POLITICAL LAW
2304 and 1/4 of Lot
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,  exclusively to the deceased Francisco
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First
Instance of Leyte, respondent.
MAKASIAR,J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola
charged respondent Judge Elias B. Asuncion of the Court of First
Instance of Leyte, now Associate Justice of the Court of Appeals, with
"acts unbecoming a judge."
The factual setting of the case is stated in the report dated May 27, 1971
of then Associate Justice Cecilia Muñoz Palma of the Court of Appeals
now retired Associate Justice of the Supreme Court, to whom this case
was referred on October 28, 1968 for investigation, thus:
Civil Case No. 3010 of the Court of First Instance
of Leyte was a complaint for partition filed by
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, and Priscilla
Reyes, plaintiffs, against Bernardita R. Macariola,
defendant, concerning the properties left by the
deceased Francisco Reyes, the common father of
the plaintiff and defendant.
In her defenses to the complaint for partition, Mrs.
Macariola alleged among other things that; a)
plaintiff Sinforosa R. Bales was not a daughter of
the deceased Francisco Reyes; b) the only legal
heirs of the deceased were defendant Macariola,
she being the only offspring of the first marriage of
Francisco Reyes with Felisa Espiras, and the
remaining plaintiffs who were the children of the
deceased by his second marriage with Irene
Ondez; c) the properties left by the deceased were
all the conjugal properties of the latter and his first
wife, Felisa Espiras, and no properties were
acquired by the deceased during his second
marriage; d) if there was any partition to be made,
those conjugal properties should first be
partitioned into two parts, and one part is to be
adjudicated solely to defendant it being the share
of the latter's deceased mother, Felisa Espiras, and
the other half which is the share of the deceased
Francisco Reyes was to be divided equally among
his children by his two marriages.
On June 8, 1963, a decision was rendered by
respondent Judge Asuncion in Civil Case 3010, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING
CONSIDERATIONS, the Court, upon a
preponderance of evidence, finds and so
holds, and hereby renders judgment (1)
Declaring the plaintiffs Luz R. Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes as the only
children legitimated by the subsequent
marriage of Francisco Reyes Diaz to Irene
Ondez; (2) Declaring the plaintiff Sinforosa
R. Bales to have been an illegitimate child
of Francisco Reyes Diaz; (3) Declaring Lots
Nos. 4474, 4475, 4892, 5265, 4803, 4581,
4506 and 1/4 of Lot 1145 as belonging to
the conjugal partnership of the spouses
Francisco Reyes Diaz and Felisa Espiras;
(4) Declaring Lot No.
No. 3416 as belonging to the spouses
Francisco Reyes Diaz and Irene Ondez in
common partnership; (5) Declaring that
1/2 of Lot No. 1184 as belonging
Reyes Diaz; (6) Declaring the defendant
Bernardita R. Macariola, being the only
legal and forced heir of her mother Felisa
Espiras, as the exclusive owner of one-half
of each of Lots Nos. 4474, 4475, 4892, 5265,
4803, 4581, 4506; and the remaining one-
half (1/2) of each of said Lots Nos. 4474,
4475, 4892, 5265, 4803, 4581, 4506 and one-
half (1/2) of one-fourth (1/4) of Lot No.
1154 as belonging to the estate of Francisco
Reyes Diaz; (7) Declaring Irene Ondez to
be the exclusive owner of one-half (1/2) of
Lot No. 2304 and one-half (1/2) of one-
fourth (1/4) of Lot No. 3416; the remaining
one-half (1/2) of Lot 2304 and the
remaining one-half (1/2) of one-fourth
(1/4) of Lot No. 3416 as belonging to the
estate of Francisco Reyes Diaz; (8)
Directing the division or partition of the
estate of Francisco Reyes Diaz in such a
manner as to give or grant to Irene Ondez,
as surviving widow of Francisco Reyes
Diaz, a hereditary share of. one-twelfth
(1/12) of the whole estate of Francisco
Reyes Diaz (Art. 996 in relation to Art. 892,
par 2, New Civil Code), and the remaining
portion of the estate to be divided among
the plaintiffs Sinforosa R. Bales, Luz R.
Bakunawa, Anacorita Reyes, Ruperto
Reyes, Adela Reyes, Priscilla Reyes and
defendant Bernardita R. Macariola, in such
a way that the extent of the total share of
plaintiff Sinforosa R. Bales in the
hereditary estate shall not exceed the
equivalent of two-fifth (2/5) of the total
share of any or each of the other plaintiffs
and the defendant (Art. 983, New Civil
Code), each of the latter to receive equal
shares from the hereditary estate, (Ramirez
vs. Bautista, 14 Phil. 528; Diancin vs.
Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9)
Directing the parties, within thirty days
after this judgment shall have become final
to submit to this court, for approval a
project of partition of the hereditary estate
in the proportion above indicated, and in
such manner as the parties may, by
agreement, deemed convenient and
equitable to them taking into consideration
the location, kind, quality, nature and
value of the properties involved; (10)
Directing the plaintiff Sinforosa R. Bales
and defendant Bernardita R. Macariola to
pay the costs of this suit, in the proportion
of one-third (1/3) by the first named and
two-thirds (2/3) by the second named; and
(I 1) Dismissing all other claims of the
parties [pp 27-29 of Exh. C].
The decision in civil case 3010 became final
for lack of an appeal, and on October 16,
1963, a project of partition was submitted
to Judge Asuncion which is marked Exh.
A. Notwithstanding the fact that the
project of partition was not signed by the
parties themselves but only by the
respective counsel of plaintiffs and
defendant, Judge Asuncion approved it in
his Order dated October 23, 1963, which
for convenience is quoted hereunder in
full:
The parties, through their respective
counsels, presented to this Court for
approval the following project of partition:
COMES NOW, the plaintiffs and the
defendant in the above-entitled case, to
this Honorable Court respectfully submit
the following Project of Partition:
l. The whole of Lots Nos. 1154, 2304 and
4506 shall belong exclusively to Bernardita
Reyes Macariola;
2. A portion of Lot No. 3416 consisting of
2,373.49 square meters along the eastern
part of the lot shall be awarded likewise to
Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be
awarded to Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of
1,834.55 square meters along the western
part of the lot shall likewise be awarded to
Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided
equally among Luz Reyes Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion
of Lot No. 3416 after taking the portions
awarded under item (2) and (4) above shall
be awarded to Luz Reyes Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes in equal shares,
provided, however that the remaining
portion of Lot No. 3416 shall belong
exclusively to Priscilla Reyes.
WHEREFORE, it is respectfully prayed
that the Project of Partition indicated
above which is made in accordance with
the decision of the Honorable Court be
approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the
Defendant Tacloban City
(SGD) ZOTICO A. TOLETE Atty. for the
Plaintiff Tacloban City
While the Court thought it more desirable
for all the parties to have signed this
Project of Partition, nevertheless, upon
assurance of both counsels of the
respective parties to this Court that the
Project of Partition, as above- quoted, had
been made after a conference and
agreement of the plaintiffs and the
defendant approving the above Project of
Partition, and that both lawyers had
represented to the Court that they are
given full authority to sign by themselves
the Project of Partition, the Court,
therefore, finding the above-quoted Project
of Partition to be in accordance with law,
hereby approves the same. The parties,
therefore, are directed to execute such
papers, documents or instrument sufficient
in form and substance for the vesting of
the rights, interests and participations
which were adjudicated to the respective
parties, as outlined in the Project of
Partition and the delivery of the respective
properties adjudicated to each one in view
of said Project of Partition, and to perform
such other acts as are legal and necessary
to effectuate the said Project of Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of
October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was
amended on November 11, 1963, only for the
purpose of giving authority to the Register of
Deeds of the Province of Leyte to issue the
corresponding transfer certificates of title to the
respective adjudicatees in conformity with the
project of partition (see Exh. U).
One of the properties mentioned in the project of
partition was Lot 1184 or rather one-half thereof
with an area of 15,162.5 sq. meters. This lot, which
according to the decision was the exclusive
property of the deceased Francisco Reyes, was
adjudicated in said project of partition to the
plaintiffs Luz, Anacorita Ruperto, Adela, and
Priscilla all surnamed Reyes in equal shares, and
when the project of partition was approved by the
trial court the adjudicatees caused Lot 1184 to be
subdivided into five lots denominated as Lot 1184-
A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota, a
stenographer in Judge Asuncion's court (Exhs. F,
F-1 and V-1), while Lot 1184-E which had an area
of 2,172.5556 sq. meters was sold on July 31, 1964
to Dr. Arcadio Galapon (Exh. 2) who was issued
transfer certificate of title No. 2338 of the Register
of Deeds of the city of Tacloban (Exh. 12).
On March 6, 1965, Dr. Arcadio Galapon and his
wife Sold a portion of Lot 1184-E with an area of
around 1,306 sq. meters to Judge Asuncion and his
wife, Victoria S. Asuncion (Exh. 11), which
particular portion was declared by the latter for
taxation purposes (Exh. F).
On August 31, 1966, spouses Asuncion and
spouses Galapon conveyed their respective shares
and interest in Lot 1184-E to "The Traders
Manufacturing and Fishing Industries Inc." (Exit
15 & 16). At the time of said sale the stockholders
of the corporation were Dominador Arigpa Tan,
 Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge
Asuncion, and the latter's wife, Victoria S.
Asuncion, with Judge Asuncion as the President
and Mrs. Asuncion as the secretary (Exhs. E-4 to E-
7). The Articles of Incorporation of "The Traders
Manufacturing and Fishing Industries, Inc." which
we shall henceforth refer to as "TRADERS" were
registered with the Securities and Exchange
Commission only on January 9, 1967 (Exh. E) [pp.
378-385, rec.].
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First
Instance of Leyte, who was directed and authorized on June 2, 1969 by
the then Secretary (now Minister) of Justice and now Minister of
National Defense Juan Ponce Enrile to hear and decide Civil Case No.
4234, rendered a decision, the dispositive portion of which reads as
follows:
A. IN THE CASE AGAINST JUDGE ELIAS B.
ASUNCION

(1) declaring that only Branch IV of the Court of

Complainant Bernardita R. Macariola filed on August 9, 1968 the
First Instance of Leyte has jurisdiction to take
instant complaint dated August 6, 1968 alleging four causes of action,
cognizance of the issue of the legality and validity
to wit: [1] that respondent Judge Asuncion violated Article 1491,
of the Project of Partition [Exhibit "B"] and the two
paragraph 5, of the New Civil Code in acquiring by purchase a portion
Orders [Exhibits "C" and "C- 3"] approving the
of Lot No. 1184-E which was one of those properties involved in Civil
partition;
Case No. 3010 decided by him; [2] that he likewise violated Article 14,
paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H,
of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices (2) dismissing the complaint against Judge Elias B.
Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of Asuncion;
the Canons of Judicial Ethics, by associating himself with the Traders
Manufacturing and Fishing Industries, Inc., as a stockholder and a (3) adjudging the plaintiff, Mrs. Bernardita R.
ranking officer while he was a judge of the Court of First Instance of Macariola to pay defendant Judge Elias B.
Leyte; [3] that respondent was guilty of coddling an impostor and Asuncion,
acted in disregard of judicial decorum by closely fraternizing with a
certain Dominador Arigpa Tan who openly and publicly advertised
himself as a practising attorney when in truth and in fact his name (a) the sum of FOUR
does not appear in the Rolls of Attorneys and is not a member of the HUNDRED THOUSAND
Philippine Bar; and [4] that there was a culpable defiance of the law PESOS [P400,000.00] for moral
and utter disregard for ethics by respondent Judge (pp. 1-7, rec.). damages;

Respondent Judge Asuncion filed on September 24, 1968 his answer to (b) the sum of TWO
which a reply was filed on October 16, 1968 by herein complainant. In HUNDRED THOUSAND
Our resolution of October 28, 1968, We referred this case to then Justice PESOS [P200,000.001 for
Cecilia Muñoz Palma of the Court of Appeals, for investigation, report exemplary damages;
and recommendation. After hearing, the said Investigating Justice
submitted her report dated May 27, 1971 recommending that (c) the sum of FIFTY
respondent Judge should be reprimanded or warned in connection THOUSAND PESOS
with the first cause of action alleged in the complaint, and for the [P50,000.00] for nominal
second cause of action, respondent should be warned in case of a damages; and
finding that he is prohibited under the law to engage in business. On
the third and fourth causes of action, Justice Palma recommended that
respondent Judge be exonerated. (d) he sum of TEN
THOUSAND PESOS
[PI0,000.00] for Attorney's
The records also reveal that on or about November 9 or 11, 1968 (pp. Fees.
481, 477, rec.), complainant herein instituted an action before the Court
of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff,
versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil B. IN THE CASE AGAINST
Case No. 4235, seeking the annulment of the project of partition made THE DEFENDANT
pursuant to the decision in Civil Case No. 3010 and the two orders MARIQUITA VILLASIN, FOR
issued by respondent Judge approving the same, as well as the HERSELF AND FOR THE
partition of the estate and the subsequent conveyances with damages. HEIRS OF THE DECEASED
It appears, however, that some defendants were dropped from the civil GERARDO VILLASIN —
case. For one, the case against Dr. Arcadio Galapon was dismissed
because he was no longer a real party in interest when Civil Case No. (1) Dismissing the complaint against the
4234 was filed, having already conveyed on March 6, 1965 a portion of defendants Mariquita Villasin and the heirs of the
lot 1184-E to respondent Judge and on August 31, 1966 the remainder deceased Gerardo Villasin;
was sold to the Traders Manufacturing and Fishing Industries, Inc.
Similarly, the case against defendant Victoria Asuncion was dismissed
on the ground that she was no longer a real party in interest at the time (2) Directing the plaintiff to pay the defendants
the aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 Mariquita Villasin and the heirs of Gerardo
acquired by her and respondent Judge from Dr. Arcadio Galapon was Villasin the cost of the suit.
already sold on August 31, 1966 to the Traders Manufacturing and
Fishing industries, Inc. Likewise, the cases against defendants Serafin C. IN THE CASE AGAINST
P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders THE DEFENDANT
Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and SINFOROSA R. BALES, ET
Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador AL., WHO WERE
Anota and Enriqueta Anota and Atty. Zotico A. Tolete were dismissed PLAINTIFFS IN CIVIL CASE
with the conformity of complainant herein, plaintiff therein, and her NO. 3010 —
counsel.
(1) Dismissing the complaint against defendants
Sinforosa R. Bales, Adela R. Herrer, Priscilla R.
 Solis, Luz R. Bakunawa, Anacorita R. Eng and
Ruperto O. Reyes.
D. IN THE CASE AGAINST
DEFENDANT BONIFACIO
RAMO —
(1) Dismissing the complaint against Bonifacio
Ramo;
(2) Directing the plaintiff to pay the defendant
Bonifacio Ramo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid decision was
elevated to the Court of Appeals upon perfection of the appeal on
February 22, 1971.
WE find that there is no merit in the contention of complainant
Bernardita R. Macariola, under her first cause of action, that
respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5,
of the New Civil Code in acquiring by purchase a portion of Lot No.
1184-E which was one of those properties involved in Civil Case No.
3010. 'That Article provides:
Article 1491. The following persons cannot acquire
by purchase, even at a public or judicial action,
either in person or through the mediation of
another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of
superior and inferior courts, and other officers and
employees connected with the administration of
justice, the property and rights in litigation or
levied upon an execution before the court within
whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the
act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights
which may be the object of any litigation in which
they may take part by virtue of their profession
[emphasis supplied].
The prohibition in the aforesaid Article applies only to the sale or
assignment of the property which is the subject of litigation to the
persons disqualified therein. WE have already ruled that "... for the
prohibition to operate, the sale or assignment of the property must take
place during the pendency of the litigation involving the property" (The
Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario
vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6,
1965 a portion of Lot 1184-E, the decision in Civil Case No. 3010 which
he rendered on June 8, 1963 was already final because none of the
parties therein filed an appeal within the reglementary period; hence,
the lot in question was no longer subject of the litigation. Moreover, at
the time of the sale on March 6, 1965, respondent's order dated October
23, 1963 and the amended order dated November 11, 1963  approving
the October 16, 1963 project of partition made pursuant to the June 8,
1963 decision, had long become final for there was no appeal from said
orders.
Furthermore, respondent Judge did not buy the lot in question on
March 6, 1965 directly from the plaintiffs in Civil Case No. 3010 but
from Dr. Arcadio Galapon who earlier purchased on July 31, 1964  Lot
1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela
Reyes, and Luz R. Bakunawa after the finality of the decision in Civil
Case No. 3010. It may be recalled that Lot 1184 or more specifically
one-half thereof was adjudicated in equal shares to Priscilla Reyes,
Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in
the project of partition, and the same was subdivided into five lots
denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was
sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No.
2338 by the Register of Deeds of Tacloban City, and on March 6, 1965
he sold a portion of said lot to respondent Judge and his wife who
declared the same for taxation purposes only. The subsequent sale
on August 31, 1966 by spouses Asuncion and spouses Galapon of their
respective shares and interest in said Lot 1184-E to the Traders
Manufacturing and Fishing Industries, Inc., in which respondent was
the president and his wife was the secretary, took place long after the
finality of the decision in Civil Case No. 3010 and of the subsequent
two aforesaid orders therein approving the project of partition.
While it appears that complainant herein filed on or about November 9
or 11, 1968  an action before the Court of First Instance of Leyte
docketed as Civil Case No. 4234, seeking to annul the project of
partition and the two orders approving the same, as well as the
partition of the estate and the subsequent conveyances, the same,
however, is of no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a
portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after the
finality of the decision which he rendered on June 8, 1963 in Civil Case
No. 3010 and his two questioned orders dated October 23, 1963 and
November 11, 1963. Therefore, the property was no longer subject of
litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case No.
4234 can no longer alter, change or affect the aforesaid facts — that the
questioned sale to respondent Judge, now Court of Appeals Justice,
was effected and consummated long after the finality of the aforesaid
decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge
having taken place over one year after the finality of the decision in
Civil Case No. 3010 as well as the two orders approving the project of
partition, and not during the pendency of the litigation, there was no
violation of paragraph 5, Article 1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31, 1964 of
Lot 1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and
Luz R. Bakunawa was only a mere scheme to conceal the illegal and
unethical transfer of said lot to respondent Judge as a consideration for
the approval of the project of partition. In this connection, We agree
with the findings of the Investigating Justice thus:
And so we are now confronted with this all-
important question whether or not the acquisition
by respondent of a portion of Lot 1184-E and the
subsequent transfer of the whole lot to
"TRADERS" of which respondent was the
President and his wife the Secretary, was
intimately related to the Order of respondent
approving the project of partition, Exh. A.
Respondent vehemently denies any interest or
participation in the transactions between the
Reyeses and the Galapons concerning Lot 1184-E,
and he insists that there is no evidence whatsoever
to show that Dr. Galapon had acted, in the
purchase of Lot 1184-E, in mediation for him and
his wife. (See p. 14 of Respondent's
Memorandum).
xxx xxx xxx
 On this point, I agree with respondent that there is
no evidence in the record showing that Dr.
Arcadio Galapon acted as a mere "dummy" of
respondent in acquiring Lot 1184-E from the
Reyeses. Dr. Galapon appeared to this investigator
as a respectable citizen, credible and sincere, and I
believe him when he testified that he bought Lot
1184-E in good faith and for valuable
consideration from the Reyeses without any
intervention of, or previous understanding with
Judge Asuncion (pp. 391- 394, rec.).
On the contention of complainant herein that respondent Judge acted
illegally in approving the project of partition although it was not
signed by the parties, We quote with approval the findings of the
Investigating Justice, as follows:
1. I agree with complainant that respondent
should have required the signature of the parties
more particularly that of Mrs. Macariola on the
project of partition submitted to him for approval;
however, whatever error was committed by
respondent in that respect was done in good faith
as according to Judge Asuncion he was assured by
Atty. Bonifacio Ramo, the counsel of record of
Mrs. Macariola, That he was authorized by his
client to submit said project of partition, (See Exh.
B and tsn p. 24, January 20, 1969). While it is true
that such written authority if there was any, was
not presented by respondent in evidence, nor did
Atty. Ramo appear to corroborate the statement of
respondent, his affidavit being the only one that
was presented as respondent's Exh. 10, certain
actuations of Mrs. Macariola lead this investigator
to believe that she knew the contents of the project
of partition, Exh. A, and that she gave her
conformity thereto. I refer to the following
documents:
1) Exh. 9 — Certified true copy of OCT No. 19520
covering Lot 1154 of the Tacloban Cadastral
Survey in which the deceased Francisco Reyes
holds a "1/4 share" (Exh. 9-a). On tills certificate of
title the Order dated November 11, 1963, (Exh. U)
approving the project of partition was duly
entered and registered on November 26, 1963
(Exh. 9-D);
2) Exh. 7 — Certified copy of a deed of absolute
sale executed by Bernardita Reyes Macariola
on October 22, 1963, conveying to Dr. Hector
Decena the one-fourth share of the late Francisco
Reyes-Diaz in Lot 1154. In this deed of sale the
vendee stated that she was the absolute owner of
said one-fourth share, the same having been
adjudicated to her as her share in the estate of her
father Francisco Reyes Diaz as per decision of the
Court of First Instance of Leyte under case No.
3010 (Exh. 7-A). The deed of sale was duly
registered and annotated at the back of OCT 19520
on December 3, 1963 (see Exh. 9-e).
In connection with the abovementioned
documents it is to be noted that in the project of
partition dated October 16, 1963, which was
approved by respondent on October 23, 1963,
followed by an amending Order on November 11,
1963, Lot 1154 or rather 1/4 thereof was
adjudicated to Mrs. Macariola. It is this 1/4 share
in Lot 1154 which complainant sold to Dr. Decena
on October 22, 1963, several days after the
preparation of the project of partition.
Counsel for complainant stresses the view,
however, that the latter sold her one-fourth share
in Lot 1154 by virtue of the decision in Civil Case
3010 and not because of the project of partition,
Exh. A. Such contention is absurd because from
the decision, Exh. C, it is clear that one-half of one-
fourth of Lot 1154 belonged to the estate of
Francisco Reyes Diaz while the other half of said
one-fourth was the share of complainant's mother,
Felisa Espiras; in other words, the decision did not
adjudicate the whole of the one-fourth of Lot 1154
to the herein complainant (see Exhs. C-3 & C-4).
Complainant became the owner of the entire one-
fourth of Lot 1154 only by means of the project of
partition, Exh. A. Therefore, if Mrs. Macariola sold
Lot 1154 on October 22, 1963, it was for no other
reason than that she was wen aware of the
distribution of the properties of her deceased
father as per Exhs. A and B. It is also significant at
this point to state that Mrs. Macariola admitted
during the cross-examination that she went to
Tacloban City in connection with the sale of Lot
1154 to Dr. Decena (tsn p. 92, November 28, 1968)
from which we can deduce that she could not have
been kept ignorant of the proceedings in civil case
3010 relative to the project of partition.
Complainant also assails the project of partition
because according to her the properties
adjudicated to her were insignificant lots and the
least valuable. Complainant, however, did not
present any direct and positive evidence to prove
the alleged gross inequalities in the choice and
distribution of the real properties when she could
have easily done so by presenting evidence on the
area, location, kind, the assessed and market value
of said properties. Without such evidence there is
nothing in the record to show that there were
inequalities in the distribution of the properties of
complainant's father (pp. 386389, rec.).
Finally, while it is. true that respondent Judge did not violate
paragraph 5, Article 1491 of the New Civil Code in acquiring by
purchase a portion of Lot 1184-E which was in litigation in his court, it
was, however, improper for him to have acquired the same. He should
be reminded of Canon 3 of the Canons of Judicial Ethics which
requires that: "A judge's official conduct should be free from the
appearance of impropriety, and his personal behavior, not only upon
the bench and in the performance of judicial duties, but also in his
everyday life, should be beyond reproach." And as aptly observed by
the Investigating Justice: "... it was unwise and indiscreet on the part of
respondent to have purchased or acquired a portion of a piece of
property that was or had been in litigation in his court and caused it to
be transferred to a corporation of which he and his wife were ranking
officers at the time of such transfer. One who occupies an exalted
position in the judiciary has the duty and responsibility of maintaining
the faith and trust of the citizenry in the courts of justice, so that not
only must he be truly honest and just, but his actuations must be such
as not give cause for doubt and mistrust in the uprightness of his
administration of justice. In this particular case of respondent, he
cannot deny that the transactions over Lot 1184-E are damaging and
render his actuations open to suspicion and distrust. Even if
respondent honestly believed that Lot 1184-E was no longer in
litigation in his court and that he was purchasing it from a third person
and not from the parties to the litigation, he should nonetheless have
refrained from buying it for himself and transferring it to a corporation
in which he and his wife were financially involved, to avoid possible
suspicion that his acquisition was related in one way or another to his
official actuations in civil case 3010. The conduct of respondent gave
cause for the litigants in civil case 3010, the lawyers practising in his
court, and the public in general to doubt the honesty and fairness of his
actuations and the integrity of our courts of justice" (pp. 395396, rec.).
II prerogatives of the former government
immediately cease upon the transfer of
sovereignty. (Opinion, Atty. Gen., July 10, 1899).
With respect to the second cause of action, the complainant alleged
that respondent Judge violated paragraphs 1 and 5, Article 14 of the
Code of Commerce when he associated himself with the Traders While municipal laws of the newly acquired
Manufacturing and Fishing Industries, Inc. as a stockholder and a territory not in conflict with the, laws of the new
ranking officer, said corporation having been organized to engage in sovereign continue in force without the express
business. Said Article provides that: assent or affirmative act of the conqueror, the
political laws do not. (Halleck's Int. Law, chap. 34,
par. 14). However, such political laws of the prior
Article 14 — The following cannot engage in
sovereignty as are not in conflict with the
commerce, either in person or by proxy, nor can
constitution or institutions of the new sovereign,
they hold any office or have any direct,
may be continued in force if the conqueror shall so
administrative, or financial intervention in
declare by affirmative act of the commander-in-
commercial or industrial companies within the
chief during the war, or by Congress in time of
limits of the districts, provinces, or towns in which
peace. (Ely's Administrator vs. United States, 171
they discharge their duties:
U.S. 220, 43 L. Ed. 142). In the case of American
and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet.
1. Justices of the Supreme Court, judges and [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice
officials of the department of public prosecution in Marshall said:
active service. This provision shall not be
applicable to mayors, municipal judges, and
On such transfer (by cession)
municipal prosecuting attorneys nor to those who
of territory, it has never been
by chance are temporarily discharging the
held that the relations of the
functions of judge or prosecuting attorney.
inhabitants with each other
undergo any change. Their
xxx xxx xxx relations with their former
sovereign are dissolved, and
5. Those who by virtue of laws or special new relations are created
provisions may not engage in commerce in a between them and the
determinate territory. government which has
acquired their territory. The
same act which transfers their
It is Our considered view that although the aforestated provision is country, transfers the
incorporated in the Code of Commerce which is part of the commercial allegiance of those who
laws of the Philippines, it, however, partakes of the nature of a political remain in it; and the law
law as it regulates the relationship between the government and which may be denominated
certain public officers and employees, like justices and judges. political, is necessarily
changed, although that which
Political Law has been defined as that branch of public law which regulates the intercourse and
deals with the organization and operation of the governmental organs general conduct of
of the State and define the relations of the state with the inhabitants of individuals, remains in force,
its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be until altered by the newly-
recalled that political law embraces constitutional law, law of public created power of the State.
corporations, administrative law including the law on public officers
and elections. Specifically, Article 14 of the Code of Commerce Likewise, in People vs. Perfecto  (43 Phil. 887, 897 [1922]), this Court
partakes more of the nature of an administrative law because it stated that: "It is a general principle of the public law that on
regulates the conduct of certain public officers and employees with acquisition of territory the previous political relations of the ceded
respect to engaging in business: hence, political in essence. region are totally abrogated. "

