furnish him with originals or at least certified true copies of all relevant
documents relating to the said project including, but not limited to, the original JVA,
ARJVA, AARJVA, and the Asset Pool Agreement.
This relief must be granted.
The right of the Filipino people to information on matters of public concern is enshrined
in the 1987 Constitution, thus:
ARTICLE II
xxx
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.
In Valmonte v. Belmonte, Jr., this Court explicated this way:
[A]n 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. 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. 87
In PEA, this Court elucidated the rationale behind the right to information:
These twin provisions of the Constitution seek to promote transparency in policy-

making and in the operations of the government, as well as provide the people
sufficient information to exercise effectively other constitutional rights. These twin
provisions are essential to the exercise of freedom of expression. If the government
does not disclose its official acts, transactions and decisions to citizens, whatever
citizens say, even if expressed without any restraint, will be speculative and amount to
nothing. These twin provisions are also essential to hold public officials "at all times x x
x accountable to the people," for unless citizens have the proper information, they
cannot hold public officials accountable for anything. Armed with the right information,
citizens can participate in public discussions leading to the formulation of government
policies and their effective implementation. An informed citizenry is essential to the
existence and proper functioning of any democracy. 88
Sec. 28, Art. II compels the State and its agencies to fully disclose "all of its
transactions involving public interest." Thus, the government agencies, without need of
demand from anyone, must bring into public view all the steps and negotiations leading
to the consummation of the transaction and the contents of the perfected
contract.89 Such information must pertain to "definite propositions of the government,"
meaning official recommendations or final positions reached on the different matters
subject of negotiation. The government agency, however, need not disclose "intra-
agency or inter-agency recommendations or communications during the stage when
common assertions are still in the process of being formulated or are in the exploratory
stage." The limitation also covers privileged communication like information on military
and diplomatic secrets; information affecting national security; information on
investigations of crimes by law enforcement agencies before the prosecution of the
accused; information on foreign relations, intelligence, and other classified information.
It is unfortunate, however, that after almost twenty (20) years from birth of the 1987
Constitution, there is still no enabling law that provides the mechanics for the
compulsory duty of government agencies to disclose information on government
transactions. Hopefully, the desired enabling law will finally see the light of day if and
when Congress decides to approve the proposed "Freedom of Access to Information
Act." In the meantime, it would suffice that government agencies post on their bulletin
boards the documents incorporating the information on the steps and negotiations that
produced the agreements and the agreements themselves, and if finances permit, to
upload said information on their respective websites for easy access by interested
parties. Without any law or regulation governing the right to disclose information, the
NHA or any of the respondents cannot be faulted if they were not able to disclose
information relative to the SMDRP to the public in general.
The other aspect of the people's right to know apart from the duty to disclose is the
duty to allow access to information on matters of public concern under Sec. 7, Art. III
of the Constitution. The gateway to information opens to the public the following: (1)
official records; (2) documents and papers pertaining to official acts, transactions, or
decisions; and (3) government research data used as a basis for policy development.
Thus, the duty to disclose information should be differentiated from the duty to permit
access to information. There is no need to demand from the government agency
disclosure of information as this is mandatory under the Constitution; failing that, legal
remedies are available. On the other hand, the interested party must first request or
even demand that he be allowed access to documents and papers in the particular
agency. A request or demand is required; otherwise, the government office or agency
will not know of the desire of the interested party to gain access to such papers and
what papers are needed. The duty to disclose covers only transactions involving public
interest, while the duty to allow access has a broader scope of information which
embraces not only transactions involving public interest, but any matter contained in
official communications and public documents of the government agency.
We find that although petitioner did not make any demand on the NHA to allow access
to information, we treat the petition as a written request or demand. We order the NHA
to allow petitioner access to its official records, documents, and papers relating to
official acts, transactions, and decisions that are relevant to the said JVA and
subsequent agreements relative to the SMDRP.
Ninth Issue: Whether the operative fact doctrine applies to the instant petition
Petitioner postulates that the "operative fact" doctrine is inapplicable to the present
case because it is an equitable doctrine which could not be used to countenance an
inequitable result that is contrary to its proper office.
On the other hand, the petitioner Solicitor General argues that the existence of the
various agreements implementing the SMDRP is an operative fact that can no longer be
disturbed or simply ignored, citing Rieta v. People of the Philippines. 90
The argument of the Solicitor General is meritorious.
The "operative fact" doctrine is embodied in De Agbayani v. Court of Appeals, wherein it

is stated that a legislative or executive act, prior to its being declared as
unconstitutional by the courts, is valid and must be complied with, thus:
As the new Civil Code puts it: "When the courts declare a law to be inconsistent with
the Constitution, the former shall be void and the latter shall govern. Administrative or
executive acts, orders and regulations shall be valid only when they are not contrary to
the laws of the Constitution." It is understandable why it should be so, the Constitution
being supreme and paramount. Any legislative or executive act contrary to its terms
cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic. It does not admit of doubt that prior to the declaration
of nullity such challenged legislative or executive act must have been in force and had
to be complied with. This is so as until after the judiciary, in an appropriate case,
declares its invalidity, it is entitled to obedience and respect. Parties may have acted
under it and may have changed their positions. What could be more fitting than that in
a subsequent litigation regard be had to what has been done while such legislative or
executive act was in operation and presumed to be valid in all respects. It is now
accepted as a doctrine that prior to its being nullified, its existence as a fact must be
reckoned with. This is merely to reflect 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.
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. The past cannot always be
erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects, with respect to particular relations,
individual and corporate, and particular conduct, private and official." This language has
been quoted with approval in a resolution in Araneta v. Hill and the decision in Manila
Motor Co., Inc. v. Flores. An even more recent instance is the opinion of Justice
Zaldivar speaking for the Court in Fernandez v. Cuerva and Co. 91 (Emphasis supplied.)
This doctrine was reiterated in the more recent case of City of Makati v. Civil Service
Commission, wherein we ruled that:
Moreover, we certainly cannot nullify the City Government's order of suspension, as we

have no reason to do so, much less retroactively apply such nullification to deprive
private respondent of a compelling and valid reason for not filing the leave application.
For as we have held, a void act though in law a mere scrap of paper nonetheless
confers legitimacy upon past acts or omissions done in reliance thereof. Consequently,
the existence of a statute or executive order prior to its being adjudged void is an
operative fact to which legal consequences are attached. It would indeed be ghastly
unfair to prevent private respondent from relying upon the order of suspension in lieu
of a formal leave application.92 (Emphasis supplied.)
The principle was further explicated in the case of Rieta v. People of the Philippines,
thus:
In similar situations in the past this Court had taken the pragmatic and realistic course
set forth in Chicot County Drainage District v. Baxter Bank to wit:
The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the challenged decree. x x x It
is quite clear, however, that such broad statements as to the effect of a determination
of unconstitutionality must be taken with qualifications. The actual existence of a
statute, prior to [the determination of its invalidity], is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to
be considered in various aspects 'with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of
courts, state and federal, and it is manifest from numerous decisions that an all-
inclusive statement of a principle of absolute retroactive invalidity cannot be justified.
In the May 6, 2003 Resolution in Chavez v. PEA, 93 we ruled that De Agbayani94 is not
applicable to the case considering that the prevailing law did not authorize private
corporations from owning land. The prevailing law at the time was the 1935
Constitution as no statute dealt with the same issue.
In the instant case, RA 6957 was the prevailing law at the time that the joint venture
agreement was signed. RA 6957, entitled "An Act Authorizing The Financing,
Construction, Operation And Maintenance Of Infrastructure Projects By The Private
Sector And For Other Purposes," which was passed by Congress on July 24, 1989,
allows repayment to the private contractor of reclaimed lands. 95 Such law was relied
upon by respondents, along with the above-mentioned executive issuances in pushing
through with the Project. The existence of such law and issuances is an "operative fact"
to which legal consequences have attached. This Court is constrained to give legal
effect to the acts done in consonance with such executive and legislative acts; to do
otherwise would work patent injustice on respondents.
Further, in the May 6, 2003 Resolution in Chavez v. PEA, we ruled that in certain cases,
the transfer of land, although illegal or unconstitutional, will not be invalidated on
considerations of equity and social justice. However, in that case, we did not apply the
same considering that PEA, respondent in said case, was not entitled to equity
principles there being bad faith on its part, thus:
There are, moreover, special circumstances that disqualify Amari from invoking equity
principles. Amari cannot claim good faith because even before Amari signed the
Amended JVA on March 30, 1999, petitioner had already filed the instant case on April
27, 1998 questioning precisely the qualification of Amari to acquire the Freedom
Islands. Even before the filing of this petition, two Senate Committees had already
approved on September 16, 1997 Senate Committee Report No. 560. This Report
concluded, after a well-publicized investigation into PEA's sale of the Freedom Islands to
Amari, that the Freedom Islands are inalienable lands of the public domain. Thus, Amari
signed the Amended JVA knowing and assuming all the attendant risks, including the
annulment of the Amended JVA.96
Such indicia of bad faith are not present in the instant case. When the ruling in PEA was
rendered by this Court on July 9, 2002, the JVAs were all executed. Furthermore, when
petitioner filed the instant case against respondents on August 5, 2004, the JVAs were
already terminated by virtue of the MOA between the NHA and RBI. The respondents
had no reason to think that their agreements were unconstitutional or even
questionable, as in fact, the concurrent acts of the executive department lent validity to
the implementation of the Project. The SMDRP agreements have produced vested rights
in favor of the slum dwellers, the buyers of reclaimed land who were issued titles over
said land, and the agencies and investors who made investments in the project or who
bought SMPPCs. These properties and rights cannot be disturbed or questioned after
the passage of around ten (10) years from the start of the SMDRP implementation.
Evidently, the "operative fact" principle has set in. The titles to the lands in the hands
of the buyers can no longer be invalidated.
The Court's Dispositions
Based on the issues raised in this petition, we find that the March 19, 1993 JVA
between NHA and RBI and the SMDRP embodied in the JVA, the subsequent
amendments to the JVA and all other agreements signed and executed in relation to it,
including, but not limited to, the September 26, 1994 Smokey Mountain Asset Pool
Agreement and the agreement on Phase I of the Project as well as all other transactions
which emanated from the Project, have been shown to be valid, legal, and
constitutional. Phase II has been struck down by the Clean Air Act.
With regard to the prayer for prohibition, enjoining respondents particularly respondent
NHA from further implementing and/or enforcing the said Project and other agreements
related to it, and from further deriving and/or enjoying any rights, privileges and
interest from the Project, we find the same prayer meritless.
Sec. 2 of Rule 65 of the 1997 Rules of Civil Procedure provides:
Sec. 2. Petition for prohibition. When the proceedings of any tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent to desist
from further proceedings in the action or matter specified therein, or otherwise granting
such incidental reliefs as law and justice may require.
It has not been shown that the NHA exercised judicial or quasi-judicial functions in
relation to the SMDRP and the agreements relative to it. Likewise, it has not been
shown what ministerial functions the NHA has with regard to the SMDRP.
A ministerial duty is one which is so clear and specific as to leave no room for the
exercise of discretion in its performance. It is a duty which an officer performs in a
given state of facts in a prescribed manner in obedience to the mandate of legal
authority, without regard to the exercise of his/her own judgment upon the propriety of
the act done.97
Whatever is left to be done in relation to the August 27, 2003 MOA, terminating the JVA
and other related agreements, certainly does not involve ministerial functions of the
NHA but instead requires exercise of judgment. In fact, Item No. 4 of the MOA
terminating the JVAs provides for validation of the developer's (RBI's) claims arising
from the termination of the SMDRP through the various government agencies. 98 Such
validation requires the exercise of discretion.
In addition, prohibition does not lie against the NHA in view of petitioner's failure to
avail and exhaust all administrative remedies. Clear is the rule that prohibition is only
available when there is no adequate remedy in the ordinary course of law.
More importantly, prohibition does not lie to restrain an act which is already a fait
accompli. The "operative fact" doctrine protecting vested rights bars the grant of the
writ of prohibition to the case at bar. It should be remembered that petitioner was the
Solicitor General at the time SMDRP was formulated and implemented. He had the
opportunity to question the SMDRP and the agreements on it, but he did not. The
moment to challenge the Project had passed.
On the prayer for a writ of mandamus, petitioner asks the Court to compel respondents
to disclose all documents and information relating to the project, including, but not
limited to, any subsequent agreements with respect to the different phases of the
Project, the revisions of the original plan, the additional works incurred on the Project,
the current financial condition of respondent RBI, and the transactions made with
respect to the project. We earlier ruled that petitioner will be allowed access to official
records relative to the SMDRP. That would be adequate relief to satisfy petitioner's right
to the information gateway.
WHEREFORE, the petition is partially granted.
The prayer for a writ of prohibition is DENIED for lack of merit.
The prayer for a writ of mandamus is GRANTED. Respondent NHA is ordered to allow
access to petitioner to all public documents and official records relative to the SMDRP
including, but not limited to, the March 19, 1993 JVA between the NHA and RBI and
subsequent agreements related to the JVA, the revisions over the original plan, and the
additional works incurred on and the transactions made with respect to the Project.
No costs.
SO ORDERED.
Endnotes:
1
Rollo, pp. 3-4.
2
Id. at 513.
3
Id. at 513-514.
4
Id. at 515.
5
Id. at 513.
6
Id. at 297; Proclamation No. 39 dated September 9, 1992.
7
RA 7718 was later enacted on May 5, 1994, amending certain sections of the BOT
Law.
8
"Joint Resolution Approving the List of National Projects to be Undertaken by the
Private Sector Pursuant to Republic Act No. 6957."
9
Rollo, pp. 519-521.
10
Id. at 296.
11
Id. at 295.
12
Id. at 436.
13
Id. at 476.
14
Id. at 477.
15
Id. at 297-298.
16
Id. at 479.
17
Id. at 69-79.
18
"Creating the National Housing Authority and Dissolving the Existing Housing
Agencies, Defining its Powers and Functions, Providing Funds Therefor, and for Other
Purposes" (1975).
19
Rollo, p. 70.
20
Id. at 73.
21
Id. at 479.
22
Id. at 80-94.
23
Id. at 83.
24
Id.
25
Id.
26
Id.
27
Id. at 84.
28
Id. at 93.
29
Id. at 95-104.
30
Id. at 98.
31
Id. at 526-533.
32
Id. at 435.
33
The PNB was later replaced by the Planters Development Bank.
34
Rollo, p. 105.
35
Id. at 18. RA 8749, "The Clean Air Act of 1999."
36
Id.
37
Id. at 244.
38
Id. at 747-751.
39
Id. at 858.
40
Id. at 860.
41
Id. at 859.
42
Id.
43
Id. at 860.
44
Id.
45
Id. at 861.
46
Id.
47
1997 Rules of Civil Procedure, Rule 3, Sec. 2.
48
Bayan (Bagong Alyansang Makabayan) v. Zamora, G.R. NOS. 138570, 138572,
138587, 138680 & 138698, October 10, 2000, 342 SCRA 449, 478.
49
G.R. No. 130716, December 9, 1998, 299 SCRA 744.
50
G.R. No. 133250, July 9, 2002, 384 SCRA 152.
51
G.R. No. 67787, April 18, 1989, 172 SCRA 415, 424.
52
G.R. NOS. 99289-90, January 27, 1993, 217 SCRA 633, 652.
53
1. Petitioner claimed that NHA awarded the Smokey Mountain project to R-II Builders
through contract negotiations and that there was no public bidding awarding ownership
of the subject land to respondent R-II Builders, while respondents alleged that NHA
publicly bidded out the right to become NHA's joint venture partner in the prosecution
of the SMDRP;
2. Petitioner averred that "PEA had no participation whatsoever in the reclamation of

the subject lands" while respondents stated PEA had a name therein;
3. Petitioner alleged that "neither respondent NHA nor respondent R-II Builders was
given the authority [by DENR] to reclaim the subject lands" while respondents claimed
such authority was granted;
4. Mr. Chavez claimed "that there is no legislative or Presidential act classifying the
submerged areas around Smokey Mountain as alienable or disposable lands of the
public domain open to disposition" while respondents said that Presidents Aquino and
Ramos made the classification;
5. Whether respondent R-II Builders complied with its obligation to "fully finance" the
Project;
6. Whether the Project has been terminated by agreements of the parties;
7. Whether respondents Harbour Centre and Romero fraudulently caused the dilution of
the Asset Pool's Holdings in HCPTI;
8. Whether Harbour Centre contracts attached to the Petition are genuine.
54
Rollo, p. 871.
55
Petition, Comments, Reply, and Memoranda.
56
"Designating the Public Estates Authority as the Agency Primarily Responsible for All
Reclamation Projects" (1979).
57
Rollo, p. 235.
58
The July 9, 2002 Decision entitled Chavez v. PEA was concurred in by 13 members of
this Court who voted to grant the petition. However, in the May 6, 2003 Resolution, the
Court was divided when it voted 8-5 to affirm the Decision. And in the most recent
November 11, 2003 Resolution of this Court, a 7-7 vote was arrived at. Thus, the July
9, 2002 Decision is still the valid case law.
59
The doctrine of stare decisis provides that a conclusion reached in one case should,
for the sake of certainty, be applied to those which follow if the facts are substantially
the same even though the parties may be different.
60
Supra note 50, at 221.
61
"Creating the Public Estates Authority, Defining its Power and Functions, Providing
Funds Therefor and for Other Purposes" (1977).
62
"An Act to Provide for a Comprehensive and Continuing Urban Development and
Housing Program, Establish the Mechanism for its Implementation, and for Other
Purposes" (1992).
63
Radio Communications of the Philippines, Inc. v. Santiago, Nos. L-29236 & L-29247,
58 SCRA 493, August 21, 1974, 58 SCRA 493, 497.
64
Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747,
761.
65
63 Phil. 139, 177 (1936).
66
Provident Tree Farms, Inc. v. Batario, Jr., G.R. No. 92285, March 28, 1994, 231
SCRA 463, 469; cited in Agpalo, Administrative Code 14.
67
"Amending Section 7 of Presidential Decree No. 3 dated September 26, 1972, by
Providing for the Exclusive Prosecution by Administration or by Contract of Reclamation
Projects" (2005).
68
Republic v. Court of Appeals, G.R. No. 103882, November 25, 1998, 299 SCRA 199,
303.
69
"Delegating to the Philippine Reclamation Authority the Power to Approve
Reclamation Projects" (2006).
70
Supra note 50, at 222-223.
71
Taule v. Santos, G.R. No. 90336, August 12, 1991, 200 SCRA 512, 521-522.
72
G.R. No. 157036, June 9, 2004, 431 SCRA 534, 555; citing EO 292, Book IV, Chapter
7.
73
74
Id. at 216.
75
Id. at 235.
76
Republic of the Philippines v. Manila Electric Company, G.R. No. 141314, April 9,
2003, 401 SCRA 130, 141.
77
Id. at 142.
78
G.R. No. 119682, January 21, 1999, 301 SCRA 450, 454-455.
79
G.R. No. 146030, December 3, 2002, 393 SCRA 361, 373.
80
G.R. No. 131667, July 28, 2005, 464 SCRA 280, 291.
81
G.R. No. 163118, April 27, 2007.
82
G.R. No. 97973, January 27, 1992, 205 SCRA 515, 527.
83
Supra note 73.
84
Article 422. Property of public dominion, when no longer intended for public use or
public service, shall form part of the patrimonial property of the State.
85
Commission on Audit, Professional Development Center, Handbook on Property &
Supply Management System 91-92 (2003).
86
G.R. No. 133250, May 6, 2003, 403 SCRA 1, 31-32.
87
G.R. No. 74930, February 13, 1989, 170 SCRA 256, 265.
88
89
Id. at 185; citing V Record of the Constitutional Commission 24-25 (1986).
90
G.R. No. 147817, August 12, 2004, 436 SCRA 273, 291-292.
91
No. L-23127, April 29, 1971, 38 SCRA 429, 434-435.
92
G.R. No. 131392, February 6, 2002, 376 SCRA 248, 257.
93
94
Supra note 91.
95
RA 6957, Sec. 6 provides:
Section 6. Repayment Scheme. For the financing, construction, operation, and

maintenance of any infrastructure project undertaken pursuant to the provisions of this
Act, the constructor shall be entitled to a reasonable return of its investment and
operating and maintenance costs in accordance with its bid proposal as accepted by the
concerned contracting infrastructure agency or local government unit and incorporated
in the contract's terms and conditions. In the case of a build-operate-and-transfer
arrangement, this repayment scheme is to be affected by authorizing the contractor to
charge for the use of the project facility not exceeding those proposed in the bid and
incorporated in the contract: Provided, That the government infrastructure agency or
local government unit concerned shall approve the fairness and equity of the tolls, fees,
rentals and charges except in case of tolls for national highways, roads, bridges and
public thoroughfares which shall be approved by the Toll Regulatory Board: Provided,
further, That the imposition and collection of tolls, fees, rentals and charges shall be for
a fixed term as proposed in the bid and incorporated in the contract but in no case shall
this term exceed fifty (50) years: Provided, finally, That during the lifetime of the
franchise, the contractor shall undertake the necessary maintenance and repair of the
facility in accordance with standards prescribed in the bidding documents and in the
contract. In the case of a build-and-transfer arrangements, the repayment scheme is to
be affected through amortization payments by the government unit concerned to the
contractor according to the scheme proposed in the bid and incorporated in the
contract.
In the case of land reclamation or the building of industrial estates, the repayment
scheme may consist of the grant of a portion of percentage of the reclaimed land or
industrial estate built, subject to the constitutional requirements with respect to the
ownership of lands.
96
Supra note 86, at 29-30.
97
Symaco v. Hon. Aquino, etc., 106 Phil. 1130, 1135 (1960).
98
Rollo, p. 866.
EN BANC
G.R. No. L-13827 September 28, 1962
BENJAMIN MASANGCAY, petitioner,

vs.
THE COMMISSION ON ELECTIONS, respondent.
Godofredo A. Ramos and Ruby Salazar-Alberto for petitioner.