It is significant to note that the present Code of Commerce is the
Spanish Code of Commerce of 1885, with some modifications made by
the "Commission de Codificacion de las Provincias de Ultramar,"
which was extended to the Philippines by the Royal Decree of August
6, 1888, and took effect as law in this jurisdiction on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States and
later on from the United States to the Republic of the Philippines,
Article 14 of this Code of Commerce must be deemed to have been
abrogated because where there is change of sovereignty, the political
laws of the former sovereign, whether compatible or not with those of
the new sovereign, are automatically abrogated, unless they are
expressly re-enacted by affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs  (23 Phil. 315, 330, 311
[1912]) that:
By well-settled public law, upon the cession of
territory by one nation to another, either following
a conquest or otherwise, ... those laws which are
political in their nature and pertain to the
There appears no enabling or affirmative act that continued the
effectivity of the aforestated provision of the Code of Commerce after
the change of sovereignty from Spain to the United States and then to
the Republic of the Philippines. Consequently, Article 14 of the Code of
Commerce has no legal and binding effect and cannot apply to the
respondent, then Judge of the Court of First Instance, now Associate
Justice of the Court of Appeals.
It is also argued by complainant herein that respondent Judge violated
paragraph H, Section 3 of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, which provides that:
Sec. 3. Corrupt practices of public officers. — In
addition to acts or omissions of public officers
already penalized by existing law, the following
shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
x x x           x x x          x x x
 (h) Directly or indirectly
having financial or pecuniary
interest in any business,
contract or transaction in
connection with which he
intervenes or takes part in his
official capacity, or in which
he is prohibited by the
Constitution or by any Iaw
from having any interest.
Respondent Judge cannot be held liable under the aforestated
paragraph because there is no showing that respondent participated or
intervened in his official  capacity in the business or transactions of the
Traders Manufacturing and Fishing Industries, Inc. In the case at bar,
the business of the corporation in which respondent participated has
obviously no relation or connection with his judicial office. The
business of said corporation is not that kind where respondent
intervenes or takes part in his capacity as Judge of the Court of First
Instance. As was held in one case involving the application of Article
216 of the Revised Penal Code which has a similar prohibition on
public officers against directly or indirectly becoming interested in any
contract or business in which it is his official duty to intervene, "(I)t is
not enough to be a public official to be subject to this crime; it is
necessary that by reason of his office, he has to intervene in said
contracts or transactions; and, hence, the official who intervenes in
contracts or transactions which have no relation to his office cannot
commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134,
cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11
[1976]).
It does not appear also from the records that the aforesaid corporation
gained any undue advantage in its business operations by reason of
respondent's financial involvement in it, or that the corporation
benefited in one way or another in any case filed by or against it in
court. It is undisputed that there was no case filed in the different
branches of the Court of First Instance of Leyte in which the
corporation was either party plaintiff or defendant except Civil Case
No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O.
Bales, et al.," wherein the complainant herein sought to recover Lot
1184-E from the aforesaid corporation. It must be noted, however, that
Civil Case No. 4234 was filed only on November 9 or 11, 1968 and
decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when
respondent Judge was no longer connected with the corporation,
having disposed of his interest therein on January 31, 1967.
Furthermore, respondent is not liable under the same paragraph
because there is no provision in both the 1935 and 1973 Constitutions
of the Philippines, nor is there an existing law expressly prohibiting
members of the Judiciary from engaging or having interest in any
lawful business.
It may be pointed out that Republic Act No. 296, as amended, also
known as the Judiciary Act of 1948, does not contain any prohibition to
that effect. As a matter of fact, under Section 77 of said law, municipal
judges may engage in teaching or other vocation not involving the
practice of law after office hours but with the permission of the district
judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges
from engaging in commerce is, as heretofore stated, deemed abrogated
automatically upon the transfer of sovereignty from Spain to America,
because it is political in nature.
Moreover, the prohibition in paragraph 5, Article 1491 of the New
Civil Code against the purchase by judges of a property in litigation
before the court within whose jurisdiction they perform their duties,
cannot apply to respondent Judge because the sale of the lot in
question to him took place after the finality of his decision in Civil
Case No. 3010 as well as his two orders approving the project of
partition; hence, the property was no longer subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules
made pursuant to the Civil Service Act of 1959 prohibits an officer or
employee in the civil service from engaging in any private business,
vocation, or profession or be connected with any commercial, credit,
agricultural or industrial undertaking without a written permission
from the head of department, the same, however, may not fall within
the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt
Practices Act because the last portion of said paragraph speaks of a
prohibition by the Constitution or law  on any public officer from having
any interest in any business and not by a mere administrative rule or
regulation. Thus, a violation of the aforesaid rule by any officer or
employee in the civil service, that is, engaging in private business
without a written permission from the Department Head may not
constitute graft and corrupt practice as defined by law.
On the contention of complainant that respondent Judge violated
Section 12, Rule XVIII of the Civil Service Rules, We hold that the Civil
Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules
promulgated thereunder, particularly Section 12 of Rule XVIII, do not
apply to the members of the Judiciary. Under said Section 12: "No
officer or employee shall engage directly in any private business,
vocation, or profession or be connected with any commercial, credit,
agricultural or industrial undertaking without a written permission
from the Head of Department ..."
It must be emphasized at the outset that respondent, being a member
of the Judiciary, is covered by Republic Act No. 296, as amended,
otherwise known as the Judiciary Act of 1948 and by Section 7, Article
X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss judges
was then vested in the President of the Philippines, not in the
Commissioner of Civil Service, and only on two grounds, namely,
serious misconduct and inefficiency, and upon the recommendation of
the Supreme Court, which alone is authorized, upon its own motion,
or upon information of the Secretary (now Minister) of Justice to
conduct the corresponding investigation. Clearly, the aforesaid section
defines the grounds and prescribes the special procedure for the
discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only
the Supreme Court can discipline judges of inferior courts as well as
other personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959: "The
Commissioner may, for ... violation of the existing Civil Service Law
and rules or of reasonable office regulations, or in the interest of the
service, remove any subordinate officer or employee from the service,
demote him in rank, suspend him for not more than one year without
pay or fine him in an amount not exceeding six months' salary." Thus,
a violation of Section 12 of Rule XVIII is a ground for disciplinary
action against civil service officers and employees.
However, judges cannot be considered as subordinate civil service
officers or employees subject to the disciplinary authority of the
Commissioner of Civil Service; for, certainly, the Commissioner is not
the head of the Judicial Department to which they belong. The Revised
Administrative Code (Section 89) and the Civil Service Law itself state
that the Chief Justice is the department head of the Supreme Court
(Sec. 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the
Judiciary is the only other or second branch of the government (Sec. 1,
Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII
cannot be considered as a ground for disciplinary action against judges
because to recognize the same as applicable to them, would be adding
another ground for the discipline of judges and, as aforestated, Section
67 of the Judiciary Act recognizes only two grounds for their removal,
namely, serious misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the
Commissioner of Civil Service who has original and exclusive
jurisdiction "(T)o decide, within one hundred twenty days, after
submission to it, all administrative cases against permanent officers and
employees in the competitive service, and, except as provided by law, to
have final authority to pass upon their removal, separation, and
suspension and upon all matters relating to the conduct, discipline,
and efficiency of such officers and employees; and prescribe standards,
guidelines and regulations governing the administration of discipline"
(emphasis supplied). There is no question that a judge belong to the
non-competitive or unclassified service of the government as a
Presidential appointee and is therefore not covered by the aforesaid
provision. WE have already ruled that "... in interpreting Section 16(i)
of Republic Act No. 2260, we emphasized that only permanent officers
and employees who belong to the classified service come under the
exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz
vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA
619 [1963]).
Although the actuation of respondent Judge in engaging in private
business by joining the Traders Manufacturing and Fishing Industries,
Inc. as a stockholder and a ranking officer, is not violative of the
provissions of Article 14 of the Code of Commerce and Section 3(h) of
the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule
XVIII of the Civil Service Rules promulgated pursuant to the Civil
Service Act of 1959, the impropriety of the same is clearly
unquestionable because Canon 25 of the Canons of Judicial Ethics
expressly declares that:
A judge should abstain from making personal
investments in enterprises which are apt to be
involved in litigation in his court; and, after his
accession to the bench, he should not retain such
investments previously made, longer than a
period sufficient to enable him to dispose of them
without serious loss. It is desirable that he should,
so far as reasonably possible, refrain from all
relations which would normally tend to arouse the
suspicion that such relations warp or bias his
judgment, or prevent his impartial attitude of
mind in the administration of his judicial duties. ...
WE are not, however, unmindful of the fact that respondent Judge and
his wife had withdrawn on January 31, 1967 from the aforesaid
corporation and sold their respective shares to third parties, and it
appears also that the aforesaid corporation did not in anyway benefit
in any case filed by or against it in court as there was no case filed in
the different branches of the Court of First Instance of Leyte from the
time of the drafting of the Articles of Incorporation of the corporation
on March 12, 1966, up to its incorporation on January 9, 1967, and the
eventual withdrawal of respondent on January 31, 1967 from said
corporation. Such disposal or sale by respondent and his wife of their
shares in the corporation only 22 days after the incorporation of the
corporation, indicates that respondent realized that early that their
interest in the corporation contravenes the aforesaid Canon 25.
Respondent Judge and his wife therefore deserve the commendation
for their immediate withdrawal from the firm after its incorporation
and before it became involved in any court litigation
III
truth and in fact said Dominador Arigpa Tan does
not appear in the Roll of Attorneys and is not a
member of the Philippine Bar as certified to in
Exh. K.
The "respondent denies knowing that Dominador
Arigpa Tan was an "impostor" and claims that all
the time he believed that the latter was a bona
fide  member of the bar. I see no reason for
disbelieving this assertion of respondent. It has
been shown by complainant that Dominador
Arigpa Tan represented himself publicly as an
attorney-at-law to the extent of putting up a
signboard with his name and the words
"Attorney-at Law" (Exh. I and 1- 1) to indicate his
office, and it was but natural for respondent and
any person for that matter to have accepted that
statement on its face value. "Now with respect to
the allegation of complainant that respondent is
guilty of fraternizing with Dominador Arigpa Tan
to the extent of permitting his wife to be a
godmother of Mr. Tan's child at baptism (Exh. M
& M-1), that fact even if true did not render
respondent guilty of violating any canon of
judicial ethics as long as his friendly relations with
Dominador A. Tan and family did not influence
his official actuations as a judge where said
persons were concerned. There is no tangible
convincing proof that herein respondent gave any
undue privileges in his court to Dominador
Arigpa Tan or that the latter benefitted in his
practice of law from his personal relations with
respondent, or that he used his influence, if he had
any, on the Judges of the other branches of the
Court to favor said Dominador Tan.
Of course it is highly desirable for a member of the
judiciary to refrain as much as possible from
maintaining close friendly relations with
practising attorneys and litigants in his court so as
to avoid suspicion 'that his social or business
relations or friendship constitute an element in
determining his judicial course" (par. 30, Canons
of Judicial Ethics), but if a Judge does have social
relations, that in itself would not constitute a
ground for disciplinary action unless it be clearly
shown that his social relations be clouded his
official actuations with bias and partiality in favor
of his friends (pp. 403-405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate
Justice of the Court of Appeals, did not violate any law in acquiring by
purchase a parcel of land which was in litigation in his court and in
engaging in business by joining a private corporation during his
incumbency as judge of the Court of First Instance of Leyte, he should
be reminded to be more discreet in his private and business activities,
because his conduct as a member of the Judiciary must not only be
characterized with propriety but must always be above suspicion.

With respect to the third and fourth causes of action, complainant

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE
alleged that respondent was guilty of coddling an impostor and acted
COURT OF APPEALS IS HEREBY REMINDED TO BE MORE
in disregard of judicial decorum, and that there was culpable defiance
DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.
of the law and utter disregard for ethics. WE agree, however, with the
recommendation of the Investigating Justice that respondent Judge be
exonerated because the aforesaid causes of action are groundless, and SO ORDERED.
WE quote the pertinent portion of her report which reads as follows:
CONSTITUTIONAL LAW
The basis for complainant's third cause of action is
the claim that respondent associated and closely
A.) The February 1986 Revolution and the Proclamation of the
fraternized with Dominador Arigpa Tan who
Provisional Constitution
openly and publicly advertised himself as a
practising attorney (see Exhs. I, I-1 and J) when in
 MALACAÑANG
MANILA
PROCLAMATION NO. 1
Sovereignty resides in the people and all government authority
emanates from them.
On the basis of the people’s mandate clearly manifested last February
7, I and Salvador H. Laurel are taking power in the name and by the
will of the Filipino people as President and Vice President,
respectively.
The people expect a reorganization of government. Merit will be
rewarded. As a first step to restore public confidence I expect all
appointed public officials to submit their courtesy resignations
beginning with the members of the Supreme Court.
I pledge to do justice to the numerous victims of human rights
violations.
Consistent with the demands of the sovereign people, we pledge a
government dedicated to uphold truth and justice, morality and
decency in government, freedom and democracy.
To help me run the government, I have issued Executive Order No.
1 dated February 25, 1986 appointing key cabinet ministers and
creating certain task forces.
I ask our people not to relax but to be even more vigilant in this one
moment of triumph. The Motherland cannot thank them enough. Yet,
we all realize that more is required of each and everyone of us to
redeem our promises and prove to create a truly just society for our
people.
This is just the beginning. The same spirit which animated our
campaign, and has led to our triumph, will once more prevail, by the
power of the people and by the grace of God.
Done in the City of Manila, this 25th of February in the year of Our
Lord, nineteen hundred and eighty-six.
(Sgd.) CORAZON C. AQUINO
President
MALACAÑANG
MANILABY THE PRESIDENT OF THE PHILIPPINES
PROCLAMATION NO. 2
PROCLAIMING THE LIFTING OF THE SUSPENSION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS THROUGHOUT
THE PHILIPPINES
WHEREAS, the then President Ferdinand E. Marcos, issuing
Proclamation No. 2045 dated 17 January 1981 and Proclamation No.
2045-A dated 23 July 1983, suspended the privilege of the writ of
habeas corpus in the two autonomous regions of Mindanao and in all
other places with respect to persons detained “for all cases involving
the crimes of insurrection, rebellion, subversion, conspiracy or
proposal to commit such crimes, sedition, conspiracy to commit
sedition, inciting to sedition, and for all other crimes or offenses
committed by them in furtherance or on the occasion thereof, or
incident thereto, or in connection therewith, such as but not limited to
offenses involving economic sabotage, illegal assemblies, illegal
associations, tumults and other disturbances of public orders, unlawful
fuse of means of publication and unlawful utterances, and alarms and
scandals, or with respect to any person whose arrest or detention was,
in the judgment of the President, required by public safety as a means
to repel or quell the rebellion in the country;
WHEREAS, the proclamations and decrees mentioned and all the
related decrees, instructions, orders and rules were not warranted by
the requirements of public safety since the existing rebellion could
have been contained by government sincerity at reforms, by peaceful
negotiations and reconciliation, and by steadfast devotion to the rule of
law;
WHEREAS, instead of serving its purpose of suppressing the rebellion
and other threats to national security, the suspension of the privilege of
the writ of habeas corpus drove many to the hills and fanned the
conspiracy to overthrow the government by violence and force; and
WHEREAS, the Filipino people have established a new government
bound to the ideals of genuine liberty and freedom for all.
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the
Philippines, by virtue of the powers vested in me by the Constitution
and the Filipino people, do hereby revoke Proclamations No. 2045 and
2045-A, and do hereby lift the suspension of the privilege of the writ of
habeas corpus so that this guardian of liberty and freedom may be
available to all.
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of the Republic of the Philippines to be affixed to this
proclamation.
DONE in the City of Manila, this 2nd day of March, in the year of Our
Lord, Nineteen Hundred and Eighty-Six.
(Sgd.) CORAZON C. AQUINO
(Sgd.) JOKER P. ARROYO
Executive Secretary
LAWYERS LEAGUE V AQUINO G.R. No. 73748 - May 22, 1986 G.R. No. 76180 October 24, 1986
LAWYERS LEAGUE FOR A BETTER PHILIPPINES vs. AQUINO
(G.R. No. 73748 - May 22, 1986)
IN RE: SATURNINO V. BERMUDEZ, petitioner.
------------------------
(There is no "Full-Text" of this case. This is a Minute Resolution made
by the SC.) R E S O L U T IO N

Minute Resolutions

EN BANC

[G.R. No. 73748, May 22, 1986] PER CURIAM:

LAWYERS LEAGUE FOR A BETTER PHILIPPINES AND/OR In a petition for declaratory relief impleading no respondents,
OLIVER A. LOZANO VS. PRESIDENT CORAZON C. AQUINO, ET petitioner, as a lawyer, quotes the first paragraph of Section 5 (not
AL. Section 7 as erroneously stated) of Article XVIII of the proposed 1986
SIRS/MESDAMES: Constitution, which provides in full as follows:

Quoted hereunder, for your information, is a resolution of this Court

MAY 22, 1986. Sec. 5. The six-year term of the incumbent President and Vice-
President elected in the February 7, 1986 election is, for purposes of
In G.R. No. 73748, Lawyers League for a Better Philippines vs. synchronization of elections, hereby extended to noon of June 30, 1992.
President Corazon C. Aquino, et al.; G.R. No. 73972, People's Crusade
for Supremacy of the Constitution vs. Mrs. Cory Aquino, et al., and The first regular elections for the President and Vice-President under
G.R. No. 73990, Councilor Clifton U. Ganay vs. Corazon C. Aquino, et this Constitution shall be held on the second Monday of May, 1992.
al., the legitimacy of the government of President Aquino is
questioned. It is claimed that her government is illegal because it was
Claiming that the said provision "is not clear" as to whom it refers, he
not established pursuant to the 1973 Constitution.
then asks the Court "to declare and answer the question of the
construction and definiteness as to who, among the present incumbent
As early as April 10, 1986, this Court* had already voted to dismiss
President Corazon Aquino and Vice-President Salvador Laurel and the
the petitions for the reasons to be stated below. On April 17, 1986,
elected President Ferdinand E. Marcos and Vice-President Arturo M.
Atty. Lozano as counsel for the petitioners in G.R. Nos. 73748 and
Tolentino being referred to under the said Section 7 (sic) of ARTICLE
73972 withdrew the petitions and manifested that they would pursue
XVIII of the TRANSITORY PROVISIONS of the proposed 1986
the question by extra-judicial methods. The withdrawal is functus
Constitution refers to, . ...
oficio.

The three petitions obviously are not impressed with merit. Petitioners The petition is dismissed outright for lack of jurisdiction and for lack
have no personality to sue and their petitions state no cause of action. for cause of action.
For the legitimacy of the Aquino government is not a justiciable matter.
It belongs to the realm of politics where only the people of the
Prescinding from petitioner's lack of personality to sue or to bring this
Philippines are the judge. And the people have made the judgment;
action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that this
they have accepted the government of President Corazon C. Aquino
Court assumes no jurisdiction over petitions for declaratory relief.
which is in effective control of the entire country so that it is not merely
More importantly, the petition amounts in effect to a suit against the
a de factogovernment but is in fact and law a de jure government.
incumbent President of the Republic, President Corazon C. Aquino,
Moreover, the community of nations has recognized the legitimacy of
and it is equally elementary that incumbent Presidents are immune
the present government. All the eleven members of this Court, as
from suit or from being brought to court during the period of their
reorganized, have sworn to uphold the fundamental law of the
incumbency and tenure.
Republic under her government.

In view of the foregoing, the petitions are hereby dismissed. The petition furthermore states no cause of action. Petitioner's
allegation of ambiguity or vagueness of the aforequoted provision is
manifestly gratuitous, it being a matter of public record and common
Very truly yours, public knowledge that the Constitutional Commission refers therein to
incumbent President Corazon C. Aquino and Vice-President Salvador
(Sgd.) GLORIA C. PARAS H. Laurel, and to no other persons, and provides for the extension of
Clerk of Court their term to noon of June 30, 1992 for purposes of synchronization of
elections. Hence, the second paragraph of the cited section provides for
The community of nations has recognized the legitimacy of the new the holding on the second Monday of May, 1992 of the first regular
government. elections for the President and Vice-President under said 1986
Constitution. In previous cases, the legitimacy of the government of
President Corazon C. Aquino was likewise sought to be questioned
with the claim that it was not established pursuant to the 1973
Constitution. The said cases were dismissed outright by this court
which held that:

Petitioners have no personality to sue and their petitions state no cause

of action. For the legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the
judgment; they have accepted the government of President Corazon C.
Aquino which is in effective control of the entire country so that it is
not merely a de facto government but in fact and law a de jure
government. Moreover, the community of nations has recognized the
legitimacy of tlie present government. All the eleven members of this
Court, as reorganized, have sworn to uphold the fundamental law of
the Republic under her government. (Joint Resolution of May 22, 1986
in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs.
President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade
for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.];
and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C.
Aquino, et al.])
For the above-quoted reason, which are fully applicable to the petition
at bar, mutatis mutandis, there can be no question that President
Corazon C. Aquino and Vice-President Salvador H. Laurel are the
incumbent and legitimate President and Vice-President of the Republic
of the Philippines.or the above-quoted reasons, which are fully
applicable to the petition at bar,
ACCORDINGLY, the petition is hereby dismissed.
[A.M. No. 90-11-2697-CA. June 29, 1992.]
LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the
Court of Appeals dated 14 November 1990.
RESOLUTION
PADILLA, J.:
Petitioner Associate Justice Reynato S. Puno, a member of the Court of
Appeals, wrote a letter dated 14 November 1990 addressed to this
Court, seeking the correction of his seniority ranking in the Court of
Appeals.
It appears from the records that petitioner was first appointed
Associate Justice of the Court of Appeals on 20 June 1980 but took his
oath of office for said position only on 29 November 1982, after serving
as Assistant Solicitor General in the Office of the Solicitor General since
1974.
On 17 January 1983, the Court of Appeals was reorganized and became
the Intermediate Appellate Court pursuant to Batas Pambansa Blg. 129
entitled "An Act Reorganizing the Judiciary. Appropriating Funds
Therefor and For Other Purposes." 2 Petitioner was appointed
Appellate Justice in the First Special Cases Division of the Intermediate
Appellate Court. On 7 November 1984, petitioner accepted an
appointment to be ceased to be a member of the Judiciary. 3  Campos, Jr. and Luis A. Javellana, two (2) of the Associate Justices
The aftermath of the EDSA Revolution in February 1986 brought about
a reorganization of the entire government, including the Judiciary. To
effect the reorganization of the Intermediate Appellate Court and other
lower courts, a Screening Committee was created, with the then
Minister of Justice, now Senator Neptali Gonzales as Chairman and
then Solicitor General, now Philippine Ambassador to the United
Nations Sedfrey Ordoñez as Vice Chairman. President Corazon C.
Aquino, exercising legislative powers by virtue of the revolution,
issued Executive Order No. 33 to govern the aforementioned
reorganization of the Judiciary. 4 
The Screening Committee recommended the return of petitioner as
Associate Justice of the new Court of Appeals and assigned him the
rank of number eleven (11) in the roster of appellate court justices.
When the appointments were signed by President Aquino on 28 July
1986, petitioner’s seniority ranking changed, however, from number
eleven (11) to number twenty six (26). 5  Constitution (shall) be absent in the Freedom Constitution." 12
Petitioner now alleges that the change in his seniority ranking could
only be attributed to inadvertence for, otherwise, it would run counter
to the provisions of Section 2 of Executive Order No. 33, which
reads:chanrobles virtual lawlibrary
"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is
hereby amended to read as follows:jgc:chanrobles.com.ph
"SEC. 2. Organization. — There is hereby created a Court of Appeals
which shall consist of a Presiding Justice and fifty Associate Justices
who shall be appointed by the President of the Philippines. The
Presiding Justice shall be so designated in his appointment and the
Associate Justice shall have precedence according to the dates of their
respective appointments, or when the appointments of two or more
shall bear the same date, according to the order in which their
appointments were issued by the President. Any Member who is
reappointed to the Court after rendering service in any other position
in the government shall retain the precedence to which he was entitled
under his original appointment, and his service in the Court shall, for
all intents and purpose be considered as continuous and
uninterrupted." 6 
Petitioner elaborates that President Aquino is presumed to have
intended to comply with her own Executive Order No. 33 so much so
that the correction of the inadvertent error would only implement the
intent of the President as well as the spirit of Executive Order No. 33
and will not provoke any kind of constitutional confrontation (between
the President and the Supreme Court). 7 
Petitioner points to the case of Justice Oscar Victoriano, former
Presiding Justice of the Court of Appeals who, according to petitioner,
was transferred from his position as Justice of the Court of Appeals to
the Ministry of Justice as Commissioner of Land Registration and in
1986 was reappointed to the Court of Appeals. Petitioner states that his
(Victoriano’s) stint in the Commission of Land Registration did not
adversely affect his seniority ranking in the Court of Appeals, for, in
his case, Executive Order No. 33 was correctly applied. 8 
In a resolution of the Court en banc dated 29 November 1990, the
Court granted Justice Puno’s request. 9 It will be noted that before the
issuance of said resolution, there was no written opposition to, or
comment on petitioner’s aforesaid request. The dispositive portion of
the resolution reads:jgc:chanrobles.com.ph
"IN VIEW WHEREOF, the petition of Associate Justice Reynato S.
Puno for correction of his seniority ranking in the Court of Appeals is
1  granted. The presiding Justice of the Court of Appeals, the Honorable
Rodolfo A. Nocon, is hereby directed to correct the seniority rank of
Justice Puno from number twelve (12) to number five (5). Let copies of
this Resolution be furnished the Court Administrator and the Judicial
and Bar Council for their guidance and information." 10 
A motion for reconsideration of the resolution of the Court en banc
dated 29 November 1990 was later filed by Associate Justices Jose C.
affected by the ordered correction. They contend that the present Court
of Appeals is a new Court with fifty one (51) members and that
petitioner could not claim a reappointment to a prior court; neither can
he claim that he was returning to his former court, for the courts where
he had previously been appointed ceased to exist at the date of his last
appointment. 11 
The Court en banc in a resolution dated 17 January 1992 required the
petitioner to file his comment on the motion for reconsideration of the
resolution dated 29 November 1990.
In his Comment, petitioner argues that, by virtue of Executive Order
No. 33 read in relation to B.P. Blg. 129, his seniority ranking in the
Court of Appeals is now number five (5) for, though President Aquino
rose to power by virtue of a revolution, she had pledged at the
issuance of Proclamation No. 3 (otherwise known as the Freedom
Constitution) that "no right provided under the unratified 1973
 
Moreover, since the last sentence of Section 2 of Executive Order No.
33 virtually re-enacted the last sentence of Sec. 3, Chapter 1 of B.P. Blg.
129, statutory construction rules on simultaneous repeal and re-
enactment mandate, according to petitioner, the preservation and
enforcement of all rights and liabilities which had accrued under the
original statute. 13 Furthermore, petitioner avers that, although the
power of appointment is executive in character and cannot be usurped
by any other branch of the Government, such power can still be
regulated by the Constitution and by the appropriate law, in this case,
by the limits set by Executive Order NO. 33 14 for the power of
appointment cannot be wielded in violation of law. 15 
Justices Javellana and Campos were required by the Court to file their
reply to Justice Puno’s comment on their motion for reconsideration of
the resolution of the Court en banc dated 24 January
1991.chanrobles.com:cralaw:red
In their Reply and Supplemental Reply, Associate Justices Javellana
and Campos submit that the appeal or request for correction filed by
the petitioner was addressed to the wrong party. They aver that as
petitioner himself had alleged the mistake to be an "inadvertent error"
of the Office of the President, ergo, he should have filed his request for
correction also with said Office of the President and not directly with
the Supreme Court. 16 Furthermore, they point out that petitioner had
indeed filed with the Office of the President a request or petition for
correction of his ranking, (seniority) but the same was not approved
such that his recourse should have been an appropriate action before
the proper court and impleading all parties concerned. The aforesaid
non-approval by the Office of the President they argue, should be
respected by the Supreme Court "not only on the basis of the doctrine
of separation of powers but also their presumed knowledge ability and
even expertise in the laws they are entrusted to enforce" 17 for it (the
non-approval) is a confirmation that petitioner’s seniority ranking at
the time of his appointment by President Aquino was, in fact,
deliberate and not an "inadvertent error" as petitioner would have the
Court believe. 18  is the authoritative code of a polity. Such code consists of all the rules
The resolution of this controversy is not a pleasant task for the Court
since it involves not only members of the next highest court of the land
but persons who are close to members of this Court. But the
controversy has to be resolved. The core issue in this case is whether
the present Court of Appeals is a new court such that it would negate
any claim to precedence or seniority admittedly enjoyed by petitioner
in the Court of Appeals and Intermediate Appellate Court existing
prior to Executive Order No. 33 or whether the present Court of
Appeals is merely a continuation of the Court of Appeals and
Intermediate Appellate Court existing prior to said Executive Order
No. 33.
It is the holding of the Court that the present Court of Appeals is a new
entity, different and distinct from the Court of Appeals or the
Intermediate Appellate Court existing prior to Executive Order No. 33,
for it was created in the wake of the massive reorganization launched
by the revolutionary government of Corazon C. Aquino in the
aftermath of the people power (EDSA) revolution in 1986.
A resolution has been defined as "the complete overthrow of the
established government in any country or state by those who were
previously subject to it" 19 or as "a sudden, radical and fundamental
change in the government or political system, usually effected with
violence or at least some acts of violence." 20 In Kelsen’s book, General
Theory of Law and State, it is defined as that which "occurs whenever
the legal order of a community is nullified and replaced by a new
order . . . a way not prescribed by the first order itself." 21  new court with appointments thereto having no relation to earlier
It was through the February 1986 revolution, a relatively peaceful one,
and more popularly known as the "people power revolution" that the
Filipino people tore themselves away from an existing regime. This
revolution also saw the unprecedented rise to power of the Aquino
government.
From the natural law point of view, the right of revolution has been
defined as "an inherent right of a people to cast out their rulers, change
their policy or effect radical reforms in their system of government or
institutions by force or a general uprising when the legal and
constitutional methods of making such change have proved
inadequate or are so obstructed as to be unavailable." 22 It has been
said that "the locus of positive law-making power lies with the people
of the state" and from there is derived "the right of the people to
abolish, to reform and to alter any existing form of government
without regard to the existing constitution." 23  such that she could, if she so desired, amend, modify or repeal any
The three (3) clauses that precede the text of the Provisional (Freedom)
Constitution, 24 read:jgc:chanrobles.com.ph
"WHEREAS, the new government under President Corazon C. Aquino
was installed through a direct exercise of the power of the Filipino
people assisted by units of the New Armed Forces of the Philippines;
"WHEREAS, the heroic action of the people was done in defiance of
the provisions of the 1973 Constitution, as amended;
"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by
virtue of the powers vested in me by the sovereign mandate of the
people, do hereby promulgate the following Provisional
Constitution."25cralaw:red
These summarize the Aquino government’s position that its mandate
is taken from "a direct exercise of the power of the Filipino people." 26 
Discussions and opinions of legal experts also proclaim that the
Aquino government was "revolutionary in the sense that it came into
existence in defiance of the existing legal processes" 27 and that it was
a revolutionary government "instituted by the direct action of the
people and in opposition to the authoritarian values and practices of
the overthrown government." 28 
A question which naturally comes to mind is whether the then existing
legal order was overthrown by the Aquino government. "A legal order
found in the enactments of the organs of the polity. Where the state
operates under a written constitution, its organs may be readily
determined from a reading of its provisions. Once such organs are
ascertained, it becomes an easy matter to locate their enactments. The
rules in such enactments, along with those in the constitution,
comprise the legal order of that constitutional state." 29 It is assumed
that the legal order remains as a "culture system" of the polity as long
as the latter endures 30 and that a point may be reached, however,
where the legal system ceases to be operative as a whole for it is no
longer obeyed by the population nor enforced by the officials. 31 
It is widely known that Mrs. Aquino’s rise to the presidency was not
due to constitutional processes; in fact, it was achieved in violation of
the provisions of the 1973 Constitution as a Batasang Pambansa
resolution had earlier declared Mr. Marcos at the winner in the 1986
presidential election. 32 Thus it can be said that the organization of
Mrs. Aquino’s Government which was met by little resistance and her
control of the state evidenced by the appointment of the Cabinet and
other key officers of the administration, the departure of the Marcos
Cabinet officials, revampt of the Judiciary and the Military signalled
the point where the legal system then in effect, had ceased to be
obeyed by the Filipino.
The Court holds that the Court of Appeals and Intermediate Appellate
Court existing prior to Executive Order No. 33 phased out as part of
the legal system abolished by the revolution and that the Court of
Appeals established under Executive Order No. 33 was an entirely
appointments to the abolished courts, and that the reference to
precedence in rank contained in the last sentence of Sec. 2, BP Blg. No.
129 as amended by Executive Order No. 33 refers to prospective
situations as distinguished from retroactive ones.
But even assuming, arguendo, that Executive Order No. 33 did not
abolish the precedence or seniority ranking resulting from previous
appointment to the Court of Appeals or Intermediate Appellate Court
existing prior to the 1986 revolution, it is believed that President
Aquino as head of then revolutionary government, could disregard or
set aside such precedence or seniority in ranking when she made her
appointments to the reorganized Court of Appeals in 1986.
It is to be noted that, at the time of the issuance of Executive Order No.
33, President Aquino was still exercising the powers of a revolutionary
government, encompassing both executive and legislative powers,
part of B.P. Blg. 129 or her own Executive Order No. 33. It should also
be remembered that the same situation was still in force when she
issued the 1986 appointments to the Court of Appeals. In other words,
President Aquino, at the time of the issuance of the 1986 appointments,
modified or disregarded the rule embodied in B.P. Blg. 129 as
amended by Executive Order No. 33, on precedence or seniority in the
case of the petitioner, for reasons known only to her. Since the
appointment extended by the President to the petitioner in 1986 for
membership in the new Court of Appeals with its implicit ranking in
the roster of justices, was a valid appointment anchored on the
President’s exercise of her then revolutionary powers, it is not for the
Court at this time to question or correct that exercise.
ACCORDINGLY, the Court GRANTS the Motion for Reconsideration
and the seniority rankings of members of the Court of Appeals,
including that of the petitioner, at the time the appointments were
made by the President in 1986, are recognized and upheld.
SO ORDERED.
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PROCLAMATION NO. 3
DECLARING A NATIONAL POLICY TO IMPLEMENT REFORMS
MANDATED BY THE PEOPLE PROTECTING THEIR BASIC
RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND
PROVIDING FOR AN ORDERLY TRANSITION TO A
GOVERNMENT UNDER A NEW CONSTITUTION
WHEREAS, the new government was installed through a direct
exercise of the power of the Filipino people assisted by units of the
New Armed Forces of the Philippines;
WHEREAS, the heroic action of the people was done in defiance of the
provisions of the 1973 Constitution, as amended;
WHEREAS, the direct mandate of the people as manifested by their
extraordinary action demands the complete reorganization of the
government, restoration of democracy, protection of basic rights,
rebuilding of confidence in the entire government system, eradication
of graft and corruption, restoration of peace and order, maintenance of
the supremacy of civilian authority over the military, and the transition
to government under a New Constitution in the shortest time possible;
WHEREAS, during the period of transition to a New Constitution it
must be guaranteed that the government will respect basic human
rights and fundamental freedoms;
WHEREFORE, I, CORAZON C. AQUINO, President of the
Philippines, by virtue of the power vested in me by the sovereign
mandate of the people; do hereby promulgate the following
Constitution:
PROVISIONAL CONSTITUTION
OF
THE REPUBLIC OF THE PHILIPPINES
ARTICLE 1
ADOPTION OF CERTAIN PROVISIONS OF THE
1973 CONSTITUTION, AS AMENDED
SECTION 1. The provisions of ARTICLE I (National Territory),
ARTICLE III (Citizenship), ARTICLE IV (Bill of Rights), ARTICLE V
(Duties and Obligations of Citizens), and ARTICLE VI (Suffrage) of the
1973 Constitution, as amended, remain in the force and effect and are
hereby adopted in toto as part of this Provisional Constitution.
SECTION 2. The provision of ARTICLE II (Declaration of Principles
and State Policies), ARTICLE VII (The President), ARTICLE X (The
Judiciary), ARTICLE XI (Local Government), ARTICLE XIII
(Accountability of Public Officers), ARTICLE XIV (The National
Economy and Patrimony of the Nation), ARTICLE XV (General
Provisions) of the 1973 Constitution, as amended, are hereby adopted
as part of this Provisional Constitution, as amended, are hereby
adopted as part of this Provisional Constitution, insofar as they are not
inconsistent with the provisions of this Proclamation.
ARTICLE II
THE PRESIDENT,
THE VICE-PRESIDENT, AND THE CABINET
SECTION 1. Until a legislature is elected and convened under a New
Constitution, the President shall continue to exercise legislative power.
The President shall give priority to measures to achieve the mandate of
the people to:
a)      Completely reorganize the government and eradicate unjust and
oppressive structures, and all iniquitous vestiges of the previous
regime;
b)      Make effective the guarantees of civil, political, human, social,
economic and cultural rights and freedoms of the Filipino people, and
provide remedies against violations thereof;
c)       Rehabilitate the economy and promote the nationalist aspirations
of the people;
d)      Recover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of the
people through orders of sequestration or freezing of assets of
accounts;
e)      Eradicate graft and corruption in government and punish those
guilty thereof; and,
f)       Restore peace and order, settle the problem of insurgency, and
pursue national reconciliation based on justice.
SECTION 2. The President shall be assisted by a Cabinet which shall be
composed of Ministers with or without portfolio who shall be
appointed by the President. They shall be accountable to and hold
office at the pleasure of the President.
SECTION 3. The President shall have control of and exercise general
supervision over all local governments.
SECTION 4. In case of permanent vacancy arising from death,
incapacity or resignation of the President, the Vice-President shall
become President.
In case of death, permanent incapacity, or resignation of the Vice-
President, the Cabinet shall choose from among themselves the
Minister with portfolio who shall act as President.
SECTION 5. The Vice-President may be appointed Member of the
Cabinet and may perform such other functions as may be assigned to
him by the President.
SECTION 6. The President, the Vice-President, and the Members of the
Cabinet shall be subject to the disabilities provided for in Section 8,
Article VII, and in Section 6 and 7 Article IX, respectively, of the 1973
Constitution, as amended.
ARTICLE III
GOVERNMENT REORGANIZATION
SECTION 1. In the reorganization of the government, priority shall be
given to measures to promote economy, efficiency, and the eradication
of graft and corruption.
SECTION 2. All elective and appointive officials and employees under
the 1973 Constitution shall continue in the office until otherwise
provided by proclamation or executive order or upon the designation
or appointment and qualification of their successors, if such is made
within a period of one year from February 25, 1986.
SECTION 3. Any public office or employees separated from the service
as a result of the reorganization effected under this Proclamation shall,
if entitled under the laws then in force, receive the retirement and
other benefits accuring thereunder.
SECTION 4. The records, equipment, buildings, facilities and other
properties of all government offices shall be carefully preserved. In
case any office or body is abolished or reorganized pursuant to this
Proclamation, its funds and properties shall be transferred to the office
or body to which its powers, functions, and responsibilities
substantially pertain.
ARTICLE IV
EXISTING LAWS
SECTION 1. All existing laws, decrees, executive orders,
proclamations, letters of instruction, implementing rules and
regulations, and other executive issuances not inconsistent with this
Proclamation shall remain operative until amended, modified, or
repealed by the President or the regular legislative body to be
established under a New Constitution.
SECTION 2. The President may review all contracts, concessions,
permits, or other forms of privileges for the exploration, development,
exploitation, or utilization of natural resources entered into, granted,
issued, or acquired before the date of this proclamation and when the
national interest requires, amend, modify, or revoke them.
ARTICLE V
ADOPTION OF A NEW CONSTITUTION
SECTION 1. Within sixty (60) days from date of this Proclamation, a
Commission shall be appointed by the President to draft a New
Constitution. The Commission shall be composed of not less than
thirty (30) nor more than fifty (50) natural born citizens of the
Philippines, of recognized probity, known for their independence,
nationalism and patriotism. They shall be chosen by the President after
consultation with various sectors of society.
SECTION 2. The Commission shall complete its work within as short a
period as may be consistent with the need both to hasten the return of
normal constitutional government to draft a document truly reflective
of the ideals and aspirations of the Filipino people.
SECTION 3. The Commission shall conduct public hearings to insure
that the people will have adequate participation in the formulation of
the New Constitution.
SECTION 4. The plenary session of the Commission shall be public
and fully recorded.
SECTION 5. The New Constitution shall be presented by the
Commission to the President who shall fix the date for the holding of a
plebiscite. It shall become valid and effective upon ratification by a
majority of the votes cast in such plebiscite which shall be held within
a period of sixty (60) days following its submission to the President.
ARTICLE VI
HOLDING OF ELECTIONS
SECTION 1. National elections shall be held as may be provided by the
New Constitution.
SECTION 2. Local elections shall be held on a date to be determined by
the President which shall be held on a date to be determined by the
President which shall not be earlier than the date of the plebiscite for
the ratification of the New Constitution.
ARTICLE VII
EFFECTIVE DATE
SECTION 1. This Proclamation shall take effect upon its promulgation
by the President.
SECTION 2. Pursuant to the letter and spirit of this Proclamation, a
consolidated official text of the Provisional Constitution shall be
promulgated by the President and published in English and Pilipino in
the official Gazette and in newspapers of general circulation to insure
widespread dissemination.
DONE in the City of Manila, the 25 th of March, in the year of Our Lord,
Nineteen Hundred and Eighty-Six.
(Sgd.) CORAZON C. AQUINO
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary
B.) Adoption and Effectivity of the Present Constitution
 Article V of the Provisional Constitution
 Section 27, Article XVIII of the 1987 Constitution
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
PROCLAMATION NO. 58
PROCLAIMING THE RATIFICATION OF THE CONSTITUTION OF
THE REPUBLIC OF THE PHILIPPINES ADOPTED BY THE
CONSTITUTIONAL COMMISSION OF 1986, INCLUDING THE
ORDINANCE APPENDED THERETO
WHEREAS, the Constitutional Commission of 1986 adopted the
Constitution of the Republic of the Philippines on October 15, 1986,
together with the Ordinance appended thereto, which shall become
valid and effective upon ratification by a majority of the votes cast in a
plebiscite called for the purpose;
WHEREAS, the Commission on Elections, sitting as the national board
of canvassers for the February 2, 1987 plebiscite on the proposed
Constitution, certified that:
(1) The Commission on Elections canvassed the returns from 83,288
voting precincts throughout the country involving 21,785,216 votes
cast; and
(2) On the basis of the canvass made by the Commission on Elections,
the results thereof are as follows:
(a) Affirmative votes: 16,622,111
(b) Negative Votes: 4,953,375
(c) Abstentions: 209,730
A copy of the Certificate of Canvass of the Votes Cast in the Plebiscite
Held on February 2, 1987, of the Commission on Elections dated
February 7, 1987 is hereto attached as Annex “A” of this Proclamation.
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the
Philippines, by virtue of the powers vested in me by the sovereign
mandate of the people, do hereby proclaim that the Constitution of the
Republic of the Philippines adopted by the Constitutional Commission
of 1986, including the Ordinance appended thereto, has been duly
ratified by the Filipino people and is therefore effective and in full
force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the
seal of the Republic of the Philippines to be affixed.
Done in the City of Manila, this 11th day of February in the year of Our
Lord, nineteen hundred and eighty-seven.
(SGD) CORAZON C. AQUINO
President of the Philippines
By the President:
(SGD) JOKER P. ARROYO
Executive Secretary
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA.
ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE
M. RESURRECCION, petitioners, 
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor
of the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity
as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO
G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA,
TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L.
TOLENTINO, respondents.
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to
enjoin respondents from replacing them from their respective positions
as Barangay Captain and Barangay Councilmen of Barangay Dolores,
Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on
the Petition, and petitioner's their Reply to respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M.
De Leon was elected Barangay Captain and the other petitioners Angel
S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa
and Jose M. Resurreccion, as Barangay Councilmen of Barangay
Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise
known as the Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a
Memorandum antedated December 1, 1986 but signed by respondent
OIC Governor Benjamin Esguerra on February 8, 1987 designating
respondent Florentino G. Magno as Barangay Captain of Barangay
Dolores, Taytay, Rizal. The designation made by the OIC Governor
was "by authority of the Minister of Local Government."
Also on February 8, 1987, respondent OIC Governor signed a
Memorandum, antedated December 1, 1986 designating respondents
Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto
S. Paz and Teresita L. Tolentino as members of the Barangay Council of
the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit
of respondent OIC Governor, the pertinent portions of which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been
appointed as such on March 20, 1986;
That as being OIC Governor of the Province of
Rizal and in the performance of my duties thereof,
I among others, have signed as I did sign the
unnumbered memorandum ordering the
replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated
December 1, 1986 was signed by me personally on
February 8,1987;
That said memorandum was further deciminated
(sic) to all concerned the following day, February
9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of
February 8, 1987 be declared null and void and that respondents be
prohibited from taking over their positions of Barangay Captain and
Barangay Councilmen, respectively. Petitioners maintain that pursuant
to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their
terms of office "shall be six (6) years which shall commence on June 7,
1982 and shall continue until their successors shall have elected and
shall have qualified," or up to June 7, 1988. It is also their position that
with the ratification of the 1987 Constitution, respondent OIC
Governor no longer has the authority to replace them and to designate
their successors.
On the other hand, respondents rely on Section 2, Article III of the
Provisional Constitution, promulgated on March 25, 1986, which
provided:
SECTION 2. All elective and appointive officials
and employees under the 1973 Constitution shall
continue in office until otherwise provided by
proclamation or executive order or upon the
designation or appointment and qualification of
their successors, if such appointment is made
within a period of one year from February 25,1986.
By reason of the foregoing provision, respondents contend that the
terms of office of elective and appointive officials were abolished and
that petitioners continued in office by virtue of the aforequoted
provision and not because their term of six years had not yet expired;
and that the provision in the Barangay Election Act fixing the term of
office of Barangay officials to six (6) years must be deemed to have
been repealed for being inconsistent with the aforequoted provision of
the Provisional Constitution.
Examining the said provision, there should be no question that
petitioners, as elective officials under the 1973 Constitution, may
continue in office but should vacate their positions upon the
occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been
no proclamation or executive order terminating the term of elective
Barangay officials. Thus, the issue for resolution is whether or not the
designation of respondents to replace petitioners was validly made
during the one-year period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we
hold that February 8, 1977, should be considered as the effective date
of replacement and not December 1,1986 to which it was ante dated, in
keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year
deadline, the aforequoted provision in the Provisional Constitution
must be deemed to have been overtaken by Section 27, Article XVIII of
the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect
immediately upon its ratification by a majority of
the votes cast in a plebiscite held for the purpose
and shall supersede all previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987.
By that date, therefore, the Provisional Constitution must be deemed to
have been superseded. Having become inoperative, respondent OIC
Governor could no longer rely on Section 2, Article III, thereof to
designate respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure
specially considering that the Barangay Election Act of 1982 declares it
"a policy of the State to guarantee and promote the autonomy of the
barangays to ensure their fullest development as self-reliant
communities.2 Similarly, the 1987 Constitution ensures the autonomy
of local governments and of political subdivisions of which the
barangays form a part, 3 and limits the President's power to "general
supervision" over local governments. 4 Relevantly, Section 8, Article X
of the same 1987 Constitution further provides in part:
Sec. 8. The term of office of elective local officials,
except barangay officials, which shall be
determined by law, shall be three years ...
Until the term of office of barangay officials has been determined by
law, therefore, the term of office of six (6) years provided for in the
Barangay Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent
between the term of six (6) years for elective Barangay officials and the
1987 Constitution, and the same should, therefore, be considered as
still operative, pursuant to Section 3, Article XVIII of the 1987
Constitution, reading:
Sec. 3. All existing laws, decrees, executive orders,
proclamations letters of instructions, and other
executive issuances not inconsistent, with this
Constitution shall remain operative until
amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC
Governor on February 8, 1987 designating respondents as the
Barangay Captain and Barangay Councilmen, respectively, of
Barangay Dolores, Taytay, Rizal, are both declared to be of no legal
force and effect; and (2) the Writ of Prohibition is granted enjoining
respondents perpetually from proceeding with the ouster/take-over of
petitioners' positions subject of this Petition. Without costs.
SO ORDERED.
C.) Compare with Effectivity of Statutes
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, 
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to
the President, HON. JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President , MELQUIADES P. DE LA
CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public
concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1 as well as the principle that laws to be valid
and enforceable must be published in the Official Gazette or otherwise
effectively promulgated, petitioners seek a writ of mandamus to
compel respondent public officials to publish, and/or cause the
publication in the Official Gazette of various presidential decrees,
letters of instructions, general orders, proclamations, executive orders,
letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is
sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64,
103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303,
312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368,
404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503,
504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658,
661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935,
961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165,
1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772,
1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107,
108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180,
187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213,
215-224, 226-228, 231-239, 241-245, 248, 251, 253-
261, 263-269, 271-273, 275-283, 285-289, 291, 293,
297-299, 301-303, 309, 312-315, 325, 327, 343, 346,
349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397,
405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399,
527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611,
612, 615, 641, 642, 665, 702, 712-713, 726, 837-839,
878-879, 881, 882, 939-940, 964,997,1149-1178,1180-
1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64
& 65.
 d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196,
1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-
1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600,
1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-
1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-
1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797,
1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-
1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-
1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868,
1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-
454, 457- 471, 474-492, 494-507, 509-510, 522, 524-
528, 531-532, 536, 538, 543-544, 549, 551-553, 560,
563, 567-568, 570, 574, 593, 594, 598-604, 609, 611-
647, 649-677, 679-703, 705-707, 712-786, 788-852,
854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22,
25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120,
122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354,
360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case
dismissed outright on the ground that petitioners have no legal
personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are
personally and directly affected or prejudiced by the alleged non-
publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus
proceeding, they are not being "aggrieved parties" within the meaning
of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any
tribunal, corporation, board or person unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes
another from the use a rd enjoyment of a right or
office to which such other is entitled, and there is
no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper
court alleging the facts with certainty and praying
that judgment be rendered commanding the
defendant, immediately or at some other specified
time, to do the act required to be done to Protect
the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of
the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the
petition concerns a public right and its object is to compel the
performance of a public duty, they need not show any specific interest
for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case
of Severino vs. Governor General, 3 this Court held that while the general
rule is that "a writ of mandamus would be granted to a private
individual only in those cases where he has some private or particular
interest to be subserved, or some particular right to be protected,
independent of that which he holds with the public at large," and "it is
for the public officers exclusively to apply for the writ when public
rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the
people are regarded as the real party in interest and the relator at
whose instigation the proceedings are instituted need not show that he
has any legal or special interest in the result, it being sufficient to show
that he is a citizen and as such interested in the execution of the laws
[High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a
private individual, as a proper party to the mandamus proceedings
brought to compel the Governor General to call a special election for
the position of municipal president in the town of Silay, Negros
Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of
authority supports the proposition that the relator
is a proper party to proceedings of this character
when a public right is sought to be enforced. If the
general rule in America were otherwise, we think
that it would not be applicable to the case at bar
for the reason 'that it is always dangerous to apply
a general rule to a particular case without keeping
in mind the reason for the rule, because, if under
the particular circumstances the reason for the rule
does not exist, the rule itself is not applicable and
reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the
general rule insisted upon by counsel for the
respondent. The circumstances which surround
this case are different from those in the United
States, inasmuch as if the relator is not a proper
party to these proceedings no other person could
be, as we have seen that it is not the duty of the
law officer of the Government to appear and
represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present
petition. Clearly, the right sought to be enforced by petitioners herein
is a public right recognized by no less than the fundamental law of the
land. If petitioners were not allowed to institute this proceeding, it
would indeed be difficult to conceive of any other person to initiate the
same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his
appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is
not a sine qua non requirement for the effectivity of laws where the
laws themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question contain
special provisions as to the date they are to take effect, publication in
the Official Gazette is not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in
the Official Gazette, unless it is otherwise
provided, ...
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions, 4 this Court has
ruled that publication in the Official Gazette is necessary in those cases
where the legislation itself does not provide for its effectivity date-for
then the date of publication is material for determining its date of
effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it
equates the effectivity of laws with the fact of publication. Considered
in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Article 2 does not preclude the
requirement of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official
Gazette [1] all important legisiative acts and
resolutions of a public nature of the, Congress of
the Philippines; [2] all executive and
administrative orders and proclamations, except
such as have no general applicability; [3] decisions
or abstracts of decisions of the Supreme Court and
the Court of Appeals as may be deemed by said
courts of sufficient importance to be so published;
[4] such documents or classes of documents as
may be required so to be published by law; and [5]
such documents or classes of documents as the
President of the Philippines shall determine from
time to time to have general applicability and legal
effect, or which he may authorize so to be
published. ...
The clear object of the above-quoted provision is to give the general
public adequate notice of the various laws which are to regulate their
actions and conduct as citizens. Without such notice and publication,
there would be no basis for the application of the maxim "ignorantia
legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he
had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic
has the publication of laws taken so vital significance that at this time
when the people have bestowed upon the President a power
heretofore enjoyed solely by the legislature. While the people are kept
abreast by the mass media of the debates and deliberations in the
Batasan Pambansa—and for the diligent ones, ready access to the
legislative records—no such publicity accompanies the law-making
process of the President. Thus, without publication, the people have no
means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of
Spain ruled: "Bajo la denominacion generica de leyes, se comprenden
tambien los reglamentos, Reales decretos, Instrucciones, Circulares y
Reales ordines dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads:
"There shall be published in the Official Gazette ... ." The word "shall"
used therein imposes upon respondent officials an imperative duty.
That duty must be enforced if the Constitutional right of the people to
be informed on matters of public concern is to be given substance and
reality. The law itself makes a list of what should be published in the
Official Gazette. Such listing, to our mind, leaves respondents with no
discretion whatsoever as to what must be included or excluded from
such publication.
The publication of all presidential issuances "of a public nature" or "of
general applicability" is mandated by law. Obviously, presidential
decrees that provide for fines, forfeitures or penalties for their violation
or otherwise impose a burden or. the people, such as tax and revenue
measures, fall within this category. Other presidential issuances which
apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the
assumption that they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a
public nature" or "of general applicability" is a requirement of due
process. It is a rule of law that before a person may be bound by law,
he must first be officially and specifically informed of its contents. As
Justice Claudio Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and
letters of instructions which all form part of the
law of the land, the requirement of due process
and the Rule of Law demand that the Official
Gazette as the official government repository
promulgate and publish the texts of all such
decrees, orders and instructions so that the people
may know where to obtain their official and
specific contents.
The Court therefore declares that presidential issuances of general
application, which have not been published, shall have no force and
effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in
reliance of the validity of those presidential decrees which were
published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to
P.D.s which had been enforced or implemented prior to their
publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth
in Chicot County Drainage District vs. Baxter Bank 8 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. Norton v. Shelby County, 118
U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett,
228 U.S. 559, 566. 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 such a determination, 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.
Consistently with the above principle, this Court in Rutter vs.
Esteban  9 sustained the right of a party under the Moratorium Law,
albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees
prior to their publication in the Official Gazette is "an operative fact
which may have consequences which cannot be justly ignored. The
past cannot always be erased by a new judicial declaration ... that an
all-inclusive statement of a principle of absolute retroactive invalidity
cannot be justified."
From the report submitted to the Court by the Clerk of Court, it
appears that of the presidential decrees sought by petitioners to be
published in the Official Gazette, only Presidential Decrees Nos. 1019
to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so
published. 10 Neither the subject matters nor the texts of these PDs can
be ascertained since no copies thereof are available. But whatever their
subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government.
In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino,
ruled that "publication is necessary to apprise the public of the
contents of [penal] regulations and make the said penalties binding on
the persons affected thereby. " The cogency of this holding is
apparently recognized by respondent officials considering the
manifestation in their comment that "the government, as a matter of
policy, refrains from prosecuting violations of criminal laws until the
same shall have been published in the Official Gazette or in some other
publication, even though some criminal laws provide that they shall
take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the
Official Gazette all unpublished presidential issuances which are of
general application, and unless so published, they shall have no
binding force and effect.
SO ORDERED.
G.R. No. L-63915 December 29, 1986
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,  ART. 2. Laws shall take effect after fifteen days following the
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to
the President, HON. JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President, MELQUIADES P. DE LA
CRUZ, ETC., ET AL., respondents.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding the
disclosure of a number of presidential decrees which they claimed had
not been published as required by law. The government argued that
while publication was necessary as a rule, it was not so when it was
"otherwise provided," as when the decrees themselves declared that
they were to become effective immediately upon their approval. In the
decision of this case on April 24, 1985, the Court affirmed the necessity
for the publication of some of these decrees, declaring in the
dispositive portion as follows:
WHEREFORE, the Court hereby orders respondents to
publish in the Official Gazette all unpublished presidential
issuances which are of general application, and unless so
published, they shall have no binding force and effect.
The petitioners are now before us again, this time to move for
reconsideration/clarification of that decision. 1Specifically, they ask the
following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability
and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should
be no distinction between laws of general applicability and those
which are not; that publication means complete publication; and that
the publication must be made forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed
first that the motion was a request for an advisory opinion and should
therefore be dismissed, and, on the merits, that the clause "unless it is
otherwise provided" in Article 2 of the Civil Code meant that the
publication required therein was not always imperative; that
publication, when necessary, did not have to be made in the Official
Gazette; and that in any case the subject decision was concurred in
only by three justices and consequently not binding. This elicited a
Reply 4 refuting these arguments. Came next the February Revolution
and the Court required the new Solicitor General to file a Rejoinder in
view of the supervening events, under Rule 3, Section 18, of the Rules
of Court. Responding, he submitted that issuances intended only for
the internal administration of a government agency or for particular
persons did not have to be 'Published; that publication when necessary
must be in full and in the Official Gazette; and that, however, the
decision under reconsideration was not binding because it was not
supported by eight members of this Court. 5
The subject of contention is Article 2 of the Civil Code providing as
follows:
completion of their publication in the Official Gazette, unless
it is otherwise provided. This Code shall take effect one year
after such publication.
After a careful study of this provision and of the arguments of the
parties, both on the original petition and on the instant motion, we
have come to the conclusion and so hold, that the clause "unless it is
otherwise provided" refers to the date of effectivity and not to the
requirement of publication itself, which cannot in any event be
omitted. This clause does not mean that the legislature may make the
law effective immediately upon approval, or on any other date,
without its previous publication.
Publication is indispensable in every case, but the legislature may in its
discretion provide that the usual fifteen-day period shall be shortened
or extended. An example, as pointed out by the present Chief Justice in
his separate concurrence in the original decision, 6 is the Civil Code
which did not become effective after fifteen days from its publication
in the Official Gazette but "one year after such publication." The
general rule did not apply because it was "otherwise provided. "
It is not correct to say that under the disputed clause publication may
be dispensed with altogether. The reason. is that such omission would
offend due process insofar as it would deny the public knowledge of
the laws that are supposed to govern the legislature could validly
provide that a law e effective immediately upon its approval
notwithstanding the lack of publication (or after an unreasonably short
period after publication), it is not unlikely that persons not aware of it
would be prejudiced as a result and they would be so not because of a
failure to comply with but simply because they did not know of its
existence, Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal measures, like
a law on prescription, which must also be communicated to the
persons they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person
knows the law, which of course presupposes that the law has been
published if the presumption is to have any legal justification at all. It
is no less important to remember that Section 6 of the Bill of Rights
recognizes "the right of the people to information on matters of public
concern," and this certainly applies to, among others, and indeed
especially, the legislative enactments of the government.
The term "laws" should refer to all laws and not only to those of
general application, for strictly speaking all laws relate to the people in
general albeit there are some that do not apply to them directly. An
example is a law granting citizenship to a particular individual, like a
relative of President Marcos who was decreed instant naturalization. It
surely cannot be said that such a law does not affect the public
although it unquestionably does not apply directly to all the people.
The subject of such law is a matter of public interest which any
member of the body politic may question in the political forums or, if
he is a proper party, even in the courts of justice. In fact, a law without
any bearing on the public would be invalid as an intrusion of privacy
or as class legislation or as an ultra vires act of the legislature. To be
valid, the law must invariably affect the public interest even if it might
be directly applicable only to one individual, or some of the people
only, and t to the public as a whole.
We hold therefore that all statutes, including those of local application
and private laws, shall be published as a condition for their effectivity,
which shall begin fifteen days after publication unless a different
effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. administrative rules
and regulations must a also be published if their purpose is to enforce
or implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the
so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates
in the performance of their duties.
Accordingly, even the charter of a city must be published
notwithstanding that it applies to only a portion of the national
territory and directly affects only the inhabitants of that place. All
presidential decrees must be published, including even, say, those
naming a public place after a favored individual or exempting him
from certain prohibitions or requirements. The circulars issued by the
Monetary Board must be published if they are meant not merely to
interpret but to "fill in the details" of the Central Bank Act which that
body is supposed to enforce.
However, no publication is required of the instructions issued by, say,
the Minister of Social Welfare on the case studies to be made in
petitions for adoption or the rules laid down by the head of a
government agency on the assignments or workload of his personnel
or the wearing of office uniforms. Parenthetically, municipal
ordinances are not covered by this rule but by the Local Government
Code.
We agree that publication must be in full or it is no publication at all
since its purpose is to inform the public of the contents of the laws. As
correctly pointed out by the petitioners, the mere mention of the
number of the presidential decree, the title of such decree, its
whereabouts (e.g., "with Secretary Tuvera"), the supposed date of
effectivity, and in a mere supplement of the Official Gazette cannot
satisfy the publication requirement. This is not even substantial
compliance. This was the manner, incidentally, in which the General
Appropriations Act for FY 1975, a presidential decree undeniably of
general applicability and interest, was "published" by the Marcos
administration. 7 The evident purpose was to withhold rather than
disclose information on this vital law.
Coming now to the original decision, it is true that only four justices
were categorically for publication in the Official Gazette 8 and that six
others felt that publication could be made elsewhere as long as the
people were sufficiently informed. 9 One reserved his vote 10 and
another merely acknowledged the need for due publication without
indicating where it should be made. 11 It is therefore necessary for the
present membership of this Court to arrive at a clear consensus on this
matter and to lay down a binding decision supported by the necessary
vote.
There is much to be said of the view that the publication need not be
made in the Official Gazette, considering its erratic releases and limited
readership. Undoubtedly, newspapers of general circulation could
better perform the function of communicating, the laws to the people
as such periodicals are more easily available, have a wider readership,
and come out regularly. The trouble, though, is that this kind of
publication is not the one required or authorized by existing law. As
far as we know, no amendment has been made of Article 2 of the Civil
Code. The Solicitor General has not pointed to such a law, and we have
no information that it exists. If it does, it obviously has not yet been
published.
At any rate, this Court is not called upon to rule upon the wisdom of a
law or to repeal or modify it if we find it impractical. That is not our
function. That function belongs to the legislature. Our task is merely to
interpret and apply the law as conceived and approved by the political
departments of the government in accordance with the prescribed
procedure. Consequently, we have no choice but to pronounce that
under Article 2 of the Civil Code, the publication of laws must be made
in the Official Gazett and not elsewhere, as a requirement for their
effectivity after fifteen days from such publication or after a different
period provided by the legislature.
We also hold that the publication must be made forthwith or at least as
soon as possible, to give effect to the law pursuant to the said Article 2.
There is that possibility, of course, although not suggested by the
parties that a law could be rendered unenforceable by a mere refusal of
the executive, for whatever reason, to cause its publication as required.
This is a matter, however, that we do not need to examine at this time.
Finally, the claim of the former Solicitor General that the instant
motion is a request for an advisory opinion is untenable, to say the
least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are over. This
is once again an open society, with all the acts of the government
subject to public scrutiny and available always to public cognizance.
This has to be so if our country is to remain democratic, with
sovereignty residing in the people and all government authority
emanating from them.
Although they have delegated the power of legislation, they retain the
authority to review the work of their delegates and to ratify or reject it
according to their lights, through their freedom of expression and their
right of suffrage. This they cannot do if the acts of the legislature are
concealed.
Laws must come out in the open in the clear light of the sun instead of
skulking in the shadows with their dark, deep secrets. Mysterious
pronouncements and rumored rules cannot be recognized as binding
unless their existence and contents are confirmed by a valid
publication intended to make full disclosure and give proper notice to
the people. The furtive law is like a scabbarded saber that cannot feint
parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall
immediately upon their approval, or as soon thereafter as possible, be
published in full in the Official Gazette, to become effective only after
fifteen days from their publication, or on another date specified by the
legislature, in accordance with Article 2 of the Civil Code.
SO ORDERED.
 EXECUTIVE ORDER NO. 200 June 18, 1987 D.) Classification of Constitutions