Office of the Solicitor General and Dominador D. Dayot for respondent.
BAUTISTA ANGELO, J.:
Benjamin Masangcay, with several others, was on October 14, 1957 charged before the Commission
on Election with contempt for having opened three boxes bearing serial numbers l-8071, l-8072 and
l-8073 containing official and sample ballots for the municipalities of the province of Aklan, in
violation of the instructions of said Commission embodied in its resolution promulgated September 2,
1957, and its unnumbered resolution date March 5, 1957, inasmuch as he opened said boxes not
the presence of the division superintendent of schools of Aklan, the provincial auditor, and the
authorized representatives of the Nacionalista Party, the Liberal Party and the Citizens' Party, as
required in the aforesaid resolutions, which are punishable under Section 5 of the Revised Election
Code and Rule 64 of the Rules of Court. Masangcay was then the provincial treasurer of Aklan
designated by the Commission in its resolution in Case CE-No. 270, part II 2 (b) thereof, to take
charge of the receipt and custody of the official ballots, election forms and supplies, as well as of
their distribution, among the different municipalities of the province.
In compliance with the summons issued to Masangcay and his co-respondents to appear and show
cause why they should not be punished for contempt on the basis of the aforementioned charge,
they all appeared before the Commission on October 21, 1957 and entered a plea of not guilty.
Thereupon, evidence was presented by both the prosecution and the defense, and on December 16,
1957 the Commission rendered its decision finding Masangcay and his co-respondent Molo guilty as
charged and sentencing each of them to suffer three months imprisonment and pay a fine of P500,
with subsidiary imprisonment of two months in case of insolvency, to be served in the provincial jail
of Aklan. The other respondents were exonerated for lack of evidence.
Masangcay brought the present petition for review raising as main issue the constitutionality of
Section 5 of the Revised Election Code which grants the Commission on Elections as well as its
members the power to punish acts of contempt against said body under the same procedure and
with the same penalties provided for in Rule 64 of the Rules of Court in that the portion of said
section which grants to the Commission and members the power to punish for contempt is
unconstitutional for it infringes the principle underlying the separation of powers that exists among
the three departments of our constitutional form of government. In other words, it is contended that,
even if petitioner can be held guilty of the act of contempt charged, the decision is null and void for
lack of valid power on the part of the Commission to impose such disciplinary penalty under the
principle of separation of powers. There is merit in the contention that the Commission on Elections
lacks power to impose the disciplinary penalty meted out to petitioner in the decision subject of
review. We had occasion to stress in the case of Guevara v. The Commission on Elections 1 that
under the law and the constitution, the Commission on Elections has only the duty to enforce and
administer all laws to the conduct of elections, but also the power to try, hear and decide any
controversy that may be submitted to it in connection with the elections. In this sense, said, the
Commission, although it cannot be classified a court of justice within the meaning of the Constitution
(Section 30, Article VIII), for it is merely an administrative body, may however exercise quasi-judicial
functions insofar as controversies that by express provision law come under its jurisdiction. The
difficulty lies in drawing the demarcation line between the duty which inherently is administrative in
character and a function which calls for the exercise of the quasi-judicial function of the Commission.
In the same case, we also expressed the view that when the Commission exercises a ministerial
function it cannot exercise the power to punish contempt because such power is inherently judicial in
nature, as can be clearly gleaned from the following doctrine we laid down therein:
. . . In proceeding on this matter, it only discharged a ministerial duty; it did not exercise any
judicial function. Such being the case, it could not exercise the power to punish for contempt
as postulated in the law, for such power is inherently judicial in nature. As this Court has aptly
said: 'The power to punish for contempt is inherent in all courts; its existence is essential to
the preservation of order in judicial proceedings, and to the enforcement of judgments,
orders and mandates courts, and, consequently, in the administration of justice (Slade
Perkins v. Director of Prisons, 58 Phil., 271; U.S. v. Lee Hoc, 36 Phil., 867; In Re Sotto, 46
O.G., 2570; In Re Kelly, Phil., 944). The exercise of this power has always been regarded as
a necessary incident and attribute of courts (Slade Perkins v. Director of Prisons, Ibid.). Its
exercise by administrative bodies has been invariably limited to making effective the power
to elicit testimony (People v. Swena, 296 P., 271). And the exercise of that power by an
administrative body in furtherance of its administrative function has been held invalid
(Langenberg v. Lecker, 31 N.E., 190; In Re Sims, 37 P., 135; Roberts v. Hacney, 58 SW.,
810).1awphîl.nèt
In the instant case, the resolutions which the Commission tried to enforce and for whose violation
the charge for contempt was filed against petitioner Masangcay merely call for the exercise of an
administrative or ministerial function for they merely concern the procedure to be followed in the
distribution of ballots and other election paraphernalia among the different municipalities. In fact,
Masangcay, who as provincial treasurer of Aklan was the one designated to take charge of the
receipt, custody and distribution of election supplies in that province, was charged with having
opened three boxes containing official ballots for distribution among several municipalities in
violation of the instructions of the Commission which enjoin that the same cannot be opened except
in the presence of the division superintendent of schools, the provincial auditor, and the authorized
representatives of the Nacionalista Party, the Liberal Party, and the Citizens' Party, for he ordered
their opening and distribution not in accordance with the manner and procedure laid down in said
resolutions. And because of such violation he was dealt as for contempt of the Commission and was
sentenced accordingly. In this sense, the Commission has exceeded its jurisdiction in punishing him
for contempt, and so its decision is null and void.
Having reached the foregoing conclusion, we deem it unnecessary to pass on the question of
constitutionality raised by petitioner with regard to the portion of Section 5 of the Revised Election
Code which confers upon the Commission on Elections the power to punish for contempt for acts
provided for in Rule 64 of our rules of court.
WHEREFORE, the decision appealed from insofar as petitioner Benjamin Masangcay is concerned,
as well as the resolution denying petitioner's motion for reconsideration, insofar as it concerns him,
are hereby reversed, without pronouncement as to costs.
Bengzon, C. J., Padilla, Labrador, Concepcion, Barrera, Paredez, Dizon, Regala and Makalintal, JJ.,
concur.
Reyes, J. B. L., J., took no part.
Footnotes
1
G. R. No. L-12596, July 31, 1958.
A.M. No. P-92-695 December 7, 1994
CYNTHIA A. FLORENDO, Complainant, v. EXEQUIEL

ENRILE, Respondent.
Edgardo G. Villarin for complainant.
-->
PER CURIAM: chanrobles virtual law library
In a sworn letter-complaint filed with the Office of the Court

Administrator on 17 March 1992, the complainant charged the
respondent deputy sheriff of the Municipal Trial Court in Cities
(MTCC) at Cabanatuan City with the failure to enforce a writ of
demolition notwithstanding his collection and receipt of P5,200.00.
She averred that she was the plaintiff in Civil Cases Nos. 9241 to
9249, all for ejectment, and that in a joint decision rendered on 22
June 1987 by Branch 2 of the MTCC 1the defendants were ordered to
vacate the premises and to surrender the possession thereof to the
complainant. The defendants appealed this decision to the Regional
Trial Court (RTC) which in a joint decision of 18 August
1989 2affirmed it in toto. On 19 January 1990, the MTCC issued a
writ of execution. 3 chanrobles virtual law library
The writ was assigned to the respondent for implementation. In

view of the refusal of the defendants to vacate the premises, the
complainant asked for the issuance of a writ of demolition, which
the court granted pursuant to its order of 21 March 1990. 4On 27
June 1990, it denied the defendant's motion for extension of time to
execute the writ of demolition. 5For the service and implementation
of the writ of demolition, the respondent asked and received from
the complainant and her lawyer the total sum of P5,200.00
purportedly as sheriff's fee. 6The respondent issued no official
receipt for this amount. His acknowledgment of the partial payment
of P2,700.00 appears on the stationery of the complainant's lawyer,
Atty. Edgardo G. Villarin, while that for the other payment of
P500.00 is handwritten on the stationery of the Office of the City
Legal Officer, who is the same Atty. Edgardo G. Villarin. The other
payment of P2,000.00 was by check drawn by the complainant's
counsel.chanroblesvirtualawlibrary chanrobles virtual law library
The respondent did not execute the writ of demolition despite the
receipt of P5,200.00. The complainant's lawyer then wrote a letter
to the respondent on 8 November 1990 demanding that the latter
implement the writ of demolition or return the aforesaid sum within
ten days from receipt of the letter, otherwise the matter would be
brought up to this Court. 7Since nothing was done by the
respondent, the complainant filed this complaint. She asked that the
respondent be dismissed from the service. chanroblesvirtualawlibrary chanrobles virtual law library
On 25 May 1992, we required the respondent to comment on the
letter-complaint. chanroblesvirtualawlibrary chanrobles virtual law library
In his comment (denominated as an answer) dated 16 June 1992,

the respondent did not deny the charge that he collected P5,200.00
as sheriff's fee; however, he specifically denied the allegation that
he did not implement the writ of execution and the writ of
demolition. He claimed that he "returned to the defendants for
several times to advice [sic] them to vacate the said place," but
since they did not, he advised the complainant's counsel to file a
motion for the issuance of a writ of demolition. When he received
the writ of demolition, he served it on the defendants on 25 July
1990; the latter requested an extension of thirty days. He then
prepared a return of service dated 25 July 1990. 8Then, after the
expiration of the extended period, he again approached the
defendants on 4 September 1990 to make them vacate the
premises. However, he was threatened by them that if he would
enforce the writ of demolition something would happen, i.e.,
"magkamatayan muna." He then prepared the return of service on
the said date. 9The writ was thus unsatisfied. It appears, however,
that these returns dated 25 July 1990 and 4 September 1990 were
filed with the MTCC only on 29 May 1991 and 6 June 1991,
respectively.
chanroblesvirtualawlibrary chanrobles virtual law library
He further claimed that on 8 July 1991, Judge Romeo Mauricio of

the MTCC referred to Mr. Arsenio S. Vicencio, Clerk of Court IV and
Ex-Officio Sheriff of the MTCC, the respondent's return of service of
4 September 1990 for comment. 10In his compliance of 15 July
1991, 11Mr. Vicencio informed Judge Mauricio that the threat on the
respondent's life was "real, and it will be very risky for him to
implement" it, and requested that a new deputy sheriff be assigned
to enforce the writ. Pursuant to this request, Judge Mauricio sent a
formal request to the Presiding Judge of Branch I of the MTCC of
Cabanatuan City asking that deputy sheriff Teodoro Pineda be
assigned to implement the writ of demolition. 12 chanrobles virtual law library
This case was referred to the Executive Judge of the RTC in

Cabanatuan City for investigation, report and recommendation. chanroblesvirtualawlibrary chanrobles virtual law library
In his Report and Recommendation dated 4 March 1994, but
transmitted to this Court only on 6 June 1994, Executive Judge
Johnson L. Ballutay narrates the several instances that the case was
set for hearing and the postponements thereof because of the
respondent's plea for time to secure the services of counsel or
because of his non-appearance. Judge Ballutay recommends:
PREMISES CONSIDERED, and taking into account the stubborn

attitude of the respondent of not engaging the services of counsel to
facilitate the early termination of the investigation, it is respectfully
recommended that in addition to the suspension for one (1) year
without pay and to return to the complainant the P5,200.00, a
suspension without pay for six (6) months be imposed upon the
respondent.
In the resolution of 8 August 1994, we referred the Report and

Recommendation of Judge Ballutay to the Office of the Court
Administrator for evaluation, report and recommendation. chanroblesvirtualawlibrary chanrobles virtual law library
In its Memorandum of 23 September 1994, the Office of the Court

Administrator finds that:
An exhaustive study of the evidence on record shows a considerable

amount of Neglect of Duty on the part of respondent. He should
have coordinated with the counsel of the complainant and/or caused
the citation of the defiant defendants for contempt of court when
they resisted the implementation of the writ. Moreover, he should
have requested for additional sheriff and/or police assistance for the
proper and immediate implementation of the subject writs, but he
did not. For a long period time, the complainants have been
deprived of their constitutional right to a speedy administration of
justice considering that the Decision sought to be enforced was
issued in 1989 yet, all because of the negligence of herein
respondent. chanroblesvirtualawlibrary chanrobles virtual law library
In the case of Active Wood Products, Inc. vs. IAC, 183 SCRA 671,
the Court declares that sheriffs must implement or execute the
decision of the court without delay to prevent injury or damage to
the winning party and so as not to prejudice said party of obtaining
speedy justice. chanroblesvirtualawlibrary chanrobles virtual law library
Respondent did not also conduct himself in an upright and
professional manner as the judiciary code of ethics require [sic],
particularly in his getting the amount of P5,200.00 in installment
basis from the respondent. chanroblesvirtualawlibrary chanrobles virtual law library
This Court, speaking through Justice Regalado, in the case of

Anonuevo vs. Pempena (Administrative Matter No. P-93-795)
promulgated on July 18, 1994, enunciates: - "It is an abhorrent and
anomalous practice for a sheriff to demand fees in excess of those
lawfully allowed. This Court has emphasized time and again, that
the conduct and behaviour of everyone connected with an office
charged with the dispensation of justice, from the presiding judge to
the sheriff down to the lowliest clerk should be circumscribed with
the heavy burden of responsibility. Their conduct at all times, must
be characterized with propriety and decorum, but above all else,
must be above and beyond suspicion," for every employee should
be an example of integrity, uprightness and honesty (Valenton, et
al. vs.
Melgar - A.M. No. P-92-698, March 3, 1993, 219 SCRA 372).
It then recommends:
WHEREFORE, considering all the foregoing, it is respectfully

recommended to the Honorable Court that respondent be imposed a
FINE equivalent to his one (1) month salary payable within ten (10)
days upon notice, taking into account that (a) he was not totally
remiss in his duties but also exerted efforts to execute the writs; (b)
he even went to the extent of approaching the City Mayor for
relocation of the defendants; and (c) the complainant herself is in
conformity to the dismissal of the complaint; and (2) to RETURN the
total amount of P5,200.00 to the complainant, without interest,
within twenty (20) days from notice hereof, with a STERN WARNING
that the repetition of similar offense will be dealt with more
severely.
We do not agree with the penalty recommended by Judge Ballutay

or the Office of the Court Administrator. Both are, especially that of
the latter, grossly inadequate in the light of the gravity of the
administrative offenses committed by the respondent. Moreover,
the former's recommendation of an additional penalty of suspension
for six months on account of the "stubborn attitude of the
respondent of not engaging the services of counsel to facilitate the
early termination of the investigation" is improper. The records
disclose that Judge Ballutay was very accommodating to the parties.
No less than fifteen scheduled hearings were cancelled or postponed
and despite admonitions that he would proceed with the hearing
regardless of the absence of counsel, he never did. chanroblesvirtualawlibrary chanrobles virtual law library
Having been delegated by this Court the authority to investigate the

case and to submit his report and recommendation, he should have,
upon deliberate failure of the respondent to engage the services of
counsel, allowed the complainant to present ex-parte her evidence
and, upon the non-appearance of the respondent on any of the
scheduled dates of hearing, considered him to have waived the
presentation of his evidence. As we see it then, Judge Ballutay is
not entirely without blame for the delay in the termination of the
investigation of this case. chanroblesvirtualawlibrary chanrobles virtual law library
It must be stressed that administrative cases involving misconduct,

nonfeasance, misfeasance, or malfeasance in office of officers and
employees in the judiciary are of paramount public interest as the
respondents are involved in the administration of justice, a sacred
and solemn task. Such cases must be resolved with reasonable
dispatch to clear the name of the innocent and to punish forthwith
the guilty whose stay in office, prolonged by delay, could further
tarnish the image of and diminish the public's faith in the
judiciary.
chanroblesvirtualawlibrary chanrobles virtual law library
We cannot likewise give weight to the circumstances relied upon by

the Office of the Court Administrator to mitigate the respondent's
liability. As hereinafter noted, he is guilty of grave misconduct,
gross dishonesty, serious dereliction or neglect of duty, gross
inefficiency or incompetence, and conduct prejudicial to the best
interest of the service. That the complainant "is in conformity to the
dismissal of the complaint" can by no means be considered a
mitigating circumstance as it is offensive to the postulate that a
complaint for misconduct, malfeasance, or misfeasance against a
public officer or employee cannot just be withdrawn at any time by
the complainant and that the need to maintain the faith and
confidence of the people in the Government and its agencies and
instrumentalities demands the proceedings in such cases should not
be made to depend on the whims and caprices of the complainants
who are, in a real sense, only witnesses therein. 13In this case, the
conformity of the complainant, found in the motion to dismiss dated
8 February 1994 14and signed by the counsel for the complainant, is
based on the ground that the respondent had already "fully
implemented the writ of execution." That motion to dismiss was not,
and correctly so, granted by Judge Ballutay. On the contrary, on 4
March 1994 he made his Report and Recommendation. chanroblesvirtualawlibrary chanrobles virtual law library
The respondent never denied that he received the sum of P5,200.00

from the complainant in connection with the writ of demolition. He
did not issue any official receipt for the amount received. At the
time the writ of demolition was placed on his hands for
implementation, the basic amount that the complainant had to pay
was only P8.00 pursuant to paragraph (g), Section 7, Rule 141 of
the Rules of Court. This was later increased to P100.00 per this
Court's en banc resolution of 4 September 1990. 15There are, of
course, other sheriff's expenses that prevailing parties have to pay
for the service or implementation of court processes, or the
safeguarding of property levied upon, attached or seized, including
kilometrage, guard's fees, warehousing and similar charges, in an
amount to be estimated by the sheriff. However, the approval of the
court thereof is needed and upon such approval, the amount shall
be deposited by the interested party with the clerk of court and ex-
officio sheriff, who shall disburse the same to the deputy sheriff
assigned to effect the process, subject to liquidation within the
same period for rendering a return of the process. Any unspent
amount shall be refunded to the party making the deposit. A full
report shall be submitted by the deputy sheriff assigned with his
return. 16
In the instant case, the respondent did not make any report on the
amount he received from the complainant nor did he issue an
official receipt therefor. It is then obvious that he asked for the
amount not as lawful fees alone but as a consideration for the
performance of his duty. Any portion of the P5,200.00 then in
excess of the lawful fees allowed by the Rules of Court is an
unlawful exaction which makes the respondent liable for grave
misconduct and gross dishonesty. chanroblesvirtualawlibrary chanrobles virtual law library
The records further disclose that the respondent's returns of service

dated 25 July 1990 17and 24 September 1990 18were filed by him
only on 29 May 1991 and 6 June 1991, respectively, with the MTCC,
which issued the writ of demolition. Either the respondent correctly
dated the returns, in which case there was a deliberate and
unreasonable delay in their filing with the court, or he antedated
them to make it appear that he prepared it well within the period
provided for by the Rules of Court. Section 11 of Rule 39 thereof
provides that a writ of execution should be returned at any time not
less than ten days nor more than sixty days after its receipt by the
sheriff who must set forth in writing on its back the whole of his
proceedings by virtue thereof and file it with the clerk or judge to be
preserved with the other papers in the case. 19As the court
personnel primarily responsible for the speedy and efficient service
of all court processes and writs originating from his court, 20it was
the respondent's duty to immediately implement the writ of
demolition. The Manual for Clerks of
Court 21provides:
2. Duty of sheriff as to execution of process. - When a writ is placed

in the hands of the sheriff, it is his duty in the absence of
instructions, to proceed with reasonable celerity and promptness to
execute it in accordance with its mandate. . . . He has no discretion
whether to execute it or not.
Section E(4) of the Manual also provides:
4. All sheriffs and deputy sheriffs shall submit a report to the Judge
concerned on the action taken on all writs and processes assigned
to them within ten (10) days from receipt of said process or writ.
Said report shall form part of the records of the case.
The duty imposed upon the sheriff to execute the writ is ministerial,
not directory. A purely ministerial act or duty is one which an officer
or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of the legal authority, without
regard to the exercise of his own judgment upon the propriety or
impropriety of the act done. 22 chanrobles virtual law library
The respondent's explanation that he was not able to implement the

writ of demolition because he was threatened with death by the
defendants is unacceptable. If that were true, he should have either
reported it to the MTCC and requested the assistance of other
sheriffs or law enforcement authorities, or filed the appropriate
criminal complaint against the defendants who had threatened him.
Instead of doing so, he filed his returns only after several months
had lapsed. chanroblesvirtualawlibrary chanrobles virtual law library
For such nonfeasance and misfeasance, the respondent is guilty of

serious dereliction or neglect of duty, gross inefficiency or
incompetence, and conduct prejudicial to the best interest of the
service. chanroblesvirtualawlibrary chanrobles virtual law library
Time and again, this Court has stressed that the conduct and
behavior of everyone connected with the dispensation of justice
from the presiding judge to the lowliest clerk should be
circumscribed with the heavy burden of responsibility. They must at
all times not only observe propriety and decorum, they must also be
above suspicion. 23 chanrobles virtual law library
WHEREFORE, for grave misconduct, gross dishonesty, serious

dereliction or neglect of duty, gross incompetence or inefficiency,
and conduct prejudicial to the best interest of the service,
respondent EXEQUIEL ENRILE, Deputy Sheriff of the Municipal Trial
Court in Cities of Cabanatuan City, is ordered DISMISSED from the
service with forfeiture of all benefits and with prejudice to re-
employment in any branch of service of the Government, including
government-owned or controlled corporations. chanroblesvirtualawlibrary chanrobles virtual law library
This decision is immediately executory. chanroblesvirtualawlibrary chanrobles virtual law library
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero,

Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur.chanrobles virtual law library
Feliciano, J., is on leave.
Endnotes:
1 Annex "A" of letter-complaint. chanrobles virtual law library
2 Annex "B" of letter-complaint. chanrobles virtual law library
3 Annex "C," Id. chanrobles virtual law library
4 Annex "D," Id. chanrobles virtual law library
5 Annex "E," Id. chanrobles virtual law library
6 Annexes "F," "F-1," and "F-2," inclusive, Id. chanrobles virtual law library
7 Annex "G" of letter-complaint. chanrobles virtual law library
8 Annex "B" of Comment. chanrobles virtual law library
10 Annex "D" of Comment. chanrobles virtual law library
11 Annex "E," Id. chanrobles virtual law library
12 Annex "F," Id. chanrobles virtual law library
13 Sy vs. Academia, 198 SCRA 705 [1991]. chanrobles virtual law library
14 Rollo, 80.chanrobles virtual law library
15 See Manual for Clerks of Court, Chapter IX, Section B, subsection 9(g), 194. chanrobles virtual law library
16 See Manual for Clerks of Court, op. cit., 195. chanrobles virtual law library
17 Annex "B" of Comment. chanrobles virtual law library
19 See Cruz vs. Villarin, 181 SCRA 53 [1990]. chanrobles virtual law library
20 Supreme Court Circular No. 12, dated 1 October 1985; De Castro vs. Santos, 198 SCRA 245 [1991]. chanrobles virtual law library
21 Page 178. See Young vs. Momblan, 205 SCRA 33 [1992]. chanrobles virtual law library
22 Lamb vs. Phibbs, 22 Phil. 456 [1912], cited in Young vs. Momblan, supra at note 21. chanrobles virtual law library
23 Tan vs. Herras, 195 SCRA 1 [1991]; Sy vs. Academia, supra at note 13.
EN BANC
G.R. No. 139465 January 18, 2000
SECRETARY OF JUSTICE, petitioner,

vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and
MARK B. JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming
powers of government. His only guarantee against oppression and tyranny are his fundamental
liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide
whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a
treaty. The bugle sounds and this Court must once again act as the faithful guardian of the
fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069
"Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign
Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual
concern for the suppression of crime both in the state where it was committed and the state where
the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the
intention of the Philippines to enter into similar treaties with other interested countries; and the need
for rules to guide the executive department and the courts in the proper implementation of said
treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government
of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government
of the Republic of the Philippines and the Government of the United States of America" (hereinafter
referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its
concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic
Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents
accompanying an extradition request upon certification by the principal diplomatic or consular officer
of the requested state resident in the Requesting State).
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S.
Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez
to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of
arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents
for said extradition. Based on the papers submitted, private respondent appears to be charged in the
United States with violation of the following provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2]
counts; Maximum Penalty — 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5
years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty — 5
years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5 years on
each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum
Penalty — less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel
of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree
No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the
extradition request and the documents in support thereof. The panel found that the "official English
translation of some documents in Spanish were not attached to the request and that there are some
other matters that needed to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private respondent, through counsel,
wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition
request from the U.S. Government, as well as all documents and papers submitted therewith; and
that he be given ample time to comment on the request after he shall have received copies of the
requested papers. Private respondent also requested that the proceedings on the matter be held in
abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the
request of the United States Government, and after receiving a copy of the Diplomatic Note, a period
of time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999
(but received by private respondent only on August 4, 1999), denied the foregoing requests for the
following reasons:
1. We find it premature to furnish you with copies of the extradition request and supporting
documents from the United States Government, pending evaluation by this Department of
the sufficiency of the extradition documents submitted in accordance with the provisions of
the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the
Philippines and the United States enumerates the documentary requirements and
establishes the procedures under which the documents submitted shall be received and
admitted as evidence. Evidentiary requirements under our domestic law are also set forth in
Section 4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a preliminary

investigation nor akin to preliminary investigation of criminal cases. We merely determine
whether the procedures and requirements under the relevant law and treaty have been
complied with by the Requesting Government. The constitutionally guaranteed rights of the
accused in all criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the person sought to be extradited
will be furnished by the court with copies of the petition, request and extradition documents
and this Department will not pose any objection to a request for ample time to evaluate said
documents.
2. The formal request for extradition of the United States contains grand jury information and
documents obtained through grand jury process covered by strict secrecy rules under United
States law. The United States had to secure orders from the concerned District Courts
authorizing the United States to disclose certain grand jury information to Philippine
government and law enforcement personnel for the purpose of extradition of Mr. Jimenez.
Any further disclosure of the said information is not authorized by the United States District
Courts. In this particular extradition request the United States Government requested the
Philippine Government to prevent unauthorized disclosure of the subject information. This
Department's denial of your request is consistent with Article 7 of the RP-US Extradition
Treaty which provides that the Philippine Government must represent the interests of the
United States in any proceedings arising out of a request for extradition. The Department of
Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition
requests.
3. This Department is not in a position to hold in abeyance proceedings in connection with an

extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we
are a party provides that "[E]very treaty in force is binding upon the parties to it and must be
performed by them in good faith". Extradition is a tool of criminal law enforcement and to be
effective, requests for extradition or surrender of accused or convicted persons must be
processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional
Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the
Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation,
for mandamus (to compel herein petitioner to furnish private respondent the extradition documents,
to give him access thereto, and to afford him an opportunity to comment on, or oppose, the
extradition request, and thereafter to evaluate the request impartially, fairly and
objectively); certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to
restrain petitioner from considering the extradition request and from filing an extradition petition in
court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any
act directed to the extradition of private respondent to the United States), with an application for the
issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to
Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable
Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in
his own behalf, moved that he be given ample time to file a memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice,
the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their
agents and/or representatives to maintain the status quo by refraining from committing the
acts complained of; from conducting further proceedings in connection with the request of
the United States Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and from performing any act directed to
the extradition of the petitioner to the United States, for a period of twenty (20) days from
service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of
Court.
The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed
upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the
morning. The respondents are, likewise, ordered to file their written comment and/or
opposition to the issuance of a Preliminary Injunction on or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS

COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS
TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING
PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION
TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION
FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS
TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES

UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE,
FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND

ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his comment. Also issued, as
prayed for, was a temporary restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further orders from this
Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person
or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from
enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case
No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the
Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed
their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are patent.
However, a review of these issues as well as the extensive arguments of both parties, compel us to
delineate the focal point raised by the pleadings: During the evaluation stage of the extradition
proceedings, is private respondent entitled to the two basic due process rights of notice and
hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and
academic (the issues of which are substantially the same as those before us now), while a negative
resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999,
thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with
the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to
basic due process rights at the evaluation stage of the extradition proceedings, would this
entitlement constitute a breach of the legal commitments and obligations of the Philippine
Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a
breach, is there any conflict between private respondent's basic due process rights and the
provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the
substantive merits of the case, brushing aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein,
and of the issuance of the TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty
which was executed only on November 13, 1994, ushered into force the implementing provisions of
Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof
defines extradition as "the removal of an accused from the Philippines with the object of placing him
at the disposal of foreign authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the execution of a penalty imposed
on him under the penal or criminal law of the requesting state or government." The portions of the
Decree relevant to the instant case which involves a charged and not convicted individual, are
abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of
Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by
the authority of the Requesting State having jurisdiction over the matter, or some other
instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest particulars as to the
name and identity of the accused, his whereabouts in the Philippines, if known, the acts or
omissions complained of, and the time and place of the commission of these acts;
3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the request;
and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs,
pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the
requirements of this law and the relevant treaty or convention, he shall forward the request
together with the related documents to the Secretary of Justice, who shall immediately
designate and authorize an attorney in his office to take charge of the case.
The above provision shows only too clearly that the executive authority given the task of evaluating
the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What
then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive
authority must ascertain whether or not the request is supported by:
1. Documents, statements, or other types of information which describe the identity and
probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the case;
3. A statement of the provisions of the law describing the essential elements of the offense
for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the offense;
5. A statement of the provisions of the law describing any time limit on the prosecution or the
execution of punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3 or

paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would provide probable
cause for his arrest and committal for trial if the offense had been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other competent authority;
and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying
documents received in support of the request had been certified by the principal diplomatic or
consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052
from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the
executive authority of the Requested State determines that the request is politically motivated, or
that the offense is a military offense which is not punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall deliver the same
to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to
take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then
file a written petition with the proper regional trial court of the province or city, with a prayer that the
court take the extradition request under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as
soon as practicable, issue an order summoning the prospective extraditee to appear and to answer
the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it
appears that the immediate arrest and temporary detention of the accused will best serve the ends
of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective
extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition proceeding is criminal,
civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the
hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not
inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8
of the Decree provides that the attorney having charge of the case may, upon application by the
Requesting State, represent the latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving
the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition
(Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final
and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal
in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the
required 15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable based
on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-
US Extradition Treaty. The trial court also determines whether or not the offense for which extradition
is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty). 1âwphi1.nêt
With the foregoing abstract of the extradition proceedings as backdrop, the following query presents
itself: What is the nature of the role of the Department of Justice at the evaluation stage of the
extradition proceedings?
A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to
file the extradition petition after the request and all the supporting papers are forwarded to him by the
Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition
papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine
whether or not the request is politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1],
Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the
extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there was failure to
abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition
request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or
less than 24 hours later, the Department of Justice received the request, apparently without the
Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant secretary at the Department of Foreign
Affairs that his Department, in this regard, is merely acting as a post office, for which reason he
simply forwarded the request to the Department of Justice, indicates the magnitude of the error of
the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of
Justice took it upon itself to determine the completeness of the documents and to evaluate the same
to find out whether they comply with the requirements laid down in the Extradition Law and the RP-
US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of
Justice had no obligation to evaluate the extradition documents, the Department also had to go over
them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it
was also at this stage where private respondent insisted on the following; (1) the right to be
furnished the request and the supporting papers; (2) the right to be heard which consists in having a
reasonable period of time to oppose the request, and to present evidence in support of the
opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private
respondent's opposition to the request.
The two Departments seem to have misread the scope of their duties and authority, one abdicating
its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover,
has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its
own, indirectly conveying the message that if it were to evaluate the extradition request, it would not
allow private respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of Foreign
Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a
well-founded judgment that the request and its annexed documents satisfy the requirements of law.
The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all
by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or
his undersecretary, in less than one day, make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It
is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an
exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a
technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly
deny the request if on its face and on the face of the supporting documents the crimes indicated are
not extraditable; and (c) to make a determination whether or not the request is politically motivated,
or that the offense is a military one which is not punishable under non-military penal legislation (tsn,
August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty).
Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b)
determining facts based upon the evidence presented; and (c) rendering an order or decision
supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing
Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or
investigatory power, is one or the determinative powers of an administrative body which better
enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26).
This power allows the administrative body to inspect the records and premises, and investigate the
activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of
information by means or accounts, records, reports, testimony of witnesses, production of
documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence, which is a
useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial
functions. Notably, investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the
functions of an investigatory body with the sole power of investigation. It does not exercise judicial
functions and its power is limited to investigating the facts and making findings in respect thereto.
The Court laid down the test of determining whether an administrative body is exercising judicial
functions or merely investigatory functions: Adjudication signifies the exercise of power and authority
to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for
investigation is to evaluate evidence submitted before it based on the facts and circumstances
presented to it, and if the agency is not authorized to make a final pronouncement affecting the
parties, then there is an absence of judicial discretion and judgment.
The above description in Ruperto applies to an administrative body authorized to evaluate

extradition documents. The body has no power to adjudicate in regard to the rights and obligations
of both the Requesting State and the prospective extraditee. Its only power is to determine whether
the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the
basis of an extradition petition. Such finding is thus merely initial and not final. The body has no
power to determine whether or not the extradition should be effected. That is the role of the court.
The body's power is limited to an initial finding of whether or not the extradition petition can be filed
in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is

characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition
process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee
pending the submission of the request. This is so because the Treaty provides that in case of
urgency, a contracting party may request the provisional arrest of the person sought pending
presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be
automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree
No. 1069 provides for a shorter period of 20 days after which the arrested person could be
discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the
provisions only mean that once a request is forwarded to the Requested State, the prospective
extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9,
RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the
purpose of this detention is to prevent his possible flight from the Requested State. Second, the
temporary arrest of the prospective extraditee during the pendency of the extradition petition in court
(Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the
evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding, the consequences of which are
essentially criminal since such technical assessment sets off or commences the procedure for, and
ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself,
this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation
process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to
make available to a respondent in an administrative case or investigation certain constitutional rights
that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice
Mendoza during the oral arguments, there are rights formerly available only at the trial stage that
had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right
against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon
vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-
incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in
criminal prosecutions, extends to administrative proceedings which possess a criminal or penal
aspect, such as an administrative investigation of a licensed physician who is charged with
immorality, which could result in his loss of the privilege to practice medicine if found guilty. The
Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the
revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of
property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a
respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein
ruled that since the investigation may result in forfeiture of property, the administrative proceedings
are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the
earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American
jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the
proceeding is under a statute such that if an indictment is presented the forfeiture can be included in
the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it
must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be
considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for
the offense charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of one's property or property
right. No less is this true, but even more so in the case before us, involving as it does the possible
deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed
second only to life itself and enjoys precedence over property, for while forfeited property can be
returned or replaced, the time spent in incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a person to eventual extradition

to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this
sense, the evaluation procedure is akin to a preliminary investigation since both procedures may
have the same result — the arrest and imprisonment of the respondent or the person charged.
Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may
result in the filing of an information against the respondent, can possibly lead to his arrest, and to the
deprivation of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal
procedural statute is not well-taken. Wright is not authority for petitioner's conclusion that his
preliminary processing is not akin to a preliminary investigation. The characterization of a treaty
in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had
nothing to do with the denial of the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by
public authority, whether sanctioned by age or custom, or newly devised in the discretion of the
legislative power, in furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110
U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with
treaty commitments.
The United States and the Philippines share a mutual concern about the suppression and
punishment of crime in their respective jurisdictions. At the same time, both States accord common
due process protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only worded in exactly
identical language and terminology, but more importantly, they are alike in what their respective
Supreme Courts have expounded as the spirit with which the provisions are informed and
impressed, the elasticity in their interpretation, their dynamic and resilient character which make
them capable of meeting every modern problem, and their having been designed from earliest time
to the present to meet the exigencies of an undefined and expanding future. The requirements of
due process are interpreted in both the United States and the Philippines as not denying to the law
the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a
legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually
ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they
arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting
idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20
SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of
free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components — substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and
procedural due process which consists of the two basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993
Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing pervade not
only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of
these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case
affecting their interests, and upon notice, they may claim the right to appear therein and present their
side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p.
64).
In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule

112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the
right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the
right to submit counter-affidavits and other supporting documents within ten days from receipt
thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by
the complainant.
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceeding where there is an urgent need for immediate action, like the summary
abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a
public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg.
337), the padlocking of filthy restaurants or theaters showing obscene movies or like
establishments which are immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is not
precluded from enjoying the right to notice and hearing at a later time without prejudice to the
person affected, such as the summary distraint and levy of the property of a delinquent
taxpayer, and the replacement of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to exercise them had not
been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage
of the extradition proceedings fall under any of the described situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy
considering that the subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate rendition or extradition which is based on

the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition
proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to
deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are
given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly
as possible of persons for trial to the state in which they have been charged with crime (31A Am
Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the
demand must be in proper form, and all the elements or jurisdictional facts essential to the
extradition must appear on the face of the papers, such as the allegation that the person demanded
was in the demanding state at the time the offense charged was committed, and that the person
demanded is charged with the commission of the crime or that prosecution has been begun in the
demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents
are then filed with the governor of the asylum state, and must contain such papers and documents
prescribed by statute, which essentially include a copy of the instrument charging the person
demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory
requirements with respect to said charging instrument or papers are mandatory since said papers
are necessary in order to confer jurisdiction on the government of the asylum state to effect
extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the
indictment, information, affidavit, or judgment of conviction or sentence and other instruments
accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is
directory. However, the right being such a basic one has been held to be a right mandatory on
demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex
parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide for the presentation to the
executive authority of the Requested State of a requisition or demand for the return of the alleged
offender, and the designation of the particular officer having authority to act in behalf of the
demanding nation (31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated
September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the
U.S. extradition procedures and principles, which are basically governed by a combination of treaties
(with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to
wit:
1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases,
requests for the provincial arrest of an individual may be made directly by the Philippine
Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a
provisional arrest, a formal request for extradition is transmitted subsequently through the
diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request to the
Department of Justice. Before doing so, the Department of State prepares a declaration
confirming that a formal request has been made, that the treaty is in full force and effect, that
under Article 17 thereof the parties provide reciprocal legal representation in extradition
proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof,
and that the documents have been authenticated in accordance with the federal statute that
ensures admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is authorized to hold a
hearing to consider the evidence offered in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is extraditable to the
foreign country. The court must also determine that (a) it has jurisdiction over the defendant
and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for
which the applicable treaty permits extradition; and (c) there is probable cause to believe that
the defendant is the person sought and that he committed the offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after
having received a "complaint made under oath, charging any person found within his
jurisdiction" with having committed any of the crimes provided for by the governing treaty in
the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of
American decisions pronounce that international extradition proceedings partake of the
character of a preliminary examination before a committing magistrate, rather than a trial of
the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it incorporates
its determinations in factual findings and conclusions of law and certifies the person's
extraditability. The court then forwards this certification of extraditability to the Department of
State for disposition by the Secretary of State. The ultimate decision whether to surrender an
individual rests with the Secretary of State (18 U.S.C. §3186).
7. The subject of an extradition request may not litigate questions concerning the motives of
the requesting government in seeking his extradition. However, a person facing extradition
may present whatever information he deems relevant to the Secretary of State, who makes
the final determination whether to surrender an individual to the foreign government
concerned.
From the foregoing, it may be observed that in the United States, extradition begins and ends with
one entity — the Department of State — which has the power to evaluate the request and the
extradition documents in the beginning, and, in the person of the Secretary of State, the power to act
or not to act on the court's determination of extraditability. In the Philippine setting, it is the
Department of Foreign Affairs which should make the initial evaluation of the request, and having
satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the
Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the
Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the
Department of Justice which has taken over the task of evaluating the request as well as thereafter,
if so warranted, preparing, filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S. Government should the person
sought to be extradited be given due process rights by the Philippines in the evaluation stage. He
emphasizes that petitioner's primary concern is the possible delay in the evaluation process.
We agree with private respondent's citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate state ends is a