E.) Basic Principles of Constitutional Interpretation

PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE
OFFICIAL GAZETTE OR IN A NEWSPAPER OF GENERAL
CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR
THEIR EFFECTIVITY
WHEREAS, Article 2 of the Civil Code partly provides that "laws shall
take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided . . .;"
WHEREAS, the requirement that for laws to be effective only a
publication thereof in the Official Gazette will suffice has entailed
some problems, a point recognized by the Supreme Court in Tañada. et
al. vs. Tuvera, et al. (G.R. No. 63915, December 29, 1986) when it
observed that "[t]here is much to be said of the view that the
publication need not be made in the Official Gazette, considering its
erratic release and limited readership";
WHEREAS, it was likewise observed that "[u]ndoubtedly, newspapers
of general circulation could better perform the function of
communicating the laws to the people as such periodicals are more
easily available, have a wider readership, and come out regularly"; and
WHEREAS, in view of the foregoing premises Article 2 of the Civil
Code should accordingly be amended so the laws to be effective must
be published either in the Official Gazette or in a newspaper of general
circulation in the country;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the
Philippines, by virtue of the powers vested in me by the Constitution,
do hereby order:
Sec. 1. Laws shall take effect after fifteen days following the completion
of their publication either in the Official Gazette or in a newspaper of
general circulation in the Philippines, unless it is otherwise provided.
Sec. 2. Article 2 of Republic Act No. 386, otherwise known as the "Civil
Code of the Philippines," and all other laws inconsistent with this
Executive Order are hereby repealed or modified accordingly.
Sec. 3. This Executive Order shall take effect immediately after its
publication in the Official Gazette.
Done in the City of Manila, this 18th day of June, in the year of Our
Lord, nineteen hundred and eighty-seven.
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner, 
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and
OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the
grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos,1 is in oked
by petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but
requires an implementing legislation for its enforcement. Corollarily,
they ask whether the 51% shares form part of the national economy
and patrimony covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service
Insurance System (GSIS), pursuant to the privatization program of the
Philippine Government under Proclamation No. 50 dated 8 December
1986, decided to sell through public bidding 30% to 51% of the issued
and outstanding shares of respondent MHC. The winning bidder, or
the eventual "strategic partner," is to provide management expertise and/or
an international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel.2 In a close
bidding held on 18 September 1995 only two (2) bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino corporation,
which offered to buy 51% of the MHC or 15,300,000 shares at P41.58
per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as
its hotel operator, which bid for the same number of shares at P44.00
per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS
state —
I. EXECUTION OF THE
NECESSARY CONTRACTS
WITH GSIS/MHC —
1. The Highest Bidder must comply with the
conditions set forth below by October 23, 1995
(reset to November 3, 1995) or the Highest Bidder
will lose the right to purchase the Block of Shares
and GSIS will instead offer the Block of Shares to
the other Qualified Bidders:

a. The Highest Bidder must

negotiate and execute with the
GSIS/MHC the Management
Contract, International
Marketing/Reservation
System Contract or other type
of contract specified by the
Highest Bidder in its strategic
plan for the Manila Hotel. . . .

b. The Highest Bidder must

execute the Stock Purchase
and Sale Agreement with
GSIS . . . .
 K. DECLARATION OF THE
WINNING
BIDDER/STRATEGIC
PARTNER —
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following
conditions are met:
a. Execution of the necessary
contracts with GSIS/MHC not
later than October 23, 1995
(reset to November 3, 1995);
and
b. Requisite approvals from
the GSIS/MHC and COP
(Committee on
Privatization)/OGCC (Office
of the Government Corporate
Counsel) are obtained.3
Pending the declaration of Renong Berhad as the winning
bidder/strategic partner and the execution of the necessary contracts,
petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong
Berhad.4 In a subsequent letter dated 10 October 1995 petitioner sent a
manager's check issued by Philtrust Bank for Thirty-three Million
Pesos (P33.000.000.00) as Bid Security to match the bid of the Malaysian
Group, Messrs. Renong Berhad . . .5 which respondent GSIS refused to
accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of
the MHC may be hastened by respondent GSIS and consummated
with Renong Berhad, petitioner came to this Court on prohibition
and mandamus. On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division. The case was then
set for oral arguments with former Chief Justice Enrique M. Fernando
and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with
the Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture.  It is a proud legacy of
an earlier generation of Filipinos who believed in the nobility and sacredness
of independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the
national patrimony.6 Petitioner also argues that since 51% of the shares
of the MHC carries with it the ownership of the business of the hotel
which is owned by respondent GSIS, a government-owned and
controlled corporation, the hotel business of respondent GSIS being a
part of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of stock of
the MHC is clearly covered by the term national economy, to which Sec.
10, second par., Art. XII, 1987 Constitution, applies.7
It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the
national economy petitioner should be preferred after it has matched
the bid offer of the Malaysian firm. For the bidding rules mandate
that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match the
highest bid in terms of price per share.8
Respondents except. They maintain that: First, Sec. 10, second par., Art.
XII, of the 1987 Constitution is merely a statement of principle and
policy since it is not a self-executing provision and requires implementing
legislation(s) . . . Thus, for the said provision to Operate, there must be
existing laws "to lay down conditions under which business may be done."9
Second, granting that this provision is self-executing, Manila Hotel does
not fall under the term national patrimony which only refers to lands
of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna and all marine wealth in its territorial sea, and
exclusive marine zone as cited in the first and second paragraphs of
Sec. 2, Art. XII, 1987 Constitution. According to respondents, while
petitioner speaks of the guests who have slept in the hotel and the
events that have transpired therein which make the hotel historic,
these alone do not make the hotel fall under the patrimony  of the
nation. What is more, the mandate of the Constitution is addressed to
the State, not to respondent GSIS which possesses a personality of its
own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national
patrimony, the constitutional provision invoked is still inapplicable
since what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the
building stands. Certainly, 51% of the equity of the MHC cannot be
considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not
after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders
are willing to match the highest bid in terms of price per share, is misplaced.
Respondents postulate that the privilege of submitting a matching bid
has not yet arisen since it only takes place if for any reason, the Highest
Bidder cannot be awarded the Block of Shares. Thus the submission by
petitioner of a matching bid is premature since Renong Berhad could
still very well be awarded the block of shares and the condition giving
rise to the exercise of the privilege to submit a matching bid had not
yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of
discretion should fail since respondent GSIS did not exercise its
discretion in a capricious, whimsical manner, and if ever it did abuse
its discretion it was not so patent and gross as to amount to an evasion
of a positive duty or a virtual refusal to perform a duty enjoined by
law. Similarly, the petition for mandamus should fail as petitioner has
no clear legal right to what it demands and respondents do not have an
imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious,
absolute and unalterable except by the authority from which it
emanates. It has been defined as the fundamental and paramount law of
the nation. 10 It prescribes the permanent framework of a system of
government, assigns to the different departments their respective
powers and duties, and establishes certain fixed principles on which
government is founded. The fundamental conception in other words is
that it is a supreme law to which all other laws must conform and in
accordance with which all private rights must be determined and all
public authority administered. 11 Under the doctrine of constitutional
supremacy, if a law or contract violates any norm of the constitution
that law or contract whether promulgated by the legislative or by the
executive branch or entered into by private persons for private
purposes is null and void and without any force and effect. Thus, since
the Constitution is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and
carry out the purposes of the framers who merely establish an outline
of government providing for the different departments of the
governmental machinery and securing certain fundamental and
inalienable rights of citizens. 12 A provision which lays down a general
principle, such as those found in Art. II of the 1987 Constitution, is
usually not self-executing. But a provision which is complete in itself
and becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which
the right it grants may be enjoyed or protected, is self-executing. Thus
a constitutional provision is self-executing if the nature and extent of
the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination
and construction of its terms, and there is no language indicating that
the subject is referred to the legislature for action. 13
As against constitutions of the past, modern constitutions have been
generally drafted upon a different principle and have often become in
effect extensive codes of laws intended to operate directly upon the
people in a manner similar to that of statutory enactments, and the
function of constitutional conventions has evolved into one more like
that of a legislative body. Hence, unless it is expressly provided that a
legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-
executing If the constitutional provisions are treated as requiring
legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the
fundamental law.14 This can be cataclysmic. That is why the prevailing
view is, as it has always been, that —
. . . in case of doubt, the Constitution should be
considered self-executing rather than non-self-
executing . . . . Unless the contrary is clearly
intended, the provisions of the Constitution
should be considered self-executing, as a contrary
rule would give the legislature discretion to
determine when, or whether, they shall be
effective. These provisions would be subordinated
to the will of the lawmaking body, which could
make them entirely meaningless by simply
refusing to pass the needed implementing
statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from
discussions on the floor of the 1986 Constitutional Commission —
MR. RODRIGO. Madam President, I am asking
this question as the Chairman of the Committee on
Style. If the wording of "PREFERENCE" is given to
QUALIFIED FILIPINOS," can it be understood as a
preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED"
because the existing laws or prospective laws will
always lay down conditions under which business may
be done.  For example, qualifications on the setting up of
other financial structures, et cetera (emphasis
supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a
way as not to make it appear that it is non-self-executing but simply
for purposes of style. But, certainly, the legislature is not precluded
from enacting other further laws to enforce the constitutional provision
so long as the contemplated statute squares with the Constitution.
Minor details may be left to the legislature without impairing the self-
executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still
enact legislation to facilitate the exercise of powers directly granted by
the constitution, further the operation of such a provision, prescribe a
practice to be used for its enforcement, provide a convenient remedy
for the protection of the rights secured or the determination thereof, or
place reasonable safeguards around the exercise of the right. The mere
fact that legislation may supplement and add to or prescribe a penalty
for the violation of a self-executing constitutional provision does not
render such a provision ineffective in the absence of such legislation.
The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication
that it was not intended to be self-executing. The rule is that a self-
executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in
harmony with the constitution, further the exercise of constitutional
right and make it more available. 17 Subsequent legislation however
does not necessarily mean that the subject constitutional provision is
not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third
paragraphs of the same section which undoubtedly are not self-
executing. 18 The argument is flawed. If the first and third paragraphs
are not self-executing because Congress is still to enact measures to
encourage the formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs legislation
to regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a  fortiori, by the
same logic, the second paragraph can only be self-executing as it does
not by its language require any legislation in order to give preference
to qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony. A constitutional
provision may be self-executing in one part and non-self-executing in
another. 19
Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are
basically not self-executing and only placed in the Constitution as
moral incentives to legislation, not as judicially enforceable rights —
are simply not in point. Basco v. Philippine Amusements and Gaming
Corporation 20 speaks of constitutional provisions on personal
dignity, 21 the sanctity of family life, 22 the vital role of the youth in
nation-building 23 the promotion of social justice, 24 and the values of
education. 25 Tolentino v. Secretary of Finance  26 refers to the
constitutional provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan, Inc. v. Morato  29 cites provisions on the
promotion of general welfare, 30 the sanctity of family life, 31 the vital
role of the youth in nation-building 32 and the promotion of total
human liberation and development. 33A reading of these provisions
indeed clearly shows that they are not judicially enforceable
constitutional rights but merely guidelines for legislation. The very
terms of the provisions manifest that they are only principles upon
which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987
Constitution is a mandatory, positive command which is complete in
itself and which needs no further guidelines or implementing laws or
rules for its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is  per se  judicially
enforceable When our Constitution mandates that [i]n the grant of The argument is pure sophistry. The term qualified Filipinos as used in
rights, privileges, and concessions covering national economy and patrimony, Our Constitution also includes corporations at least 60% of which is
the State shall give preference to qualified Filipinos, it means just that — owned by Filipinos. This is very clear from the proceedings of the 1986
qualified Filipinos shall be preferred. And when our Constitution Constitutional Commission
declares that a right exists in certain specified circumstances an action
may be maintained to enforce such right notwithstanding the absence
THE PRESIDENT. Commissioner Davide is
of any legislation on the subject; consequently, if there is no statute
recognized.
especially enacted to enforce such constitutional right, such right
enforces itself by its own inherent potency and puissance, and from
which all legislations must take their bearings. Where there is a right MR. DAVIDE. I would like to introduce an
there is a remedy. Ubi jus ibi remedium. amendment to the Nolledo amendment. And the
amendment would consist in substituting the words
"QUALIFIED FILIPINOS" with the following:
As regards our national patrimony, a member of the 1986 Constitutional
"CITIZENS OF THE PHILIPPINES OR
Commission 34 explains —
CORPORATIONS OR ASSOCIATIONS WHOSE
CAPITAL OR CONTROLLING STOCK IS WHOLLY
The patrimony of the Nation that should be OWNED BY SUCH CITIZENS.
conserved and developed refers not only to out
rich natural resources but also to the cultural
x x x           x x x          x x x
heritage of out race. It also refers to our
intelligence in arts, sciences and letters. Therefore,
we should develop not only our lands, forests, MR. MONSOD. Madam President, apparently the
mines and other natural resources but also the proponent is agreeable, but we have to raise a
mental ability or faculty of our people. question. Suppose it is a corporation that is 80-
percent Filipino, do we not give it preference?
We agree. In its plain and ordinary meaning, the term patrimony
pertains to heritage. 35 When the Constitution speaks of national MR. DAVIDE. The Nolledo amendment would refer
patrimony, it refers not only to the natural resources of the Philippines, to an individual Filipino. What about a corporation
as the Constitution could have very well used the term natural wholly owned by Filipino citizens?
resources, but also to the cultural heritage of the Filipinos.
MR. MONSOD. At least 60 percent, Madam
Manila Hotel has become a landmark — a living testimonial of President.
Philippine heritage. While it was restrictively an American hotel when
it first opened in 1912, it immediately evolved to be truly Filipino, MR. DAVIDE. Is that the intention?
Formerly a concourse for the elite, it has since then become the venue
of various significant events which have shaped Philippine history. It
was called the Cultural Center of the 1930's. It was the site of the MR. MONSOD. Yes, because, in fact, we would be
festivities during the inauguration of the Philippine Commonwealth. limiting it if we say that the preference should only
Dubbed as the Official Guest House of the Philippine Government. it plays be 100-percent Filipino.
host to dignitaries and official visitors who are accorded the traditional
Philippine hospitality. 36 MR: DAVIDE. I want to get that meaning clear
because "QUALIFIED FILIPINOS" may refer only to
The history of the hotel has been chronicled in the book The Manila individuals and not to juridical personalities or
Hotel:  The Heart and Memory of a City. 37During World War II the hotel entities.
was converted by the Japanese Military Administration into a military
headquarters. When the American forces returned to recapture Manila MR. MONSOD. We agree, Madam President. 39
the hotel was selected by the Japanese together with Intramuros as the
two (2) places fro their final stand. Thereafter, in the 1950's and 1960's,
the hotel became the center of political activities, playing host to almost x x x           x x x          x x x
every political convention. In 1970 the hotel reopened after a
renovation and reaped numerous international recognitions, an MR. RODRIGO. Before we vote, may I request that
acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel the amendment be read again.
was the site of a failed coup d' etat  where an aspirant for vice-president
was "proclaimed" President of the Philippine Republic.
MR. NOLLEDO. The amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
For more than eight (8) decades Manila Hotel has bore mute witness to CONCESSIONS COVERING THE NATIONAL
the triumphs and failures, loves and frustrations of the Filipinos; its ECONOMY AND PATRIMONY, THE STATE
existence is impressed with public interest; its own historicity SHALL GIVE PREFERENCE TO QUALIFIED
associated with our struggle for sovereignty, independence and FILIPINOS." And the word "Filipinos" here, as
nationhood. Verily, Manila Hotel has become part of our national intended by the proponents, will include not only
economy and patrimony. For sure, 51% of the equity of the MHC individual Filipinos but also Filipino-controlled
comes within the purview of the constitutional shelter for it comprises entities or entities fully-controlled by Filipinos. 40
the majority and controlling stock, so that anyone who acquires or
owns the 51% will have actual control and management of the hotel. In
this instance, 51% of the MHC cannot be disassociated from the hotel The phrase preference to qualified Filipinos was
and the land on which the hotel edifice stands. Consequently, we explained thus —
cannot sustain respondents' claim that the Filipino First Policy provision
is not applicable since what is being sold is only 51% of the outstanding MR. FOZ. Madam President, I would like to request
shares of the corporation, not the Hotel building nor the land upon which the Commissioner Nolledo to please restate his
building stands. 38 amendment so that I can ask a question.
 MR. NOLLEDO. "IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS COVERING
THE NATIONAL ECONOMY AND PATRIMONY,
THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a
foreign enterprise is qualified and a Filipino
enterprise is also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the Filipino
still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner
Nolledo continues —
MR. NOLLEDO. Yes, Madam President. Instead of
"MUST," it will be "SHALL — THE STATE SHALL
GlVE PREFERENCE TO QUALIFIED FILIPINOS.
This embodies the so-called "Filipino First" policy.
That means that Filipinos should be given
preference in the grant of concessions, privileges
and rights covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional
Commission regarding the subject provision was still further clarified
by Commissioner Nolledo 43 —
Paragraph 2 of Section 10 explicitly mandates the
"Pro-Filipino" bias in all economic concerns. It is
better known as the FILIPINO FIRST Policy . . .
This provision was never found in previous
Constitutions . . . .
The term "qualified Filipinos" simply means that
preference shall be given to those citizens who can
make a viable contribution to the common good,
because of credible competence and efficiency. It
certainly does NOT mandate the pampering and
preferential treatment to Filipino citizens or
organizations that are incompetent or inefficient,
since such an indiscriminate preference would be
counter productive and inimical to the common
good.
In the granting of economic rights, privileges, and
concessions, when a choice has to be made
between a "qualified foreigner" end a "qualified
Filipino," the latter shall be chosen over the
former."
Lastly, the word  qualified is also determinable. Petitioner was so
considered by respondent GSIS and selected as one of
the qualified bidders. It was pre-qualified by respondent GSIS in
accordance with its own guidelines so that the sole inference here is
that petitioner has been found to be possessed of proven management
expertise in the hotel industry, or it has significant equity ownership in
another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by
arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing. The attempt to violate a
clear constitutional provision — by the government itself — is only too
distressing. To adopt such a line of reasoning is to renounce the duty to
ensure faithfulness to the Constitution. For, even some of the
provisions of the Constitution which evidently need implementing
legislation have juridical life of their own and can be the source of a
judicial remedy. We cannot simply afford the government a defense
that arises out of the failure to enact further enabling, implementing or
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J.,
on constitutional government is apt —
The executive department has a constitutional
duty to implement laws, including the
Constitution, even before Congress acts —
provided that there are discoverable legal
standards for executive action. When the executive
acts, it must be guided by its own understanding
of the constitutional command and of applicable
laws. The responsibility for reading and
understanding the Constitution and the laws is not
the sole prerogative of Congress. If it were, the
executive would have to ask Congress, or perhaps
the Court, for an interpretation every time the
executive is confronted by a constitutional
command. That is not how constitutional
government operates. 45
Respondents further argue that the constitutional provision is
addressed to the State, not to respondent GSIS which by itself
possesses a separate and distinct personality. This argument again is at
best specious. It is undisputed that the sale of 51% of the MHC could
only be carried out with the prior approval of the State acting through
respondent Committee on Privatization. As correctly pointed out by
Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional
jurisprudence, the acts of persons distinct from the government are
considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is
so significantly involved with the private actor as to make the
government responsible for his action; and, (3) when the government
has approved or authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in respondent MHC comes
under the second and third categories of "state action." Without doubt
therefore the transaction. although entered into by respondent GSIS, is
in fact a transaction of the State and therefore subject to the
constitutional command. 46
When the Constitution addresses the State it refers not only to the
people but also to the government as elements of the State. After all,
government is composed of three (3) divisions of power — legislative,
executive and judicial. Accordingly, a constitutional mandate directed
to the State is correspondingly directed to the three(3) branches of
government. It is undeniable that in this case the subject constitutional
injunction is addressed among others to the Executive Department and
respondent GSIS, a government instrumentality deriving its authority
from the State.
It should be stressed that while the Malaysian firm offered the higher
bid it is not yet the winning bidder. The bidding rules expressly
provide that the highest bidder shall only be declared the winning
bidder after it has negotiated and executed the necessary contracts, and
secured the requisite approvals. Since the "Filipino First
Policy provision of the Constitution bestows preference on qualified
Filipinos the mere tending of the highest bid is not an assurance that
the highest bidder will be declared the winning bidder. Resultantly,
respondents are not bound to make the award yet, nor are they under
obligation to enter into one with the highest bidder. For in choosing
the awardee respondents are mandated to abide by the dictates of the
1987 Constitution the provisions of which are presumed to be known
to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the
bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in
constitutional law that all laws and contracts must conform with the
fundamental law of the land. Those which violate the Constitution lose
their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any
reason the Highest Bidder cannot be awarded the Block of Shares, GSIS may
offer this to other Qualified Bidders that have validly submitted bids provided
that these Qualified Bidders are willing to match the highest bid in terms of
price per
share. 47 Certainly, the constitutional mandate itself is reason enough not
to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional
injunction itself.
In the instant case, where a foreign firm submits the highest bid in a
public bidding concerning the grant of rights, privileges and
concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino
will have to be allowed to match the bid of the foreign entity. And if
the Filipino matches the bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while
this may neither be expressly stated nor contemplated in the bidding
rules, the constitutional fiat is, omnipresent to be simply disregarded.
To ignore it would be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the
Philippines are understood to be always open to public scrutiny. These
are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under
the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware
from the beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to
the bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid
tendered by the foreign entity. In the case before us, while petitioner
was already preferred at the inception of the bidding because of the
constitutional mandate, petitioner had not yet matched the bid offered
by Renong Berhad. Thus it did not have the right or personality then to
compel respondent GSIS to accept its earlier bid. Rightly, only after it
had matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioner's matching bid did the latter have a
cause of action.
Besides, there is no time frame for invoking the constitutional
safeguard unless perhaps the award has been finally made. To insist
on selling the Manila Hotel to foreigners when there is a Filipino group
willing to match the bid of the foreign group is to insist that
government be treated as any other ordinary market player, and
bound by its mistakes or gross errors of judgment, regardless of the
consequences to the Filipino people. The miscomprehension of the
Constitution is regrettable. Thus we would rather remedy the
indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays
down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and
to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but
with the Constitution as well. The refusal of respondent GSIS to
execute the corresponding documents with petitioner as provided in
the bidding rules after the latter has matched the bid of the Malaysian
firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a guideline
for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will
never shun, under any reasonable circumstance, the duty of upholding
the majesty of the Constitution which it is tasked to defend. It is worth
emphasizing that it is not the intention of this Court to impede and
diminish, much less undermine, the influx of foreign investments. Far
from it, the Court encourages and welcomes more business
opportunities but avowedly sanctions the preference for Filipinos
whenever such preference is ordained by the Constitution. The
position of the Court on this matter could have not been more
appropriately articulated by Chief Justice Narvasa —
As scrupulously as it has tried to observe that it is
not its function to substitute its judgment for that
of the legislature or the executive about the
wisdom and feasibility of legislation economic in
nature, the Supreme Court has not been spared
criticism for decisions perceived as obstacles to
economic progress and development . . . in
connection with a temporary injunction issued by
the Court's First Division against the sale of the
Manila Hotel to a Malaysian Firm and its partner,
certain statements were published in a major daily
to the effect that injunction "again demonstrates
that the Philippine legal system can be a major
obstacle to doing business here.
Let it be stated for the record once again that while
it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as
the judge of whether they are viable or attainable,
it is its bounden duty to make sure that they do
not violate the Constitution or the laws, or are not
adopted or implemented with grave abuse of
discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter
how buffeted by winds of unfair and ill-informed
criticism. 48
Privatization of a business asset for purposes of enhancing its business
viability and preventing further losses, regardless of the character of
the asset, should not take precedence over non-material values. A
commercial, nay even a budgetary, objective should not be pursued at
the expense of national pride and dignity. For the Constitution
enshrines higher and nobler non-material values. Indeed, the Court
will always defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any economic policy
as to draw itself beyond judicial review when the Constitution is
involved. 49
Nationalism is inherent, in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the
Filipino people and from whom all government authority emanates. In
nationalism, the happiness and welfare of the people must be the goal.
The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection
of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property
in a commercial district. We are talking about a historic relic that has
hosted many of the most important events in the short history of the
Philippines as a nation. We are talking about a hotel where heads of
states would prefer to be housed as a strong manifestation of their
desire to cloak the dignity of the highest state function to their official
visits to the Philippines. Thus the Manila Hotel has played and
continues to play a significant role as an authentic repository of
twentieth century Philippine history and culture. In this sense, it has
become truly a reflection of the Filipino soul — a place with a history of
grandeur; a most historical setting that has played a part in the shaping of a
country. 51
This Court cannot extract rhyme nor reason from the determined
efforts of respondents to sell the historical landmark — this Grand Old
Dame of hotels in Asia — to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien hands
cannot be less than mephistophelian for it is, in whatever manner
viewed, a veritable alienation of a nation's soul for some pieces of
foreign silver. And so we ask: What advantage, which cannot be
equally drawn from a qualified Filipino, can be gained by the Filipinos
Manila Hotel — and all that it stands for — is sold to a non-Filipino?
How much of national pride will vanish if the nation's cultural heritage
is entrusted to a foreign entity? On the other hand, how much dignity
will be preserved and realized if the national patrimony is safekept in
the hands of a qualified, zealous and well-meaning Filipino? This is the
plain and simple meaning of the Filipino First Policy provision of the
Philippine Constitution. And this Court, heeding the clarion call of the
Constitution and accepting the duty of being the elderly watchman of
the nation, will continue to respect and protect the sanctity of the
Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from
selling 51% of the shares of the Manila Hotel Corporation to RENONG
BERHAD, and to ACCEPT the matching bid of petitioner MANILA
PRINCE HOTEL CORPORATION to purchase the subject 51% of the
shares of the Manila Hotel Corporation at P44.00 per share and
thereafter to execute the necessary clearances and to do such other acts
and deeds as may be necessary for purpose.
SO ORDERED.
G.R. No. 134015 July 19, 1999
JUAN DOMINO, petitioner,  Domino.
vs.
COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR.,
EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and
DIONISIO P. LIM, SR., respondent, LUCILLE CHIONGBIAN-
SOLON, intervenor.
DAVIDE, JR., CJ.:
Challenged in this case for certiorari with a prayer for preliminary
injunction are the Resolution of 6 May 1998 1 of the Second Division of
the Commission on Elections (hereafter COMELEC), declaring
petitioner Juan Domino (hereafter DOMINO) disqualified as candidate
for representative of the Lone Legislative District of the Province of
Sarangani in the 11 May 1998 elections, and the Decision of 29 May
19982 of the COMELEC en banc denying DOMINO's motion for
reconsideration.
The antecedents are not disputed.1âwphi1.nêt
On 25 March 1998, DOMINO filed his certificate of candidacy for the
position of Representative of the Lone Legislative District of the
Province of Sarangani indicating in item nine (9) of his certificate that
he had resided in the constituency where he seeks to be elected for one
(1) year and two (2) months immediately preceding the election.3
On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B.
Java, Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr.,
fied with the COMELEC a Petition to Deny Due Course to or Cancel
Certificate of Candidacy, which was docketed as SPA No. 98-022 and
assigned to the Second Division of the COMELEC. Private respondents
alleged that DOMINO, contrary to his declaration in the certificate of
candidacy, is not a resident, much less a registered voter, of the
province of Sarangani where he seeks election. To substantiate their
allegations, private respondents presented the following evidence:
1. Annex "A" — the Certificate of Candidacy of
respondent for the position of Congressman of the
Lone District of the Province of Sarangani filed
with the Office of the Provincial Election
Supervisor of Sarangani on March 25, 1998, where
in item 4 thereof he wrote his date of birth as
December 5, 1953; in item 9, he claims he have
resided in the constituency where he seeks election
for one (1) year and two (2) months; and, in item
10, that he is registered voter of Precinct No. 14A-
1, Barangay Poblacion, Alabel, Sarangani;
2. Annex "B" — Voter's Registration Record with
SN 31326504 dated June 22, 1997 indicating
respondent's registration at Precinct No. 4400-A,
Old Balara, Quezon City;
3. Annex "C" — Respondent's Community Tax
Certificate No. 11132214C dated January 15, 1997;
4. Annex "D" — Certified true copy of the letter
of Herson D. Dema-ala, Deputy Provincial &
Municipal Treasurer of Alabel, Sarangani, dated
February 26, 1998, addressed to Mr. Conrado G.
Butil, which reads:
In connection with your letter of even date, we
are furnishing you herewith certified xerox copy of
the triplicate copy of COMMUNITY TAX
CERTIFICATE NO. 11132214C in the name of Juan
Furthermore, Community Tax Certificate No.
11132212C of the same stub was issued to Carlito
Engcong on September 5, 1997, while Certificate
 No. 11132213C was also issued to Mr. Juan
Domino but was cancelled and serial no.
11132215C was issued in the name of Marianita
Letigio on September 8, 1997.
5. Annex "E" — The triplicate copy of the
Community Tax Certificate No. 11132214C in the
name of Juan Domino dated September 5, 1997;
6. Annex "F" — Copy of the letter of Provincial
Treasurer Lourdes P. Riego dated March 2, 1998
addressed to Mr. Herson D. Dema-ala, Deputy
Provincial Treasurer and Municipal Treasurer of
Alabel, Sarangani, which states:
For easy reference, kindly turn-over to the
undersigned for safekeeping, the stub of
Community Tax Certificate containing Nos.
11132201C-11132250C issued to you on June 13,
1997 and paid under Official Receipt No. 7854744.
Upon request of Congressman James L.
Chiongbian.
7. Annex "G" — Certificate of Candidacy of
respondent for the position of Congressman in the
3rd District of Quezon City for the 1995 elections
filed with the Office of the Regional Election
Director, National Capital Region, on March 17,
1995, where, in item 4 thereof, he wrote his birth
date as December 22, 1953; in item 8 thereof his
"residence in the constituency where I seek to be
elected immediately preceding the election" as 3
years and 5 months; and, in item 9, that he is a
registered voter of Precinct No. 182, Barangay
Balara, Quezon City;
8. Annex "H" — a copy of the APPLICATION
FOR TRANSFER OF REGISTRATION RECORDS
DUE TO CHANGE OF RESIDENCE of respondent
dated August 30, 1997 addressed to and received
by Election Officer Mantil Alim, Alabel, Sarangani,
on September 22, 1997, stating among others, that
"[T]he undersigned's previous residence is at 24
Bonifacio Street, Ayala Heights, Quezon City, III
District, Quezon City; wherein he is a registered
voter" and "that for business and residence
purposes, the undersigned has transferred and
conducts his business and reside at Barangay
Poblacion, Alabel, Province of Sarangani prior to
this application;"
9. Annex "I" — Copy of the SWORN
APPLICATION FOR OF CANCELLATION OF
THE VOTER'S [TRANSFER OF] PREVIOUS
REGISTRATION of respondent subscribed and
sworn to on 22 October 1997 before Election
Officer Mantil Allim at Alabel, Sarangani. 4
For his defense, DOMINO maintains that he had complied with the
one-year residence requirement and that he has been residing in
Sarangani since January 1997. In support of the said contention,
DOMINO presented before the COMELEC the following exhibits, to
wit:
1. Annex "1" — Copy of the Contract of Lease
between Nora Dacaldacal as Lessor and
Administrator of the properties of deceased spouses
Maximo and Remedios Dacaldacal and respondent
as Lessee executed on January 15, 1997, subscribed
and sworn to before Notary Public Johnny P.
Landero;
2. Annex "2" — Copy of the Extra-Judicial Settlement
of Estate with Absolute Deed of sale executed by and
between the heirs of deceased spouses Maximo and
Remedios Dacaldacal, namely: Maria Lourdes,
Jupiter and Beberlie and the respondent on
November 4, 1997, subscribed and sworn to before
Notary Public Jose A. Alegario;
3. Annex "3" — True Carbon Xerox copy of the
Decision dated January 19, 1998, of the Metropolitan
Trial Court of Metro Manila, Branch 35, Quezon
City, in Election Case NO. 725 captioned as "In the
Matter of the Petition for the Exclusion from the List
of voters of Precinct No. 4400-A Brgy. Old Balara,
Quezon City, Spouses Juan and Zorayda Domino,
Petitioners, -versus- Elmer M. Kayanan, Election
Officer, Quezon City, District III, and the Board of
Election Inspectors of Precinct No. 4400-A, Old
Balara, Quezon City, Respondents." The dispositive
portion of which reads:
1. Declaring the registration of petitioners as voters
of Precinct No. 4400-A, Barangay Old Balara, in
District III Quezon City as completely erroneous as
petitioners were no longer residents of Quezon City
but of Alabel, Sarangani where they have been
residing since December 1996;
2. Declaring this erroneous registration of petitioners
in Quezon City as done in good faith due to an
honest mistake caused by circumstances beyond
their control and without any fault of petitioners;
3. Approving the transfer of registration of voters of
petitioners from Precint No. 4400-A of Barangay Old
Balara, Quezon City to Precinct No. 14A1 of
Barangay Poblacion of Alabel, Sarangani; and
4. Ordering the respondents to immediately transfer
and forward all the election/voter's registration
records of the petitioners in Quezon City to the
Election Officer, the Election Registration Board and
other Comelec Offices of Alabel, Sarangani where
the petitioners are obviously qualified to excercise
their respective rights of suffrage.
4. Annex "4" — Copy of the Application for Transfer
of Registration Records due to Change of Residence
addressed to Mantil Alim, COMELEC Registrar,
Alabel, Sarangani, dated August 30, 1997.
5. Annex "5" — Certified True Copy of the Notice of
Approval of Application, the roster of applications
for registration approved by the Election
Registration Board on October 20, 1997, showing the
spouses Juan and Zorayda Bailon Domino listed as
numbers 111 and 112 both under Precinct No. 14A1,
the last two names in the slate indicated as
transferees without VRR numbers and their
application dated August 30, 1997 and September 30,
1997, respectively.
6. Annex "6" — same as Annex "5"
7. Annex "6-a" — Copy of the Sworn Application for
Cancellation of Voter's Previous Registration (Annex
"I", Petition);
 8. Annex "7" — Copy of claim card in the name of incredible, for respondent who previously ran for
respondent showing his VRR No. 31326504 dated the same position in the 3rd Legislative District of
October 20, 1997 as a registered voter of Precinct No. Quezon City during the elections of 1995 to
14A1, Barangay Poblacion, Alabel, Sarangani; unwittingly forget the residency requirement for
the office sought.
9. Annex "7-a" — Certification dated April 16, 1998,
issued by Atty. Elmer M. Kayanan, Election Officer Counting, therefore, from the day after June 22,
IV, District III, Quezon City, which reads: 1997 when respondent registered at Precinct No.
4400-A, up to and until the day of the elections on
May 11, 1998, respondent clearly lacks the one (1)
This is to certify that the spouses JUAN and
year residency requirement provided for
ZORAYDA DOMINO are no longer registered
candidates for Member of the House of
voters of District III, Quezon City. Their registration
Representatives under Section 6, Article VI of the
records (VRR) were transferred and are now in the
Constitution.
possession of the Election Officer of Alabel,
Sarangani.
All told, petitioner's evidence conspire to attest to
respondent's lack of residence in the constituency
This certification is being issued upon the request of
where he seeks election and while it may be
Mr. JUAN DOMINO.
conceded that he is a registered voter as
contemplated under Section 12 of R.A. 8189, he
10. Annex "8" — Affidavit of Nora Dacaldacal and lacks the qualification to run for the position of
Maria Lourdes Dacaldacal stating the circumstances Congressman for the Lone District of the Province
and incidents detailing their alleged acquaintance of Sarangani.6
with respondent.
On 11 May 1998, the day of the election, the COMELEC issued
11. Annexes "8-a", "8-b", "8-c" and "8-d" — Copies of Supplemental Omnibus Resolution No. 3046, ordering that the votes
the uniform affidavits of witness Myrna Dalaguit, cast for DOMINO be counted but to suspend the proclamation if
Hilario Fuentes, Coraminda Lomibao and Elena V. winning, considering that the Resolution disqualifying him as
Piodos subscribed and sworn to before Notary candidate had not yet become final and executory.7
Public Bonifacio F. Doria, Jr., on April 18, 1998,
embodying their alleged personal knowledge of
The result of the election, per Statement of Votes certified by the
respondent's residency in Alabel, Sarangani;
Chairman of the Provincial Board of Canvassers, 8shows that DOMINO
garnered the highest number of votes over his opponents for the
12. Annex "8-e" — A certification dated April 20, position of Congressman of the Province of Sarangani.
1998, subscribed and sworn to before Notary Public
Bonifacio, containing a listing of the names of fifty-
On 15 May 1998, DOMINO filed a motion for reconsideration of the
five (55) residents of Alabel, Sarangani, declaring
Resolution dated 6 May 1998, which was denied by the COMELEC en
and certifying under oath that they personally know
banc in its decision dated 29 May 1998. Hence, the present Petition
the respondent as a permanent resident of Alabel,
for Certiorari with prayer for Preliminary Mandatory Injunction
Sarangani since January 1997 up to present;
alleging, in the main, that the COMELEC committed grave abuse of
discretion amounting to excess or lack of jurisdiction when it ruled that
13. Annexes "9", "9-a" and "9-b" — Copies of he did not meet the one-year residence requirement.
Individual Income Tax Return for the year 1997, BIR
form 2316 and W-2, respectively, of respondent; and,
On 14 July 1998, acting on DOMINO's Motion for Issuance of
Temporary Restraining Order, the Court directed the parties to
14. Annex "10" — The affidavit of respondent maintain the status quo prevailing at the time of the filing of the instant
reciting the chronology of events and circumstances petition.9
leading to his relocation to the Municipality of
Alabel, Sarangani, appending Annexes "A", "B", "C",
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter
"D", "D-1", "E", "F", "G" with sub-markings "G-1" and
INTERVENOR), the candidate receiving the second highest number of
"G-2" and "H" his CTC No. 111`32214C dated
votes, was allowed by the Court to Intervene. 10 INTERVENOR in her
September 5, 1997, which are the same as Annexes
Motion for Leave to Intervene and in her Comment in Intervention 11 is
"1", "2", "4", "5", "6-a", "3", "7", "9" with sub-markings
asking the Court to uphold the disqualification of petitioner Juan
"9-a" and "9-b" except Annex "H".5
Domino and to proclaim her as the duly elected representative of
Sarangani in the 11 May 1998 elections.
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution
declaring DOMINO disqualified as candidate for the position of
Before us DOMINO raised the following issues for resolution, to wit:
representative of the lone district of Sarangani for lack of the one-year
residence requirement and likewise ordered the cancellation of his
certificate of candidacy, on the basis of the following findings: a. Whether or not the judgment of the Metropolitan Trial Court of
Quezon City declaring petitioner as resident of Sarangani and
not of Quezon City is final, conclusive and binding upon the
What militates against respondent's claim that he
whole world, including the Commission on Elections.
has met the residency requirement for the position
sought is his own Voter's Registration Record No.
31326504 dated June 22, 1997 [Annex "B", Petition] b. Whether or not petitioner herein has resided in the subject
and his address indicated as 24 Bonifacio St., congressional district for at least one (1) year immediately
Ayala Heights, Old Balara, Quezon City. This preceding the May 11, 1998 elections; and
evidence, standing alone, negates all his
protestations that he established residence at
c. Whether or not respondent COMELEC has jurisdiction over the
Barangay Poblacion, Alabel, Sarangani, as early as
petition a quo for the disqualification of petitioner.12
January 1997. It is highly improbable, nay
 The first issue.
The contention of DOMINO that the decision of the Metropolitan Trial
Court of Quezon City in the exclusion proceedings declaring him a
resident of the Province of Sarangani and not of Quezon City is final
and conclusive upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the
Omnibus Election Code, over a petition to deny due course to or cancel
certificate of candidacy. In the exercise of the said jurisdiction, it is
within the competence of the COMELEC to determine whether false
representation as to material facts was made in the certificate of
candidacy, that will include, among others, the residence of the
candidate.
The determination of the Metropolitan Trial Court of Quezon City in
the exclusion proceedings as to the right of DOMINO to be included or
excluded from the list of voters in the precinct within its territorial
jurisdicton, does not preclude the COMELEC, in the determination of
DOMINO's qualification as a candidate, to pass upon the issue of
compliance with the residency requirement.
The proceedings for the exclusion or inclusion of voters in the list of
voters are summary in character. Thus, the factual findings of the trial
court and its resultant conclusions in the exclusion proceedings on
matters other than the right to vote in the precinct within its territorial
jurisdiction are not conclusive upon the COMELEC. Although the
court in inclusion or exclusion proceedings may pass upon any
question necessary to decide the issue raised including the questions of
citizenship and residence of the challenged voter, the authority to
order the inclusion in or exclusion from the list of voters necessarily
caries with it the power to inquire into and settle all matters essential
to the exercise of said authority. However, except for the right to
remain in the list of voters or for being excluded therefrom for the
particular election in relation to which the proceedings had been held,
a decision in an exclusion or inclusion proceeding, even if final and
unappealable, does not acquire the nature of res judicata.13 In this sense,
it does not operate as a bar to any future action that a party may take
concerning the subject passed upon in the proceeding. 14Thus, a
decision in an exclusion proceeding would neither be conclusive on the
voter's political status, nor bar subsequent proceedings on his right to
be registered as a voter in any other election.15
Thus, in Tan Cohon v.  Election Registrar16 we ruled that:
. . . It is made clear that even as it is here held that
the order of the City Court in question has become
final, the same does not constitute res adjudicata as
to any of the matters therein contained. It is
ridiculous to suppose that such an important and
intricate matter of citizenship may be passed upon
and determined with finality in such a summary
and peremptory proceeding as that of inclusion
and exclusion of persons in the registry list of
voters. Even if the City Court had granted
appellant's petition for inclusion in the permanent
list of voters on the allegation that she is a Filipino
citizen qualified to vote, her alleged Filipino
citizenship would still have been left open to
question.
Moreover, the Metropolitan Trial Court of Quezon City in its 18
January decision exceeded its jurisdiction when it declared DOMINO a
resident of the Province of Sarangani, approved and ordered the
transfer of his voter's registration from Precinct No. 4400-A of
Barangay Old Balara, Quezon City to precinct 14A1 of Barangay
Poblacion, Alabel, Sarangani. It is not within the competence of the
trial court, in an exclusion proceedings, to declare the challenged voter
a resident of another municipality. The jurisdiction of the lower court
over exclusion cases is limited only to determining the right of voter to
remain in the list of voters or to declare that the challenged voter is not
qualified to vote in the precint in which he is registered, specifying the
ground of the voter's disqualification. The trial court has no power to
order the change or transfer of registration from one place of residence
to another for it is the function of the election Registration Board as
provided under Section 12 of R.A. No. 8189. 17 The only effect of the
decision of the lower court excluding the challenged voter from the list
of voters, is for the Election Registration Board, upon receipt of the
final decision, to remove the voter's registration record from the
corresponding book of voters, enter the order of exclusion therein, and
thereafter place the record in the inactive file.18
Finally, the application of the rule on res judicata is unavailing. Identity
of parties, subject matter and cause of action are indispensable
requirements for the application of said doctrine. Neither herein
Private Respondents nor INTERVENOR, is a party in the exclusion
proceedings. The Petition for Exclusion was filed by DOMINDO
himself and his wife, praying that he and his wife be excluded from the
Voter's List on the ground of erroneous registration while the Petition
to Deny Due Course to or Cancel Certificate of Candidacy was filed by
private respondents against DOMINO for alleged false representation
in his certificate of candidacy. For the decision to be a basis for the
dismissal by reason of res judicata, it is essential that there must be
between the first and the second action identity of parties, identity of
subject matter and identity of causes of action. 19 In the present case, the
aforesaid essential requisites are not present. In the case of Nuval
v.  Guray,  et al., 20 the Supreme Court in resolving a similar issue ruled
that:
The question to be solved under the first
assignment of error is whether or not the
judgment rendered in the case of the petition for
the exclusion of Norberto Guray's name from the
election list of Luna, is res judicata, so as to prevent
the institution and prosecution of an action
in quo warranto, which is now before us.
The procedure prescribed by section 437 of the
Administrative Code, as amended by Act No.
3387, is of a summary character and the judgment
rendered therein is not appealable except when
the petition is tried before the justice of the peace
of the capital or the circuit judge, in which case it
may be appealed to the judge of first instance,
with whom said two lower judges have concurrent
jurisdiction.
The petition for exclusion was presented by
Gregorio Nuval in his dual capacity as qualified
voter of the municipality of Luna, and as a duly
registered candidate for the office of president of
said municipality, against Norberto Guray as a
registered voter in the election list of said
municipality. The present proceeding
of quo warranto was interposed by Gregorio Nuval
in his capacity as a registered candidate voted for
the office of municipal president of Luna, against
Norberto Guray, as an elected candidate for the
same office. Therefore, there is no identity of
parties in the two cases, since it is not enough that
there be an identity of persons, but there must be
an identity of capacities in which said persons
litigate. (Art. 1259 of the Civil Code; Bowler vs.
Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p.
756, par. 1165)
In said case of the petition for the exclusion, the
object of the litigation, or the litigious matter was
the exclusion of Norberto Guray as a voter from
the election list of the municipality of Luna, while
in the present que warranto proceeding, the object
of the litigation, or the litigious matter is his
exclusion or expulsion from the office to which he
 has been elected. Neither does there exist, then,
any identity in the object of the litigation, or the
litigious matter.
In said case of the petition for exclusion, the cause
of action was that Norberto Guray had not the six
months' legal residence in the municipality of
Luna to be a qualified voter thereof, while in the
present proceeding of quo warranto, the cause of
action is that Norberto Guray has not the one
year's legal residence required for eligibility to the
office of municipal president of Luna. Neither
does there exist therefore, identity of causes of
action.
In order that res judicata may exist the following
are necessary: (a) identity of parties; (b) identity of
things; and (c) identity of issues (Aquino v.
Director of Lands, 39 Phil. 850). And as in the case
of the petition for excluision and in the
present quo warranto proceeding, as there is no
identity of parties, or of things or litigious matter,
or of issues or causes of action, there is no res
judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani for at least one
year immediately preceding the 11 May 1998 election as stated in his
certificate of candidacy?
We hold in the negative.
It is doctrinally settled that the term "residence," as used in the law
prescribing the qualifications for suffrage and for elective office, means
the same thing as "domicile," which imports not only an intention to
reside in a fixed place but also personal presence in that place, coupled
with conduct indicative of such intention. 21 "Domicile" denotes a fixed
permanent residence to which, whenever absent for business, pleasure,
or some other reasons, one intends to return.22 "Domicile" is a question
of intention and circumstances. In the consideration of circumstances,
three rules must be borne in mind, namely: (1) that a man must have a
residence or domicile somewhere; (2) when once established it remains
until a new one is acquired; and (3) a man can have but one residence
or domicile at a time.23
Records show that petitioner's domicile of origin was Candon, Ilocos
Sur 24 and that sometime in 1991, he acquired a new domicile of choice
at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown
by his certificate of candidacy for the position of representative of the
3rd District of Quezon City in the May 1995 election. Petitioner is now
claiming that he had effectively abandoned his "residence" in Quezon
City and has established a new "domicile" of choice at the Province of
Sarangani.
A person's "domicile" once established is considered to continue and
will not be deemed lost until a new one is established. 25 To
successfully effect a change of domicile one must demonstrate an
actual removal or an actual change of domicile; a bona fide intention of
abandoning the former place of residence and establishing a new one
and definite acts which correspond with the
purpose. 26 In other words, there must basically
be animus manendi coupled with animus non revertendi. The purpose to
remain in or at the domicile of choice must be for an indefinite period
of time; the change of residence must be voluntary; and the residence
at the place chosen for the new domicile must be actual.27
It is the contention of petitioner that his actual physical presence in
Alabel, Sarangani since December 1996 was sufficiently established by
the lease of a house and lot located therein in January 1997 and by the
affidavits and certifications under oath of the residents of that place
that they have seen petitioner and his family residing in their locality.
While this may be so, actual and physical is not in itself sufficient to
show that from said date he had transferred his residence in that place.
To establish a new domicile of choice, personal presence in the place
must be coupled with conduct indicative of that intention. While
"residence" simply requires bodily presence in a given place,
"domicile" requires not only such bodily presence in that place but also
a declared and probable intent to make it one's fixed and permanent
place of abode, one's home.28
As a general rule, the principal elements of domicile, physical presence
in the locality involved and intention to adopt it as a domicile, must
concur in order to establish a new domicile. No change of domicile will
result if either of these elements is absent. Intention to acquire a
domicile without actual residence in the locality does not result in
acquisition of domicile, nor does the fact of physical presence without
intention.29
The lease contract entered into sometime in January 1997, does not
adequately support a change of domicile. The lease contract may be
indicative of DOMINO's intention to reside in Sarangani but it does
not engender the kind of permanency required to prove abandonment
of one's original domicile. The mere absence of individual from his
permanent residence, no matter how long, without the intention to
abandon it does not result in loss or change of
domicile. 30 Thus the date of the contract of lease of a house and lot
located in the province of Sarangani, i.e., 15 January 1997, cannot be
used, in the absence of other circumstances, as the reckoning period of
the one-year residence requirement.
Further, Domino's lack of intention to abandon his residence in
Quezon City is further strengthened by his act of registering as voter in
one of the precincts in Quezon City. While voting is not conclusive of
residence, it does give rise to a strong presumption of residence
especially in this case where DOMINO registered in his former
barangay. Exercising the right of election franchise is a deliberate
public assertion of the fact of residence, and is said to have decided
preponderance in a doubtful case upon the place the elector claims as,
or believes to be, his residence.31The fact that a party continously voted
in a particular locality is a strong factor in assisting to determine the
status of his domicile.32
His claim that his registration in Quezon City was erroneous and was
caused by events over which he had no control cannot be sustained.
The general registration of voters for purposes of the May 1998
elections was scheduled for two (2) consecutive weekends, viz.: June
14, 15, 21, and 22.33
While, Domino's intention to establish residence in Sarangani can be
gleaned from the fact that be bought the house he was renting on
November 4, 1997, that he sought cancellation of his previous
registration in Qezon City on 22 October 1997,34 and that he applied for
transfer of registration from Quezon City to Sarangani by reason of
change of residence on 30 August 1997,35 DOMINO still falls short of
the one year residency requirement under the Constitution.
In showing compliance with the residency requirement, both intent
and actual presence in the district one intends to represent must satisfy
the length of time prescribed by the fundamental law. 36 Domino's
failure to do so rendered him ineligible and his election to office null
and void.37
The Third Issue.
DOMINO's contention that the COMELEC has no jurisdiction in the
present petition is bereft of merit.
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the
Omnibus Election Code, has jurisdiction over a petition to deny due
course to or cancel certificate of candidacy. Such jurisdiction continues
even after election, if for any reason no final judgment of
disqualification is rendered before the election, and the candidate
facing disqualification is voted for and receives the highest number of
votes38 and provided further that the winning candidate has not been
proclaimed or has taken his oath of office.39
It has been repeatedly held in a number of cases, that the House of
Representatives Electoral Tribunal's sole and exclusive jurisdiction
over all contests relating to the election, returns and qualifications of
members of Congress as provided under Section 17 of Article VI of the
Constitution begins only after a candidate has become a member of the
House of Representatives. 40
The fact of obtaining the highest number of votes in an election does
not automatically vest the position in the winning candidate. 41 A
candidate must be proclaimed and must have taken his oath of office
before he can be considered a member of the House of Representatives.
In the instant case, DOMINO was not proclaimed as Congressman-
elect of the Lone Congressional District of the Province of Sarangani by
reason of a Supplemental Omnibus Resolution issued by the
COMELEC on the day of the election ordering the suspension of
DOMINO's proclamation should he obtain the winning number of
votes. This resolution was issued by the COMELEC in view of the non-
finality of its 6 May 1998 resolution disqualifying DOMINO as
candidate for the position.
Cosidering that DOMINO has not been proclaimed as Congressman-
elect in the Lone Congressional District of the Province of Sarangani he
cannot be deemed a member of the House of Representatives. Hence, it
is the COMELEC and not the Electoral Tribunal which has jurisdiction
over the issue of his ineligibility as a candidate.42
The effect of a decision declaring a person ineligible to hold an office is
only that the election fails entirely, that the wreath of victory cannot be
transferred48 from the disqualified winner to the repudiated loser
because the law then as now only authorizes a declaration of election
in favor of the person who has obtained a plurality of votes 49 and does
not entitle the candidate receiving the next highest number of votes to
be declared elected. In such case, the electors have failed to make a
choice and the election is a nullity. 50 To allow the defeated and
repudiated candidate to take over the elective position despite his
rejection by the electorate is to disenfranchise the electorate without
any fault on their part and to undermine the importance and meaning
of democracy and the people's right to elect officials of their choice.51
INTERVENOR's plea that the votes cast in favor of DOMINO be
considered stray votes cannot be sustained. INTERVENOR's reliance
on the opinion made in the Labo, Jr. case 52 to wit: if the electorate, fully
aware in fact and in law of a candidate's disqualification so as to bring
such awareness within the realm of notoriety, would nevertheless cast
their votes in favor of the ineligible candidate, the electorate may be
said to have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing away their votes,
in which case, the eligible candidate obtaining the next higher number
of votes may be deemed elected, is misplaced.
Contrary to the claim of INTERVENOR, petitioner was not notoriously
known by the public as an ineligible candidate. Although the
resolution declaring him ineligible as candidate was rendered before
the election, however, the same is not yet final and executory. In fact, it
was no less than the COMELEC in its Supplemental Omnibus
Resolution No. 3046 that allowed DOMINO to be voted for the office
and ordered that the votes cast for him be counted as the Resolution
declaring him ineligible has not yet attained finality. Thus the votes
cast for DOMINO are presumed to have been cast in the sincere belief
that he was a qualified candidate, without any intention to misapply
their franchise. Thus, said votes can not be treated as stray, void, or
meaningless.53