proper state interest worthy of cognizance in constitutional adjudication. But the Constitution
recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of
Rights in general, and the Due Process Clause, in particular, that they were designed to
protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency
and efficacy that may characterize praiseworthy government officials no less, and perhaps
more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine Government that no right —
that of liberty — secured not only by the Bills of Rights of the Philippines Constitution but of the
United States as well, is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where the rights of the individual
are concerned, the end does not justify the means. It is not enough that there be a valid
objective; it is also necessary that the means employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question
that not even the strongest moral conviction or the most urgent public need, subject only to a
few notable exceptions, will excuse the bypassing of an individual's rights. It is no
exaggeration to say that a person invoking a right guaranteed under Article III of the
Constitution is a majority of one even as against the rest of the nation who would deny him
that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian
Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of criminal law
enforcement. To be effective, requests for extradition or the surrender of accused or convicted
persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings
and adherence to fair procedures are, however, not always incompatible. They do not always clash
in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic
principles inherent in "ordered liberty."
Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no
extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate
extradition, the governor of the asylum state may not, in the absence of mandatory statute, be
compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he
may hold that federal and statutory requirements, which are significantly jurisdictional, have not been
met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the
requested state has the power to deny the behest from the requesting state. Accordingly, if after a
careful examination of the extradition documents the Secretary of Foreign Affairs finds that the
request fails to meet the requirements of the law and the treaty, he shall not forward the request to
the Department of Justice for the filing of the extradition petition since non-compliance with the
aforesaid requirements will not vest our government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable efforts in assuring
compliance with the requirements of the law and the treaty since it even informed the U.S.
Government of certain problems in the extradition papers (such as those that are in Spanish and
without the official English translation, and those that are not properly authenticated). In fact,
petitioner even admits that consultation meetings are still supposed to take place between the
lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature
of the evaluation, which cannot just be completed in an abbreviated period of time due to its
intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and
prompt action where notice and hearing can be dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is
private respondent precluded from enjoying the right to notice and hearing at a later time without
prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On
one hand there is yet no extraditee, but ironically on the other, it results in an administrative if
adverse to the person involved, may cause his immediate incarceration. The grant of the request
shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of
Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition
petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional
arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus
blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with
and shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7
of Article III which reads:
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 above provision guarantees political rights which are available to citizens of the Philippines,
namely: (1) the right to information on matters of public concern, and (2) the corollary right of access
to official records documents. The general right guaranteed by said provision is the right to
information on matters of public concern. In its implementation, the right of access to official records
is likewise conferred. These cognate or related rights are "subject to limitations as may be provided
by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the
premise that ultimately it is an informed and critical public opinion which alone can protect the values
of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999
do not fall under the guarantee of the foregoing provision since the matters contained in the
documents requested are not of public concern. On the other hand, private respondent argues that
the distinction between matters vested with public interest and matters which are of purely private
interest only becomes material when a third person, who is not directly affected by the matters
requested, invokes the right to information. However, if the person invoking the right is the one
directly affected thereby, his right to information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a
public officer in the conduct of the governmental process is a matter of public concern (Bernas, The
1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a
broad spectrum of subjects which the public may want to know, either because these directly affect
their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil
Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any
citizen has "standing".
When the individual himself is involved in official government action because said action has a direct
bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes
the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to
information on matters of public concern. As to an accused in a criminal proceeding, he invokes
Section 14, particularly the right to be informed of the nature and cause of the accusation against
him.
The right to information is implemented by the right of access to information within the control of the
government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337).
Such information may be contained in official records, and in documents and papers pertaining to
official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official government action
from the U.S. Government. No official action from our country has yet been taken. Moreover, the
papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if
a third party invokes this constitutional provision, stating that the extradition papers are matters of
public concern since they may result in the extradition of a Filipino, we are afraid that the balance
must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of
the government. During the evaluation procedure, no official governmental action of our own
government has as yet been done; hence the invocation of the right is premature. Later, and in
contrast, records of the extradition hearing would already fall under matters of public concern,
because our government by then shall have already made an official decision to grant the extradition
request. The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would
private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings
constitute a breach of the legal duties of the Philippine Government under the RP-Extradition
Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and
the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law
implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice
and hearing to private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international
law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of
our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution
which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of
incorporation, rules of international law form part of the law of the and land no further legislative
action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public
International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted
with situations in which there appears to be a conflict between a rule of international law and the
provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize
them, so as to give effect to both since it is to be presumed that municipal law was enacted with
proper regard for the generally accepted principles of international law in observance of the
observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine
Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a
choice has to be made between a rule of international law and municipal law, jurisprudence dictates
that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155
[1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the
reason that such courts are organs of municipal law and are accordingly bound by it in all
circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of
the law of the land does not pertain to or imply the primacy of international law over national or
municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries,
decrees that rules of international law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a treaty
may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest
law of the land, such as the Republic of the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and municipal or national
law? En contrario, these two components of the law of the land are not pined against each other.
There is no occasion to choose which of the two should be upheld. Instead, we see a void in the
provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as
regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition
proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and
during the judicial determination of the propriety of extradition, the rights of notice and hearing are
clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these
rights. Reference to the U.S. extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition
request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play. An application of the
basic twin due process rights of notice and hearing will not go against the treaty or the implementing
law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee.
Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in
interstate extradition proceedings as explained above, the prospective extraditee may even request
for copies of the extradition documents from the governor of the asylum state, and if he does, his
right to be supplied the same becomes a demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to prevent
unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the
Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by
petitioner's revelation that everything it refuses to make available at this stage would be obtainable
during trial. The Department of Justice states that the U.S. District Court concerned has authorized
the disclosure of certain grand jury information. If the information is truly confidential, the veil of
secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the two
basic due process rights of notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a preliminary
investigation since both procedures may result in the arrest of the respondent or the prospective
extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the
Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069).
Following petitioner's theory, because there is no provision of its availability, does this imply that for a
period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III
of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be
suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's
theory would also infer that bail is not available during the arrest of the prospective extraditee when
the extradition petition has already been filed in court since Presidential Decree No. 1069 does not
provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll
persons, except those charged with offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these
contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated
guarantees in the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due process in
administrative proceeding is an opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997];
Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs.
NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs.
NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner
by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA
31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the
enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections
to the Requested State's non-performance of its commitments under the Extradition Treaty are
insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners
of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System vs. Court of
Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997])
where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the
Organization of the Civil Service Commission in Accordance with Provisions of the Constitution,
Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971
(Providing Legal Assistance for Members of the Integrated National Police who may be charged for
Service-Connected Offenses and Improving the Disciplinary System in the Integrated National
Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree
No. 1707, although summary dismissals may be effected without the necessity of a formal
investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of
Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an
employee may be removed or dismissed even without formal investigation, in certain
instances. It is equally clear to us that an employee must be informed of the charges
preferred against him, and that the normal way by which the employee is so informed is by
furnishing him with a copy of the charges against him. This is a basic procedural requirement
that a statute cannot dispense with and still remain consistent with the constitutional
provision on due process. The second minimum requirement is that the employee charged
with some misfeasance or malfeasance must have a reasonable opportunity to present his
side of the matter, that is to say, his defenses against the charges levelled against him and to
present evidence in support of his defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process
rights of the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss of
property or employment, but of liberty itself, which may eventually lead to his forcible banishment to
a foreign land. The convergence of petitioner's favorable action on the extradition request and the
deprivation of private respondent's liberty is easily comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice
outside legality," may be availed of only in the absence of, and never against, statutory law or judicial
pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs.
Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even
call for "justice outside legality," since private respondent's due process rights, although not
guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true
to the organic law of the land if we choose strict construction over guarantees against the deprivation
of liberty. That would not be in keeping with the principles of democracy on which our Constitution is
premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and
government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and
wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack
of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its
supporting papers, and to grant him a reasonable period within which to file his comment with
supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and
academic by this decision, the same is hereby ordered dismissed.
SO ORDERED.
Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.

Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.
Separate Opinions
VITUG, J., separate opinion;
The only real issue before the Court, I would take it, is whether or not private respondent can validly
ask for copies of pertinent documents while the application for extradition against him is still
undergoing process by the Executive Department.
There is, I agree with the majority, a right of access to such extradition documents conformably with
the provisions of Article III, Section 7, of the Philippine Constitution. The constitutional right to free
1
access to information of public concern is circumscribed only by the fact that the desired information
is not among the species exempted by law from the operation of the constitutional guaranty and that
the exercise of the right conforms with such reasonable conditions as may be prescribed by law.
There is no hornbook rule to determine whether or not an information is of public concern. The term
"public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the
public may want to know either because the subject thereof can affect their lives or simply because it
arouses concern. 2
I am not convinced that there is something so viciously wrong with, as to deny, the request of private
respondent to be furnished with copies of the extradition documents.
I add. The constitutional right to due process secures to everyone an opportunity to be heard,
presupposing foreknowledge of what he may be up against, and to submit any evidence that he may
wish to proffer in an effort to clear himself. This right is two-pronged — substantive and procedural
due process — founded, in the first instance, on Constitutional or statutory provisions, and in the
second instance, on accepted rules of procedure. Substantive due process looks into the extrinsic
3
and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and
property. Procedural due process — the more litigated of the two — focuses on the rules that are
established in order to ensure meaningful adjudication in the enforcement and implementation of the
law. Like "public concern," the term due process does not admit of any restrictive definition. Justice
Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history,
reason, the past course of decisions, and stout confidence in the democratic faith." The framers of
4
our own Constitution, it would seem, have deliberately intended, to make it malleable to the ever-
changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling for
its application that makes it appropriate to accept an enlarged concept of the term as and when
there is a possibility that the right of an individual to life, liberty and property might be diffused. Verily,
5
whenever there is an imminent threat to the life, liberty or property of any person in any proceeding
conducted by or under the auspices of the State, his right to due process of law, when demanded,
must not be ignored.
A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition
Treaty between the Government of the Republic of the Philippines and the Government of the United
States of America provides that in case of urgency, a Contracting Party may request the provisional
arrest of the person prior to the presentation of the request for extradition. I see implicit in this
provision that even after the request for extradition is made and before a petition for extradition is
filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the
Executive on the request for extradition by the foreign State cannot totally be discounted.
The conclusion reached by the majority, I hasten to add, does not mean that the Executive
Department should be impeded in its evaluation of the extradition request. The right of the extraditee
to be furnished, upon request, with a copy of the relevant documents and to file his comment
thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made.
I vote to deny the petition.
KAPUNAN, J., separate concurring opinion;
I vote to dismiss the petition, both on technical and substantial grounds.
The petition in the case at bar raises one and only issue, which is the validity of the Temporary
Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil
Case No. 99-94684. The TRO directed respondents in said case to:
. . . maintain the status quo by refraining from committing the acts complained of; from
conducting further proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the corresponding Petition with
the Regional Trial Court; and from performing any act directed to the extradition of the
petitioner to the United States, for a period of twenty days from the service on respondents
of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. (Emphasis ours.)
1
The petition itself categorically states that "(t)he issue sought to be presented and litigated here is
solely-the validity of the TRO." 2
Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the
case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act,
ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being
challenged in the petition before us.
Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10,
1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has
become moot and academic. This Court does not exercise jurisdiction over cases which are
moot and academic or those not ripe for judicial consideration. 3
Assuming that the present case has not become moot and academic, still, it should be dismissed for
lack of merit.
The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a
foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the
Department of Justice as the request for extradition is being evaluated, or whether due process
rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and
(b) whether or not private respondent has a right of access to extradition documents under Section
7, Article III of the 1997 Constitution.
Petitioner contends that due process rights such as the right to be informed of the basis of the
request for extradition and to have an opportunity to controvert are not provided in the extradition
treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he
argues that the documents sought to be furnished to private respondent only involve private
concerns, and not matters of public concern to which the people have a constitutional right to
access.
While the evaluation process conducted by the Department of Justice is not exactly a preliminary
investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic
constitutional rights of the person sought to be extradited. A person ordered extradited is arrested,
forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of
abode, to privacy, liberty and pursuit of happiness are taken away from him — a fate as harsh and
cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the
evidence against him and the right to controvert them.
While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does
either prohibit it. The right to due process is a universal basic right which is deemed written into our
laws and treaties with foreign countries.
Like a preliminary investigation, the evaluation by the Department of Justice of the extradition
request and its accompanying documents is to establish probable cause and to secure the innocent
against hasty, malicious and oppressive prosecution.
In this connection, it should be stressed that the evaluation procedure of the extradition request and
its accompanying documents by the Department of Justice cannot be characterized as a mere "ex-
parte technical assessment of the sufficiency" thereof. The function and responsibilities of the
Department of Justice in evaluating the extradition papers involve the exercise of judgment. They
involve a determination whether the request for extradition conforms fully to the requirements of the
extradition treaty and whether the offense is extraditable. These include, among others, whether the
offense for which extradition is requested is a political or military offense (Article 3); whether the
documents and other informations required under Article 7(2) have been provided (Article 7); and
whether the extraditable offense is punishable under the laws of both contracting parties by
deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a
correct judgment, the parties involved are entitled to be heard if the requirements of due process and
equal protection are to be observed.
With respect to petitioner's claim that private respondent has no right to demand access to the
documents relating to the request for extradition, suffice it to say, that any document used in a
proceeding that would jeopardize a person's constitutional rights is matter of public concern. As
Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of
one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or
another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole.
Due process rights in a preliminary investigation is now an established principle. The respondent has
a right of access to all of the evidence. He has the right to submit controverting evidence. The
prosecuting official who conducts the preliminary investigation is required to be neutral, objective,
and impartial in resolving the issue of probable cause. I see no reason why the same rights may not
be accorded a person sought to be extradited at the stage where the Department of Justice
evaluates whether a petition for extradition would be filed before a regional trial court. If denied such
rights, not only denial of due process rights but of equal protection may be raised.
It is suggested that after a petition for extradition is filed with a regional trial court, the person sought
to be extradited may exercise all due process rights. He may then have access to all the records on
the basis of which the request for extradition has been made. He may controvert that evidence and
raise all defenses he may consider appropriate. That, it is urged, meets the due process
requirement.
But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to
notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when
the deprivation can still be prevented. Like the filing of an information in a criminal case, the mere
4
filing of a petition for extradition causes immediate impairment of the liberty of the person sought to
be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by
the regional trial court. He would be compelled to face an open and public trial. He will be
constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye
would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty
of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process
rights can never be too early.
QUISUMBING, J., concurring opinion;
As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest
observations.
The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our
Constitution should take precedence over treaty rights claimed by a contracting state. Stated
otherwise, the constitutionally mandated duties of our government to the individual deserve
preferential consideration when they collide with its treaty obligations to the government of another
state. This is so although we recognize treaties as a source of binding obligations under generally
accepted principles of international law incorporated in our Constitution as part of the law of the land.
For this primordial reason, I vote to DENY the petition.
Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on
the specific issue before us, the Court — in the exercise of its judicial power to find and state what
the law is — has this rare opportunity of setting a precedent that enhances respect for human rights
and strengthens due process of law.
As both majority and dissenting colleagues in the Court will recognize, American authorities follow
two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state
Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents
as well as the request for extradition; and (2) the international practice where the Executive
department need not initially grant notice and hearing at all. Rules of reciprocity and comity,
however, should not bar us from applying internationally now what appears the more reasonable and
humane procedure, that is, the interstate practice among Americans themselves. For in this case the
American people should be among the most interested parties.
Truly, what private respondent is asking our Executive department (notice, copies of documents, and
the opportunity to protect himself at the earliest time against probable peril) does not, in my view,
violate our Extradition Treaty with the USA. His request if granted augurs well for transparency in
interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy
and the inquisition discredited long ago.
That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously
pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled
to our full protection against the hazards of extradition (or deportation, similarly) from the very start.
More so because, looking at the facts adduced at the hearing and on the record of this case, the
charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political
nature or motivation such as the ones involving alleged financial contributions to a major American
political party. If so, long established is the principle that extradition could not be utilized for political
offenses or politically motivated charges.
There may, of course, be other charges against private respondent in the USA. But then they are, in
my view, already tainted there with political color due to the highly charged partisan campaign
atmosphere now prevailing. That private respondent's cases will be exploited as political fodder
there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the
matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about
constitutional and human rights we are most concerned.
YNARES-SANTIAGO, J., concurring opinion;
I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right
to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the
correct balance between overwhelming Government power and the protection of individual rights
where only one person is involved.
However, I am constrained to write this short concurrence if only to pose the question of why there
should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in
any meaningful impediment of thwarting any state policy and objectives.
I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about,
should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before
he may be informed of what the contracting states in an extradition treaty have against him. There is
no question that everything which respondent Jimenez now requests will be given to him during trial.
Mr. Jimenez is only petitioning that, at this stage, he should be informed why he may be deported
from his own country.
I see no ill effects which would arise if the extradition request and supporting documents are shown
to him now, instead of later.
Petitioner Secretary of Justice states that his action on the extradition request and its supporting
documents will merely determine whether or not the Philippines is complying with its treaty
obligations. He adds that, therefore, the constitutional rights of an accused in all criminal
prosecutions are not available to the private respondent.
The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent
Jimenez's requests. In short, the reasons are:
1. In evaluating the documents, the Department merely determines whether the procedures
and requirements under the relevant law and treaty have been complied with by the
Requesting Government. The constitutional rights of the accused in all criminal prosecutions
are, therefore, not available.
2. The United States Government has requested the Philippine Government to prevent
unauthorized disclosure of certain grand jury information.
3. The petitioner cannot hold in abeyance proceedings in connection with an extradition