Issue raised by INTERVENOR. WHEREFORE, the instant petition is DISMISSED. The resolution dated
6 May 1998 of the COMELEC 2nd Division and the decision dated 29
After finding that DOMINO is disqualified as candidate for the May 1998 of the COMELEC En Banc, are hereby
position of representative of the province of Sarangani, may AFFIRMED.1âwphi1.nêt
INTERVENOR, as the candidate who received the next highest
number of votes, be proclaimed as the winning candidate? SO ORDERED.

It is now settled doctrine that the candidate who obtains the second
highest number of votes may not be proclaimed winner in case the
winning candidate is disqualified. 43 In every election, the people's
choice is the paramount consideration and their expressed will must, at
all times, be given effect. When the majority speaks and elects into
office a candidate by giving the highest number of votes cast in the
election for that office, no one can be declared elected in his place. 44

It would be extremely repugnant to the basic concept of the

constitutionally guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes is proclaimed a winner and
imposed as the representative of a constituency, the majority of which
have positively declared through their ballots that they do not choose
him.45 To simplistically assume that the second placer would have
received the other votes would be to substitute our judgment for the
mind of the voters. He could not be considered the first among
qualified candidates because in a field which excludes the qualified
candidate, the conditions would have substantially changed. 46

Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election for
that office, and it is fundamental idea in all republican forms of
government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the
legal votes cast in the election.47
 Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for
President on December 17, 2003. Respondent Commission on Elections
(COMELEC) refused to give due course to petitioner’s Certificate of
Candidacy in its Resolution No. 6558  dated January 17, 2004. The
decision, however, was not unanimous since Commissioners
Luzviminda G. Tancangco and Mehol K. Sadain voted to include
petitioner as they believed he had parties or movements to back up his
candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution

No. 6558.  Petitioner’s Motion for Reconsideration was docketed as SPP
(MP) No. 04-001. The COMELEC, acting on petitioner’s Motion for
Reconsideration and on similar motions filed by other aspirants for
national elective positions, denied the same under the aegis
of Omnibus Resolution No. 6604  dated February 11, 2004. The
COMELEC declared petitioner and thirty-five (35) others nuisance
candidates who could not wage a nationwide campaign and/or are not
nominated by a political party or are not supported by a registered
political party with a national constituency. Commissioner Sadain
maintained his vote for petitioner. By then, Commissioner Tancangco
had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the

resolutions which were allegedly rendered in violation of his right to
"equal access to opportunities for public service" under Section 26,
Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to

those who can afford to wage a nationwide campaign and/or are
nominated by political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional provisions on the
electoral process and limited the power of the sovereign people to
choose their leaders. The COMELEC supposedly erred in disqualifying
him since he is the most qualified among all the presidential
candidates, i.e., he possesses all the constitutional and legal
qualifications for the office of the president, he is capable of waging a
national campaign since he has numerous national organizations
under his leadership, he also has the capacity to wage an international
campaign since he has practiced law in other countries, and he has a
platform of government. Petitioner likewise attacks the validity of the
form for the Certificate of Candidacy prepared by the COMELEC.
Petitioner claims that the form does not provide clear and reasonable
guidelines for determining the qualifications of candidates since it does
not ask for the candidate’s bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision

ensuring "equal access to opportunities for public office" is the claim
that there is a constitutional right to run for or hold public office and,
particularly in his case, to seek the presidency. There is none. What is
recognized is merely a privilege subject to limitations imposed by law.
Section 26, Article II of the Constitution neither bestows such a right
nor elevates the privilege to the level of an enforceable right. There is
nothing in the plain language of the provision which suggests such a
thrust or justifies an interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the

Constitution, entitled "Declaration of Principles and State Policies." The
G.R. No. 161872             April 13, 2004
provisions under the Article are generally considered not self-
executing,2 and there is no plausible reason for according a different
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,  treatment to the "equal access" provision. Like the rest of the policies
vs. enumerated in Article II, the provision does not contain any judicially
COMMISSION ON ELECTIONS, respondent. enforceable constitutional right but merely specifies a guideline for
legislative or executive action.3 The disregard of the provision does not
give rise to any cause of action before the courts.4
RESOLUTION

An inquiry into the intent of the framers5 produces the same

TINGA, J.:
determination that the provision is not self-executory. The original
wording of the present Section 26, Article II had read, "The State shall
broaden opportunities to public office and prohibit public
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr.
successfully brought forth an amendment that changed the word
"broaden" to the phrase "ensure equal access," and the substitution of
the word "office" to "service." He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS
TO" because what is important would be equal access to the
opportunity. If you broaden, it would necessarily mean
that the government would be mandated to create as many
offices as are possible to accommodate as many people as
are also possible. That is the meaning of broadening
opportunities to public service. So, in order that we should
not mandate the State to make the government the number
one employer and to limit offices only to what may be
necessary and expedient yet offering equal opportunities
to access to it, I change the word "broaden." 7 (emphasis
supplied)
Obviously, the provision is not intended to compel the State to enact
positive measures that would accommodate as many people as
possible into public office. The approval of the "Davide amendment"
indicates the design of the framers to cast the provision as simply
enunciatory of a desired policy objective and not reflective of the
imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to
be regarded as the source of positive rights. It is difficult to interpret
the clause as operative in the absence of legislation since its effective
means and reach are not properly defined. Broadly written, the myriad
of claims that can be subsumed under this rubric appear to be entirely
open-ended.8 Words and phrases such as "equal access,"
"opportunities," and "public service" are susceptible to countless
interpretations owing to their inherent impreciseness. Certainly, it was
not the intention of the framers to inflict on the people an operative but
amorphous foundation from which innately unenforceable rights may
be sourced.
As earlier noted, the privilege of equal access to opportunities to public
office may be subjected to limitations. Some valid limitations
specifically on the privilege to seek elective office are found in the
provisions9 of the Omnibus Election Code on "Nuisance Candidates"
and COMELEC Resolution No. 645210 dated December 10, 2002
outlining the instances wherein the COMELEC may motu
proprio refuse to give due course to or cancel a Certificate of Candidacy.
As long as the limitations apply to everybody equally without
discrimination, however, the equal access clause is not violated.
Equality is not sacrificed as long as the burdens engendered by the
limitations are meant to be borne by any one who is minded to file a
certificate of candidacy. In the case at bar, there is no showing that any
person is exempt from the limitations or the burdens which they
create.
Significantly, petitioner does not challenge the constitutionality or
validity of Section 69 of the Omnibus Election Code and COMELEC
Resolution No. 6452 dated 10 December 2003. Thus, their presumed
validity stands and has to be accorded due weight.
Clearly, therefore, petitioner’s reliance on the equal access clause in
Section 26, Article II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and
the disqualification of candidates who have not evinced a bona  fide
intention to run for office is easy to divine. The State has a compelling
interest to ensure that its electoral exercises are rational, objective, and
orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the
number of candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and
resources in preparation for the election. These practical difficulties
should, of course, never exempt the State from the conduct of a
mandated electoral exercise. At the same time, remedial actions should
be available to alleviate these logistical hardships, whenever necessary
and proper. Ultimately, a disorderly election is not merely a textbook
example of inefficiency, but a rot that erodes faith in our democratic
institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring
some preliminary showing of a significant modicum of
support before printing the name of a political organization
and its candidates on the ballot – the interest, if no other, in
avoiding confusion, deception and even frustration of the
democratic [process].11
The COMELEC itself recognized these practical considerations when it
promulgated Resolution No. 6558  on 17 January 2004, adopting the
study Memorandum of its Law Department dated 11 January 2004. As
observed in the COMELEC’s Comment:
There is a need to limit the number of candidates especially
in the case of candidates for national positions because the
election process becomes a mockery even if those who
cannot clearly wage a national campaign are allowed to run.
Their names would have to be printed in the Certified List of
Candidates, Voters Information Sheet and the Official
Ballots. These would entail additional costs to the
government. For the official ballots in automated counting
and canvassing of votes, an additional page would amount
to more or less FOUR HUNDRED FIFTY MILLION PESOS
(₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates
to continue if they cannot wage a decent campaign enough
to project the prospect of winning, no matter how slim.12
The preparation of ballots is but one aspect that would be affected by
allowance of "nuisance candidates" to run in the elections. Our election
laws provide various entitlements for candidates for public office, such
as watchers in every polling place, 13 watchers in the board of
canvassers,14 or even the receipt of electoral contributions. 15Moreover,
there are election rules and regulations the formulations of which are
dependent on the number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance
candidacy becomes even more galling. The organization of an election
with bona fide candidates standing is onerous enough. To add into the
mix candidates with no serious intentions or capabilities to run a viable
campaign would actually impair the electoral process. This is not to
mention the candidacies which are palpably ridiculous so as to
constitute a one-note joke. The poll body would be bogged by
irrelevant minutiae covering every step of the electoral process, most
probably posed at the instance of these nuisance candidates. It would
be a senseless sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly
election, the State could exclude nuisance candidates and need not
indulge in, as the song goes, "their trips to the moon on gossamer
wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are
cognizant of the compelling State interest to ensure orderly and
credible elections by excising impediments thereto, such as nuisance
candidacies that distract and detract from the larger purpose. The
COMELEC is mandated by the Constitution with the administration of
elections16 and endowed with considerable latitude in adopting means
and methods that will ensure the promotion of free, orderly and honest
elections.17 Moreover, the Constitution guarantees that only bona
fide  candidates for public office shall be free from any form of
harassment and discrimination.18 The determination of bona
fidecandidates is governed by the statutes, and the concept, to our
mind is, satisfactorily defined in the Omnibus Election Code.
Now, the needed factual premises. Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR.,
Office of the President Executive Secretary, FLORENCIO ABAD, JR.,
Secretary of Budget, and ROBERTO TAN, Treasurer of the
However valid the law and the COMELEC issuance involved are, their
Philippines,Respondents.
proper application in the case of the petitioner cannot be tested and
reviewed by this Court on the basis of what is now before it. The
assailed resolutions of the COMELEC do not direct the Court to the x-----------------------x
evidence which it considered in determining that petitioner was a
nuisance candidate. This precludes the Court from reviewing at this
G.R. No. 196305
instance whether the COMELEC committed grave abuse of discretion
in disqualifying petitioner, since such a review would necessarily take
into account the matters which the COMELEC considered in arriving BASARI D. MAPUPUNO, Petitioner, 
at its decisions. vs.
SIXTO BRILLANTES, in his capacity as Chairman of the
Commission on Elections, FLORENCIO ABAD, JR. in his capacity as
Petitioner has submitted to this Court mere photocopies of various
Secretary of the Department of Budget and Management, PAQUITO
documents purportedly evincing his credentials as an eligible
OCHOA, JR., in his capacity as Executive Secretary, JUAN PONCE
candidate for the presidency. Yet this Court, not being a trier of facts,
ENRILE, in his capacity as Senate President, and FELICIANO
can not properly pass upon the reproductions as evidence at this level.
BELMONTE, in his capacity as Speaker of the House of
Neither the COMELEC nor the Solicitor General appended any
Representatives, Respondents.
document to their respective Comments.

x-----------------------x
The question of whether a candidate is a nuisance candidate or not is
both legal and factual. The basis of the factual determination is not
before this Court. Thus, the remand of this case for the reception of G.R. No. 197221
further evidence is in order.
REP. EDCEL C. LAGMAN, Petitioner, 
A word of caution is in order. What is at stake is petitioner’s aspiration vs.
and offer to serve in the government. It deserves not a cursory PAQUITO N. OCHOA, JR., in his capacity as the Executive
treatment but a hearing which conforms to the requirements of due Secretary, and the COMMISSION ON ELECTIONS,Respondents.
process.
x-----------------------x
As to petitioner’s attacks on the validity of the form for the certificate
of candidacy, suffice it to say that the form strictly complies with G.R. No. 197280
Section 74 of the Omnibus Election Code.  This provision specifically
enumerates what a certificate of candidacy should contain, with the
required information tending to show that the candidate possesses the ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and
minimum qualifications for the position aspired for as established by PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-
the Constitution and other election laws. LABAN), Petitioners, 
vs.
THE COMMISSION ON ELECTIONS, through its Chairman,
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. SIXTO BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., in his
04-001 is hereby remanded to the COMELEC for the reception of capacity as Executive Secretary, HON. FLORENCIO B. ABAD, JR., in
further evidence, to determine the question on whether petitioner Elly his capacity as Secretary of the Department of Budget and
Velez Lao Pamatong is a nuisance candidate as contemplated in Management, and HON. ROBERTO B. TAN, in his capacity as
Section 69 of the Omnibus Election Code. Treasurer of the Philippines, Respondents.

The COMELEC is directed to hold and complete the reception of x-----------------------x

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

G.R. No. 197282

SO ORDERED.

ATTY. ROMULO B. MACALINTAL, Petitioner, 

vs.
COMMISSION ON ELECTIONS and THE OFFICE OF THE
PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR., Respondents.

x-----------------------x
G.R. No. 196271               February 28, 2012
G.R. No. 197392
DATU MICHAEL ABAS KIDA, in his personal capacity, and in
representation of MAGUINDANAO FEDERATION OF LOUIS "BAROK" C. BIRAOGO, Petitioner, 
AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI vs.
MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. THE COMMISSION ON ELECTIONS and EXECUTIVE
ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL- SECRETARY PAQUITO N. OCHOA, JR., Respondents.
SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH
SAUPI, Petitioners,  x-----------------------x
vs.
SENATE OF THE PHILIPPINES, represented by its President JUAN
PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER G.R. No. 197454
FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its
JACINTO V. PARAS, Petitioner,  THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE (A)
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and THE
COMMISSION ON ELECTIONS, Respondents.
MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-
Intervenor.
RESOLUTION
BRION, J.:
We resolve: (a) the motion for reconsideration filed by petitioners Datu
Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion for
reconsideration filed by petitioner Rep. Edcel Lagman in G.R. No.
197221; (c) the ex abundante ad cautelam motion for reconsideration
filed by petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion
for reconsideration filed by petitioner Atty. Romulo Macalintal in G.R.
No. 197282; (e) the motion for reconsideration filed by petitioners
Almarim Centi Tillah, Datu Casan Conding Cana and Partido
Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the
manifestation and motion filed by petitioners Almarim Centi Tillah, et
al. in G.R. No. 197280; and (g) the very urgent motion to issue
clarificatory resolution that the temporary restraining order (TRO) is
still existing and effective.
These motions assail our Decision dated October 18, 2011, where we
upheld the constitutionality of Republic Act (RA) No. 10153. Pursuant
to the constitutional mandate of synchronization, RA No. 10153
postponed the regional elections in the Autonomous Region in Muslim
Mindanao (ARMM) (which were scheduled to be held on the second
Monday of August 2011) to the second Monday of May 2013 and
recognized the President’s power to appoint officers-in-charge (OICs)
to temporarily assume these positions upon the expiration of the terms
of the elected officials.
The Motions for Reconsideration
The petitioners in G.R. No. 196271 raise the following grounds in
support of their motion:
I. THE HONORABLE COURT ERRED IN CONCLUDING
THAT THE ARMM ELECTIONS ARE LOCAL ELECTIONS,
CONSIDERING THAT THE CONSTITUTION GIVES THE
ARMM A SPECIAL STATUS AND IS SEPARATE AND
DISTINCT FROM ORDINARY LOCAL GOVERNMENT
UNITS.
II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC
ACT.
III. THE SUPERMAJORITY PROVISIONS OF THE
ORGANIC ACT (R.A. 9054) ARE NOT IRREPEALABLE
LAWS.
IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT
VIOLATE SECTION 18, ARTICLE X OF THE
CONSTITUTION.
V. BALANCE OF INTERESTS TILT IN FAVOR OF THE
DEMOCRATIC PRINCIPLE[.]1
The petitioner in G.R. No. 197221 raises similar grounds, arguing that:
I. THE ELECTIVE REGIONAL EXECUTIVE AND
LEGISLATIVE OFFICIALS OF ARMM CANNOT BE
CONSIDERED AS OR EQUATED WITH THE
TRADITIONAL LOCAL GOVERNMENT OFFICIALS IN
THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION
ON SUCH PARITY; AND (B) THE ARMM IS MORE
SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND
AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS
OWN APART FROM TRADITIONAL LGUs.
II. THE UNMISTAKABLE AND UNEQUIVOCAL
CONSTITUTIONAL MANDATE FOR AN ELECTIVE AND
REPRESENTATIVE EXECUTIVE DEPARTMENT AND
LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY
PRECLUDES THE APPOINTMENT BY THE PRESIDENT
OF OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY
OR TEMPORARY, FOR THE POSITIONS OF ARMM
GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE
REGIONAL ASSEMBLY.
III. THE PRESIDENT’S APPOINTING POWER IS LIMITED
TO APPOINTIVE OFFICIALS AND DOES NOT EXTEND
TO ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS
ONLY VESTED WITH SUPERVISORY POWERS OVER THE
ARMM, THEREBY NEGATING THE AWESOME POWER
TO APPOINT AND REMOVE OICs OCCUPYING
ELECTIVE POSITIONS.
IV. THE CONSTITUTION DOES NOT PROSCRIBE THE
HOLDOVER OF ARMM ELECTED OFFICIALS PENDING
THE ELECTION AND QUALIFICATION OF THEIR
SUCCESSORS.
V. THE RULING IN OSMENA DOES NOT APPLY TO
ARMM ELECTED OFFICIALS WHOSE TERMS OF OFFICE
ARE NOT PROVIDED FOR BY THE CONSTITUTION BUT
PRESCRIBED BY THE ORGANIC ACTS.
VI. THE REQUIREMENT OF A SUPERMAJORITY OF ¾
VOTES IN THE HOUSE OF REPRESENTATIVES AND THE
SENATE FOR THE VALIDITY OF A SUBSTANTIVE
AMENDMENT OR REVISION OF THE ORGANIC ACTS
DOES NOT IMPOSE AN IRREPEALABLE LAW.
VII. THE REQUIREMENT OF A PLEBISCITE FOR THE
EFFECTIVITY OF A SUBSTANTIVE AMENDMENT OR
REVISION OF THE ORGANIC ACTS DOES NOT UNDULY
EXPAND THE PLEBISCITE REQUIREMENT OF THE
CONSTITUTION.
VIII. SYNCHRONIZATION OF THE ARMM ELECTION
WITH THE NATIONAL AND LOCAL ELECTIONS IS NOT
MANDATED BY THE CONSTITUTION.
IX. THE COMELEC HAS THE AUTHORITY TO HOLD
AND CONDUCT SPECIAL ELECTIONS IN ARMM, AND
THE ENACTMENT OF AN IMPROVIDENT AND
UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS
CAUSE WARRANTING COMELEC’S HOLDING OF
SPECIAL ELECTIONS.2 (italics supplied)
The petitioner in G.R. No. 196305 further asserts that:
I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET
A STATUTE, IT IS A CONDITION SINE QUA NON THAT
THERE BE DOUBT OR AMBIGUITY IN ITS LANGUAGE.
THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR
AND UNAMBIGUOUS: THEY REFER TO THE 1992
ELECTIONS AND TURN-OVER OF ELECTIVE OFFICIALS.
 IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE
FRAMERS, AND APPLYING THE SAME TO ELECTIONS
20 YEARS AFTER, THE HONORABLE SUPREME COURT
MAY HAVE VIOLATED THEFOREMOST RULE IN
STATUTORY CONSTRUCTION.
xxxx
II. THE HONORABLE COURT SHOULD HAVE
CONSIDERED THAT RA 9054, AN ORGANIC ACT, WAS
COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE
CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO
AMEND RA 9054.
xxxx
III. THE HONORABLE COURT MAY HAVE COMMITTED
A SERIOUS ERROR IN DECLARING THE 2/3 VOTING
REQUIREMENT SET FORTH IN RA 9054 AS
UNCONSTITUTIONAL.
xxxx
IV. THE HONORABLE COURT MAY HAVE COMMITTED
A SERIOUS ERROR IN HOLDING THAT A PLEBISCITE IS
NOT NECESSARY IN AMENDING THE ORGANIC ACT.
xxxx
V. THE HONORABLE COURT COMMITTED A SERIOUS
ERROR IN DECLARING THE HOLD-OVER OF ARMM
ELECTIVE OFFICIALS UNCONSTITUTIONAL.
xxxx
VI. THE HONORABLE COURT COMMITTED A SERIOUS
ERROR IN UPHOLDING THE APPOINTMENT OF
OFFICERS-IN-CHARGE.3 (italics and underscoring
supplied)
The petitioner in G.R. No. 197282 contends that:
A.
ASSUMING WITHOUT CONCEDING THAT THE
APPOINTMENT OF OICs FOR THE REGIONAL
GOVERNMENT OF THE ARMM IS NOT
UNCONSTITUTIONAL TO BEGIN WITH, SUCH
APPOINTMENT OF OIC REGIONAL OFFICIALS WILL
CREATE A FUNDAMENTAL CHANGE IN THE BASIC
STRUCTURE OF THE REGIONAL GOVERNMENT SUCH
THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED
TO A PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS
PEOPLE, WHICH PLEBISCITE REQUIREMENT CANNOT
BE CIRCUMVENTED BY SIMPLY CHARACTERIZING
THE PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT
OF OICs AS AN "INTERIM MEASURE".
B.
THE HONORABLE COURT ERRED IN RULING THAT
THE APPOINTMENT BY THE PRESIDENT OF OICs FOR
THE ARMM REGIONAL GOVERNMENT IS NOT
VIOLATIVE OF THE CONSTITUTION.
C.
THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054
DOES NOT VIOLATE THE CONSTITUTION, AND
BEFORE THEIR SUCCESSORS ARE ELECTED IN EITHER
AN ELECTION TO BE HELD AT THE SOONEST POSSIBLE
TIME OR IN MAY 2013, THE SAID INCUMBENT ARMM
REGIONAL OFFICIALS MAY VALIDLY CONTINUE
FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY
IN ACCORDANCE WITH SECTION 7, ARTICLE VII OF
R.A. NO. 9054.
D.
WITH THE CANCELLATION OF THE AUGUST 2011
ARMM ELECTIONS, SPECIAL ELECTIONS MUST
IMMEDIATELY BE HELD FOR THE ELECTIVE
REGIONAL OFFICIALS OF THE ARMM WHO SHALL
SERVE UNTIL THEIR SUCCESSORS ARE ELECTED IN
THE MAY 2013 SYNCHRONIZED ELECTIONS.4
Finally, the petitioners in G.R. No. 197280 argue that:
a) the Constitutional mandate of synchronization does not
apply to the ARMM elections;
b) RA No. 10153 negates the basic principle of republican
democracy which, by constitutional mandate, guides the
governance of the Republic;
c) RA No. 10153 amends the Organic Act (RA No. 9054) and,
thus, has to comply with the 2/3 vote from the House of
Representatives and the Senate, voting separately, and be
ratified in a plebiscite;
d) if the choice is between elective officials continuing to
hold their offices even after their terms are over and non-
elective individuals getting into the vacant elective positions
by appointment as OICs, the holdover option is the better
choice;
e) the President only has the power of supervision over
autonomous regions, which does not include the power to
appoint OICs to take the place of ARMM elective officials;
and
f) it would be better to hold the ARMM elections separately
from the national and local elections as this will make it
easier for the authorities to implement election laws.
In essence, the Court is asked to resolve the following questions:
(a) Does the Constitution mandate the synchronization of
ARMM regional elections with national and local elections?
(b) Does RA No. 10153 amend RA No. 9054? If so, does RA
No. 10153 have to comply with the supermajority vote and
plebiscite requirements?
(c) Is the holdover provision in RA No. 9054 constitutional?
(d) Does the COMELEC have the power to call for special
elections in ARMM?
(e) Does granting the President the power to appoint OICs
violate the elective and representative nature of ARMM
regional legislative and executive offices?
 (f) Does the appointment power granted to the President
exceed the President’s supervisory powers over autonomous
regions?
The Court’s Ruling
We deny the motions for lack of merit.
Synchronization mandate includes ARMM elections
The Court was unanimous in holding that the Constitution mandates
the synchronization of national and local elections. While the
Constitution does not expressly instruct Congress to synchronize the
national and local elections, the intention can be inferred from the
following provisions of the Transitory Provisions (Article XVIII) of the
Constitution, which state:
Section 1. The first elections of Members of the Congress under this
Constitution shall be held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the
President, which may be simultaneous with the election of the
Members of the Congress. It shall include the election of all Members
of the city or municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives, and
the local officials first elected under this Constitution shall serve until
noon of June 30, 1992.
Of the Senators elected in the elections in 1992, the first twelve
obtaining the highest number of votes shall serve for six years and the
remaining twelve for three years.
xxxx
Section 5. The six-year term of the incumbent President and Vice-
President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under
this Constitution shall be held on the second Monday of May, 1992.
To fully appreciate the constitutional intent behind these provisions,
we refer to the discussions of the Constitutional Commission:
MR. MAAMBONG. For purposes of identification, I will now read a
section which we will temporarily indicate as Section 14. It reads: "THE
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES
AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION
SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE
1992."
This was presented by Commissioner Davide, so may we ask that
Commissioner Davide be recognized.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is
recognized.
MR. DAVIDE. Before going to the proposed amendment, I would only
state that in view of the action taken by the Commission on Section 2
earlier, I am formulating a new proposal. It will read as follows: "THE
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES
AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS
CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992."
I proposed this because of the proposed section of the Article on
Transitory Provisions giving a term to the incumbent President and
Vice-President until 1992. Necessarily then, since the term provided by
the Commission for Members of the Lower House and for local
officials is three years, if there will be an election in 1987, the next
election for said officers will be in 1990, and it would be very close to
1992. We could never attain, subsequently, any synchronization of
election which is once every three years.
So under my proposal we will be able to begin actual
synchronization in 1992, and consequently, we should not have a local
election or an election for Members of the Lower House in 1990 for
them to be able to complete their term of three years each. And if we
also stagger the Senate, upon the first election it will result in an
election in 1993 for the Senate alone, and there will be an election for 12
Senators in 1990. But for the remaining 12 who will be elected in 1987,
if their term is for six years, their election will be in 1993. So,
consequently we will have elections in 1990, in 1992 and in 1993. The
later election will be limited to only 12 Senators and of course to the
local officials and the Members of the Lower House. But, definitely,
thereafter we can never have an election once every three years,
therefore defeating the very purpose of the Commission when we
adopted the term of six years for the President and another six years
for the Senators with the possibility of staggering with 12 to serve for
six years and 12 for three years insofar as the first Senators are
concerned. And so my proposal is the only way to effect the first
synchronized election which would mean, necessarily, a bonus of
two years to the Members of the Lower House and a bonus of two
years to the local elective officials.
THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee
say?
MR. DE CASTRO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is
recognized.
MR. DE CASTRO. Thank you.
During the discussion on the legislative and the synchronization of
elections, I was the one who proposed that in order to synchronize the
elections every three years, which the body approved — the first
national and local officials to be elected in 1987 shall continue in office
for five years, the same thing the Honorable Davide is now proposing.
That means they will all serve until 1992, assuming that the term of the
President will be for six years and continue beginning in 1986. So from
1992, we will again have national, local and presidential elections. This
time, in 1992, the President shall have a term until 1998 and the first
12 Senators will serve until 1998, while the next 12 shall serve until
1995, and then the local officials elected in 1992 will serve until 1995.
From then on, we shall have an election every three years.
So, I will say that the proposition of Commissioner Davide is in order,
if we have to synchronize our elections every three years which was
already approved by the body.
Thank you, Mr. Presiding Officer.
xxxx
MR. GUINGONA. What will be synchronized, therefore, is the election
of the incumbent President and Vice-President in 1992.
MR. DAVIDE. Yes.
MR. GUINGONA. Not the reverse. Will the committee not
synchronize the election of the Senators and local officials with the
election of the President?
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt as local governments, it follows that elections held in autonomous
here is on the assumption that the provision of the Transitory regions are also considered as local elections.
Provisions on the term of the incumbent President and Vice-President
would really end in 1992.
The petitioners further argue that even assuming that the Constitution
mandates the synchronization of elections, the ARMM elections are not
MR. GUINGONA. Yes. covered by this mandate since they are regional elections and not local
elections.
MR. DAVIDE. In other words, there will be a single election in 1992
for all, from the President up to the municipal officials.5 (emphases In construing provisions of the Constitution, the first rule is verba
and underscoring ours) legis, "that is, wherever possible, the words used in the Constitution
must be given their ordinary meaning except where technical terms are
employed."9 Applying this principle to determine the scope of "local
The framers of the Constitution could not have expressed their
elections," we refer to the meaning of the word "local," as understood
objective more clearly – there was to be a single election in 1992 for all
in its ordinary sense. As defined in Webster’s Third New International
elective officials – from the President down to the municipal officials.
Dictionary Unabridged, "local" refers to something "that primarily
Significantly, the framers were even willing to temporarily lengthen or
serves the needs of a particular limited district, often a community or
shorten the terms of elective officials in order to meet this objective,
minor political subdivision." Obviously, the ARMM elections, which
highlighting the importance of this constitutional mandate.
are held within the confines of the autonomous region of Muslim
Mindanao, fall within this definition.
We came to the same conclusion in Osmeña v. Commission on
Elections,6 where we unequivocally stated that "the Constitution has
To be sure, the fact that the ARMM possesses more powers than other
mandated synchronized national and local elections." 7 Despite the
provinces, cities, or municipalities is not enough reason to treat the
length and verbosity of their motions, the petitioners have failed to
ARMM regional elections differently from the other local elections. Ubi
convince us to deviate from this established ruling.
lex non distinguit nec nos distinguire debemus. When the law does not
distinguish, we must not distinguish.10
Neither do we find any merit in the petitioners’ contention that the
ARMM elections are not covered by the constitutional mandate of
RA No. 10153 does not amend RA No. 9054
synchronization because the ARMM elections were not specifically
mentioned in the above-quoted Transitory Provisions of the
Constitution. The petitioners are adamant that the provisions of RA No. 10153, in
postponing the ARMM elections, amend RA No. 9054.
That the ARMM elections were not expressly mentioned in the
Transitory Provisions of the Constitution on synchronization cannot be We cannot agree with their position.
interpreted to mean that the ARMM elections are not covered by the
constitutional mandate of synchronization. We have to consider that
A thorough reading of RA No. 9054 reveals that it fixes the schedule
the ARMM, as we now know it, had not yet been officially organized
for only the first ARMM elections;11 it does not provide the date for the
at the time the Constitution was enacted and ratified by the people.
succeeding regular ARMM elections. In providing for the date of the
Keeping in mind that a constitution is not intended to provide merely
regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do
for the exigencies of a few years but is to endure through generations
not amend RA No. 9054 since these laws do not change or revise any
for as long as it remains unaltered by the people as ultimate sovereign,
provision in RA No. 9054. In fixing the date of the ARMM elections
a constitution should be construed in the light of what actually is a
subsequent to the first election, RA No. 9333 and RA No. 10153 merely
continuing instrument to govern not only the present but also the
filled the gap left in RA No. 9054.
unfolding events of the indefinite future. Although the principles
embodied in a constitution remain fixed and unchanged from the time
of its adoption, a constitution must be construed as a dynamic process We reiterate our previous observations:
intended to stand for a great length of time, to be progressive and not
static.8 This view – that Congress thought it best to leave the determination of
the date of succeeding ARMM elections to legislative discretion – finds
To reiterate, Article X of the Constitution, entitled "Local Government," support in ARMM’s recent history.
clearly shows the intention of the Constitution to classify autonomous
regions, such as the ARMM, as local governments. We refer to Section To recall, RA No. 10153 is not the first law passed that rescheduled the
1 of this Article, which provides: ARMM elections. The First Organic Act – RA No. 6734 – not only did
not fix the date of the subsequent elections; it did not even fix the
Section 1. The territorial and political subdivisions of the Republic of specific date of the first ARMM elections, leaving the date to be fixed in
the Philippines are the provinces, cities, municipalities, and barangays. another legislative enactment. Consequently, RA No. 7647, RA No.
There shall be autonomous regions in Muslim Mindanao and the 8176, RA No. 8746, RA No. 8753, and RA No. 9012 were all enacted by
Cordilleras as hereinafter provided. Congress to fix the dates of the ARMM elections. Since these laws did
not change or modify any part or provision of RA No. 6734, they were
not amendments to this latter law. Consequently, there was no need to
The inclusion of autonomous regions in the enumeration of political
submit them to any plebiscite for ratification.
subdivisions of the State under the heading "Local Government"
indicates quite clearly the constitutional intent to consider autonomous
regions as one of the forms of local governments. The Second Organic Act – RA No. 9054 – which lapsed into law on
March 31, 2001, provided that the first elections would be held on the
second Monday of September 2001. Thereafter, Congress passed RA
That the Constitution mentions only the "national government" and the
No. 9140 to reset the date of the ARMM elections. Significantly, while
"local governments," and does not make a distinction between the
RA No. 9140 also scheduled the plebiscite for the ratification of the
"local government" and the "regional government," is particularly
Second Organic Act (RA No. 9054), the new date of the ARMM
revealing, betraying as it does the intention of the framers of the
regional elections fixed in RA No. 9140 was not among the
Constitution to consider the autonomous regions not as separate forms
provisions ratified in the plebiscite held to approve RA No. 9054.
of government, but as political units which, while having more powers
Thereafter, Congress passed RA No. 9333, which further reset the date
and attributes than other local government units, still remain under the
category of local governments. Since autonomous regions are classified
of the ARMM regional elections. Again, this law was not ratified We also highlight an important point raised by Justice Antonio T.
through a plebiscite. Carpio in his dissenting opinion, where he stated: "Section 1, Article
XVII of RA 9054 erects a high vote threshold for each House of
Congress to surmount, effectively and unconstitutionally, taking RA
From these legislative actions, we see the clear intention of Congress to
9054 beyond the reach of Congress’ amendatory powers. One Congress
treat the laws which fix the date of the subsequent ARMM elections as
cannot limit or reduce the plenary legislative power of succeeding
separate and distinct from the Organic Acts. Congress only acted
Congresses by requiring a higher vote threshold than what the
consistently with this intent when it passed RA No. 10153 without
Constitution requires to enact, amend or repeal laws. No law can be
requiring compliance with the amendment prerequisites embodied in
passed fixing such a higher vote threshold because Congress has no
Section 1 and Section 3, Article XVII of RA No. 9054. 12 (emphases
power, by ordinary legislation, to amend the Constitution."19
supplied)

Plebiscite requirement in RA No. 9054 overly broad

The petitioner in G.R. No. 196305 contends, however, that there is no
lacuna in RA No. 9054 as regards the date of the subsequent ARMM
elections. In his estimation, it can be implied from the provisions of RA
No. 9054 that the succeeding elections are to be held three years after
the date of the first ARMM regional elections.
We find this an erroneous assertion. Well-settled is the rule that the
court may not, in the guise of interpretation, enlarge the scope of a
statute and include therein situations not provided nor intended by the
lawmakers. An omission at the time of enactment, whether careless or
calculated, cannot be judicially supplied however later wisdom may
recommend the inclusion.13 Courts are not authorized to insert into the
law what they think should be in it or to supply what they think the
legislature would have supplied if its attention had been called to the
omission.14Providing for lapses within the law falls within the
exclusive domain of the legislature, and courts, no matter how well-
meaning, have no authority to intrude into this clearly delineated
space.
Since RA No. 10153 does not amend, but merely fills in the gap in RA
No. 9054, there is no need for RA No. 10153 to comply with the
amendment requirements set forth in Article XVII of RA No. 9054.
Supermajority vote requirement makes RA No. 9054 an irrepealable
law
Even assuming that RA No. 10153 amends RA No. 9054, however, we
have already established that the supermajority vote requirement set
forth in Section 1, Article XVII of RA No. 9054 15 is unconstitutional for
violating the principle that Congress cannot pass irrepealable laws.
The power of the legislature to make laws includes the power to
amend and repeal these laws. Where the legislature, by its own act,
attempts to limit its power to amend or repeal laws, the Court has the
duty to strike down such act for interfering with the plenary powers of
Congress. As we explained in Duarte v. Dade:16
A state legislature has a plenary law-making power over all subjects,
whether pertaining to persons or things, within its territorial
jurisdiction, either to introduce new laws or repeal the old, unless
prohibited expressly or by implication by the federal constitution or
limited or restrained by its own. It cannot bind itself or its successors
by enacting irrepealable laws except when so restrained. Every
legislative body may modify or abolish the acts passed by itself or its
predecessors. This power of repeal may be exercised at the same
session at which the original act was passed; and even while a bill is in
its progress and before it becomes a law. This legislature cannot bind
a future legislature to a particular mode of repeal. It cannot declare
in advance the intent of subsequent legislatures or the effect of
subsequent legislation upon existing statutes. [emphasis ours]
Similarly, we struck down the petitioners’ contention that the
plebiscite requirement20 applies to all amendments of RA No. 9054 for
being an unreasonable enlargement of the plebiscite requirement set
forth in the Constitution.
Section 18, Article X of the Constitution provides that "[t]he creation of
the autonomous region shall be effective when approved by majority
of the votes cast by the constituent units in a plebiscite called for the
purpose[.]" We interpreted this to mean that only amendments to, or
revisions of, the Organic Act constitutionally-essential to the creation
of autonomous regions – i.e., those aspects specifically mentioned in
the Constitution which Congress must provide for in the Organic
Act21 – require ratification through a plebiscite. We stand by this
interpretation.
The petitioners argue that to require all amendments to RA No. 9054 to
comply with the plebiscite requirement is to recognize that sovereignty
resides primarily in the people.
While we agree with the petitioners’ underlying premise that
sovereignty ultimately resides with the people, we disagree that this
legal reality necessitates compliance with the plebiscite requirement
for all amendments to RA No. 9054. For if we were to go by the
petitioners’ interpretation of Section 18, Article X of the Constitution
that all amendments to the Organic Act have to undergo the plebiscite
requirement before becoming effective, this would lead to impractical
and illogical results – hampering the ARMM’s progress by impeding
Congress from enacting laws that timely address problems as they
arise in the region, as well as weighing down the ARMM government
with the costs that unavoidably follow the holding of a plebiscite.
Interestingly, the petitioner in G.R. No. 197282 posits that RA No.
10153, in giving the President the power to appoint OICs to take the
place of the elective officials of the ARMM, creates a fundamental
change in the basic structure of the government, and thus requires
compliance with the plebiscite requirement embodied in RA No. 9054.
Again, we disagree.
The pertinent provision in this regard is Section 3 of RA No. 10153,
which reads:
Section 3. Appointment of Officers-in-Charge. —  The President shall
appoint officers-in-charge for the Office of the Regional Governor,
Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said
offices until the officials duly elected in the May 2013 elections shall
have qualified and assumed office.