request. For extradition to be an effective tool of criminal law enforcement, requests for
surrender of accused or convicted persons must be processed expeditiously.
I respectfully submit that any apprehensions in the Court arising from a denial of the petition —
"breach of an international obligation, rupture of states relations, forfeiture of confidence, national
embarrassment, and a plethora of other equally undesirable consequences" — are more illusory
than real. Our country is not denying the extradition of a person who must be extradited. Not one
provision of the extradition treaty is violated. I cannot imagine the United States taking issue over
what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human
rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the
protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine
Constitution.
Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by
the sanctions of either criminal law or international treaty. At any stage where a still prospective
extraditee only seeks to know so that he can prepare and prove that he should not be extradited,
there should be no conflict over the extension to him of constitutional protections guaranteed to
aliens and citizens alike.
Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7
enumerates the required documents and establishes the procedures under which the documents
shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of
Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at
this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation
stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is
interpreted as the exclusion of the right to a preliminary examination or preliminary investigation
provided by the laws of either one of the two states.
The right to be informed of charges which may lead to court proceedings and result in a deprivation
of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power
has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is
silent because at this stage, the preliminary procedure is still an internal matter. And when a law or
treaty is silent, it means a right or privilege may be granted. It is not the other way around.
The second reason alleging the need for secrecy and confidentiality is even less convincing. The
explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States
Government requested the Philippine Government to prevent unauthorized disclosure of certain
information. On the other hand, petitioner declares that the United States has already secured
orders from concerned District Courts authorizing the disclosure of the same grand jury information
to the Philippine Government and its law enforcement personnel.
Official permission has been given. The United States has no cause to complain about the
disclosure of information furnished to the Philippines.
Moreover, how can grand jury information and documents be considered confidential if they are
going to be introduced as evidence in adversely proceedings before a trial court? The only issue is
whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be
determined in an American court. It is there where prosecution strategies will be essential. If the
Contracting States believed in a total non-divulging of information prior to court hearings, they would
have so provided in the extradition treaty. A positive provision making certain rights unavailable
cannot be implied from silence.
I cannot believe that the United States and the Philippines with identical constitutional provisions on
due process and basic rights should sustain such a myopic view in a situation where the grant of a
right would not result in any serious setbacks to criminal law enforcement.
It is obvious that any prospective extraditee wants to know if his identity as the person indicated has
been established. Considering the penchant of Asians to adopt American names when in America,
the issue of whether or not the prospective extraditee truly is the person charged in the United
States becomes a valid question. It is not only identity of the person which is involved. The crimes
must also be unmistakably identified and their essential elements clearly stated.
There are other preliminary matters in which respondent is interested. I see nothing in our laws or in
the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether
or not the extradition treaty applies to him.
Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941);
and Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to
secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect
him from an open and extensively publicized accusation of crimes; to spare him the trouble,
expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails.
Even if the purpose is only to determine whether or not the respondent is a proper subject for
extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those
charged with ordinary crimes in the Philippines.
The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be
informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition
must be viewed objectively and impartially without any predisposition to granting it and, therefore,
hastening the extradition process.
In the first place, any assistance which the evaluating official may get from the participation of
respondent may well point out deficiencies and insufficiencies in the extradition documents. It would
incur greater delays if these are discovered only during court trial. On the other hand, if, from
respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient
pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial.
An unnecessary trial with all its complications would be avoided.
The right to be informed is related to the constitutional right to a speedy trial. The constitutional
guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative
bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate
exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs.
Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious,
capricious and oppressive delays, its salutary objective being to assure that an innocent person may
be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this
case, his being extradited) determined within the shortest possible time compatible with the
presentation and consideration of whatsoever legitimate defense he may interpose."
The right to be informed and the right to a preliminary hearing are not merely for respondent. They
also serve the interests of the State. 1âwphi1.nêt
In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of
individual respondent override the concerns of petitioner. There should be no hurried or indifferent
effort to routinely comply with all requests for extradition. I understand that this is truer in the United
States than in other countries. Proposed extraditees are given every legal protection available from
the American justice system before they are extradited. We serve under a government of limited
powers and inalienable rights. Hence, this concurrence.
PUNO, J., dissenting opinion;
If the case at bar was strictly a criminal case which involves alone the right of an accused to due
process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R.
Melo, without taking half a pause. But the case at bar does not involve the guilt or innocence of an
accused but the interpretation of an extradition treaty where at stake is our government's
international obligation to surrender to a foreign state a citizen of its own so he can be tried for an
alleged offense committed within that jurisdiction. The issues are of first impression and the majority
opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this
dissenting opinion.
Extradition is a well-defined concept and is more a problem in international law. It is the "process by
which persons charged with or convicted of crime against the law of a State and found in a foreign
State are returned by the latter to the former for trial or punishment. It applies to those who are
merely charged with an offense but have not been brought to trial; to those who have been tried and
convicted and have subsequently escaped from custody; and those who have been convicted in
absentia. It does not apply to persons merely suspected of having committed an offense but against
who no charge has been laid or to a person whose presence is desired as a witness or for obtaining
or enforcing a civil judgment." The definition covers the private respondent who is charged with two
1
(2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt
to evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false
statements or entries and thirty-three (33) counts of election contributions in the name of another.
There is an outstanding warrant of arrest against the private respondent issued by the US District
Court, Southern District of Florida.
A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative
commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4)
periods: "(1) ancient times to seventeenth century — a period revealing almost exclusive concern for
political and religious offenders; (2) the eighteenth century and half of the nineteenth century — a
period of treaty-making chiefly concerned with military offenders characterizing the condition of
Europe during that period; (3) from 1833 to 1948 — a period of collective concern in suppressing
common criminality; and (4) post-1948 developments which ushered in a greater concern for
protecting the human rights of persons and revealed an awareness of the need to have international
due process of law regulate international relations." 2
It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during
these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and
Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted
due to pacts; at other times, due to plain good will. The classical commentators on international law
3
thus focused their early views on the nature of the duty to surrender an extraditee — whether the
duty is legal or moral in character. Grotius and de Vattel led the school of thought that international
law imposed a legal duty called civitas maxima to extradite criminals. In sharp contrast, Puffendorf
4
and Billot led the school of thought that the so-called duty was but an "imperfect obligation which
could become enforceable only by a contract or agreement between states. 5
Modern nations tilted towards the view of Puffendorf and Billot that under international law there is
no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme
Court in US v. Rauscher, held: ". . . . it is only in modern times that the nations of the earth have
6
imposed upon themselves the obligation of delivering up these fugitives from justice to the states
where their crimes were committed, for trial and punishment. This has been done generally by
treaties . . . Prior to these treaties, and apart from them there was no well-defined obligation on one
country to deliver up such fugitives to another; and though such delivery was often made it was upon
the principle of comity . . ."
Then came the long and still ongoing debate on what should be the subject of international law. The
20th century saw the dramatic rise and fall of different types and hues of authoritarianism — the
fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the
communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the
individual against the state. Indeed, some species of human rights have already been
accorded universal recognition. Today, the drive to internationalize rights of women and children is
7
also on high gear. The higher rating given to human rights in the hierarchy of values necessarily led
8
to the re-examination of rightful place of the individual in international law. Given the harshest eye is
the moss-covered doctrine that international law deals only with States and that individuals are not
its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law
is a near cipher. Translated in extradition law, the view that once commanded a consensus is that
since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An
extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of
the sovereign will of the two states involved." The re-examination consigned this pernicious doctrine
9
to the museum of ideas. The new thinkers of international law then gave a significant shape to the
10
role and rights of the individual in state-concluded treaties and other international agreements. So it
was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of
international affairs and, thus, of the process of international accommodation, concerns the relations
between legal persons known as states. This is necessarily so. But it is no longer novel for the
particular interest of the human being to break through the mass of interstate relationship." The 11
clarion call to re-engineer a new world order whose dominant interest would transcend the parochial
confines of national states was not unheeded. Among the world class scholars who joined the
search for the elusive ideological underpinnings of a new world order were Yale Professor Myres
McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World
Public Order, they suggested that the object of the new world should be "to obtain in particular
situations and in the aggregate flow of situations the outcome of a higher degree of conformity with
the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all
societies comprising the world community." Needless to stress, all these prescient theses
12
accelerated the move to recognize certain rights of the individual in international law.
We have yet to see the final and irrevocable place of individual rights, especially the rights of an
extraditee, in the realm of international law. In careful language, Bassiouni observes that today,
"institutionalized conflicts between states are still rationalized in terms of sovereignty, national
interest, and national security, while human interests continue to have limited, though growing
impact on the decision-making processes which translate national values and goals into specific
national and international policy."
13
I belabor the international law aspect of extradition as the majority opinion hardly gives it a
sideglance. It is my humble submission that the first consideration that should guide us in the case at
bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter of the litigation.
In our constitutional scheme, the making of a treaty belongs to the executive and legislative
departments of our government. Between these two departments, the executive has a greater say in
the making of a treaty. Under Section 21, Article VII of our Constitution, the President has the sole
power to negotiate treaties and international agreements although to be effective, they must be
concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article
empowers the President to contract or guarantee foreign loans with the prior concurrence of the
Monetary Board. Section 16 of the same Article gives the President the power to appoint
ambassadors, other public ministers and consuls subject to confirmation by the Commission on
Appointments. In addition, the President has the power to deport undesirable aliens. The
concentration of these powers in the person of the President is not without a compelling
consideration. The conduct of foreign relations is full of complexities and consequences, sometimes
with life and death significance to the nation especially in times of war. It can only be entrusted to
that department of government which can act on the basis of the best available information and can
decide with decisiveness. Beyond debate, the President is the single most powerful official in our
land for Section 1 of Article VII provides that "the executive power shall be vested in the President of
the Philippines," whereas Section 1 of Article VI states that "the legislative 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," while
Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law." Thus, we can see that executive power is vested
in the President alone whereas legislative and judicial powers are shared and scattered. It is also the
President who possesses the most comprehensive and the most confidential information about
foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all
over the world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the
14
presidential role in foreign affairs is dominant and the President is traditionally accorded a wider
degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of confidence, national embarrassment
and a plethora of other problems with equally undesirable consequences.
These are some of the dominant policy considerations in international law that the Court must
balance against the claim of the private respondent that he has a right to be given the extradition
documents against him and to comment thereon even while they are still at the evaluation stage by
the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what
constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy
answers and have resulted in discrete approaches the world over. On one end of the pole is the
15
more liberal European approach. The European Court of Human Rights embraces the view that an
extraditee is entitled to the benefit of all relevant provisions of the European Convention for the
Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure
of the extradition has consequences adversely affecting the enjoyment of a convention right, it may,
assuming that the consequences are not too remote, attract the obligations of a Contracting State
under the relevant convention guarantee." At the other end of the pole is the more cautious
16
approach of the various Courts of Appeal in the United States. These courts have been more
conservative in light of the principle of separation of powers and their faith in the presumptive validity
of executive decisions. By and large, they adhere to the rule of non-inquiry under which
the extraditing court refuses to examine the requesting country's criminal justice system or consider
allegations that the extraditee will be mistreated or denied a fair trial in that country.
17
The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US
Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls
for a harmonization between said treaty and our Constitution. To achieve this desirable objective, the
Court should consider whether the constitutional rights invoked by the private respondent have truly
been violated and even assuming so, whether he will be denied fundamental fairness. It is only
when their violation will destroy the respondent's right to fundamental fairness that his constitutional
claims should be given primacy.
Given this balancing approach, it is my humble submission that considering all the facts and facets
of the case, the private respondent has not proved entitlement to the right he is claiming.
The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit
respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not
necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right. Also,
constitutional litigations do not always involve a clear cut choice between right and wrong.
Sometimes, they involve a difficult choice between right against right. In these situations, there is
need to balance the contending rights and primacy is given to the right that will serve the interest of
the nation at that particular time. In such instances, the less compelling right is subjected to soft
restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I
venture the view that even assuming arguendo respondent's weak claim, still, the degree of denial of
private respondent's rights to due process and to information is too slight to warrant the interposition
of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It is,
thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is
an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed
that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will
not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional
rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by
an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal
proceedings. Even the rules of evidence are different in an extradition proceeding. Admission of
18
evidence is less stringent, again because the guilt of the extraditee is not under litigation. It is not
19
only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal
case, an accused can only be convicted by proof beyond reasonable doubt. In an extradition
20
proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima
facie case." If more need be said, the nature of an extradition decision is different from a judicial
21
decision whose finality cannot be changed by executive fiat. Our courts may hold an individual
22
extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive.
Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be
granted if the executive authority of the Requested State determined that the request was politically
motivated, or that the offense is a military offense which is not punishable under non-military penal
legislation." In the United States, the Secretary of State exercises this ultimate power and is
conceded considerable discretion. He balances the equities of the case and the demands of the
nation's foreign relations. In sum, he is not straitjacketed by strict legal considerations like an
23
ordinary court.
The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence
of the extraditee, the limited nature of the extradition proceeding, the availability of adequate
remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct
of foreign affairs have compelled courts to put a high threshold before considering claims of
individuals that enforcement of an extradition treaty will violate their constitutional rights.
Exemplifying such approach is the Supreme Court of Canada which has adopted a highly deferential
standard that emphasizes international comity and the executive's experience in international
matters. It continues to deny Canada's charter protection to extraditees unless the violation can be
24
considered shocking to the conscience.
In the case, at bar and with due respect, the ponencia inflates with too much significance the threat
to liberty of the private respondent to prop us its thesis that his constitutional rights to due process
and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands
in danger of provisional arrest, hence, the need for him to be immediately furnished copies of
documents accompanying the request for his extradition. Respondent's fear of provisional arrest is
not real. It is a self-imagined fear for the realities on the ground show that the United States
authorities have not manifested any desire to request for his arrest. On the contrary, they filed the
extradition request through the regular channel and, even with the pendency of the case at bar, they
have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be
sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under
Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the
general principle is enunciated that a request for provisional arrest must be made pending receipt of
the request for extradition. By filing the request for extradition, the US authorities have implicitly
decided not to move for respondent's provisional arrest. But more important, a request for
respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due
process before he can be arrested. Article 9 of the treaty provides:
PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statements of the facts of the case, including, if possible, the time and
location of the offense;
d) a description of the laws violated;

e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or
judgment of conviction against the person sought; and
f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its application
and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive
authority of the Requested State has not received the formal request for extradition and the
supporting documents required in Article 7.
In relation to the above, Section 20 of P.D. No. 1069 provides:
Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may, pursuant to
the relevant treaty or convention and while the same remains in force, request for the
provisional arrest of the accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.
(c) The Director of the National Bureau of Investigation or any official acting on his behalf
shall upon receipt of the request immediately secure a warrant for the provisional arrest of
the accused from the presiding judge of the Court of First Instance of the province or city
having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the
accused. The Director of the National Bureau of Investigation through the Secretary of
Foreign Affairs shall inform the requesting state of the result of its request.
(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs
has not received the request for extradition and the documents mentioned in Section 4 of
this Decree, the accused shall be released from custody.
The due process protection of the private-respondent against arbitrary arrest is written in cyrillic
letters in these two (2) related provisions. It is self-evident under these provisions that a request for
provisional arrest does not mean it will be granted ipso facto. The request must comply with certain
requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by
our executive authorities. The request can be denied if not based on a real exigency of if the
supporting documents are insufficient. The protection of the respondent against arbitrary provisional
arrest does not stop on the administrative level. For even if the Director of the National Bureau of
Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply
for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the
province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the
provisional arrest of the respondent. The judge has comply with Section 2, Article III of the
Constitution which provides that "no . . . 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 . . . persons or things to be
seized." The message that leaps to the eye is that compliance with this requirements precludes any
arbitrary arrest.
In light of all these considerations, I respectfully submit that denying respondent's constitutional
claim to be furnished all documents relating to the request for his extradition by the US authorities
during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed
that this is not a case where the respondent will not be given an opportunity to know the basis of the
request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069
fixes the specific time when he will be given the papers constituting the basis for his extradition. The
time is when he is summoned by the extradition court and required to answer the petition for
extradition. Thus, Section 6 of P.D. No. 1069 provides:
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1)

Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and hour
fixed in the order. He may issue a warrant for the immediate arrest of the accused which may
be served anywhere within the Philippines if it appears to the presiding judge that the
immediate arrest and temporary detention of the accused will best serve the ends of justice.
Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or
set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case.
Upon receipt of the summons and the petition, respondent is free to foist all defense available to
him. Such an opportunity does not deny him fairness which is the essence of due process of law.
Thus, with due respect, I submit that the ponencia failed to accord due importance to the
international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension.
This goes against the familiar learning that in balancing the clashing interests involved in extradition
treaty, national interest is more equal than the others. While lately, humanitarian considerations are
being factored in the equation, still the concept of extradition as a national act is the guiding idea.
Requesting and granting extradition remains a power and prerogative of the national government of
a State. The process still involves relations between international personalities. Needless to state, a
25
more deferential treatment should be given to national interest than to individual interest. Our
national interest in extraditing persons who have committed crimes in a foreign country are
succinctly expressed in the whereas clauses of P.D. No. 1069, viz:
WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of
international law as part of law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped, because it
saps the foundation of social life and is an outrage upon humanity at large, and it is in the
interest of civilized communities that crimes should not go unpunished. . . . .
The increasing incidence of international and transnational crimes, the development of new
technologies of death, and the speed and scale of improvement of communication are factors which
have virtually annihilated time and distance. They make more compelling the vindication of national
interest to insure that the punishment of criminals should not be frustrated by the frontiers of
territorial sovereignty. This overriding national interest must be upheld as against respondent's weak
constitutional claims which in no way amount to denial of fundamental fairness.
At bottom, this case involves the respect that courts should accord to the Executive that concluded
the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary
John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests
in the executive branch as part of its power to conduct foreign affairs. Courts have validated this
26
forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive
on the necessities of our foreign affairs and on its view of the requirements of international comity.
The deferential attitude is dictated by the robust reality that of the three great branches of our
government, it is the Executive that is most qualified to guide the ship of the state on the known and
unknown continents of foreign relations. It is also compelled by considerations of the principle
of separation of powers for the Constitution has clearly allocated the power to conduct our foreign
affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive
by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct
our foreign affairs. The majority should be cautions in involving this Court in the conduct of the
nation's foreign relations where the inviolable rule dictated by necessity is that the nation should
speak with one voice. We should not overlook the reality that courts by their nature, are ill-equipped
to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows
and silhouettes.
I vote to grant the petition.
PANGANIBAN, J., dissenting opinion;
With due respect, I dissent.
The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due
process rights of notice and hearing during the preliminary or evaluation stage of the extradition
proceeding against him.
Two Staged in Extradition
There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage,
whereby the executive authority of the requested state ascertains whether the extradition request is
supported by the documents and information required under the Extradition Treaty; and (2) the
extradition hearing, whereby the petition for extradition is heard before a court of justice, which
determines whether the accused should be extradited.
The instant petition refers only to the first stage. Private respondent claims that he has a right to be
notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-
US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine
government, upon receipt of the request for extradition, to give copies thereof and its supporting
documents to the prospective extraditee, much less to give him an opportunity to be heard prior to
the filing of the petition in court.
Notably, international extradition proceedings in the United States do not include the grant by the
executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the
judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider
the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the
governor must, upon demand, furnish the fugitive or his attorney copies of the request and its
accompanying documents, pursuant to statutory provisions. In the Philippines, there is no similar
1
statutory provision.
Evaluation Stage Essentially Ministerial
The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether
the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of
the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense
and the procedural history of the case; provisions of the law describing the essential elements of the
offense charged and the punishment therefor; its prescriptive period; such evidence as would
provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the
warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that
these accompanying documents have been certified by the principal diplomatic or consular officer of
the Philippines in the United States, and that they are in English language or have English
translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically
motivated, and whether the offense charged is a military offense not punishable under non-military
penal legislation.
2
Upon a finding of the secretary of foreign affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to the
justice secretary, who shall immediately designate and authorize an attorney in his office to take
charge of the case. The lawyer designated shall then file a written petition with the proper regional
trial court, with a prayer that the court take the extradition request under consideration.
3
When the Right to Notice and Hearing Becomes Available
According to private Respondent Jimenez, his right to due process during the preliminary stage
emanates from our Constitution, particularly Section 1, Article III thereof, which provides:
No person shall be deprived of life, liberty or property without due process of law.
He claims that this right arises immediately, because of the possibility that he may be provisionally
arrested pursuant to Article 9 of the RP-US Treaty, which reads:
In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.
xxx xxx xxx
Justice Melo's ponencia supports private respondent's contention. It states that there are two
occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional
arrest pending the submission of the extradition request and (2) his temporary arrest during the
pendency of the extradition petition in court. The second instance is not in issue here, because no
4
petition has yet been filed in court.
However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times,
and in enforcement does not depend solely on the discretion of the requested state. From the
wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and
(2) there is a corresponding request (3) which must be made prior to the presentation of the request
for extradition.
In the instant case, there appears to be no urgency characterizing the nature of the extradition of
private respondent. Petitioner does not claim any such urgency. There is no request from the United
States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the
Oral Argument that he had no intention of applying for the provisional arrest of private
respondent. Finally, the formal request for extradition has already been made; therefore, provisional
5
arrest is not likely, as it should really come before the extradition request.
6
Mark Jimenez Not in Jeopardy of Arrest
Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to
the apprehension of private respondent. In other words, there is no actual danger that Jimenez will
be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be
trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no
substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear
him during the preliminary stage, which basically involves only the exercise of the ministerial power
of checking the sufficiency of the documents attached to the extradition request.
It must be borne in mind that during the preliminary stage, the foreign affairs secretary's
determination of whether the offense charged is extraditable or politically motivated is
merely preliminary. The same issue will be resolved by the trial court. Moreover, it is also the power
7
and the duty of the court, not the executive authority, to determine whether there is sufficient
evidence to establish probable cause that the extraditee committed the crimes charged. The 8
sufficiency of the evidence of criminality is to be determined based on the laws of the requested
state. Private Respondent Jimenez will, therefore, definitely have his full opportunity before the
9
court, in case an extradition petition will indeed be filed, to be heard on all issues including the
sufficiency of the documents supporting the extradition request. 10
Private respondent insists that the United States may still request his provisional arrest at any time.
That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs
based on speculations, surmises or conjectures.
In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of
the justice secretary that no such measure will be undertaken, our local laws and rules of procedure
respecting the issuance of a warrant of arrest will govern, there being no specific provision under the
Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the
rights accorded by the Constitution and the laws to any person whose arrest is being sought. 1âwphi1.nêt
The right of one state to demand from another the return of an alleged fugitive from justice and the
correlative duty to surrender the fugitive to the demanding country exist only when created by a
treaty between the two countries. International law does not require the voluntary surrender of a
fugitive to a foreign government, absent any treaty stipulation requiring it. When such a treaty does
11
exist, as between the Philippines and the United States, it must be presumed that the contracting
states perform their obligations under it with uberrimae fidei, treaty obligations being essentially
characterized internationally by comity and mutual respect.
The Need for Respondent Jimenez to Face Charges in the US
One final point. Private respondent also claims that from the time the secretary of foreign affairs
gave due course to the request for his extradition, incalculable prejudice has been brought upon him.
And because of the moral injury caused, he should be given the opportunity at the earliest possible
time to stop his extradition. I believe that any moral injury suffered by private respondent had not
been caused by the mere processing of the extradition request. And it will not cease merely by
granting him the opportunity to be heard by the executive authority. The concrete charges that he
has allegedly committed certain offenses already exist. These charges have been filed in the United
States and are part of public and official records there. Assuming the existence of moral injury, the
only means by which he can restore his good reputation is to prove before the proper judicial
authorities in the US that the charges against him are unfounded. Such restoration cannot be
accomplished by simply contending that the documents supporting the request for his extradition are
insufficient.
Conclusion
In the context of the factual milieu of private respondent, there is really no threat of any deprivation
of his liberty at the present stage of the extradition process. Hence, the constitutional right to due
process — particularly the right to be heard — finds no application. To grant private respondent's
request for copies of the extradition documents and for an opportunity to comment thereon will
constitute "over-due process" and unnecessarily delay the proceedings.
WHEREFORE, I vote to grant the Petition.
Footnotes
VITUG, J., separate opinion;
1
Sec. 7. The right of the people to information of public concern shall be recognized. Access
to official records, and to documents, and papers a 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.
Legaspi vs. Civil Service Commission, 150 SCRA 530; Valmonte vs. Belmonte, Jr., 170
2
SCRA 256.
Aniag, Jr. vs. Commission on Elections, 237 SCRA 424; Tupas vs. Court of Appeals, 193
3
SCRA 597.
4
Abraham, Henry J., Some Basic Guidelines of "Due Process of Law." The Lawyers Review,
Vol. IX, 30 April 1995, p. 1.
5
Cruz, Isagani A. Constitutional Law. 1995 Ed. pp. 94-95.
KAPUNAN, J., separate concurring opinion;
1
Annex "L," petition.
2
Petition, p. 4.
3
Edillon vs. Fernandos, 114 SCRA 153 (1982); Pangilinan vs. Zapata, 69 SCRA 334 (1976).
4
Stanley v. Illinois, 1405 U.S. 645, 647.
PUNO, J., dissenting opinion;
1
Weston, Falk, D'Amato, International Law and World Order, 2nd ed., p. 630 (1990).
2
International Extradition, United States Law and Practice, 2nd ed., p. 7 (1987).
The Practice of Extradition from Antiquity to Modern France and the United States: A Brief
3
History, 4 B.C. Int'l. & Comp. L. Rev. 39 (1981).
They were supported by scholars like Heineccuis, Burlamaqui, Rutherford, Schmelzing and
4
Kent. See Sheareer, Extradition in Internal Law, p. 24 (1971).
They were supported by scholars like Voet, Martons, Kuber, Leyser, Lint, Seafied, Schmaltz,
5
Mittermaier and Heffter. See Shearer, supra, p. 24.
6
119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).
See Universal Declaration of Human Rights (1948), The International Covenant on

7
Economic, Social and Cultural Rights (1966) and The International Covenant on Civil and
Political Rights (1966).
8
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
otherwise known as "Bill of Rights for Women" was adopted by the UN General Assembly in
December 1979. As of November 1999, one hundred sixty seven (167) states including the
Philippines have ratified or acceded to it. See Statement of Angela King, Special Adviser to
the Secretary General of the UN on Gender Issues and Advancement of Women, Judicial
Colloquium on the Application of International Human Rights Law at the Domestic Level,
Vienna, Austria, October 27, 1999.
9
Blakesley and Lagodny, Finding armony Amidst Disagreement Over Extradition, Jurisdiction,
The Role of Human Rights and Issues of Extraterritoriality Under International Criminal Law,
Vanderbilt Journal of Transnational Law, Vol. 24, No. 1, pp. 44 (1991).
See generally Kelsen, Principles of International Law, 2nd ed., (1966); Korowicz, The
10
Problem of the International Personality of Individuals, 50 Am. J., Int'l. Law 553 (1966).
The Conquering March of an Idea, Speech before the 72nd Annual Meeting of the American
11
Bar Association, St. Louis, Mo., September 6, 1949.
See also R. Falk and S. Mendlovitz, Strategy of World Order, etc. (1996); G. Clark and L.
12
Sohn, World Peace Through World Law (1966); Bassiouni, International Extradition in
American Practice and World Public Order, 36 Tenn. L. Rev. 1 (1968).
13
Bassiouni, supra, p. 625.
14
US v. Curtiss-Wright Expert Corp., 299 US 304, 57 S Ct. 216, 81 L. ed. 255 (1936).
Spencer, The Role of the Charter in Extradition Cases, University of Toronto L. Rev., vol.
15
51, pp. 62-63, (Winter, 1993).
16
Spencer, op cit., citing the decision in Soering, 11 E.H.R.R. 439 (1989).
Semmelman, Federal Courts, The Constitution and the Rule of Non-Inquiry in International
17
Extradition Proceedings, Cornell Law Rev., vol. 76, No. 5, p. 1198 (July 1991).
18
Sec. 9, P.D. No. 1069.
19
Ibid.
20
Sec. 2, Rule 133, Revised Rules of Court.
21
Sec. 10, P.D. No. 1069.
Referring to the Regional Trial Courts and the Court of Appeals whose decisions are
22
deemed final and executory. See Section 12, P.D. No. 1069.
23
Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329.
24
Spencer, op cit., citing decided cases.
25
Weston, Falk and Amato, International Law and World Order, 2nd ed., p. 630 (1990).
26
Semmelman. op cit., p. 1206.
PANGANIBAN, J., dissenting opinion;
1
35 CJS § 14(1) Extradition 410. See also ponencia, p. 25.
2
See ponencia, pp. 11-12.
3
Ibid., Section 5, pars. (1) & (2), PD 1069.
4
Ponencia, p. 18.
5
TSN, p. 76.
6
See also TSN, p. 30.
7
§ 5 (2) & (3) in rel. to § 10, PD 1069. See also last par., p. 13 of ponencia.
8
18 USCS § 3184, n 58 Criminal Procedure 456; 31A Am Jur 2d § 109 Extradition 828.
9
18 USCS § 3184, n 64 Criminal Procedure 458.
10
See Wright v. Court of Appeals, 235 SCRA 341, August 15, 1994.
11
31A Am Jur 2d Extradition § 14.
THIRD DIVISION
G.R. No. 149335. July 1, 2003
EDILLO C. MONTEMAYOR, Petitioner, v. LUIS BUNDALIAN,

RONALDO B. ZAMORA, Executive Secretary, Office of the President,
AND GREGORIO R. VIGILAR, Secretary, Department of Public Works
and Highways (DPWH), respondents.
DECISION
PUNO, J.:
In this petition for review on certiorari, petitioner EDILLO C.

MONTEMAYOR assails the Decision of the Court of Appeals, dated
April 18, 2001, affirming the decision of the Office of the President
in Administrative Order No. 12 ordering petitioners dismissal as
Regional Director of the Department of Public Works and Highways
(DPWH) for unexplained wealth.
Petitioners dismissal originated from an unverified letter-complaint,

dated July 15, 1995, addressed by private respondent LUIS
BUNDALIAN to the Philippine Consulate General in San Francisco,
California, U.S.A. Private respondent accused petitioner, then OIC-
Regional Director, Region III, of the DPWH, of accumulating
unexplained wealth, in violation of Section 8 of Republic Act No.
3019. Private respondent charged that in 1993, petitioner and his
wife purchased a house and lot at 907 North Bel Aire Drive,
Burbank, Los Angeles, California, making a down payment of
US$100,000.00. He further alleged that petitioners in-laws who
were living in California had a poor credit standing due to a number
of debts and they could not have purchased such an expensive
property for petitioner and his wife. Private respondent accused
petitioner of amassing wealth from lahar funds and other public
works projects.
Private respondent attached to his letter-complaint the following
documents:
a) a copy of a Grant Deed, dated May 27, 1993, where spouses

David and Judith Tedesco granted the subject property to petitioner
and his wife;
b) a copy of the Special Power of Attorney (SPA) executed by

petitioner and his wife in California appointing petitioners sister-in-
law Estela D. Fajardo as their attorney-in-fact, to negotiate and
execute all documents and requirements to complete the purchase
of the subject property; and,
c) an excerpt from the newspaper column of Lito A. Catapusan in

the Manila Bulletin, entitled Beatwatch, where it was reported that a
low-ranking, multimillionaire DPWH employee, traveled to Europe
and the U.S. with his family, purchased an expensive house in
California, appointed a woman through an SPA to manage the
subject property and had hidden and unexplained wealth in the
Philippines and in the U.S.
Accordingly, the letter-complaint and its attached documents were

indorsed by the Philippine Consulate General of San Francisco,
California, to the Philippine Commission Against Graft and
Corruption (PCAGC)[1] for investigation. Petitioner, represented by
counsel, submitted his counter-affidavit before the PCAGC alleging
that the real owner of the subject property was his sister-in-law
Estela Fajardo. Petitioner explained that in view of the unstable
condition of government service in 1991, his wife inquired from her
family in the U.S. about their possible emigration to the States.
They were advised by an immigration lawyer that it would be an
advantage if they had real property in the U.S. Fajardo intimated to
them that she was interested in buying a house and lot in Burbank,
California, but could not do so at that time as there was a provision
in her mortgage contract prohibiting her to purchase another
property pending full payment of a real estate she earlier acquired
in Palmdale, Los Angeles. Fajardo offered to buy the Burbank
property and put the title in the names of petitioner and his wife to
support their emigration plans and to enable her at the same time
to circumvent the prohibition in her mortgage contract.
Petitioner likewise pointed out that the charge against him was the
subject of similar cases filed before the Ombudsman.[2] He
attached to his counter-affidavit the Consolidated Investigation
Report[3] of the Ombudsman dismissing similar charges for
insufficiency of evidence.
From May 29, 1996 until March 13, 1997, the PCAGC conducted its
own investigation of the complaint. While petitioner participated in
the proceedings and submitted various pleadings and documents
through his counsel, private respondent-complainant could not be
located as his Philippine address could not be ascertained. In the
course of the investigation, the PCAGC repeatedly required
petitioner to submit his Statement of Assets, Liabilities and Net
Worth (SALN), Income Tax Returns (ITRs) and Personal Data Sheet.
Petitioner ignored these directives and submitted only his Service
Record. He likewise adduced in evidence the checks allegedly issued
by his sister-in-law to pay for the house and lot in Burbank,
California. When the PCAGC requested the Deputy Ombudsman for
Luzon to furnish it with copies of petitioners SALN from 1992-1994,
it was informed that petitioner failed to file his SALN for those
years.
After the investigation, the PCAGC, in its Report to the Office of the
President, made the following findings: Petitioner purchased a
house and lot in Burbank, California, for US$195,000.00 (or P3.9M
at the exchange rate prevailing in 1993). The sale was evidenced by
a Grant Deed. The PCAGC concluded that the petitioner could not
have been able to afford to buy the property on his annual income
of P168,648.00 in 1993 as appearing on his Service Record. It
likewise found petitioners explanation as unusual, largely
unsubstantiated, unbelievable and self-serving. The PCAGC noted
that instead of adducing evidence, petitioners counsel exerted more
effort in filing pleadings and motion to dismiss on the ground of
forum shopping. It also took against petitioner his refusal to submit
his SALN and ITR despite the undertaking made by his counsel
which raised the presumption that evidence willfully suppressed
would be adverse if produced. The PCAGC concluded that as
petitioners acquisition of the subject property was manifestly out of
proportion to his salary, it has been unlawfully acquired. Thus, it
recommended petitioners dismissal from service pursuant to Section
8 of R.A. No. 3019.
On August 24, 1998, the Office of the President, concurring with the
findings and adopting the recommendation of the PCAGC, issued
Administrative Order No. 12,[4] ordering petitioners dismissal from
service with forfeiture of all government benefits.
Petitioners Motion for Reconsideration was denied. His appeal to the

Court of Appeals was likewise dismissed.[5]
Hence, this petition for review where petitioner raises the following
issues for resolution: first, whether he was denied due process in
the investigation before the PCAGC; second, whether his guilt was
proved by substantial evidence; and, third, whether the earlier
dismissal of similar cases before the Ombudsman rendered the
administrative case before the PCAGC moot and academic.
On the issue of due process, petitioner submits that the PCAGC

committed infractions of the cardinal rules of administrative due
process when it relied on Bundalians unverified letter-complaint. He
gripes that his counter-affidavit should have been given more
weight as the unverified complaint constitutes hearsay evidence.
Moreover, petitioner insists that in ruling against him, the PCAGC
failed to respect his right to confront and cross-examine the
complainant as the latter never appeared in any of the hearings
before the PCAGC nor did he send a representative therein.
We find no merit in his contentions. The essence of due process in

administrative proceedings is the opportunity to explain ones side or
seek a reconsideration of the action or ruling complained of. As long
as the parties are given the opportunity to be heard before
judgment is rendered, the demands of due process are sufficiently
met.[6] In the case at bar, the PCAGC exerted efforts to notify the
complainant of the proceedings but his Philippine residence could
not be located.[7] Be that as it may, petitioner cannot argue that
he was deprived of due process because he failed to confront and
cross-examine the complainant. Petitioner voluntarily submitted to
the jurisdiction of the PCAGC by participating in the proceedings
before it. He was duly represented by counsel. He filed his counter-
affidavit, submitted documentary evidence, attended the hearings,
moved for a reconsideration of Administrative Order No. 12 issued
by the President and eventually filed his appeal before the Court of
Appeals. His active participation in every step of the investigation
effectively removed any badge of procedural deficiency, if there was
any, and satisfied the due process requirement. He cannot now be
allowed to challenge the procedure adopted by the PCAGC in the
investigation.[8]
Neither can we sustain petitioners contention that the charge

against him was unsupported by substantial evidence as it was
contained in an unverified complaint. The lack of verification of the
administrative complaint and the non-appearance of the
complainant at the investigation did not divest the PCAGC of its
authority to investigate the charge of unexplained wealth. Under
Section 3 of Executive Order No. 151 creating the PCAGC,
complaints involving graft and corruption may be filed before it in
any form or manner against presidential appointees in the
executive department. Indeed, it is not totally uncommon that a
government agency is given a wide latitude in the scope and
exercise of its investigative powers. The Ombudsman, under the
Constitution, is directed to act on any complaint likewise filed in any
form and manner concerning official acts or omissions. The Court
Administrator of this Court investigates and takes cognizance of, not
only unverified, but even anonymous complaints filed against court
employees or officials for violation of the Code of Ethical Conduct.
This policy has been adopted in line with the serious effort of the
government to minimize, if not eradicate, graft and corruption in the
service.
It is well to remember that in administrative proceedings, technical

rules of procedure and evidence are not strictly applied.
Administrative due process cannot be fully equated with due
process in its strict judicial sense for it is enough that the party is
given the chance to be heard before the case against him is
decided.[9] This was afforded to the petitioner in the case at bar.
On the second issue, there is a need to lay down the basic principles
in administrative investigations. First, the burden is on the
complainant to prove by substantial evidence the allegations in his
complaint.[10]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] Second, in reviewing administrative decisions of the executive
branch of the government, the findings of facts made therein are to
be respected so long as they are supported by substantial evidence.
Hence, it is not for the reviewing court to weigh the conflicting
evidence, determine the credibility of witnesses, or otherwise
substitute its judgment for that of the administrative agency with
respect to the sufficiency of evidence. Third, administrative
decisions in matters within the executive jurisdiction can only be set
aside on proof of gross abuse of discretion, fraud, or error of law.
These principles negate the power of the reviewing court to re-
examine the sufficiency of the evidence in an administrative case as
if originally instituted therein, and do not authorize the court to
receive additional evidence that was not submitted to the
administrative agency concerned.[12]
In the case at bar, petitioner admitted that the subject property was
in his name. However, he insisted that it was his sister-in-law Estela
Fajardo who paid for the property in installments. He submitted as
proof thereof the checks issued by Fajardo as payment for the
amortizations of the property. His evidence, however, likewise fail to
convince us. First, the record is bereft of evidence to prove the
alleged internal arrangement petitioner entered into with Fajardo.
He did not submit her affidavit to the investigating body nor did she
testify before it regarding her ownership of the Burbank property.
Second, the checks allegedly issued by Fajardo to pay for the
monthly amortizations on the property have no evidentiary weight
as Fajardos mere issuance thereof cannot prove petitioners non-
ownership of the property. Fajardo would naturally issue the checks
as she was appointed by petitioner as attorney-in-fact and the latter
would naturally course through her the payments for the Burbank
property. Third, petitioners own evidence contradict his position. We
cannot reconcile petitioners denial of ownership of the property with
the loan statement[13] he adduced showing that he obtained a
loan from the World Savings and Loan Association for $195,000.00
on June 23, 1993 to finance the acquisition of the property. Then,
three (3) years later, on May 30, 1996, petitioner and his wife
executed a Quitclaim Deed[14] donating the Burbank property to
his sisters-in-law Estela and Rose Fajardo allegedly to prove his
non-ownership of the property. It is obvious that the Quitclaim Deed
is a mere afterthought, having been executed only after a complaint
for unexplained wealth was lodged against petitioner. Why the
Quitclaim Deed included Rose Fajardo when it was only Estela
Fajardo who allegedly owned the property was not explained on the
record. Petitioners evidence failed to clarify the issue as it produced,
rather than settled, more questions.
Petitioner admitted that the Grant Deed over the property was in his
name. He never denied the existence and due execution of the
Grant Deed and the Special Power of Attorney he conferred to
Estela Fajardo with respect to the acquisition of the Burbank
property. With these admissions, the burden of proof was shifted to
petitioner to prove non-ownership of the property. He cannot now
ask this Court to remand the case to the PCAGC for reception of
additional evidence as, in the absence of any errors of law, it is not
within the Courts power to do so. He had every opportunity to
adduce his evidence before the PCAGC.
Lastly, we cannot sustain petitioners stance that the dismissal of

similar charges against him before the Ombudsman rendered the
administrative case against him before the PCAGC moot and
academic. To be sure, the decision of the Ombudsman does not
operate as res judicata in the PCAGC case subject of this review.
The doctrine of res judicata applies only to judicial or quasi-judicial
proceedings, not to the exercise of administrative powers.
[15]Petitioner was investigated by the Ombudsman for his possible
criminal liability for the acquisition of the Burbank property in
violation of the Anti-Graft and Corrupt Practices Act and the Revised
Penal Code. For the same alleged misconduct, Petitioner, as a
presidential appointee, was investigated by the PCAGC by virtue of
the administrative power and control of the President over him. As
the PCAGCs investigation of petitioner was administrative in nature,
the doctrine of res judicata finds no application in the case at bar.
Thus, we find that the Court of Appeals correctly sustained
petitioners dismissal from service as the complaint and its
supporting documents established that he acquired a property
whose value is disproportionate to his income in the government
service, unless he has other sources of income which he failed to
reveal. His liability was proved by substantial evidence.
IN VIEW WHEREOF, the petition is DISMISSED. No costs.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona, and Carpio

Morales, JJ., concur.
Endnotes:
1
Created under Executive Order No. 151, dated January 11, 1994, by then President Fidel V. Ramos and was subsequently
abolished by his successor, former President Joseph Estrada through E.O. 253, dated July 18, 2000.
2
OMB-0-94-1172, OMB-0-94-1329 and OMB-0-94-1560.
3
Rollo at 162-173.
4
Id. at 54-60.
5
Decision, dated April 18, 2001; Penned by Associate Justice Fermin A. Martin, Jr. and concurred in by Associate Justices
Portia Alio-Hormachuelos and Mercedes Gozo-Dadole; Rollo at 41-50.
6
Umali v. Guingona, Jr., 305 SCRA 533 (2000); Audion Electric Co., Inc. v. NLRC, 308 SCRA 340 (2000).
7
See Letter of PCAGC Chairman Dario Rama to the Solicitor General, dated April 4, 2002; Rollo at 90.
8
Emin v. Chairman Corazon Alma de Leon, G.R. No. 139794, February 27, 2002.
9
Ocampo v. Office of the Ombudsman, 322 SCRA 17 (2000).
10
Lorena v. Encomienda, 302 SCRA 632 (1999); Cortez v. Agcaoili, 294 SCRA 423 (1998).
11
Enrique v. Court of Appeals, 229 SCRA 180 (1994).
12
Ramos v. Secretary of Agriculture and Natural Resources, 55 SCRA 330 (1974).
13
See Supplement to the Petition; Rollo at 74.
14
Id. at 75-78.
15
Dinsay v. Cioco, 264 SCRA 703 (1996).
EN BANC
[G.R. NO. 157684. April 27, 2005]
DEPARTMENT OF HEALTH, Petitioners, v. PRISCILLA G.

CAMPOSANO, ENRIQUE L. PEREZ, and IMELDA Q.
AGUSTIN, Respondents.
DECISION
PANGANIBAN, J.:
Administrative due process requires that, prior to imposing

disciplinary sanctions, the disciplining authority must make an
independent assessment of the facts and the law. On its face, a
decision imposing administrative sanctions must show the bases for
its conclusions. While the investigation of a case may be delegated
to and conducted by another body or group of officials, the
disciplining authority must nevertheless weigh the evidence
gathered and indicate the applicable law. In this manner, the
respondents would be informed of the bases for the sanctions and
thus be able to prepare their appeal intelligently. Such procedure is
part of the sporting idea of fair play in a democracy.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of

Court, assailing the March 19, 2003 Decision2 of the Court of
Appeals (CA) in CA-GR SP No. 67720. The challenged Decision
disposed as follows:
"WHEREFORE, based on the foregoing, the petition

is GRANTED. The assailed Resolutions of the CSC are hereby SET
ASIDE.
"The Department of Health is hereby ordered to:

"1) Reinstate petitioners without loss of seniority rights but without
prejudice to an administrative investigation that may be undertaken
against them by the DOH should the evidence warrant; and cralawlibrary
"2) Pay petitioners their back salaries from the time their preventive
suspension expired. Mandatory leave credits shall not be charged
against their leave credits."3
The Facts
The facts are narrated by the CA as follows:
"[Respondents] are former employees of the Department of Health

National Capital Region (hereinafter DOH-NCR). They held various
positions as follows: [Respondent] Priscilla B. Camposano
(hereinafter Camposano) was the Finance and Management Officer
II, [Respondent] Imelda Q. Agusin (hereinafter Agustin) was an
Accountant I, and [Respondent] Enrique L. Perez (hereinafter Perez)
was the Acting Supply Officer III.
"On May 15, 1996, some concerned [DOH-NCR] employees filed a

complaint before the DOH Resident Ombudsman Rogelio A. Ringpis
(hereinafter the Resident Ombudsman) against Dir. IV Rosalinda U.
Majarais, Acting Administrative Officer III Horacio Cabrera, and
[respondents], arising out of an alleged anomalous purchase by
DOH-NCR of 1,500 bottles of Ferrous Sulfate 250 mg. with Vitamin
B Complex and Folic Acid capsules worth P330,000.00 from Lumar
Pharmaceutical Laboratory on May 13, 1996.
"On August 6, 1996, the Resident Ombudsman submitted an

investigation report to the Secretary of Health recommending the
filing of a formal administrative charge of Dishonesty and Grave
Misconduct against [respondents] and their co-respondents.
"On August 8, 1996, the Secretary of Health filed a formal charge

against the [respondents] and their co-respondents for Grave
Misconduct, Dishonesty, and Violation of RA 3019. On October 25,
1996, then Executive Secretary Ruben D. Torres issued
Administrative Order No. 298 (hereafter AO 298) creating an ad-hoc
committee to investigate the administrative case filed against the
DOH-NCR employees. The said AO was indorsed to the Presidential
Commission Against Graft and Corruption (hereafter PCAGC) on
October 26, 1996. The same reads:
'I have the honor to transmit herewith, for your information and
guidance, a certified copy of Administrative Order No. 298 dated
October 25, 1996 entitled 'CREATING AN AD HOC COMMITTEE TO
INVESTIGATE THE ADMINISTRATIVE CASES FILED AGAINST NCR
HEALTH DIRECTOR ROSALINDA U. MAJARAIS AND OTHER
OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF HEALTH,
NATIONAL CAPITAL REGION.'
"On December 2, 1996, the PCAGC took over the investigation from
the DOH. After the investigation, it issued a resolution on January
23, 1998 disposing [respondents]' case as follows:
'WHEREFORE, premises considered, this Commission finds

Respondents Rosalinda U. Majarais, Priscilla G. Camposano,
Financial Management Chief II, Horacio D. Cabrera, Acting
Administrative Officer V, Imelda Q. Agustin, Accountant I and
Enrique L. Perez, Acting Supply Officer III, all of the Department of
Health - National Capital Region (DOH-NCR) guilty as charged and
so recommends to his Excellency President Fidel V. Ramos that the
penalty of dismissal from the government service be imposed
thereon.
'SO ORDERED.'
"On April 20, 1998, President Ramos issued [Administrative Order

No. 390 (hereinafter AO 390)] that reads:
'WHEREFORE, premises considered, respondent Dr. Rosalinda U.

Majarais is hereby found guilty as charged and, as recommended by
the Presidential Commission Against Graft and Corruption, is meted
the Penalty of dismissal from the service. The records of the case
with respect to the other respondents are remanded to Secretary
Carmencita N. Reodica, Department of Health for appropriate
action.'
"Thereafter, on May 8, 1998, the Secretary of Health issued an
Order disposing of the case against [respondents] and [Horacio
Cabrera]. The dispositive portion reads:
'WHEREFORE, pursuant to the Resolution rendered by the

Presidential Commission Against Graft and Corruption (PCAGC)
dated 23 January 1998 on the above-captioned case, respondents
Priscilla G. Camposano, Financial Management Chief II, Horacio D.
Cabrera, Acting Administrative Officer V, Imelda Q. Agustin,
Accountant I and Enrique L. Perez, Acting Supply Officer III, all of
the Department of Health - NCR are hereby DISMISSED from the
service.
'SO ORDERED.'
"On May 28, 1998 [respondents] filed a motion for reconsideration

of the said Order. The Secretary of Health denied the same on June
5, 1998. Thus, [respondents] filed a Notice of Appeal on June 29,
1998.
"On July 17, 1998, [respondents] filed their appeal with the CSC.
The appeal was denied by the CSC on May 21, 1999. Horacio
Cabrera filed a separate appeal with the CSC which was denied on
August 17, 1999. [Respondents]' motion for reconsideration was
denied on September 30, 1999. While Cabrera's motion for
reconsideration was denied on January 27, 2000. [Respondents],
however, received the resolution denying their motion for
reconsideration on November 2001. Thus, Horacio Cabrera was able
to appeal to [the CA] the CSC's resolutions ahead of [respondents].
The petition of Cabrera was granted [by the CA] in a decision dated
October 15, 2001 with a dispositive portion which reads:
'WHEREFORE, the instant petition is GRANTED. The Assailed

Resolutions of the Civil Service Commission are hereby SET ASIDE.
'Petitioner Horacio D. Cabrera is exonerated of the administrative

charges against him. The Civil Service Commission is hereby
ORDERED[:]
'(1) To reinstate petitioner immediately, without loss of seniority
rights; andcralawlibrary
'(2) To pay petitioner's back salaries from the time his preventive
suspension expired. Mandatory leave credits shall not be charged
against his leave credits.
'SO ORDERED. '"4
Not satisfied with the denial by the CSC (Civil Service Commission)
of their appeal, respondents brought the matter to the CA.
Ruling of the Court of Appeals
While the herein assailed Decision made no reference to the

separate appeal of Horacio Cabrera, the CA nonetheless used the
same legal bases for annulling the CSC's Resolution against
respondents.5
The appellate court held that the PCAGC's jurisdiction over

administrative complaints pertained only to presidential appointees.
Thus, the Commission had no power to investigate the charges
against respondents.6 Moreover, in simply and completely relying on
the PCAGC's findings, the secretary of health failed to comply with
administrative due process.7
Hence, this Petition.8
The Issues
Petitioner raises the following grounds for our consideration:
"I
The Court of Appeals erred in finding that the Presidential

Commission Against Graft and Corruption (PCAGC) did not have
jurisdiction to investigate the anomalous transaction involving
respondents.
"II
The Court of Appeals erred in concluding that the authority to
investigate and decide was relinquished by the Secretary of Health
and that the Secretary of Health merely performed a mechanical act
when she ordered the dismissal of respondents from government
service.
"III
The Court of Appeals erred in ignoring the fact that an exhaustive

investigation was already conducted by the Presidential Commission
Against Graft and Corruption (PCAGC) which resulted in the finding
that the anomalous contract for the purchase of medicines without
the required public bidding is patently illegal."9
The second and the third grounds will be discussed together, as

they are necessarily intertwined.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Jurisdiction to Investigate
Executive Order (EO) No. 15110 granted the PCAGC the jurisdiction
to investigate administrative complaints against presidential
appointees allegedly involved in graft and corruption. From a
cursory reading of its provisions, it is evident that EO 151
authorizes the PCAGC to investigate charges against presidential,
not non-presidential, appointees. In its Preamble, specifically in its
"Whereas" clauses, the EO "specifically tasked [the PCAGC] to x x x
investigate presidential appointees charged with graft and
corruption x x x." More pointedly, Section 3 states that the
"Commission shall have jurisdiction over all administrative
complaints involving graft and corruption filed in any form or
manner against presidential appointees x x x." We quote the
pertinent provisions below:
"Section 3. Jurisdiction. - The Commission shall have jurisdiction
over all administrative complaints involving graft and corruption
filed in any form or manner against presidential appointees,
including those in government-owned or controlled corporations."
(emphasis supplied)
"Section 4. Powers, Functions and Duties. - The Commission shall

have the following powers, functions and duties:
"(a) Investigation - The Commission shall have the power to

investigate administrative complaints against presidential
appointees in the executive department of the government,
including those in government-owned or controlled corporations,
charged with graft and corruption. In the exercise thereof, the
Commission is (1) authorized to summon witnesses, administer
oaths, or take testimony or evidence relevant to the investigation by
subpoena ad testificandum and subpoena duces tecum, and do such
other acts necessary and incidental to the discharge of its function
and duty to investigate the said administrative complaints; and (2)
empowered to call upon and secure the assistance of any
department, bureau, office, agency, or instrumentality of the
government, including government-owned or controlled
corporations.
"The Commission shall confine itself to cases of graft and corruption

involving one or a combination of the following criteria:
"1. Presidential appointees with the rank equivalent to or higher

than an Assistant Regional Director;
"2. The amount involved is at least Ten Million Pesos

(P10,000,000.00);
"3. Those which threaten grievous harm or injury to the national

interest; andcralawlibrary
"4. Those which may be assigned to it by the President.11
"The Commission may refer to the Office of the Ombudsman, when

warranted and necessary, any case calling for the investigation
and/or prosecution of the party or parties concerned for violation of
anti-graft and corruption laws.
"Administrative investigation of complaints against presidential

appointees currently undertaken by various presidential committees
or government agencies, including government-owned or controlled
corporations shall continue notwithstanding the creation and
organization of the Commission. This, however, shall be without
prejudice to the Commission, in its discretion, taking over the
investigation if the matter under investigation is within its
jurisdiction.
"(b) Coordination - The Commission shall coordinate with different

government agencies for the purpose of eradicating opportunities
and the climate favorable to the commission of graft and corruption.
x x x."12 (emphasis supplied)
On the basis of the foregoing verba legis approach, respondents

claim that the PCAGC did not have jurisdiction over them, because
they were not presidential appointees.
The Court notes, however, that respondents were not investigated

pursuant to EO 151. The investigation was authorized under
Administrative Order No. 298 dated October 25, 1996, which had
created an Ad Hoc Committee to look into the administrative
charges filed against Director Rosalinda U. Majarais, Priscilla G.
Camposano, Horacio D. Cabrera, Imelda Q. Agustin and Enrique L.
Perez.
The Investigating Committee was composed of all the members of

the PCAGC: Chairman Eufemio C. Domingo, Commissioner Dario C.
Rama and Commissioner Jaime L. Guerrero. The Committee was
directed by AO 298 to "follow the procedure prescribed under
Section 38 to 40 of the Civil Service Law (PD 807), as amended." It
was tasked to "forward to the Disciplining Authority the entire
records of the case, together with its findings and
recommendations, as well as the draft decision for the approval of
the President."
The Chief Executive's power to create the Ad Hoc Investigating
Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents
belong, the President has the obligation to ensure that all executive
officials and employees faithfully comply with the law.13 With AO
298 as mandate, the legality of the investigation is sustained. Such
validity is not affected by the fact that the investigating team and
the PCAGC had the same composition, or that the former used the
offices and facilities of the latter in conducting the inquiry.
Parenthetically, the perceived vacuum in EO 151 with regard to

cases involving non-presidential appointees was rectified in
Executive Order No. 12,14 which created the Presidential Anti-Graft
Commission (PAGC). Non-presidential appointees who may have
acted in conspiracy, or who may have been involved with a
presidential appointee, may now be investigated by the PAGC.15
Second and Third Issues:
Validity of Health Secretary's Decision
The Administrative Code of 1987 vests department secretaries with

the authority to investigate and decide matters involving disciplinary
actions for officers and employees under the former's
jurisdiction.16 Thus, the health secretary had disciplinary authority
over respondents.
Note that being a presidential appointee, Dr. Rosalinda Majarais was

under the jurisdiction of the President, in line with the principle that
the "power to remove is inherent in the power to appoint."17 While
the Chief Executive directly dismissed her from the service, he
nonetheless recognized the health secretary's disciplinary authority
over respondents when he remanded the PCAGC's findings against
them for the secretary's "appropriate action."18
As a matter of administrative procedure, a department secretary

may utilize other officials to investigate and report the facts from
which a decision may be based.19 In the present case, the secretary
effectively delegated the power to investigate to the PCAGC.
Neither the PCAGC under EO 151 nor the Ad Hoc Investigating
Committee created under AO 298 had the power to impose any
administrative sanctions directly. Their authority was limited to
conducting investigations and preparing their findings and
recommendations. The power to impose sanctions belonged to the
disciplining authority, who had to observe due process prior to
imposing penalties.
Due process in administrative proceedings requires compliance with

the following cardinal principles: (1) the respondents' right to a
hearing, which includes the right to present one's case and submit
supporting evidence, must be observed; (2) the tribunal must
consider the evidence presented; (3) the decision must have some
basis to support itself; (4) there must be substantial evidence; (5)
the decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected; (6) in arriving at a decision, the tribunal must have
acted on its own consideration of the law and the facts of the
controversy and must not have simply accepted the views of a
subordinate; and (7) the decision must be rendered in such manner
that respondents would know the reasons for it and the various
issues involved.20
The CA correctly ruled that administrative due process had not been
observed in the present factual milieu. Noncompliance with the sixth
requisite is equally evident from the health secretary's Order
dismissing the respondents thus:
"ORDER
"This refers to the Resolution of the Presidential Commission Against

Graft and Corruption (PCAG[C]) on the above captioned case dated
January 23, 1998, the dispositive portion of which reads:
"WHEREFORE, premises considered, this Commission finds

Respondents Rosalinda U. Majarais, Priscilla G. Camposano,
Financial Management Chief II, [Horacio] D. Cabrera, Acting Supply
Officer III, all of the Department of Health National Capital Region
(DOH-NCR) guilty as charged and so recommends to his Excellency
President Fidel V. Ramos that the penalty of dismissal from the
government be imposed thereon."
"Acting on the aforequoted resolution of the PCAGC[,] His

Excellency President Fidel V. Ramos issued Administrative Order No.
390 dated [A]pril 20, 1998, resolving thus:
"WHEREFORE, premises considered, respondent Dr. Rosalinda U.

Majarais is hereby found guilty as charged and, as recommended by
the Presidential Commission Against Graft and Corruption, is meted
the penalty of dismissal from the service. The records of the case
with respect to the other respondents are remanded to Secretary
Carmencita N. Reodica, Department of Health for appropriate
action."
WHEREFORE, pursuant to the Resolution rendered by the

Presidential Commission Against Graft and Corruption (PCAGC)
dated January 23, 1998 on the above captioned case, respondents
Priscilla G. Camposano, Financial Management Chief II; Horacio D.
Cabrera, Acting Administrative Officer V; Imelda Q. Agustin,
Accountant I; and Enrique G. Perez, Acting Supply Officer III; all of
the Department of Health NCR, are hereby DISMISSED from the
service."21
Concededly, the health secretary has the competence and the

authority to decide what action should be taken against officials and
employees who have been administratively charged and
investigated. However, the actual exercise of the disciplining
authority's prerogative requires a prior independent consideration of
the law and the facts. Failure to comply with this requirement
results in an invalid decision. The disciplining authority should not
merely and solely rely on an investigator's recommendation, but
must personally weigh and assess the evidence gathered. There can
be no shortcuts, because at stake are the honor, the reputation, and
the livelihood of the person administratively charged.
In the present case, the health secretary's two-page Order

dismissing respondents pales in comparison with the presidential
action with regard to Dr. Majarais. Prior to the issuance of his
seven-page decision, President Fidel V. Ramos conducted a restudy
of the doctor's case. He even noted a violation that had not been
considered by the PCAGC.22 On the other hand, Health Secretary
Carmencita N. Reodica simply and blindly relied on the dispositive
portion of the Commission's Resolution. She even misquoted it by
inadvertently omitting the recommendation with regard to
Respondents Enrique L. Perez and Imelda Q. Agustin.
The Order of Secretary Reodica denying respondents' Motion for

Reconsideration also failed to correct the deficiency in the initial
Order.23 She improperly relied on the President's findings in AO 390
which, however, pertained only to the administrative charge against
Dr. Majarais, not against respondents. To repeat, the Chief
Executive recognized that the disciplinary jurisdiction over
respondents belonged to the health secretary,24 who should have
followed the manner in which the President had rendered his action
on the recommendation.
The President's endorsement of the records of the case for the

"appropriate action" of the health secretary25 did not constitute a
directive for the immediate dismissal of respondents. Like that of
President Ramos, the decision of Secretary Reodica should have
contained a factual finding and a legal assessment of the
controversy to enable respondents to know the bases for their
dismissal and thereafter prepare their appeal intelligently, if they so
desired.
To support its position, petitioner cites American Tobacco Co. v.

Director of Patents.26 However, this case merely authorized the
delegation of the power to investigate, but not the authority to
impose sanctions. Verily, in requiring the disciplining authority to
exercise its own judgment and discretion in deciding a
case, American Tobacco supports the present respondents' cause.
In that case, the petitioners objected to the appointment of hearing
officers and sought the personal hearing of their case by the
disciplining authority.27 The Court, however, sustained the right to
delegate the power to investigate, as long as the adjudication would
be made by the deciding authority.
By the same token, the Constitution28 grants the Supreme Court

disciplinary authority over all lower court justices and judges, as
well as judicial employees and lawyers. While the investigation of
administrative complaints is delegated usually to the Office of the
Court Administrator (OCA) or the Integrated Bar of the Philippines
(IBP),29 the Court nonetheless makes its own judgments of the
cases when sanctions are imposed. It does not merely adopt or
solely rely on the recommendations of the OCA or the IBP.
Inasmuch as the health secretary's twin Orders were patently void

for want of due process, the CA did not err in refusing to discuss the
merit of the PCAGC's (or the Ad Hoc Committee's)
recommendations. Such a discussion should have been made by the
health secretary before it could be passed upon by the CA.
In representation of petitioner, the Office of the Solicitor General

insists that respondents are guilty of the charges and, like Dr.
Majarais, deserve dismissal from the service. Suffice it to stress that
the issue in this case is not the guilt of respondents, but solely due
process.
In closing, the Court reiterates the oft-quoted aphorism that the end
does not justify the means. Guilt cannot be pronounced nor penalty
imposed, unless due process is first observed. This is the essence of
fairness and the rule of law in a democracy.
WHEREFORE, the Petition is PARTLY GRANTED. The assailed

Decision of the Court of Appeals is MODIFIED in the sense that the
authority of the Ad Hoc Investigating Committee created under
Administrative Order 298 is SUSTAINED. Being violative of
administrative due process, the May 8, 1998 and the June 5, 1998
Orders of the health secretary are ANNULLED and SET ASIDE. Let
the records of this case be REMANDED to the Department of Health,
so that proper steps can be taken to correct the due-process errors
pointed out in this Decision.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago,

Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario,
and Garcia, JJ., concur.
Endnotes:
1
Rollo, pp. 18-71.
2
Id., pp. 73-80. Seventeenth Division. Penned by Justice Juan Q.
Enriquez Jr., with the concurrence of Justices Bernardo P. Abesamis
(Division chairman) and Edgardo F. Sundiam.
3
Assailed Decision, p. 7; rollo, p. 79.
4
Id., pp. 2-4 & 8-10.
5
See Cabrera v. Department of Health, CA-GR SP No. 57615,
October 15, 2001; CA rollo, pp. 147-163.
6
Assailed Decision, p. 5; rollo, p. 11.
7
Id., pp. 6 & 12.
8
The case was deemed submitted for decision on March 29, 2004,
upon this Court's receipt of petitioner's Memorandum, signed by
Solicitor Elma M. Rafallo-Lingan and Associate Solicitor Josephine de
Sagon Mejia. Respondents' Memorandum, signed by Atty. Gil D.
Genorga Jr., was received by this Court on March 3, 2004.
9
Petitioner's Memorandum, pp. 13-14; rollo, pp. 364-365.
10
"Creating a Presidential Commission to Investigate Administrative
Complaints Involving Graft and Corruption," issued on January 11,
1994.
11
Petitioner incorrectly used this provision to argue that EO 151
covered non-presidential appointees. Since this provision belongs to
paragraph (a), its applicability is limited to presidential appointees
only. Necessarily, a case assigned to the PCAGC should refer to a
presidential appointee.
EO 151 should be read in its entirety, each part or section construed
together as a harmonious whole. The jurisdiction conferred on
PCAGC refers to the investigation of charges against presidential
appointees. This was the intention of the Executive Order, as
articulated in the "Whereas" clause and as provided in 3 and 4.
12
As amended by Executive Order No. 151-A, "Amending Executive
Order No. 151 Dated 11 January 1994," enacted on January 21,
1995.
13
'17, Article VII, Constitution; '1, Chapter 1, Title I, Book III,
Executive Order 292. See also Rodriguez v. Santos (119 Phil. 723,
727, February 29, 1964), in which the Court sustained the
President's power to appoint a fact-finding investigator,
notwithstanding the lack of disciplining authority over the public
official concerned.
14
"Creating the Presidential Anti-Graft Commission and Providing for
its Powers, Duties and Functions and for Other Purposes," issued by
President Gloria Macapagal-Arroyo on April 16, 2001. The PAGC
took over the National Anti-Corruption Commission which, under
President Joseph Ejercito Estrada's Executive Order No. 268 dated
July 18, 2000, had replaced the PCAGC.
15
The pertinent provision states:
"Section 4. Jurisdiction, Powers and Functions.'
xxx
"(b) The Commission, acting as a collegial body, shall have the

authority to investigate or hear administrative cases or complaints
against all presidential appointees in the government and any of its
agencies and instrumentalities x x x occupying the position of
assistant regional director, or an equivalent rank, and higher,
otherwise classified as Salary Grade "26" and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act
No. 6758). In the same manner, the Commission shall have
jurisdiction to investigate a non-presidential appointee who may
have acted in conspiracy or may have been involved with a
presidential appointee or ranking officer mentioned in this
subsection. x x x."
16
Paragraph (2), '47, Chapter 6, Book V, Executive Order 292.
17
See Umali v. Guingona, 365 Phil. 77, 86, March 29, 1999; Larin v.
Executive Secretary, 280 SCRA 713, 725, October 16, 1997. See
also David v. Villegas, 81 SCRA 642, 648, February 28, 1978.
18
AO 390, p. 7; rollo, p. 109.
19
Mollaneda v. Umacob, 411 Phil. 159, 173, June 6, 2001; American
Tobacco Co. v. Director of Patents, 67 SCRA 287, 295, October 14,
1975. See Lupo v. Administrative Action Board, 190 SCRA 69, 75,
September 26, 1990; see also paragraph (3), '47, Chapter 1, Book
V, Executive Order 292. The department secretary is specifically
empowered to delegate the investigation of complaints to
subordinates or other officials for their report and recommendation.
20
Singson v. National Labor Relations Commission, 274 SCRA 358,
364, June 19, 1997; Eastern Broadcasting Corporation v. Dans, 137
SCRA 628, 634, July 19, 1985; Doruelo v. Commission on
Elections, 133 SCRA 376, 382, November 21, 1984; Ang Tibay v.
Court of Industrial Relations, 69 Phil. 635, 644, February 27, 1940.
21
Rollo, pp. 110-111.
22
The President noted that the Memorandum of Agreement
executed by Dr. Majarais with the suppliers arrogated the mandated
duty of the Bids and Awards Committee to award a contract to the
winning bidder in the form of a Resolution. AO 390, p. 6; rollo, p.
108.
23
Order on the Motion for Reconsideration, DOH v. Dr. Rosalinda U.
Majarais, dated June 5, 1998; rollo, pp. 112-113.
24
AO 390, p. 6; rollo, p. 108.
25
AO 390, p. 7; rollo, p. 109.
26
67 SCRA 287, October 14, 1975.
27
Id., p. 291.
28
'6, Article VIII, Constitution; '5, pars. (5) & (6), Article VIII,
Constitution. See also Maceda v. Vasquez, 221 SCRA 464, 467, April
22, 1993; In re Edillon, 84 SCRA 554, 568, August 3, 1978.
29
The Office of the Court Administrator was created to assist the
Supreme Court in the exercise of the latter's administrative
supervision over all the courts. (PD 828, as amended by PD 842,
enacted on November 18, 1975). See Rule 139-B, Rules of Court,
for the procedure for disbarment and suspension of attorneys.
EN BANC
[G.R. No. 137473. August 2, 2001.]
ESTELITO V. REMOLONA, Petitioner, v. CIVIL SERVICE

COMMISSION, Respondent.
DECISION
PUNO, J.:
The present petition seeks to review and set aside the Decision rendered by the Court
of Appeals dated July 31, 1998 1 upholding the decision of the Civil Service Commission
which ordered the dismissal of petitioner Estelito V. Remolona (Remolona) from the
government service for dishonesty, and the Resolution dated February 5, 1999 2
denying petitioner’s motion for reconsideration. chanrob1es virtua1 1aw 1ibrary
Records show that petitioner Estelito V. Remolona is the Postmaster at the Postal Office
Service in Infanta, Quezon, while his wife Nery Remolona is a teacher at the Kiborosa
Elementary School.
In a letter 3 dated January 3, 1991, Francisco R. America, District Supervisor of the

Department of Education, Culture & Sports at Infanta, Quezon, inquired from the Civil
Service Commission (CSC) as to the status of the civil service eligibility of Mrs.
Remolona who purportedly got a rating of 81.25% as per Report of Rating issued by the
National Board for Teachers. 4 Mr. America likewise disclosed that he received
information that Mrs. Remolona was campaigning for a fee of P8,000.00 per examinee
for a passing mark in the teacher’s board examinations.
On February 11, 1991, then CSC Chairman Patricia A. Sto. Tomas issued an Order
directing CSC Region IV Director Bella Amilhasan to conduct an investigation on Mrs.
Remolona’s eligibility, after verification from the Register of Eligibles in the Office for
Central Personnel Records revealed "that Remolona’s name is not in the list of passing
and failing examinees, and that the list of examinees for December 10, 1989 does not
include the name of Remolona. Furthermore, Examination No. 061285 as indicated in
her report of rating belongs to a certain Marlou C. Madelo, who took the examination in
Cagayan de Oro and got a rating of 65.00%." 5
During the preliminary investigation conducted by Jaime G. Pasion, Director II, Civil
Service Field Office, Lucena City, Quezon, only petitioner Remolona appeared. He
signed a written statement of facts 6 regarding the issuance of the questioned Report of
Rating of Mrs. Remolona, which is summarized in the Memorandum 7 submitted by
Director Pasion as follows:jgc:chanrobles.com.ph
"3.1 That sometime in the first week of September, 1990, while riding in a Kapalaran
Transit Bus from Sta. Cruz, Laguna on his way to San Pablo City, he met one Atty.
Hadji Salupadin (this is how it sounded) who happened to be sitting beside him;
3.2 That a conversation broke out between them until he was able to confide his
problem to Atty. Salupadin about his wife having difficulty in acquiring an eligibility;
3.3 That Atty. Salupadin who represented himself as working at the Batasan, offered
his help for a fee of P3,000.00;
3.4 That the following day they met at the Batasan where he gave the amount of
P2,000.00, requirements, application form and picture of his wife;
3.5 That the following week, Thursday, at around 1:00 P.M., they met again at the
Batasan where he handed to Atty. Salupadin the amount of P1,000.00 plus P500.00
bonus who in turn handed to him the Report of Rating of one Nery C. Remolona with a
passing grade, then they parted; chanrob1es virtua1 1aw 1ibrary
3.6 That sometime in the last week of September, he showed the Report of Rating to
the District Supervisor, Francisco America who informed her (sic) that there was no
vacancy;
3.7 That he went to Lucena City and complained to Dr. Magsino in writing . . . that Mr.
America is asking for money in exchange for the appointment of his wife but failed to
make good his promise. He attached the corroborating affidavits of Mesdames
Carmelinda Pradillada and Rosemarie P. Romantico and Nery C. Remolona . . .;
3.8 That from 1986 to 1988, Mr. America was able to get six (6) checks at P2,600.00
each plus bonus of Nery C. Remolona;
3.9 That Mr. America got mad at them. And when he felt that Mr. America would verify
the authenticity of his wife’s Report of Rating, he burned the original." cralaw virtua1aw library
Furthermore, Remolona admitted that he was responsible in acquiring the alleged fake
eligibility, that his wife has no knowledge thereof, and that he did it because he wanted
them to be together. Based on the foregoing, Director Pasion recommended the filing of
the appropriate administrative action against Remolona but absolved Mrs. Nery
Remolona from any liability since it has not been shown that she willfully participated in
the commission of the offense.
Consequently, a Formal Charge dated April 6, 1993 was filed against petitioner
Remolona, Nery C. Remolona, and Atty. Hadji Salupadin for possession of fake
eligibility, falsification and dishonesty. 8 A formal hearing ensued wherein the parties
presented their respective evidence. Thereafter, CSC Regional Director Bella A.
Amilhasan issued a Memorandum dated February 14, 1995 9 recommending that the
spouses Estelito and Nery Remolona be found guilty as charged and be meted the
corresponding penalty.
Said recommendation was adopted by the CSG which issued Resolution No. 95-2908 on
April 20, 1995, finding the spouses Estelito and Nery Remolona guilty of dishonesty and
imposing the penalty of dismissal and all its accessory penalties. The case against Atty.
Hadji Salupadin was held in abeyance pending proof of his identity. 10 In its Resolution
No. 965510 11 dated August 27, 1996, the CSC, acting on the motion for
reconsideration filed by the spouses Remolona, absolved Nery Remolona from liability
and held that: jgc:chanrobles.com.ph
"Further, a review of the records and of the arguments presented fails to persuade this
Commission to reconsider its earlier resolution insofar as Estelito Remolona’s culpability
is concerned. The evidence is substantial enough to effect his conviction. His act of
securing a fake eligibility for his wife is proved by substantial evidence. However, in the
case of Nery Remolona, the Commission finds her innocent of the offense charged, for
there is no evidence to show that she has used the fake eligibility to support an
appointment or promotion. In fact, Nery Remolona did not indicate in her Personal Data
Sheet that she possesses any eligibility. It must be pointed out that it was her husband
who unilaterally worked to secure a fake eligibility for her.
WHEREFORE, the instant Motion for Reconsideration is hereby denied insofar as

respondent Estelito Remolona is concerned. However, Resolution No. 95-2908 is
modified in the sense that respondent Nery Remolona is exonerated of the charges.
Accordingly, Nery Remolona is automatically reinstated to her former position as
Teacher with back salaries and other benefits." cralaw virtua1aw library
On appeal, the Court of Appeals rendered its questioned decision dismissing the petition
for review filed by herein petitioner Remolona. His motion for reconsideration and/or
new trial was likewise denied. Hence, this petition for review.
Petitioner submits that the Court of Appeals erred: jgc:chanrobles.com.ph
"1. in denying petitioner’s motion for new trial;
2. in holding that petitioner is liable for dishonesty; and
3. in sustaining the dismissal of the petitioner for an offense not work connected in
relation to his official position in the government service." chanrob1es virtua1 1aw 1ibrary
The main issue posed for resolution is whether a civil service employee can be
dismissed from the government service for an offense which is not work-related or
which is not connected with the performance of his official duty. Remolona likewise
imputes a violation of his right to due process during the preliminary investigation
because he was not assisted by counsel. He claims that the extra-judicial admission
allegedly signed by him is inadmissible because he was merely made to sign a blank
form. He also avers that his motion for new trial should be granted on the ground that
the transcript of stenographic notes taken during the hearing of the case before the
Regional Office of the CSC was not forwarded to the Court of Appeals. Finally, he pleads
that the penalty of dismissal with forfeiture of all benefits is too harsh considering the
nature of the offense for which he was convicted, the length of his service in
government, that this is his first offense, and the fact that no damage was caused to
the government.
The submission of Remolona that his alleged extra-judicial confession is inadmissible

because he was not assisted by counsel during the investigation as required under
Section 12 paragraphs 1 and 3, Article III of the 1987 Constitution deserves scant
consideration.
The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect
in a criminal case under custodial investigation. Custodial investigation is the stage
where the police investigation is no longer a general inquiry into an unsolved crime but
has begun to focus on a particular suspect who had been taken into custody by the
police to carry out a process of interrogation that lends itself to elicit incriminating
statements. It is when questions are initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in
any significant way. The right to counsel attaches only upon the start of such
investigation. Therefore, the exclusionary rule under paragraph (2), Section 12 of the
Bill of Rights applies only to admissions made in a criminal investigation but not to
those made in an administrative investigation. 12
While investigations conducted by an administrative body may at times be akin to a

criminal proceeding, the fact remains that under existing laws, a party in an
administrative inquiry may or may not be assisted by counsel, irrespective of the nature
of the charges and of the respondent’s capacity to represent himself, and no duty rests
on such body to furnish the person being investigated with counsel. In an
administrative proceeding, a respondent has the option of engaging the services of
counsel or not. This is clear from the provisions of Section 32, Article VII of Republic Act
No. 2260 (otherwise known as the Civil Service Act) and Section 39, paragraph 2, Rule
XIV (on discipline) of the Omnibus Rules Implementing Book V of Executive Order No.
292 (otherwise known as the Administrative Code of 1987). Thus, the right to counsel
is not always imperative in administrative investigations because such inquiries are
conducted merely to determine whether there are facts that merit disciplinary measure
against erring public officers and employees, with the purpose of maintaining the
dignity of government service. As such, the hearing conducted by the investigating
authority is not part of a criminal prosecution. 13
In the case at bar, Remolona was not accused of any crime in the investigation
conducted by the CSC field office. The investigation was conducted for the purpose of
ascertaining the facts and whether there is a prima facie evidence sufficient to form a
belief that an offense cognizable by the CSC has been committed and that Remolona is
probably guilty thereof and should be administratively charged. Perforce, the
admissions made by Remolona during such investigation may be used as evidence to
justify his dismissal.
The contention of Remolona that he never executed an extra-judicial admission and
that he merely signed a blank form cannot be given credence. Remolona occupies a
high position in government as Postmaster at Infanta, Quezon and, as such, he is
expected to be circumspect in his actions specially where he is being administratively
charged with a grave offense which carries the penalty of dismissal from service.
Remolona insists that his dismissal is a violation of his right to due process under
Section 2(3), Article XI (B) of the Constitution which provides that "no officer or
employee in the Civil Service shall be removed or suspended except for cause."
Although the offense of dishonesty is punishable under the Civil Service law, Remolona
opines that such act must have been committed in the performance of his function and
duty as Postmaster. Considering that the charge of dishonesty involves the falsification
of the certificate of rating of his wife Nery Remolona, the same has no bearing on his
office and hence, he is deemed not to have been dismissed for cause. This proposition
is untenable.chanrob1es virtua1 1aw 1ibrary
It cannot be denied that dishonesty is considered a grave offense punishable by

dismissal for the first offense under Section 23, Rule XIV of the Rules Implementing
Book V of Executive Order No. 292. And the rule is that dishonesty, in order to warrant
dismissal, need not be committed in the course of the performance of duty by the
person charged. The rationale for the rule is that if a government officer or employee is
dishonest or is guilty of oppression or grave misconduct, even if said defects of
character are not connected with his office, they affect his right to continue in office.
The Government cannot tolerate in its service a dishonest official, even if he performs
his duties correctly and well, because by reason of his government position, he is given
more and ample opportunity to commit acts of dishonesty against his fellow men, even
against offices and entities of the government other than the office where he is
employed; and by reason of his office, he enjoys and possesses a certain influence and
power which renders the victims of his grave misconduct, oppression and dishonesty
less disposed and prepared to resist and to counteract his evil acts and actuations. The
private life of an employee cannot be segregated from his public life. Dishonesty
inevitably reflects on the fitness of the officer or employee to continue in office and the
discipline and morale of the service. 14
The principle is that when an officer or employee is disciplined, the object sought is not
the punishment of such officer or employee but the improvement of the public service
and the preservation of the public’s faith and confidence in the government. 15
The general rule is that where the findings of the administrative body are amply
supported by substantial evidence, such findings are accorded not only respect but also
finality, and are binding on this Court. 16 It is not for the reviewing court to weigh the
conflicting evidence, determine the credibility of witnesses, or otherwise substitute its
own judgment for that of the administrative agency on the sufficiency of evidence. 17
Thus, when confronted with conflicting versions of factual matters, it is for the
administrative agency concerned in the exercise of discretion to determine which party
deserves credence on the basis of the evidence received. 18 The rule, therefore, is that
courts of justice will not generally interfere with purely administrative matters which
are addressed to the sound discretion of government agencies unless there is a clear
showing that the latter acted arbitrarily or with grave abuse of discretion or when they
have acted in a capricious and whimsical manner such that their action may amount to
an excess of jurisdiction. 19
We have carefully scrutinized the records of the case below and we find no compelling
reason to deviate from the findings of the CSC and the Court of Appeals. The written
admission of Remolona is replete with details that could have been known only to him.
No ill-motive or bad faith was ever imputed to Director Pasion who conducted the
investigation. The presumption that official duty has been regularly performed remains
unrebutted.
The transmittal of the transcript of stenographic notes taken during the formal hearing
before the CSC is entirely a matter of discretion on the part of the Court of Appeals.
Revised Administrative Circular No. 1-95 of this Court clearly states that in resolving
appeals from quasi-judicial agencies, it is within the discretion of the Court of Appeals
to have the original records of the proceedings under review transmitted to it. 20
Verily, the Court of Appeals decided the merits of the case on the bases of the
uncontroverted facts and admissions contained in the pleadings filed by the parties. chanrob1es virtua1 1aw 1ibrary
We likewise find no merit in the contention of Remolona that the penalty of dismissal is
too harsh considering that there was no damage caused to the government since the
certificate of rating was never used to get an appointment for his wife, Nery Remolona.
Although no pecuniary damage was incurred by the government, there was still
falsification of an official document that constitutes gross dishonesty which cannot be
countenanced, considering that he was an accountable officer and occupied a sensitive
position. 21 The Code of Conduct and Ethical Standards for Public Officials and
Employees enunciates the State policy of promoting a high standard of ethics and
utmost responsibility in the public service. 22
WHEREFORE, the decision appealed from is hereby AFFIRMED in toto.
SO ORDERED. chanrob1es virtua1 1aw 1ibrary
Bellosillo, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Gonzaga-Reyes, Ynares-

Santiago and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., Melo, Panganiban, Buena, JJ., on official leave.
Sandoval-Gutierrez, J., is on leave.
Endnotes:
1. Penned by Associate Justice Buenaventura J. Guerrero with Cui and Alino-

Hormachuelos, JJ., concurring; Rollo, 34-47.
2. Rollo, 49.
3. Exhibit "A" ; Rollo, 54.

4. Exhibit "C" ; Ibid., 56.
5. Exhibit "B" ; Ibid., 55.
6. Exhibit "E-I" ; Ibid. 60.
7. Exhibit "E" ; Ibid., 58-59.
8. Annex B, Petition; Rollo, 50.
9. Original Record, 1.
10. Annex F, Petition; Rollo, 76-79.
11. Annex G, id.; Ibid., 80-85.
12. Manuel, Et. Al. v. N.C. Construction Supply, Et Al., 282 SCRA 326, 334-335 (1997).
13. Lumiqued, Et. Al. v. Exevea, Et Al., 282 SCRA 125, 140-142 (1997).
14. Nera v. Garcia, Et Al., 106 Phil 1031, 1035-1036 (1960).
15. Bautista v. Negado, Et Al., 108 Phil 283, 289 (1960).
16. Tiatco v. CSC, Et Al., 216 SCRA 749 (1992).
17. Paper Industries Corp. of the Phils. v. Deputy Executive Secretary, 184 SCRA 606
(1990).
18. Gelmart Industries (Phil.), Inc. v. Leogardo, Jr., Et Al., 155 SCRA 403 (1987).
19. Cuerdo v. Commission on Audit, 166 SCRA 657 (1988).
20. Torres, Jr., Et. Al. v. Court of Appeals, Et Al., 278 SCRA 793, 809 (1997).
21. Regalado v. Buena, 309 SCRA 265, 270 (1999).
22. Alawi v. Alauva, 268 SCRA 628 (1997).

Administrative and Election Laws Cases 1

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Administrative and Election Laws Cases 1

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Creation, Establishment and Abolition of Administrative Agencies

G.R. No. 106296 July 5, 1996

ISABELO T. CRISOSTOMO, petitioner,

The background of this case is as follows:

E.O. No. 709:

R.A. No. 6975:

§13. Creation and Composition. -- A National Police Commission, hereinafter referred

xxx xxx xxx

In contrast, P.D. No. 1341, provides:

§1. The present Philippine College of Commerce is hereby converted into a

As already noted, R.A. No. 778 earlier provided:

a) After respondent Crisostomo's suspension, P.D. No. 1341 (entitled "CONVERTING

b) The manner of selection and appointment of the university head is substantially

". . . owned by the Philippine College of Commerce and such other

Puno, J., took no part.

1 Judgment in CCC-VI-2329-2331, pp. 2-3.

3 Rollo, p. 148, Decision, p. 4.

G.R. No. 115844 August 15, 1997

1.2 Executive Vice-President

1.3 First Vice-President

1.5 Third Vice-President

1.7 Five (5) Directors

2.2 Executive Vice-President

2.3 First Vice-President

2.4 Second Vice-President

2.5 Third Vice-President

2.6 Secretary General

2.8 Five (5) Directors

We will therefore proceed to the merits of this case.

OFFICERS AND DIRECTORS

Sec. 1. Organization of Board of Directors of Local Chapters. — The chapters shall

§492. Representation, Chapters, National Liga. — Every barangay shall be

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

Torres, Jr., J., is on leave.

DAVIDE, JR., J., dissenting;

Sec. 1. Organization of Board of Directors of Local Chapters. — The chapter shall

1.2 Executive Vice-President

1.4 Second Vice-President

1.5 Third Vice-President

1.7 Five (5) Directors

2.2 Executive Vice-President

2.3 First Vice-President

2.4 Second Vice-President

2.5 Third Vice-President

2.6 Secretary General

2.8 Five (5) Directors

(f) Organizational Structure —

(1) The national liga and its local chapters shall

(3) The board of directors shall coordinate the

(1) All other matters not provided under this Rule

(2) The committee created in this Article shall

Romero, Vitug and Panganiban, JJ., concur.

DAVIDE, JR., J., dissenting;

Sec. 1. Organization of Board of Directors of Local Chapters. — The chapter shall

1.2 Executive Vice-President

1.3 First Vice-President

1.4 Second Vice-President

1.5 Third Vice-President

1.7 Five (5) Directors

2.2 Executive Vice-President

2.3 First Vice-President

2.4 Second Vice-President

2.6 Secretary General