Under our Constitution, each House of Congress has the power to

We cannot see how the above-quoted provision has changed the basic
approve bills by a mere majority vote, provided there is quorum. 17 In
structure of the ARMM regional government. On the contrary, this
requiring all laws which amend RA No. 9054 to comply with a higher
provision clearly preserves the basic structure of the ARMM regional
voting requirement than the Constitution provides (2/3 vote),
government when it recognizes the offices of the ARMM regional
Congress, which enacted RA No. 9054, clearly violated the very
government and directs the OICs who shall temporarily assume these
principle which we sought to establish in Duarte. To reiterate, the act
offices to "perform the functions pertaining to the said offices."
of one legislature is not binding upon, and cannot tie the hands of,
future legislatures.18
Unconstitutionality of the holdover provision
The petitioners are one in defending the constitutionality of Section
7(1), Article VII of RA No. 9054, which allows the regional officials to
remain in their positions in a holdover capacity. The petitioners
essentially argue that the ARMM regional officials should be allowed
to remain in their respective positions until the May 2013 elections
since there is no specific provision in the Constitution which prohibits
regional elective officials from performing their duties in a holdover
capacity.
The pertinent provision of the Constitution is Section 8, Article X
which provides:
Section 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive
terms. [emphases ours]
On the other hand, Section 7(1), Article VII of RA No. 9054 provides:
Section 7. Terms of Office of Elective Regional Officials. – (1) Terms of
Office. The terms of office of the Regional Governor, Regional Vice
Governor and members of the Regional Assembly shall be for a period
of three (3) years, which shall begin at noon on the 30th day of
September next following the day of the election and shall end at noon
of the same date three (3) years thereafter. The incumbent elective
officials of the autonomous region shall continue in effect until their
successors are elected and qualified.
The clear wording of Section 8, Article X of the Constitution expresses
the intent of the framers of the Constitution to categorically set a
limitation on the period within which all elective local officials can
occupy their offices. We have already established that elective ARMM
officials are also local officials; they are, thus, bound by the three-year
term limit prescribed by the Constitution. It, therefore, becomes
irrelevant that the Constitution does not expressly prohibit elective
officials from acting in a holdover capacity. Short of amending the
Constitution, Congress has no authority to extend the three-year term
limit by inserting a holdover provision in RA No. 9054. Thus, the term
of three years for local officials should stay at three (3) years, as fixed
by the Constitution, and cannot be extended by holdover by Congress.
Admittedly, we have, in the past, recognized the validity of holdover
provisions in various laws. One significant difference between the
present case and these past cases22 is that while these past cases all refer
to elective barangay or sangguniang kabataan officials whose terms of
office are not explicitly provided for in the Constitution, the present
case refers to local elective officials - the ARMM Governor, the ARMM
Vice Governor, and the members of the Regional Legislative Assembly
- whose terms fall within the three-year term limit set by Section 8,
Article X of the Constitution.
Even assuming that a holdover is constitutionally permissible, and
there had been statutory basis for it (namely Section 7, Article VII of
RA No. 9054), the rule of holdover can only apply as an available
option where no express or implied legislative intent to the contrary
exists; it cannot apply where such contrary intent is evident. 23
Congress, in passing RA No. 10153 and removing the holdover option,
has made it clear that it wants to suppress the holdover rule expressed
in RA No. 9054. Congress, in the exercise of its plenary legislative
powers, has clearly acted within its discretion when it deleted the
holdover option, and this Court has no authority to question the
wisdom of this decision, absent any evidence of unconstitutionality or
grave abuse of discretion. It is for the legislature and the executive, and
not this Court, to decide how to fill the vacancies in the ARMM
regional government which arise from the legislature complying with
the constitutional mandate of synchronization.
COMELEC has no authority to hold special elections
Neither do we find any merit in the contention that the Commission on
Elections (COMELEC) is sufficiently empowered to set the date of
special elections in the ARMM. To recall, the Constitution has merely
empowered the COMELEC to enforce and administer all laws and
regulations relative to the conduct of an election. 24 Although the
legislature, under the Omnibus Election Code (Batas Pambansa Bilang
[BP] 881), has granted the COMELEC the power to postpone elections
to another date, this power is confined to the specific terms and
circumstances provided for in the law. Specifically, this power falls
within the narrow confines of the following provisions:
Section 5. Postponement of election. - When for any serious cause such
as violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes of such a nature
that the holding of a free, orderly and honest election should become
impossible in any political subdivision, the Commission, motu
proprio or upon a verified petition by any interested party, and after
due notice and hearing, whereby all interested parties are afforded
equal opportunity to be heard, shall postpone the election therein to a
date which should be reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later
than thirty days after the cessation of the cause for such postponement
or suspension of the election or failure to elect.
Section 6. Failure of election. - If, on account of force
majeure, violence, terrorism, fraud, or other analogous causes the
election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the
closing of the voting, or after the voting and during the preparation
and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any
of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and hearing, call
for the holding or continuation of the election not held, suspended or
which resulted in a failure to elect on a date reasonably close to the
date of the election not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of the cause of
such postponement or suspension of the election or failure to elect.
[emphases and underscoring ours]
As we have previously observed in our assailed decision, both Section
5 and Section 6 of BP 881 address instances where elections have
already been scheduled to take place but do not occur or had to be
suspended because of unexpected and unforeseen circumstances, such
as violence, fraud, terrorism, and other analogous circumstances.
In contrast, the ARMM elections were postponed by law, in
furtherance of the constitutional mandate of synchronization of
national and local elections. Obviously, this does not fall under any of
the circumstances contemplated by Section 5 or Section 6 of BP 881.
More importantly, RA No. 10153 has already fixed the date for the next
ARMM elections and the COMELEC has no authority to set a different
election date.
Even assuming that the COMELEC has the authority to hold special
elections, and this Court can compel the COMELEC to do so, there is
still the problem of having to shorten the terms of the newly elected
officials in order to synchronize the ARMM elections with the May
2013 national and local elections. Obviously, neither the Court nor the
COMELEC has the authority to do this, amounting as it does to an
amendment of Section 8, Article X of the Constitution, which limits the
term of local officials to three years.
President’s authority to appoint OICs
The petitioner in G.R. No. 197221 argues that the President’s power to
appoint pertains only to appointive positions and cannot extend to
positions held by elective officials.
The power to appoint has traditionally been recognized as executive in
nature.25 Section 16, Article VII of the Constitution describes in broad
strokes the extent of this power, thus:
Section 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by
law, and those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards. [emphasis ours]
The 1935 Constitution contained a provision similar to the one quoted
above. Section 10(3), Article VII of the 1935 Constitution provides:
(3) The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from the rank
of colonel, of the Navy and Air Forces from the rank of captain or
commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom
he may be authorized by law to appoint; but the Congress may by law
vest the appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments. [emphasis ours]
The main distinction between the provision in the 1987 Constitution
and its counterpart in the 1935 Constitution is the sentence
construction; while in the 1935 Constitution, the various appointments
the President can make are enumerated in a single sentence, the 1987
Constitution enumerates the various appointments the President is
empowered to make and divides the enumeration in two sentences.
The change in style is significant; in providing for this change, the
framers of the 1987 Constitution clearly sought to make a distinction
between the first group of presidential appointments and the second
group of presidential appointments, as made evident in the following
exchange:
MR. FOZ. Madame President x x x I propose to put a period (.) after
"captain" and x x x delete "and all" and substitute it with HE SHALL
ALSO APPOINT ANY.
MR. REGALADO. Madam President, the Committee accepts the
proposed amendment because it makes it clear that those other officers
mentioned therein do not have to be confirmed by the Commission on
Appointments.26
The first group of presidential appointments, specified as the heads of
the executive departments, ambassadors, other public ministers and
consuls, or officers of the Armed Forces, and other officers whose
appointments are vested in the President by the Constitution, pertains
to the appointive officials who have to be confirmed by the
Commission on Appointments.
The second group of officials the President can appoint are "all other
officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to
appoint."27 The second sentence acts as the "catch-all provision" for the
President’s appointment power, in recognition of the fact that the
power to appoint is essentially executive in nature. 28 The wide latitude
given to the President to appoint is further demonstrated by the
recognition of the President’s power to appoint officials whose
appointments are not even provided for by law. In other words,
where there are offices which have to be filled, but the law does not
provide the process for filling them, the Constitution recognizes the
power of the President to fill the office by appointment.
Any limitation on or qualification to the exercise of the President’s
appointment power should be strictly construed and must be clearly
stated in order to be recognized. 29 Given that the President derives his
power to appoint OICs in the ARMM regional government from law, it
falls under the classification of presidential appointments covered by
the second sentence of Section 16, Article VII of the Constitution; the
President’s appointment power thus rests on clear constitutional basis.
The petitioners also jointly assert that RA No. 10153, in granting the
President the power to appoint OICs in elective positions, violates
Section 16, Article X of the Constitution, 30 which merely grants the
President the power of supervision over autonomous regions.
This is an overly restrictive interpretation of the President’s
appointment power. There is no incompatibility between the
President’s power of supervision over local governments and
autonomous regions, and the power granted to the President, within
the specific confines of RA No. 10153, to appoint OICs.
The power of supervision is defined as "the power of a superior officer
to see to it that lower officers perform their functions in accordance
with law."31 This is distinguished from the power of control or "the
power of an officer to alter or modify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the
judgment of the former for the latter."32
The petitioners’ apprehension regarding the President’s alleged power
of control over the OICs is rooted in their belief that the President’s
appointment power includes the power to remove these officials at
will. In this way, the petitioners foresee that the appointed OICs will
be beholden to the President, and act as representatives of the
President and not of the people.
Section 3 of RA No. 10153 expressly contradicts the petitioners’
supposition. The provision states:
Section 3. Appointment of Officers-in-Charge. — The President shall
appoint officers-in-charge for the Office of the Regional Governor,
Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said
offices until the officials duly elected in the May 2013 elections shall
have qualified and assumed office.
The wording of the law is clear. Once the President has appointed the
OICs for the offices of the Governor, Vice Governor and members of
the Regional Legislative Assembly, these same officials will remain in
office until they are replaced by the duly elected officials in the May
2013 elections. Nothing in this provision even hints that the President
has the power to recall the appointments he already made. Clearly, the
petitioners’ fears in this regard are more apparent than real.
RA No. 10153 as an interim measure
We reiterate once more the importance of considering RA No. 10153
not in a vacuum, but within the context it was enacted in. In the first
place, Congress enacted RA No. 10153 primarily to heed the
constitutional mandate to synchronize the ARMM regional elections
with the national and local elections. To do this, Congress had to
postpone the scheduled ARMM elections for another date, leaving it
with the problem of how to provide the ARMM with governance in
the intervening period, between the expiration of the term of those
elected in August 2008 and the assumption to office – twenty-one (21)
months away – of those who will win in the synchronized elections on
May 13, 2013.
In our assailed Decision, we already identified the three possible
solutions open to Congress to address the problem created by
synchronization – (a) allow the incumbent officials to remain in office
after the expiration of their terms in a holdover capacity; (b) call for
special elections to be held, and shorten the terms of those to be elected
so the next ARMM regional elections can be held on May 13, 2013; or
(c) recognize that the President, in the exercise of his appointment
powers and in line with his power of supervision over the ARMM, can
appoint interim OICs to hold the vacated positions in the ARMM
regional government upon the expiration of their terms. We have
already established the unconstitutionality of the first two options,
leaving us to consider the last available option.
In this way, RA No. 10153 is in reality an interim measure, enacted to
respond to the adjustment that synchronization requires. Given the
context, we have to judge RA No. 10153 by the standard of
reasonableness in responding to the challenges brought about by
synchronizing the ARMM elections with the national and local
elections. In other words, "given the plain unconstitutionality of
providing for a holdover and the unavailability of constitutional
possibilities for lengthening or shortening the term of the elected
ARMM officials, is the choice of the President’s power to appoint – for
a fixed and specific period as an interim measure, and as allowed
under Section 16, Article VII of the Constitution – an unconstitutional
or unreasonable choice for Congress to make?"33
We admit that synchronization will temporarily disrupt the election
process in a local community, the ARMM, as well as the community’s
choice of leaders. However, we have to keep in mind that the adoption
of this measure is a matter of necessity in order to comply with a
mandate that the Constitution itself has set out for us. Moreover, the
implementation of the provisions of RA No. 10153 as an interim
measure is comparable to the interim measures traditionally practiced
when, for instance, the President appoints officials holding elective
offices upon the creation of new local government units.
The grant to the President of the power to appoint OICs in place of the
elective members of the Regional Legislative Assembly is neither novel
nor innovative. The power granted to the President, via RA No. 10153,
to appoint members of the Regional Legislative Assembly is
comparable to the power granted by BP 881 (the Omnibus Election
Code) to the President to fill any vacancy for any cause in the Regional
Legislative Assembly (then called the Sangguniang Pampook).34
Executive is not bound by the principle of judicial courtesy
The petitioners in G.R. No. 197280, in their Manifestation and Motion
dated December 21, 2011, question the propriety of the appointment by
the President of Mujiv Hataman as acting Governor and Bainon Karon
as acting Vice Governor of the ARMM. They argue that since our
previous decision was based on a close vote of 8-7, and given the
numerous motions for reconsideration filed by the parties, the
President, in recognition of the principle of judicial courtesy, should
have refrained from implementing our decision until we have ruled
with finality on this case.
We find the petitioners’ reasoning specious.
Firstly, the principle of judicial courtesy is based on the hierarchy of
courts and applies only to lower courts in instances where, even if
there is no writ of preliminary injunction or TRO issued by a higher
court, it would be proper for a lower court to suspend its proceedings
for practical and ethical considerations. 35 In other words, the principle
of "judicial courtesy" applies where there is a strong probability that
the issues before the higher court would be rendered moot and
moribund as a result of the continuation of the proceedings in the
lower court or court of origin. 36Consequently, this principle cannot be
applied to the President, who represents a co-equal branch of
government. To suggest otherwise would be to disregard the principle
of separation of powers, on which our whole system of government is
founded upon.
Secondly, the fact that our previous decision was based on a slim vote
of 8-7 does not, and cannot, have the effect of making our ruling any
less effective or binding. Regardless of how close the voting is, so long
as there is concurrence of the majority of the members of the en banc
who actually took part in the deliberations of the case, 37 a decision
garnering only 8 votes out of 15 members is still a decision of the
Supreme Court en banc and must be respected as such. The petitioners
are, therefore, not in any position to speculate that, based on the
voting, "the probability exists that their motion for reconsideration
may be granted."38
Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion
to Issue Clarificatory Resolution, argues that since motions for
reconsideration were filed by the aggrieved parties challenging our
October 18, 2011 decision in the present case, the TRO we initially
issued on September 13, 2011 should remain subsisting and effective.
He further argues that any attempt by the Executive to implement our
October 18, 2011 decision pending resolution of the motions for
reconsideration "borders on disrespect if not outright insolence" 39 to
this Court.
In support of this theory, the petitioner cites Samad v.
COMELEC,40 where the Court held that while it had already issued a
decision lifting the TRO, the lifting of the TRO is not yet final and
executory, and can also be the subject of a motion for reconsideration.
The petitioner also cites the minute resolution issued by the Court in
Tolentino v. Secretary of Finance,41 where the Court reproached the
Commissioner of the Bureau of Internal Revenue for manifesting its
intention to implement the decision of the Court, noting that the Court
had not yet lifted the TRO previously issued.42
We agree with the petitioner that the lifting of a TRO can be included
as a subject of a motion for reconsideration filed to assail our decision.
It does not follow, however, that the TRO remains effective until after
we have issued a final and executory decision, especially considering
the clear wording of the dispositive portion of our October 18, 2011
decision, which states:
WHEREFORE, premises considered, we DISMISS the consolidated
petitions assailing the validity of RA No. 10153 for lack of merit, and
UPHOLD the constitutionality of this law. We likewise LIFT the
temporary restraining order we issued in our Resolution of September
13, 2011. No costs.43 (emphases ours)
In this regard, we note an important distinction between Tolentino and
the present case. While it may be true that Tolentino and the present
case are similar in that, in both cases, the petitions assailing the
challenged laws were dismissed by the Court, an examination of the
dispositive portion of the decision in Tolentino reveals that the Court
did not categorically lift the TRO. In sharp contrast, in the present case,
we expressly lifted the TRO issued on September 13,
2011.1âwphi1 There is, therefore, no legal impediment to prevent the
President from exercising his authority to appoint an acting ARMM
Governor and Vice Governor as specifically provided for in RA No.
10153.
Conclusion
As a final point, we wish to address the bleak picture that the
petitioner in G.R. No. 197282 presents in his motion, that our Decision
has virtually given the President the power and authority to appoint
672,416 OICs in the event that the elections of barangay and
Sangguniang Kabataan officials are postponed or cancelled.
We find this speculation nothing short of fear-mongering.
This argument fails to take into consideration the unique factual and
legal circumstances which led to the enactment of RA No. 10153. RA
No. 10153 was passed in order to synchronize the ARMM elections
with the national and local elections. In the course of synchronizing the
ARMM elections with the national and local elections, Congress had to
grant the President the power to appoint OICs in the ARMM, in light
of the fact that: (a) holdover by the incumbent ARMM elective officials
is legally impermissible; and (b) Congress cannot call for special
elections and shorten the terms of elective local officials for less than
three years.
Unlike local officials, as the Constitution does not prescribe a term
limit for barangay and Sangguniang Kabataan officials, there is no
legal proscription which prevents these specific government officials
from continuing in a holdover capacity should some exigency require
the postponement of barangay or Sangguniang Kabataan elections.
Clearly, these fears have neither legal nor factual basis to stand on.
For the foregoing reasons, we deny the petitioners’ motions for
reconsideration.
WHEREFORE, premises considered, we DENY with FINALITY the
motions for reconsideration for lack of merit and UPHOLD the
constitutionality of RA No. 10153.
SO ORDERED.
G.R. No. 202242               April 16, 2013
FRANCISCO I. CHAVEZ, Petitioner,  their appointment in the Judiciary to ingratiate themselves with the
vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G.
ESCUDERO and REP. NIEL C. TUPAS, JR.,Respondents.
RESOLUTION
MENDOZA, J.:
This resolves the Motion for Reconsideration 1 filed by the Office of the
Solicitor General (OSG) on behalf of the respondents, Senator Francis
Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents),
duly opposed2 by the petitioner, former Solicitor General Francisco I.
Chavez (petitioner).
By way of recapitulation, the present action stemmed from the
unexpected departure of former Chief Justice Renato C. Corona on
May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to
determine 1] whether the first paragraph of Section 8, Article VIII of
the 1987 Constitution allows more than one (1) member of Congress to
sit in the JBC; and 2] if the practice of having two (2) representatives
from each House of Congress with one (1) vote each is sanctioned by
the Constitution.
On July 17, 2012, the Court handed down the assailed subject decision,
disposing the same in the following manner:
WHEREFORE, the petition is GRANTED. The current numerical
composition of the Judicial and Bar Council is declared
UNCONSTITUTIONAL. The Judicial and Bar Council is hereby
enjoined to reconstitute itself so that only one (1) member of Congress
will sit as a representative in its proceedings, in accordance with
Section 8(1), Article VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
On July 31, 2012, following respondents’ motion for reconsideration
and with due regard to Senate Resolution Nos. 111, 3 112,4 113,5 and
114,6 the Court set the subject motion for oral arguments on August 2,
2012.7 On August 3, 2012, the Court discussed the merits of the
arguments and agreed, in the meantime, to suspend the effects of the
second paragraph of the dispositive portion of the July 17, 2012
Decision which decreed that it was immediately executory. The
decretal portion of the August 3, 2012 Resolution8 reads:
WHEREFORE, the parties are hereby directed to submit their
respective MEMORANDA within ten (10) days from notice. Until
further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court’s July 17, 2012
Decision, which reads: "This disposition is immediately executory." 9
Pursuant to the same resolution, petitioner and respondents filed their
respective memoranda.10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the birth of the
Philippine Republic, the exercise of appointing members of the
Judiciary has always been the exclusive prerogative of the executive
and legislative branches of the government. Like their progenitor of
American origins, both the Malolos Constitution 11 and the 1935
Constitution12vested the power to appoint the members of the
Judiciary in the President, subject to confirmation by the Commission
on Appointments. It was during these times that the country became
witness to the deplorable practice of aspirants seeking confirmation of
members of the legislative body.13
Then, under the 1973 Constitution, 14 with the fusion of the executive
and legislative powers in one body, the appointment of judges and
justices ceased to be subject of scrutiny by another body. The power
became exclusive and absolute to the Executive, subject only to the
condition that the appointees must have all the qualifications and none
of the disqualifications.
Prompted by the clamor to rid the process of appointments to the
Judiciary of the evils of political pressure and partisan activities, 15 the
members of the Constitutional Commission saw it wise to create a
separate, competent and independent body to recommend nominees to
the President.
Thus, it conceived of a body, representative of all the stakeholders in
the judicial appointment process, and called it the Judicial and Bar
Council (JBC). The Framers carefully worded Section 8, Article VIII of
the 1987 Constitution in this wise:
Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated Bar,
a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
From the moment of the creation of the JBC, Congress designated one
(1) representative to sit in the JBC to act as one of the ex-officio
members.16 Pursuant to the constitutional provision that Congress is
entitled to one (1) representative, each House sent a representative to
the JBC, not together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC was substantially
altered.1âwphi1 An eighth member was added to the JBC as the two (2)
representatives from Congress began sitting simultaneously in the JBC,
with each having one-half (1/2) of a vote.17
In 2001, the JBC En Banc decided to allow the representatives from the
Senate and the House of Representatives one full vote each.18 It has
been the situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the Court
reconsider its decision and dismiss the petition on the following
grounds: 1] that allowing only one representative from Congress in the
JBC would lead to absurdity considering its bicameral nature; 2] that
the failure of the Framers to make the proper adjustment when there
was a shift from unilateralism to bicameralism was a plain oversight;
3] that two representatives from Congress would not subvert the
intention of the Framers to insulate the JBC from political partisanship;
and 4] that the rationale of the Court in declaring a seven-member
composition would provide a solution should there be a stalemate is
not exactly correct.
While the Court may find some sense in the reasoning in amplification
of the third and fourth grounds listed by respondents, still, it finds
itself unable to reverse the assailed decision on the principal issues
covered by the first and second grounds for lack of merit. Significantly,
the conclusion arrived at, with respect to the first and second grounds,
carries greater bearing in the final resolution of this case.
As these two issues are interrelated, the Court shall discuss them
jointly.
Ruling of the Court
The Constitution evinces the direct action of the Filipino people by
which the fundamental powers of government are established, limited
and defined and by which those powers are distributed among the
several departments for their safe and useful exercise for the benefit of
the body politic.19 The Framers reposed their wisdom and vision on
one suprema lex to be the ultimate expression of the principles and the
framework upon which government and society were to operate. Thus,
in the interpretation of the constitutional provisions, the Court firmly
relies on the basic postulate that the Framers mean what they say. The
language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in
the Constitution must be interpreted to exude its deliberate intent
which must be maintained inviolate against disobedience and
defiance. What the Constitution clearly says, according to its text,
compels acceptance and bars modification even by the branch tasked
to interpret it.
For this reason, the Court cannot accede to the argument of plain
oversight in order to justify constitutional construction. As stated in
the July 17, 2012 Decision, in opting to use the singular letter "a" to
describe "representative of Congress," the Filipino people through the
Framers intended that Congress be entitled to only one (1) seat in the
JBC. Had the intention been otherwise, the Constitution could have, in
no uncertain terms, so provided, as can be read in its other provisions.
A reading of the 1987 Constitution would reveal that several
provisions were indeed adjusted as to be in tune with the shift to
bicameralism. One example is Section 4, Article VII, which provides
that a tie in the presidential election shall be broken "by a majority of
all the Members of both Houses of the Congress, voting
separately."20 Another is Section 8 thereof which requires the nominee
to replace the Vice-President to be confirmed "by a majority of all the
Members of both Houses of the Congress, voting
separately."21 Similarly, under Section 18, the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus may
be revoked or continued by the Congress, voting separately, by a vote
of at least a majority of all its Members." 22 In all these provisions, the
bicameral nature of Congress was recognized and, clearly, the
corresponding adjustments were made as to how a matter would be
handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article
VIII, by sheer inadvertence, to their decision to shift to a bicameral
form of the legislature, is not persuasive enough. Respondents cannot
just lean on plain oversight to justify a conclusion favorable to them. It
is very clear that the Framers were not keen on adjusting the provision
on congressional representation in the JBC because it was not in the
exercise of its primary function – to legislate. JBC was created to
support the executive power to appoint, and Congress, as one whole
body, was merely assigned a contributory non-legislative function.
The underlying reason for such a limited participation can easily be
discerned. Congress has two (2) Houses. The need to recognize the
existence and the role of each House is essential considering that the
Constitution employs precise language in laying down the functions
which particular House plays, regardless of whether the two Houses
consummate an official act by voting jointly or separately. Whether in
the exercise of its legislative23 or its non-legislative functions such as
inter alia, the power of appropriation, 24 the declaration of an existence
of a state of war,25 canvassing of electoral returns for the President and
Vice-President,26 and impeachment,27 the dichotomy of each House
must be acknowledged and recognized considering the interplay
between these two Houses. In all these instances, each House is
constitutionally granted with powers and functions peculiar to its
nature and with keen consideration to 1) its relationship with the other
chamber; and 2) in consonance with the principle of checks and
balances, as to the other branches of government.
In checkered contrast, there is essentially no interaction between the
two Houses in their participation in the JBC. No mechanism is
required between the Senate and the House of Representatives in the
screening and nomination of judicial officers. Rather, in the creation of
the JBC, the Framers arrived at a unique system by adding to the four
(4) regular members, three (3) representatives from the major branches
of government - the Chief Justice as ex-officio Chairman (representing
the Judicial Department), the Secretary of Justice (representing the
Executive Department), and a representative of the Congress
(representing the Legislative Department). The total is seven (7), not
eight. In so providing, the Framers simply gave recognition to the
Legislature, not because it was in the interest of a certain constituency,
but in reverence to it as a major branch of government.
On this score, a Member of Congress, Hon. Simeon A. Datumanong,
from the Second District of Maguindanao, submitted his well-
considered position28 to then Chief Justice Reynato S. Puno:
I humbly reiterate my position that there should be only one
representative of Congress in the JBC in accordance with Article VIII,
Section 8 (1) of the 1987 Constitution x x x.
The aforesaid provision is clear and unambiguous and does not need
any further interpretation. Perhaps, it is apt to mention that the oft-
repeated doctrine that "construction and interpretation come only after
it has been demonstrated that application is impossible or inadequate
without them."
Further, to allow Congress to have two representatives in the Council,
with one vote each, is to negate the principle of equality among the
three branches of government which is enshrined in the Constitution.
In view of the foregoing, I vote for the proposition that the Council
should adopt the rule of single representation of Congress in the JBC in
order to respect and give the right meaning to the above-quoted
provision of the Constitution. (Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing,
also a JBC Consultant, submitted to the Chief Justice and ex-officio JBC
Chairman his opinion,29 which reads:
8. Two things can be gleaned from the excerpts and citations above: the
creation of the JBC is intended to curtail the influence of politics in
Congress in the appointment of judges, and the understanding is that
seven (7) persons will compose the JBC. As such, the interpretation of
two votes for Congress runs counter to the intendment of the framers.
Such interpretation actually gives Congress more influence in the
appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting
deadlock by reason of even-numbered membership, and a clear
violation of 7 enumerated members in the Constitution. (Emphases
and underscoring supplied)
In an undated position paper,30 then Secretary of Justice Agnes VST
Devanadera opined:
As can be gleaned from the above constitutional provision, the JBC is
composed of seven (7) representatives coming from different sectors.
From the enumeration it is patent that each category of members
pertained to a single individual only. Thus, while we do not lose sight
of the bicameral nature of our legislative department, it is beyond
dispute that Art. VIII, Section 8 (1) of the 1987 Constitution is explicit
and specific that "Congress" shall have only "xxx a representative."
Thus, two (2) representatives from Congress would increase the
number of JBC members to eight (8), a number beyond what the
Constitution has contemplated. (Emphases and underscoring
supplied)
In this regard, the scholarly dissection on the matter by retired Justice
Consuelo Ynares-Santiago, a former JBC consultant, is worth
reiterating.31 Thus:
A perusal of the records of the Constitutional Commission reveals that
the composition of the JBC reflects the Commission’s desire "to have in
the Council a representation for the major elements of the community."
xxx The ex-officio members of the Council consist of representatives
from the three main branches of government while the regular
members are composed of various stakeholders in the judiciary. The
unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-
officio member as representing one co-equal branch of government.
xxx Thus, the JBC was designed to have seven voting members with
the three ex-officio members having equal say in the choice of judicial
nominees.
xxx
No parallelism can be drawn between the representative of Congress
in the JBC and the exercise by Congress of its legislative powers under
Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial
branches of government, is constitutionally treated as another co-equal
branch in the matter of its representative in the JBC. On the other hand,
the exercise of legislative and constituent powers requires the Senate
and the House of Representatives to coordinate and act as distinct
bodies in furtherance of Congress’ role under our constitutional
scheme. While the latter justifies and, in fact, necessitates the
separateness of the two Houses of Congress as they relate inter se, no
such dichotomy need be made when Congress interacts with the other
two co-equal branches of government.
It is more in keeping with the co-equal nature of the three
governmental branches to assign the same weight to considerations
that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of
Representatives act as such for one branch and should not have any
more quantitative influence as the other branches in the exercise of
prerogatives evenly bestowed upon the three. Sound reason and
principle of equality among the three branches support this conclusion.
[Emphases and underscoring supplied]
The argument that a senator cannot represent a member of the House
of Representatives in the JBC and vice-versa is, thus, misplaced. In the
JBC, any member of Congress, whether from the Senate or the House
of Representatives, is constitutionally empowered to represent the
entire Congress. It may be a constricted constitutional authority, but it
is not an absurdity.
From this score stems the conclusion that the lone representative of
Congress is entitled to one full vote. This pronouncement effectively
disallows the scheme of splitting the said vote into half (1/2), between
two representatives of Congress. Not only can this unsanctioned
practice cause disorder in the voting process, it is clearly against the
essence of what the Constitution authorized. After all, basic and
reasonable is the rule that what cannot be legally done directly cannot
be done indirectly. To permit or tolerate the splitting of one vote into
two or more is clearly a constitutional circumvention that cannot be
countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to
presume that this representation carries with him one full vote.
It is also an error for respondents to argue that the President, in effect,
has more influence over the JBC simply because all of the regular
members of the JBC are his appointees. The principle of checks and
balances is still safeguarded because the appointment of all the regular
members of the JBC is subject to a stringent process of confirmation by
the Commission on Appointments, which is composed of members of
Congress.
Respondents’ contention that the current irregular composition of the
JBC should be accepted, simply because it was only questioned for the
first time through the present action, deserves scant consideration.
Well-settled is the rule that acts done in violation of the Constitution
no matter how frequent, usual or notorious cannot develop or gain
acceptance under the doctrine of estoppel or laches, because once an
act is considered as an infringement of the Constitution it is void from
the very beginning and cannot be the source of any power or authority.
It would not be amiss to point out, however, that as a general rule, an
unconstitutional act is not a law; it confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is inoperative as if
it has not been passed at all. This rule, however, is not absolute. Under
the doctrine of operative facts, actions previous to the declaration of
unconstitutionality are legally recognized. They are not nullified. This
is essential in the interest of fair play. To reiterate the doctrine
enunciated in Planters Products, Inc. v. Fertiphil Corporation:32
The doctrine of operative fact, as an exception to the general rule, only
applies as a matter of equity and fair play. It nullifies the effects of an
unconstitutional law by recognizing that the existence of a statute prior
to a determination of unconstitutionality is an operative fact and may
have consequences which cannot always be ignored. The past cannot
always be erased by a new judicial declaration. The doctrine is
applicable when a declaration of unconstitutionality will impose an
undue burden on those who have relied on the invalid law. Thus, it
was applied to a criminal case when a declaration of
unconstitutionality would put the accused in double jeopardy or
would put in limbo the acts done by a municipality in reliance upon a
law creating it.33

Under the circumstances, the Court finds the exception applicable in

this case and holds that notwithstanding its finding of
unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution

which was ratified by the direct action of the Filipino people, it cannot
correct what respondents perceive as a mistake in its mandate. Neither
can the Court, in the exercise of its power to interpret the spirit of the
Constitution, read into the law something that is contrary to its express
provisions and justify the same as correcting a perceived inadvertence.
To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission.

According to the rule of casus omissus "a case omitted is to be held as
intentionally omitted."34 "The principle proceeds from a reasonable
certainty that a particular person, object or thing has been omitted
from a legislative enumeration."35 Pursuant to this, "the Court cannot
under its power of interpretation supply the omission even though the
omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated." 36 "The Court cannot
supply what it thinks the legislature would have supplied had its
attention been called to the omission, as that would be judicial
legislation."37

Stated differently, the Court has no power to add another member by

judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court
tasked to guard the Constitution against usurpation. The Court
remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to
become judicial exuberance.38 In cases like this, no amount of practical
logic or convenience can convince the Court to perform either an
excision or an insertion that will change the manifest intent of the
Framers. To broaden the scope of congressional representation in the
JBC is tantamount to the inclusion of a subject matter which was not
included in the provision as enacted. True to its constitutional
mandate, the Court cannot craft and tailor constitutional provisions in
order to accommodate all of situations no matter how ideal or
reasonable the proposed solution may sound. To the exercise of this
intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is

hereby DENIED.

The suspension of the effects of the second paragraph of the

dispositive portion of the July 17, 2012 Decision of the Court, which
reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED.