EN BANC

RAUL L. LAMBINO and ERICO B. G.R. No. 174153

AUMENTADO, TOGETHER WITH

6,327,952 REGISTERED VOTERS,

Petitioners,

- versus -

THE COMMISSION ON ELECTIONS,

Respondent.

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

ALTERNATIVE LAW GROUPS, INC.,

Intervenor.

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

ONEVOICE INC., CHRISTIAN S.

MONSOD, RENE B. AZURIN,

MANUEL L. QUEZON III, BENJAMIN

T. TOLOSA, JR., SUSAN V. OPLE, and

CARLOS P. MEDINA, JR.,

Intervenors.
x------------------------------------------------------ x

ATTY. PETE QUIRINO QUADRA,

Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson
Dr. Carolina Pagaduan-Araullo, BAYAN MUNA
represented by its Chairperson Dr. Reynaldo

Lesaca, KILUSANG MAYO UNO represented

by its Secretary General Joel Maglunsod, HEAD

represented by its Secretary General Dr. Gene

Alzona Nisperos, ECUMENICAL BISHOPS

FORUM represented by Fr. Dionito Cabillas,

MIGRANTE represented by its Chairperson

Concepcion Bragas-Regalado, GABRIELA
represented by its Secretary General

Emerenciana de Jesus, GABRIELA WOMENS

PARTY represented by Sec. Gen. Cristina Palabay,

ANAKBAYAN represented by Chairperson

Eleanor de Guzman, LEAGUE OF FILIPINO

STUDENTS represented by Chair Vencer

Crisostomo Palabay, JOJO PINEDA of the
League of Concerned Professionals and
Businessmen, DR. DARBY SANTIAGO
of the Solidarity of Health Against Charter

Change, DR. REGINALD PAMUGAS of

Health Action for Human Rights,

Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES,

MARIO JOYO AGUJA, and ANA THERESA

HONTIVEROS-BARAQUEL,

Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO,
Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE
PHILIPPINES,
Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO,
Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO
F. ESTRELLA, TOMAS C. TOLEDO,
MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO
GAT INCIONG,
Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO
MANUEL RIVERA, and RUELO BAYA,
Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL
WORKERS ORGANIZATION (PTGWO)
and MR. VICTORINO F. BALAIS,
Intervenors.
x -------------------------------------------------------- x
 
 
SENATE OF THE PHILIPPINES, represented
by its President, MANUEL VILLAR, JR.,
Intervenor.
 
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT
FOUNDATION, INC.,
Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D.
BOCAR, MA. TANYA KARINA A. LAT,
ANTONIO L. SALVADOR, and
RANDALL TABAYOYONG,

Intervenors.

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

INTEGRATED BAR OF THE PHILIPPINES,

CEBU CITY AND CEBU PROVINCE

CHAPTERS,

Intervenors.

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

SENATE MINORITY LEADER AQUILINO

Q. PIMENTEL, JR. and SENATORS

SERGIO R. OSMEŇA III, JAMBY

MADRIGAL, JINGGOY ESTRADA,

ALFREDO S. LIM and

PANFILO LACSON,

Intervenors.

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

JOSEPH EJERCITO ESTRADA and

PWERSA NG MASANG PILIPINO,

Intervenors.

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

MAR-LEN ABIGAIL BINAY, G.R. No. 174299

SOFRONIO UNTALAN, JR., and

RENE A.V. SAGUISAG, Present:

Petitioners,

PANGANIBAN, C.J.,

- versus - PUNO,

QUISUMBING,

YNARES-SANTIAGO,

COMMISSION ON ELECTIONS, SANDOVAL-GUTIERREZ,

represented by Chairman BENJAMIN CARPIO,

S. ABALOS, SR., and Commissioners AUSTRIA-MARTINEZ,

RESURRECCION Z. BORRA, CORONA,

FLORENTINO A. TUASON, JR., CARPIO MORALES,

ROMEO A. BRAWNER, CALLEJO, SR.,

RENE V. SARMIENTO, AZCUNA,

NICODEMO T. FERRER, and TINGA,

John Doe and Peter Doe, CHICO-NAZARIO,

Respondents. GARCIA, and VELASCO, JR., JJ.

 
 
Promulgated:
 
October 25, 2006

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

 
 
 
DECISION
 
  
CARPIO, J.:
 

The Case

These are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections (COMELEC) denying due course to an initiative petition to amend the
1987 Constitution.

Antecedent Facts

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and
Erico B. Aumentado (Lambino Group), with other groups 1[1] and individuals, commenced
gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August
2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify
their initiative petition under Section 5(b) and (c)2[2] and Section 73[3] of Republic Act No.
6735 or the Initiative and Referendum Act (RA 6735).

The Lambino Group alleged that their petition had the support of 6,327,952 individuals
constituting at least twelve per centum (12%) of all registered voters, with each legislative
1

3
district represented by at least three per centum (3%) of its registered voters. The Lambino
Group also claimed that COMELEC election registrars had verified the signatures of the 6.3
million individuals.

The Lambino Groups initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department) 4[4] and Sections 1-4 of Article VII
(Executive Department)5[5] and by adding Article XVIII entitled Transitory Provisions.6[6]
These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-
Parliamentary form of government. The Lambino Group prayed that after due publication of
their petition, the COMELEC should submit the following proposition in a plebiscite for the
voters ratification:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII

OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO
A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?

On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC
indicating modifications in the proposed Article XVIII (Transitory Provisions) of their
initiative.7[7]

7
  

The Ruling of the COMELEC

On 31 August 2006, the COMELEC issued its Resolution denying due course to the
Lambino Groups petition for lack of an enabling law governing initiative petitions to amend the
Constitution. The COMELEC invoked this Courts ruling in Santiago v. Commission on
Elections8[8] declaring RA 6735 inadequate to implement the initiative clause on proposals to
amend the Constitution.9[9]

In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari
and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the
COMELEC to give due course to their initiative petition. The Lambino Group contends that the
COMELEC committed grave abuse of discretion in denying due course to their petition since
Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago
binds only the parties to that case, and their petition deserves cognizance as an expression of the
will of the sovereign people.

In G.R. No. 174299, petitioners (Binay Group) pray that the Court require respondent
COMELEC Commissioners to show cause why they should not be cited in contempt for the
COMELECs verification of signatures and for entertaining the Lambino Groups petition despite
the permanent injunction in Santiago. The Court treated the Binay Groups petition as an
opposition-in-intervention.

9
 

In his Comment to the Lambino Groups petition, the Solicitor General joined causes with
the petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor
General proposed that the Court treat RA 6735 and its implementing rules as temporary devises
to implement the system of initiative.

Various groups and individuals sought intervention, filing pleadings supporting or

opposing the Lambino Groups petition. The supporting intervenors10[10] uniformly hold the
view that the COMELEC committed grave abuse of discretion in relying on Santiago. On the
other hand, the opposing intervenors11[11] hold the contrary view and maintain that Santiago is
a binding precedent. The opposing intervenors also challenged (1) the Lambino Groups standing
to file the petition; (2) the validity of the signature gathering and verification process; (3) the
Lambino Groups compliance with the minimum requirement for the percentage of voters
supporting an initiative petition under Section 2, Article XVII of the 1987 Constitution; 12[12] (4)
the nature of the proposed changes as revisions and not mere amendments as provided under
Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Groups compliance with
the requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject.

The Court heard the parties and intervenors in oral arguments on 26 September 2006.
After receiving the parties memoranda, the Court considered the case submitted for resolution.

The Issues
10

11

12
  

The petitions raise the following issues:

1.     Whether the Lambino Groups initiative petition complies with Section 2, Article XVII
of the Constitution on amendments to the Constitution through a peoples initiative;
 
2.     Whether this Court should revisit its ruling in Santiago declaring RA 6735 incomplete,
inadequate or wanting in essential terms and conditions to implement the initiative clause
on proposals to amend the Constitution; and
 
3.     Whether the COMELEC committed grave abuse of discretion in denying due course to
the Lambino Groups petition.

 
The Ruling of the Court
 
 
There is no merit to the petition.
 

The Lambino Group miserably failed to comply with the basic requirements of the
Constitution for conducting a peoples initiative. Thus, there is even no need to revisit Santiago,
as the present petition warrants dismissal based alone on the Lambino Groups glaring failure to
comply with the basic requirements of the Constitution. For following the Courts ruling in
Santiago, no grave abuse of discretion is attributable to the Commision on Elections.

 
 

1.      The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution
on Direct Proposal by the People

Section 2, Article XVII of the Constitution is the governing constitutional provision that
allows a peoples initiative to propose amendments to the Constitution. This section states:

 
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at least twelve
per centum of the total number of registered voters of which every legislative
district must be represented by at least three per centum of the registered voters
therein. x x x x (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an

amendment directly proposed by the people through initiative upon a petition, thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want
to propose a constitutional amendment. Is the draft of the proposed
constitutional amendment ready to be shown to the people when they are
asked to sign?
 
MR. SUAREZ: That can be reasonably assumed, Madam President.
 
MR. RODRIGO: What does the sponsor mean? The draft is ready and
shown to them before they sign. Now, who prepares the draft?
 
MR. SUAREZ: The people themselves, Madam President.
 
MR. RODRIGO: No, because before they sign there is already a draft
shown to them and they are asked whether or not they want to propose this
constitutional amendment.
 
 MR. SUAREZ: As it is envisioned, any Filipino can prepare that
proposal and pass it around for signature.13[13] (Emphasis supplied)

Clearly, the framers of the Constitution intended that the draft of the proposed
constitutional amendment should be ready and shown to the people before they sign such
proposal. The framers plainly stated that before they sign there is already a draft shown to
them. The framers also envisioned that the people should sign on the proposal itself because
the proponents must prepare that proposal and pass it around for signature.

The essence of amendments directly proposed by the people through initiative upon a
petition is that the entire proposal on its face is a petition by the people. This means two
essential elements must be present. First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a
petition, the proposal must be embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is
first shown to the people who express their assent by signing such complete proposal in a
petition. Thus, an amendment is directly proposed by the people through initiative upon a
petition only if the people sign on a petition that contains the full text of the proposed
amendments.

The full text of the proposed amendments may be either written on the face of the
petition, or attached to it. If so attached, the petition must state the fact of such attachment. This
is an assurance that every one of the several millions of signatories to the petition had seen the

13
full text of the proposed amendments before signing. Otherwise, it is physically impossible,
given the time constraint, to prove that every one of the millions of signatories had seen the full
text of the proposed amendments before signing.

The framers of the Constitution directly borrowed14[14] the concept of peoples initiative
from the United States where various State constitutions incorporate an initiative clause. In
almost all States15[15] which allow initiative petitions, the unbending requirement is that the
people must first see the full text of the proposed amendments before they sign to signify
their assent, and that the people must sign on an initiative petition that contains the full
text of the proposed amendments.16[16]

The rationale for this requirement has been repeatedly explained in several decisions of
various courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of
Massachusetts, affirmed by the First Circuit Court of Appeals, declared:

[A] signature requirement would be meaningless if the person supplying the

signature has not first seen what it is that he or she is signing. Further, and
more importantly, loose interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe orally the contents
of an initiative petition to a potential signer, without the signer having actually
examined the petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that might
not be to the signer's liking. This danger seems particularly acute when, in
this case, the person giving the description is the drafter of the petition, who
obviously has a vested interest in seeing that it gets the requisite signatures
to qualify for the ballot.17[17] (Boldfacing and underscoring supplied)

 
14

15

16

17
  

Likewise, in Kerr v. Bradbury,18[18] the Court of Appeals of Oregon explained:

The purposes of full text provisions that apply to amendments by initiative

commonly are described in similar terms. x x x (The purpose of the full text
requirement is to provide sufficient information so that registered voters can
intelligently evaluate whether to sign the initiative petition.); x x x (publication
of full text of amended constitutional provision required because it is essential for
the elector to have x x x the section which is proposed to be added to or
subtracted from. If he is to vote intelligently, he must have this knowledge.
Otherwise in many instances he would be required to vote in the dark.) (Emphasis
supplied)
 
 
Moreover, an initiative signer must be informed at the time of signing of the nature and effect
of that which is proposed and failure to do so is deceptive and misleading which renders the
initiative void.19[19]

Section 2, Article XVII of the Constitution does not expressly state that the petition must
set forth the full text of the proposed amendments. However, the deliberations of the framers of
our Constitution clearly show that the framers intended to adopt the relevant American
jurisprudence on peoples initiative. In particular, the deliberations of the Constitutional
Commission explicitly reveal that the framers intended that the people must first see the full
text of the proposed amendments before they sign, and that the people must sign on a
petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative
and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign
the petition x x x as signatories.

18

19
 The proponents of the initiative secure the signatures from the people. The proponents
secure the signatures in their private capacity and not as public officials. The proponents are not
disinterested parties who can impartially explain the advantages and disadvantages of the
proposed amendments to the people. The proponents present favorably their proposal to the
people and do not present the arguments against their proposal. The proponents, or their
supporters, often pay those who gather the signatures.

Thus, there is no presumption that the proponents observed the constitutional

requirements in gathering the signatures. The proponents bear the burden of proving that they
complied with the constitutional requirements in gathering the signatures - that the petition
contained, or incorporated by attachment, the full text of the proposed amendments.

The Lambino Group did not attach to their present petition with this Court a copy of the
paper that the people signed as their initiative petition. The Lambino Group submitted to this
Court a copy of a signature sheet20[20] after the oral arguments of 26 September 2006 when
they filed their Memorandum on 11 October 2006. The signature sheet with this Court during the
oral arguments was the signature sheet attached 21[21] to the opposition in intervention filed on 7
September 2006 by intervenor Atty. Pete Quirino-Quadra.

The signature sheet attached to Atty. Quadras opposition and the signature sheet attached
to the Lambino Groups Memorandum are the same. We reproduce below the signature sheet in
full:

Province: City/Municipality: No. of  

     

20

21
 Legislative District: Barangay:

Verified

PROPOSITION: DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII

OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY,
SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE
XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM
TO ANOTHER?

I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein
which shall form part of the petition for initiative to amend the Constitution signifies my support
for the filing thereof.

             

Precinct Name Address Birthdate Signature Verification

Number
Last Name, MM/DD/YY
First Name,
M.I.
1            
2            
3            
4            
5            
6            
7            
8            
 9            
1            
0

_________________ _________________ __________________

Barangay Official Witness Witness

(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Groups
proposed changes in the signature sheet. Neither does the signature sheet state that the text
of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during
the oral arguments before this Court on 26 September 2006.

 
 

The signature sheet merely asks a question whether the people approve a shift from the
Bicameral-Presidential to the Unicameral-Parliamentary system of government. The signature
sheet does not show to the people the draft of the proposed changes before they are asked
to sign the signature sheet. Clearly, the signature sheet is not the petition that the framers of the
Constitution envisioned when they formulated the initiative clause in Section 2, Article XVII of
the Constitution.

Petitioner Atty. Lambino, however, explained that during the signature-gathering from
February to August 2006, the Lambino Group circulated, together with the signature sheets,
printed copies of the Lambino Groups draft petition which they later filed on 25 August 2006
with the COMELEC. When asked if his group also circulated the draft of their amended petition
filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied that they circulated
both. However, Atty. Lambino changed his answer and stated that what his group circulated was
the draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006 petition.

The Lambino Group would have this Court believe that they prepared the draft of the 30
August 2006 amended petition almost seven months earlier in February 2006 when they
started gathering signatures. Petitioner Erico B. Aumentados Verification/Certification of the 25
August 2006 petition, as well as of the 30 August 2006 amended petition, filed with the
COMELEC, states as follows:

I have caused the preparation of the foregoing [Amended] Petition in my

personal capacity as a registered voter, for and on behalf of the Union of Local
Authorities of the Philippines, as shown by ULAP Resolution No. 2006-02
hereto attached, and as representative of the mass of signatories hereto.
(Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the
present petition. However, the Official Website of the Union of Local Authorities of the
Philippines22[22] has posted the full text of Resolution No. 2006-02, which provides:

22
  

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLES
CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH
PEOPLES INITIATIVE AND REFERENDUM AS A MODE OF
AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines
(ULAP) to adopt a common stand on the approach to support the proposals of the
Peoples Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her
Excellency President Gloria Macapagal-Arroyo for constitutional reforms as
embodied in the ULAP Joint Declaration for Constitutional Reforms signed by
the members of the ULAP and the majority coalition of the House of
Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the Peoples Consultative Commission on Charter Change created by
Her Excellency to recommend amendments to the 1987 Constitution has
submitted its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in
Congress which militates against the use of the expeditious form of amending the
1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure
of Congress to amend the Constitution as a constituent assembly, ULAP has
unanimously agreed to pursue the constitutional reform agenda through Peoples
Initiative and Referendum without prejudice to other pragmatic means to pursue
the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED,
THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL
AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE
PORPOSALS (SIC) OF THE PEOPLES CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLES
INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE
1987 CONSTITUTION;
 DONE, during the ULAP National Executive Board special meeting held on 14
January 2006 at the Century Park Hotel, Manila.23[23] (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the
25 August 2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC.
ULAP Resolution No. 2006-02 support(s) the porposals (sic) of the Consulatative (sic)
Commission on Charter Change through peoples initiative and referendum as a mode of
amending the 1987 Constitution. The proposals of the Consultative Commission24[24] are vastly
different from the proposed changes of the Lambino Group in the 25 August 2006 petition or 30
August 2006 amended petition filed with the COMELEC.

For example, the proposed revisions of the Consultative Commission affect all
provisions of the existing Constitution, from the Preamble to the Transitory Provisions. The
proposed revisions have profound impact on the Judiciary and the National Patrimony provisions
of the existing Constitution, provisions that the Lambino Groups proposed changes do not touch.
The Lambino Groups proposed changes purport to affect only Articles VI and VII of the existing
Constitution, including the introduction of new Transitory Provisions.

The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months
before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the
COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP or the
Lambino Group caused the circulation of the draft petition, together with the signature sheets, six
months before the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02
casts grave doubt on the Lambino Groups claim that they circulated the draft petition together
with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft
petition or to the Lambino Groups proposed changes.

23

24
 In their Manifestation explaining their amended petition before the COMELEC, the
Lambino Group declared:

After the Petition was filed, Petitioners belatedly realized that the
proposed amendments alleged in the Petition, more specifically, paragraph 3 of
Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were
inaccurately stated and failed to correctly reflect their proposed amendments.

The Lambino Group did not allege that they were amending the petition because the amended
petition was what they had shown to the people during the February to August 2006 signature-
gathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 inaccurately
stated and failed to correctly reflect their proposed amendments.

The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006
amended petition with the COMELEC that they circulated printed copies of the draft petition
together with the signature sheets. Likewise, the Lambino Group did not allege in their present
petition before this Court that they circulated printed copies of the draft petition together with the
signature sheets. The signature sheets do not also contain any indication that the draft petition is
attached to, or circulated with, the signature sheets.

It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino

Group first claimed that they circulated the petition for initiative filed with the COMELEC, thus:

[T]here is persuasive authority to the effect that (w)here there is not (sic) fraud,
a signer who did not read the measure attached to a referendum petition
cannot question his signature on the ground that he did not understand the
nature of the act. [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283
 Mo. 546.] Thus, the registered voters who signed the signature sheets
circulated together with the petition for initiative filed with the COMELEC
below, are presumed to have understood the proposition contained in the petition.
(Emphasis supplied)

The Lambino Groups statement that they circulated to the people the petition for
initiative filed with the COMELEC appears an afterthought, made after the intervenors
Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty.
Quadra had pointed out that the signature sheets did not contain the text of the proposed changes.
In their Consolidated Reply, the Lambino Group alleged that they circulated the petition for
initiative but failed to mention the amended petition. This contradicts what Atty. Lambino
finally stated during the oral arguments that what they circulated was the draft of the amended
petition of 30 August 2006.

The Lambino Group cites as authority Corpus Juris  Secundum, stating that a signer who
did not read the measure attached to a referendum petition cannot question his signature on
the ground that he did not understand the nature of the act. The Lambino Group quotes an
authority that cites a proposed change attached to the petition signed by the people. Even the
authority the Lambino Group quotes requires that the proposed change must be attached to the
petition. The same authority the Lambino Group quotes requires the people to sign on the
petition itself.

Indeed, it is basic in American jurisprudence that the proposed amendment must be

incorporated with, or attached to, the initiative petition signed by the people. In the present
initiative, the Lambino Groups proposed changes were not incorporated with, or attached to, the
signature sheets. The Lambino Groups citation of Corpus Juris Secundum pulls the rug from
under their feet.

It is extremely doubtful that the Lambino Group prepared, printed, circulated, from
February to August 2006 during the signature-gathering period, the draft of the petition or
amended petition they filed later with the COMELEC. The Lambino Group are less than candid
with this Court in their belated claim that they printed and circulated, together with the signature
sheets, the petition or amended petition. Nevertheless, even assuming the Lambino Group
circulated the amended petition during the signature-gathering period, the Lambino
Group admitted circulating only very limited copies of the petition.

During the oral arguments, Atty. Lambino expressly admitted that they printed only
100,000 copies of the draft petition they filed more than six months later with the
COMELEC. Atty. Lambino added that he also asked other supporters to print additional copies
of the draft petition but he could not state with certainty how many additional copies the other
supporters printed. Atty. Lambino could only assure this Court of the printing of 100,000
copies because he himself caused the printing of these 100,000 copies.

Likewise, in the Lambino Groups Memorandum filed on 11 October 2006, the Lambino
Group expressly admits that petitioner Lambino initiated the printing and reproduction of
100,000 copies of the petition for initiative x x x.25[25] This admission binds the Lambino
Group and establishes beyond any doubt that the Lambino Group failed to show the full
text of the proposed changes to the great majority of the people who signed the signature
sheets.

25
 Thus, of the 6.3 million signatories, only 100,000 signatories could have received with
certainty one copy each of the petition, assuming a 100 percent distribution with no wastage. If
Atty. Lambino and company attached one copy of the petition to each signature sheet, only
100,000 signature sheets could have circulated with the petition. Each signature sheet contains
space for ten signatures. Assuming ten people signed each of these 100,000 signature sheets with
the attached petition, the maximum number of people who saw the petition before they signed
the signature sheets would not exceed 1,000,000.

With only 100,000 printed copies of the petition, it would be physically impossible for all
or a great majority of the 6.3 million signatories to have seen the petition before they signed the
signature sheets. The inescapable conclusion is that the Lambino Group failed to show to the
6.3 million signatories the full text of the proposed changes. If ever, not more than one
million signatories saw the petition before they signed the signature sheets.

In any event, the Lambino Groups signature sheets do not contain the full text of the
proposed changes, either on the face of the signature sheets, or as attachment with an indication
in the signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the
oral arguments, and this admission binds the Lambino Group. This fact is also obvious
from a mere reading of the signature sheet. This omission is fatal. The failure to so include
the text of the proposed changes in the signature sheets renders the initiative void for non-
compliance with the constitutional requirement that the amendment must be directly proposed
by the people through initiative upon a petition. The signature sheet is not the petition
envisioned in the initiative clause of the Constitution.

For sure, the great majority of the 6.3 million people who signed the signature sheets did
not see the full text of the proposed changes before signing. They could not have known the
nature and effect of the proposed changes, among which are:
  

1.                 The term limits on members of the legislature will be lifted and
thus members of Parliament can be re-elected indefinitely;26[26]
 
2.                 The interim Parliament can continue to function indefinitely until its
members, who are almost all the present members of Congress, decide to
call for new parliamentary elections. Thus, the members of the interim
Parliament will determine the expiration of their own term of office;
27
[27]

3.                 Within 45 days from the ratification of the proposed changes, the
interim Parliament shall convene to propose further amendments or
revisions to the Constitution.28[28]

These three specific amendments are not stated or even indicated in the Lambino Groups
signature sheets. The people who signed the signature sheets had no idea that they were
proposing these amendments. These three proposed changes are highly controversial. The people
could not have inferred or divined these proposed changes merely from a reading or rereading of
the contents of the signature sheets.

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured
the people during the signature-gathering that the elections for the regular Parliament
would be held during the 2007 local elections if the proposed changes were ratified before the
2007 local elections. However, the text of the proposed changes belies this.

26

27

28
  

The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the
amended petition, states:

Section 5(2). The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held simultaneously
with the election of all local government officials. x x x x (Emphasis supplied)

Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the elections for
the regular Parliament shall be held simultaneously with the local elections without specifying
the year.

Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes,
could have easily written the word next before the phrase election of all local government
officials. This would have insured that the elections for the regular Parliament would be held in
the next local elections following the ratification of the proposed changes. However, the absence
of the word next allows the interim Parliament to schedule the elections for the regular
Parliament simultaneously with any future local elections.

Thus, the members of the interim Parliament will decide the expiration of their own term
of office. This allows incumbent members of the House of Representatives to hold office beyond
their current three-year term of office, and possibly even beyond the five-year term of office of
regular members of the Parliament. Certainly, this is contrary to the representations of Atty.
Lambino and his group to the 6.3 million people who signed the signature sheets. Atty.
Lambino and his group deceived the 6.3 million signatories, and even the entire nation.
  

This lucidly shows the absolute need for the people to sign an initiative petition that
contains the full text of the proposed amendments to avoid fraud or misrepresentation. In the
present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty.
Lambino and his group because the signature sheets did not contain the full text of the proposed
changes. The result is a grand deception on the 6.3 million signatories who were led to believe
that the proposed changes would require the holding in 2007 of elections for the regular
Parliament simultaneously with the local elections.

The Lambino Groups initiative springs another surprise on the people who signed the
signature sheets. The proposed changes mandate the interim Parliament to make further
amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on
Transitory Provisions, provides:

Section 4(4). Within forty-five days from ratification of these

amendments, the interim Parliament shall convene to propose amendments to,
or revisions of, this Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a surplusage and the Court
and the people should simply ignore it. Far from being a surplusage, this provision invalidates
the Lambino Groups initiative.

Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives
outlaws this as logrolling - when the initiative petition incorporates an unrelated subject matter
in the same petition. This puts the people in a dilemma since they can answer only either yes or
no to the entire proposition, forcing them to sign a petition that effectively contains two
propositions, one of which they may find unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire

proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,29[29] the
Supreme Court of Florida declared:

 
Combining multiple propositions into one proposal constitutes
logrolling, which, if our judicial responsibility is to mean anything, we cannot
permit. The very broadness of the proposed amendment amounts to logrolling
because the electorate cannot know what it is voting on - the amendments
proponents simplistic explanation reveals only the tip of the iceberg. x x x x The
ballot must give the electorate fair notice of the proposed amendment being voted
on. x x x x The ballot language in the instant case fails to do that. The very
broadness of the proposal makes it impossible to state what it will affect and
effect and violates the requirement that proposed amendments embrace only one
subject. (Emphasis supplied)

Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30[30]
the Supreme Court of Alaska warned against inadvertence, stealth and fraud in logrolling:

Whenever a bill becomes law through the initiative process, all of the
problems that the single-subject rule was enacted to prevent are exacerbated.
There is a greater danger of logrolling, or the deliberate intermingling of issues to
increase the likelihood of an initiatives passage, and there is a greater
opportunity for inadvertence, stealth and fraud in the enactment-by-
initiative process. The drafters of an initiative operate independently of any
structured or supervised process. They often emphasize particular provisions of

29

30
 their proposition, while remaining silent on other (more complex or less
appealing) provisions, when communicating to the public. x x x Indeed, initiative
promoters typically use simplistic advertising to present their initiative to
potential petition-signers and eventual voters. Many voters will never read the
full text of the initiative before the election. More importantly, there is no process
for amending or splitting the several provisions in an initiative proposal. These
difficulties clearly distinguish the initiative from the legislative process.
(Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further amendments or
revisions to be undertaken by the interim Parliament as a constituent assembly. The people who
signed the signature sheets could not have known that their signatures would be used to propose
an amendment mandating the interim Parliament to propose further amendments or revisions to
the Constitution.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim
Parliament to amend or revise again the Constitution within 45 days from ratification of the
proposed changes, or before the May 2007 elections. In the absence of the proposed Section
4(4), the interim Parliament has the discretion whether to amend or revise again the Constitution.
With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated
to immediately amend or revise again the Constitution.

However, the signature sheets do not explain the reason for this rush in amending or
revising again so soon the Constitution. The signature sheets do not also explain what specific
amendments or revisions the initiative proponents want the interim Parliament to make, and why
there is a need for such further amendments or revisions. The people are again left in the dark
to fathom the nature and effect of the proposed changes. Certainly, such an initiative is not
directly proposed by the people because the people do not even know the nature and effect of the
proposed changes.

 
 There is another intriguing provision inserted in the Lambino Groups amended petition of
30 August 2006. The proposed Section 4(3) of the Transitory Provisions states:

 
Section 4(3). Senators whose term of office ends in 2010 shall be
members of Parliament until noon of the thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the
interim Parliament does not schedule elections for the regular Parliament by 30 June 2010.
However, there is no counterpart provision for the present members of the House of
Representatives even if their term of office will all end on 30 June 2007, three years earlier than
that of half of the present Senators. Thus, all the present members of the House will remain
members of the interim Parliament after 30 June 2010.

The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime
Minister exercises all the powers of the President. If the interim Parliament does not schedule
elections for the regular Parliament by 30 June 2010, the Prime Minister will come only from the
present members of the House of Representatives to the exclusion of the present Senators.

The signature sheets do not explain this discrimination against the Senators. The 6.3
million people who signed the signature sheets could not have known that their signatures
would be used to discriminate against the Senators. They could not have known that their
signatures would be used to limit, after 30 June 2010, the interim Parliaments choice of
Prime Minister only to members of the existing House of Representatives.

An initiative that gathers signatures from the people without first showing to the people
the full text of the proposed amendments is most likely a deception, and can operate as a
gigantic fraud on the people. That is why the Constitution requires that an initiative must be
directly proposed by the people x x x in a petition - meaning that the people must sign on a
petition that contains the full text of the proposed amendments. On so vital an issue as amending
the nations fundamental law, the writing of the text of the proposed amendments cannot be
hidden from the people under a general or special power of attorney to unnamed, faceless, and
unelected individuals.

The Constitution entrusts to the people the power to directly propose amendments to the
Constitution. This Court trusts the wisdom of the people even if the members of this Court do not
personally know the people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment is first shown to the
people before they sign the petition, not after they have signed the petition.

In short, the Lambino Groups initiative is void and unconstitutional because it dismally
fails to comply with the requirement of Section 2, Article XVII of the Constitution that the
initiative must be directly proposed by the people through initiative upon a petition.

2.      The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
through Initiatives

A peoples initiative to change the Constitution applies only to an amendment of the

Constitution and not to its revision. In contrast, Congress or a constitutional convention can
propose both amendments and revisions to the Constitution. Article XVII of the Constitution
provides:

ARTICLE XVII
AMENDMENTS OR REVISIONS
 
Sec. 1. Any amendment to, or revision of, this Constitution may be
proposed by:
 
(1)             The Congress, upon a vote of three-fourths of all its Members,
or
(2)             A constitutional convention.
 
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative x x x. (Emphasis supplied)
 
 
 

Article XVII of the Constitution speaks of three modes of amending the Constitution. The
first mode is through Congress upon three-fourths vote of all its Members. The second mode is
through a constitutional convention. The third mode is through a peoples initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to [A]ny
amendment to, or revision of, this Constitution. In contrast, Section 2 of Article XVII, referring
to the third mode, applies only to [A]mendments to this Constitution. This distinction was
intentional as shown by the following deliberations of the Constitutional Commission:

MR. SUAREZ: Thank you, Madam President.

 
May we respectfully call the attention of the Members of the Commission
that pursuant to the mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of the
complete committee report. With the permission of the Members, may I quote
Section 2:
 
The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru
initiative upon petition of at least ten percent of the registered
voters.
 
This completes the blanks appearing in the original Committee Report No.
7. This proposal was suggested on the theory that this matter of initiative, which
came about because of the extraordinary developments this year, has to be
separated from the traditional modes of amending the Constitution as embodied in
Section 1. The committee members felt that this system of initiative should be
limited to amendments to the Constitution and should not extend to the
revision of the entire Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or Revision. x x x x
 
xxxx
 
MS. AQUINO: [I] am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would the sponsor
be amenable to accepting an amendment in terms of realigning Section 2 as
another subparagraph (c) of Section 1, instead of setting it up as another separate
section as if it were a self-executing provision?
 
MR. SUAREZ: We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of amendment and
should not expand into a revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by the Committee.
 
MS. AQUINO: In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include the
process of revision; whereas, the process of initiation to amend, which is
given to the public, would only apply to amendments?
 
MR. SUAREZ: That is right. Those were the terms envisioned in the
Committee.
 
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
 
xxxx
 
MR. MAAMBONG: My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendments." Does it not cover the word
"revision" as defined by Commissioner Padilla when he made the distinction
between the words "amendments" and "revision"?
  
MR. DAVIDE: No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it can
only relate to "amendments" not "revision."
 
MR. MAAMBONG: Thank you.31[31] (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a
clear distinction between amendment and revision of the Constitution. The framers intended,
and wrote, that only Congress or a constitutional convention may propose revisions to the
Constitution. The framers intended, and wrote, that a peoples initiative may propose only
amendments to the Constitution. Where the intent and language of the Constitution clearly
withhold from the people the power to propose revisions to the Constitution, the people cannot
propose revisions even as they are empowered to propose amendments.

This has been the consistent ruling of state supreme courts in the United States. Thus, in
McFadden v. Jordan,32[32] the Supreme Court of California ruled:

 
The initiative power reserved by the people by amendment to the
Constitution x x x applies only to the proposing and the adopting or rejecting
of laws and amendments to the Constitution and does not purport to extend
to a constitutional revision. x x x x It is thus clear that a revision of the
Constitution may be accomplished only through ratification by the people of a
revised constitution proposed by a convention called for that purpose as outlined
hereinabove. Consequently if the scope of the proposed initiative measure
(hereinafter termed the measure) now before us is so broad that if such measure
became law a substantial revision of our present state Constitution would be
effected, then the measure may not properly be submitted to the electorate until
and unless it is first agreed upon by a constitutional convention, and the writ
sought by petitioner should issue. x x x x (Emphasis supplied)

31

32
 

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33[33]

It is well established that when a constitution specifies the manner in

which it may be amended or revised, it can be altered by those who favor
amendments, revision, or other change only through the use of one of the
specified means. The constitution itself recognizes that there is a difference
between an amendment and a revision; and it is obvious from an examination of
the measure here in question that it is not an amendment as that term is generally
understood and as it is used in Article IV, Section 1. The document appears to be
based in large part on the revision of the constitution drafted by the Commission
for Constitutional Revision authorized by the 1961 Legislative Assembly, x x x
and submitted to the 1963 Legislative Assembly. It failed to receive in the
Assembly the two-third's majority vote of both houses required by Article XVII,
Section 2, and hence failed of adoption, x x x.
 
While differing from that document in material respects, the measure
sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the present
constitution x x x.
 
To call it an amendment is a misnomer.
 
Whether it be a revision or a new constitution, it is not such a measure as
can be submitted to the people through the initiative. If a revision, it is subject to
the requirements of Article XVII, Section 2(1); if a new constitution, it can only
be proposed at a convention called in the manner provided in Article XVII,
Section 1. x x x x

Similarly, in this jurisdiction there can be no dispute that a peoples initiative can only
propose amendments to the Constitution since the Constitution itself limits initiatives to
amendments. There can be no deviation from the constitutionally prescribed modes of revising
the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a
deviation from the specific modes prescribed in the Constitution itself.

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34[34]

33
  
It is a fundamental principle that a constitution can only be revised or
amended in the manner prescribed by the instrument itself, and that any
attempt to revise a constitution in a manner other than the one provided in
the instrument is almost invariably treated as extra-constitutional and
revolutionary. x x x x While it is universally conceded that the people are
sovereign and that they have power to adopt a constitution and to change their
own work at will, they must, in doing so, act in an orderly manner and according
to the settled principles of constitutional law. And where the people, in adopting a
constitution, have prescribed the method by which the people may alter or amend
it, an attempt to change the fundamental law in violation of the self-imposed
restrictions, is unconstitutional. x x x x (Emphasis supplied)

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from
its solemn oath and duty to insure compliance with the clear command of the Constitution ― that
a peoples initiative may only amend, never revise, the Constitution.

The question is, does the Lambino Groups initiative constitute an amendment or revision
of the Constitution? If the Lambino Groups initiative constitutes a revision, then the present
petition should be dismissed for being outside the scope of Section 2, Article XVII of the
Constitution.

Courts have long recognized the distinction between an amendment and a revision of a
constitution. One of the earliest cases that recognized the distinction described the fundamental
difference in this manner:

[T]he very term constitution implies an instrument of a permanent and abiding

nature, and the provisions contained therein for its revision indicate the will of

34
 the people that the underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like permanent and abiding
nature. On the other hand, the significance of the term amendment implies such
an addition or change within the lines of the original instrument as will effect an
improvement, or better carry out the purpose for which it was framed.35[35]
(Emphasis supplied)

Revision broadly implies a change that alters a basic principle in the constitution, like
altering the principle of separation of powers or the system of checks-and-balances. There is also
revision if the change alters the substantial entirety of the constitution, as when the change
affects substantial provisions of the constitution. On the other hand, amendment broadly refers
to a change that adds, reduces, or deletes without altering the basic principle involved.
Revision generally affects several provisions of the constitution, while amendment generally
affects only the specific provision being amended.

In California where the initiative clause allows amendments but not revisions to the
constitution just like in our Constitution, courts have developed a two-part test: the quantitative
test and the qualitative test. The quantitative test asks whether the proposed change is so
extensive in its provisions as to change directly the substantial entirety of the constitution by the
deletion or alteration of numerous existing provisions.36[36] The court examines only the number
of provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the
constitution. The main inquiry is whether the change will accomplish such far reaching changes
in the nature of our basic governmental plan as to amount to a revision. 37[37] Whether there is an
alteration in the structure of government is a proper subject of inquiry. Thus, a change in the
35

36

37
nature of [the] basic governmental plan includes change in its fundamental framework or the
fundamental powers of its Branches.38[38] A change in the nature of the basic governmental plan
also includes changes that jeopardize the traditional form of government and the system of check
and balances.39[39]

Under both the quantitative and qualitative tests, the Lambino Groups initiative is a
revision and not merely an amendment. Quantitatively, the Lambino Groups proposed changes
overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting
a total of 105 provisions in the entire Constitution. 40[40] Qualitatively, the proposed changes
alter substantially the basic plan of government, from presidential to parliamentary, and from a
bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the

three great co-equal branches of government in the present Constitution are reduced into two.
This alters the separation of powers in the Constitution. A shift from the present Bicameral-
Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution.
Merging the legislative and executive branches is a radical change in the structure of
government.

The abolition alone of the Office of the President as the locus of Executive Power alters
the separation of powers and thus constitutes a revision of the Constitution. Likewise, the

38

39

40
abolition alone of one chamber of Congress alters the system of checks-and-balances within the
legislature and constitutes a revision of the Constitution.

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the abolition of the Office of the President and the
abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the
face alone of the Lambino Groups proposed changes, it is readily apparent that the changes will
radically alter the framework of government as set forth in the Constitution. Father Joaquin
Bernas, S.J., a leading member of the Constitutional Commission, writes:

An amendment envisages an alteration of one or a few specific and separable

provisions. The guiding original intention of an amendment is to improve specific
parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be
dangerous. In revision, however, the guiding original intention and plan
contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a switch from
the presidential system to a parliamentary system would be a revision
because of its over-all impact on the entire constitutional structure. So would
a switch from a bicameral system to a unicameral system be because of its
effect on other important provisions of the Constitution.41[41] (Emphasis
supplied)

In Adams v. Gunter,42[42] an initiative petition proposed the amendment of the Florida

State constitution to shift from a bicameral to a unicameral legislature. The issue turned on
whether the initiative was defective and unauthorized where [the] proposed amendment would x

41

42
x x affect several other provisions of [the] Constitution. The Supreme Court of Florida, striking
down the initiative as outside the scope of the initiative clause, ruled as follows:

 
The proposal here to amend Section 1 of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not only many other
provisions of the Constitution but provides for a change in the form of the
legislative branch of government, which has been in existence in the United
States Congress and in all of the states of the nation, except one, since the earliest
days. It would be difficult to visualize a more revolutionary change. The
concept of a House and a Senate is basic in the American form of government. It
would not only radically change the whole pattern of government in this state
and tear apart the whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
 
xxxx
We conclude with the observation that if such proposed amendment were
adopted by the people at the General Election and if the Legislature at its next
session should fail to submit further amendments to revise and clarify the
numerous inconsistencies and conflicts which would result, or if after submission
of appropriate amendments the people should refuse to adopt them, simple chaos
would prevail in the government of this State. The same result would obtain from
an amendment, for instance, of Section 1 of Article V, to provide for only a
Supreme Court and Circuit Courts-and there could be other examples too
numerous to detail. These examples point unerringly to the answer.
 
The purpose of the long and arduous work of the hundreds of men and
women and many sessions of the Legislature in bringing about the Constitution of
1968 was to eliminate inconsistencies and conflicts and to give the State a
workable, accordant, homogenous and up-to-date document. All of this could
disappear very quickly if we were to hold that it could be amended in the manner
proposed in the initiative petition here.43[43] (Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The
Lambino Groups initiative not only seeks a shift from a bicameral to a unicameral legislature, it
also seeks to merge the executive and legislative departments. The initiative in Adams did not
even touch the executive department.

43
 In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida
Constitution that would be affected by the shift from a bicameral to a unicameral legislature. In
the Lambino Groups present initiative, no less than 105 provisions of the Constitution would
be affected based on the count of Associate Justice Romeo J. Callejo, Sr. 44[44] There is no doubt
that the Lambino Groups present initiative seeks far more radical changes in the structure of
government than the initiative in Adams.

The Lambino Group theorizes that the difference between amendment and revision is
only one of procedure, not of substance. The Lambino Group posits that when a deliberative
body drafts and proposes changes to the Constitution, substantive changes are called revisions
because members of the deliberative body work full-time on the changes. However, the same
substantive changes, when proposed through an initiative, are called amendments because the
changes are made by ordinary people who do not make an occupation, profession, or
vocation out of such endeavor.

Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:

99. With this distinction in mind, we note that the constitutional provisions
expressly provide for both amendment and revision when it speaks of legislators
and constitutional delegates, while the same provisions expressly provide only for
amendment when it speaks of the people. It would seem that the apparent
distinction is based on the actual experience of the people, that on one hand the
common people in general are not expected to work full-time on the matter of
correcting the constitution because that is not their occupation, profession or
vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words
revision and amendment pertain only to the process or procedure of coming

44
 up with the corrections, for purposes of interpreting the constitutional
provisions.
 
100. Stated otherwise, the difference between amendment and revision
cannot reasonably be in the substance or extent of the correction. x x x x
(Underlining in the original; boldfacing supplied)

The Lambino Group in effect argues that if Congress or a constitutional convention had
drafted the same proposed changes that the Lambino Group wrote in the present initiative, the
changes would constitute a revision of the Constitution. Thus, the Lambino Group concedes
that the proposed changes in the present initiative constitute a revision if Congress or a
constitutional convention had drafted the changes. However, since the Lambino Group as
private individuals drafted the proposed changes, the changes are merely amendments to the
Constitution. The Lambino Group trivializes the serious matter of changing the fundamental law
of the land.

The express intent of the framers and the plain language of the Constitution
contradict the Lambino Groups theory. Where the intent of the framers and the language of the
Constitution are clear and plainly stated, courts do not deviate from such categorical intent and
language.45[45] Any theory espousing a construction contrary to such intent and language
deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in
the form of government established in the Constitution. Such a theory, devoid of any
jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes the
flimsiness of the Lambino Groups position. Any theory advocating that a proposed change
involving a radical structural change in government does not constitute a revision justly deserves
rejection.

45
 

The Lambino Group simply recycles a theory that initiative proponents in American
jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46[46] the
Supreme Court of Oregon rejected this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to
the constitution proposed by initiative. His theory is that Article XVII, section 2
merely provides a procedure by which the legislature can propose a revision
of the constitution, but it does not affect proposed revisions initiated by the
people.
 
Plaintiffs argue that the proposed ballot measure constitutes a wholesale
change to the constitution that cannot be enacted through the initiative process.
They assert that the distinction between amendment and revision is determined by
reviewing the scope and subject matter of the proposed enactment, and that
revisions are not limited to a formal overhauling of the constitution. They argue
that this ballot measure proposes far reaching changes outside the lines of the
original instrument, including profound impacts on existing fundamental rights
and radical restructuring of the government's relationship with a defined group of
citizens. Plaintiffs assert that, because the proposed ballot measure will refashion
the most basic principles of Oregon constitutional law, the trial court correctly
held that it violated Article XVII, section 2, and cannot appear on the ballot
without the prior approval of the legislature.
 
We first address Mabon's argument that Article XVII, section 2(1), does
not prohibit revisions instituted by initiative. In Holmes v. Appling, x x x, the
Supreme Court concluded that a revision of the constitution may not be
accomplished by initiative, because of the provisions of Article XVII, section 2.
After reviewing Article XVII, section1, relating to proposed amendments, the
court said:
 
From the foregoing it appears that Article IV, Section 1, authorizes the
use of the initiative as a means of amending the Oregon Constitution, but
it contains no similar sanction for its use as a means of revising the
constitution. x x x x
 
It then reviewed Article XVII, section 2, relating to revisions, and said: It
is the only section of the constitution which provides the means for constitutional

46
 revision and it excludes the idea that an individual, through the initiative, may
place such a measure before the electorate. x x x x
 
Accordingly, we reject Mabon's argument that Article XVII, section
2, does not apply to constitutional revisions proposed by initiative. (Emphasis
supplied)

Similarly, this Court must reject the Lambino Groups theory which negates the express intent of
the framers and the plain language of the Constitution.

We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the spectrum, colors
fuse and difficulties arise in determining whether there is an amendment or revision. The present
initiative is indisputably located at the far end of the red spectrum where revision begins. The
present initiative seeks a radical overhaul of the existing separation of powers among the three
co-equal departments of government, requiring far-reaching amendments in several sections and
articles of the Constitution.

Where the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be considered an
amendment and not a revision. For example, a change reducing the voting age from 18 years to
15 years47[47] is an amendment and not a revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100 percent to 60 percent is an amendment and not a
revision.48[48] Also, a change requiring a college degree as an additional qualification for
election to the Presidency is an amendment and not a revision.49[49]

 
47

48

49
 The changes in these examples do not entail any modification of sections or articles of
the Constitution other than the specific provision being amended. These changes do not also
affect the structure of government or the system of checks-and-balances among or within the
three branches. These three examples are located at the far green end of the spectrum, opposite
the far red end where the revision sought by the present petition is located.

However, there can be no fixed rule on whether a change is an amendment or a revision.

A change in a single word of one sentence of the Constitution may be a revision and not an
amendment. For example, the substitution of the word republican with monarchic or theocratic in
Section 1, Article II50[50] of the Constitution radically overhauls the entire structure of
government and the fundamental ideological basis of the Constitution. Thus, each specific
change will have to be examined case-by-case, depending on how it affects other provisions, as
well as how it affects the structure of government, the carefully crafted system of checks-and-
balances, and the underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a

constitution, a deliberative body with recorded proceedings is best suited to undertake a
revision. A revision requires harmonizing not only several provisions, but also the altered
principles with those that remain unaltered. Thus, constitutions normally authorize deliberative
bodies like constituent assemblies or constitutional conventions to undertake revisions. On the
other hand, constitutions allow peoples initiatives, which do not have fixed and identifiable
deliberative bodies or recorded proceedings, to undertake only amendments and not revisions.

In the present initiative, the Lambino Groups proposed Section 2 of the Transitory
Provisions states:

 
Section 2. Upon the expiration of the term of the incumbent President and
Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI
of the 1987 Constitution which shall hereby be amended and Sections 18 and 24
50
 which shall be deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case,
they shall be amended to conform with a unicameral parliamentary form of
government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent
with a prior law, the later law prevails. This rule also applies to construction of constitutions.
However, the Lambino Groups draft of Section 2 of the Transitory Provisions turns on its head
this rule of construction by stating that in case of such irreconcilable inconsistency, the earlier
provision shall be amended to conform with a unicameral parliamentary form of government.
The effect is to freeze the two irreconcilable provisions until the earlier one shall be amended,
which requires a future separate constitutional amendment.

 
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino
readily conceded during the oral arguments that the requirement of a future amendment is a
surplusage. In short, Atty. Lambino wants to reinstate the rule of statutory construction so that
the later provision automatically prevails in case of irreconcilable inconsistency. However, it is
not as simple as that.

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory

Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in
the proposed changes. The inconsistency is between a provision in Article VI of the 1987
Constitution and the Parliamentary system of government, and the inconsistency shall be
resolved in favor of a unicameral parliamentary form of government.

Now, what unicameral parliamentary form of government do the Lambino Groups

proposed changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand models,
which are among the few countries with unicameral parliaments? The proposed changes could
not possibly refer to the traditional and well-known parliamentary forms of government ― the
British, French, Spanish, German, Italian, Canadian, Australian, or Malaysian models, which
have all bicameral parliaments. Did the people who signed the signature sheets realize that they
were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of
government?

This drives home the point that the peoples initiative is not meant for revisions of the
Constitution but only for amendments. A shift from the present Bicameral-Presidential to a
Unicameral-Parliamentary system requires harmonizing several provisions in many articles of
the Constitution. Revision of the Constitution through a peoples initiative will only result in
gross absurdities in the Constitution.

In sum, there is no doubt whatsoever that the Lambino Groups initiative is a revision and
not an amendment. Thus, the present initiative is void and unconstitutional because it violates
Section 2, Article XVII of the Constitution limiting the scope of a peoples initiative to
[A]mendments to this Constitution.

3.      A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements
of Section 2, Article XVII of the Constitution on the conduct and scope of a peoples initiative to
amend the Constitution. There is no need to revisit this Courts ruling in Santiago declaring RA
6735 incomplete, inadequate or wanting in essential terms and conditions to cover the system of
initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the
outcome of the present petition. Thus, this Court must decline to revisit Santiago which
effectively ruled that RA 6735 does not comply with the requirements of the Constitution to
implement the initiative clause on amendments to the Constitution.
  

This Court must avoid revisiting a ruling involving the constitutionality of a statute if the
case before the Court can be resolved on some other grounds. Such avoidance is a logical
consequence of the well-settled doctrine that courts will not pass upon the constitutionality of a
statute if the case can be resolved on some other grounds.51[51]

Nevertheless, even assuming that RA 6735 is valid to implement the constitutional

provision on initiatives to amend the Constitution, this will not change the result here because the
present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the
present initiative must first comply with Section 2, Article XVII of the Constitution even before
complying with RA 6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the
petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of
the total number of registered voters as signatories. Section 5(b) of RA 6735 requires that the
people must sign the petition x x x as signatories.

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended
petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty.
Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended
petition as counsels for Raul L. Lambino and Erico B. Aumentado, Petitioners. In the
COMELEC, the Lambino Group, claiming to act together with the 6.3 million signatories,
merely attached the signature sheets to the petition and amended petition. Thus, the petition and
amended petition filed with the COMELEC did not even comply with the basic requirement of
RA 6735 that the Lambino Group claims as valid.

51
 

The Lambino Groups logrolling initiative also violates Section 10(a) of RA 6735 stating,
No petition embracing more than one (1) subject shall be submitted to the electorate; x x x.
The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to
propose further amendments or revisions to the Constitution, is a subject matter totally
unrelated to the shift in the form of government. Since the present initiative embraces more than
one subject matter, RA 6735 prohibits submission of the initiative petition to the electorate.
Thus, even if RA 6735 is valid, the Lambino Groups initiative will still fail.

4.      The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the
Lambino Groups Initiative

In dismissing the Lambino Groups initiative petition, the COMELEC en banc merely
followed this Courts ruling in Santiago and Peoples Initiative for Reform, Modernization and
Action (PIRMA) v. COMELEC.52[52] For following this Courts ruling, no grave abuse of
discretion is attributable to the COMELEC. On this ground alone, the present petition warrants
outright dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion
could be attributed to the public respondent COMELEC in dismissing the petition
filed by PIRMA therein, it appearing that it only complied with the dispositions in
the Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997,
and its Resolution of June 10, 1997.

52
  

5.      Conclusion

The Constitution, as the fundamental law of the land, deserves the utmost respect and
obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly
amending or revising it in blatant violation of the clearly specified modes of amendment and
revision laid down in the Constitution itself.

To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group of the day. If this
Court allows today a cavalier change in the Constitution outside the constitutionally prescribed
modes, tomorrow the new dominant political group that comes will demand its own set of
changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does
not augur well for the rule of law in this country.

An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total

votes cast53[53] − approved our Constitution in a national plebiscite held on 11 February 1987.
That approval is the unmistakable voice of the people, the full expression of the peoples
sovereign will. That approval included the prescribed modes for amending or revising the
Constitution.

53
 

No amount of signatures, not even the 6,327,952 million signatures gathered by the
Lambino Group, can change our Constitution contrary to the specific modes that the people, in
their sovereign capacity, prescribed when they ratified the Constitution. The alternative is an
extra-constitutional change, which means subverting the peoples sovereign will and
discarding the Constitution. This is one act the Court cannot and should never do. As the
ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to defend
and protect the Constitution, which embodies the real sovereign will of the people.

Incantations of peoples voice, peoples sovereign will, or let the people decide cannot
override the specific modes of changing the Constitution as prescribed in the Constitution itself.
Otherwise, the Constitution ― the peoples fundamental covenant that provides enduring stability
to our society ― becomes easily susceptible to manipulative changes by political groups
gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of
the nations stability.

The Lambino Group claims that their initiative is the peoples voice. However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their
petition with the COMELEC, that ULAP maintains its unqualified support to the agenda of Her
Excellency President Gloria Macapagal-Arroyo for constitutional reforms. The Lambino Group
thus admits that their peoples initiative is an unqualified support to the agenda of the
incumbent President to change the Constitution. This forewarns the Court to be wary of
incantations of peoples voice or sovereign will in the present initiative.

This Court cannot betray its primordial duty to defend and protect the Constitution. The
Constitution, which embodies the peoples sovereign will, is the bible of this Court. This Court
exists to defend and protect the Constitution. To allow this constitutionally infirm initiative,
propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to
allow a desecration of the Constitution. To allow such alteration and desecration is to lose this
Courts raison d'etre.

WHEREFORE, we DISMISS the petition in G.R. No. 174153.

1.        Define Political Law

It is that branch of public law which deals with the organization and operations of the
governmental organs of the State and defines the relations of the State with the inhabitants of its
territory. (PEOPLE VS. PERFECTO, 43 Phil. 887)

2.        What are included in Political Law?

 Constitutional Law;
 Administrative Law
 Law of Public Officers
 Law on Public Corporation
   Election Law

3. What is the doctrine of constitutional supremacy?

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.

4. What are the requisites for the exercise of “people’s initiative” to amend the Constitution?

It is provided under Section 2, Art. XVII of the Constitution which provides that “Amendments
to this Constitution may likewise be directly proposed by the people through initiative upon a
petition of at least 12% of the total number of registered voters, of which every legislative
district must be represented by at least  3% of the registered voter therein.” The Congress shall
provide for the implementation of the exercise of this right.

5. Is there a law which would provide for the mechanism for the people to propose
amendments to the Constitution by people’s initiative?

          While Congress had enacted RA 6735 purportedly to provide the mechanisms for the
people’s exercise the power to amend the Constitution by people’s initiative, the Supreme Court
in MIRIAM DEFENSOR-SANTIAGO,   et al. Vs. COMELEC,   G.R. No. 127325, March 19,
1997 & June 10, 1997, the Supreme Court held that RA 6735 is incomplete, inadequate or
wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be
cured by “empowering” the COMELEC to promulgate such rules and regulations as may
be necessary to carry the purposes of this act.

In LAMBINO VS. COMELEC, however, the Supreme Court on November 21, 2006, in the
Minute Resolution of the petitioner’s Motion for Reconsideration held that RA No. 6735 is
adequate and complete for the purpose of proposing amendments to the Constitution
through people’s initiative by a vote of 10 members as per Certification of the En Banc’s
Clerk of Court.

5-a. May the question “Do you approve the amendment of Articles VI and VII of the 1987
Philippine Constitution changing the form of government from Presidential-Bicameral to
Parliamentary-Unicameral” be allowed to be submitted to the people for their ratification or
rejection as a means of amending the Constitution by people’s initiative if the requisite
number of signatories (12% nationwide and at least 3% for every legislative district) are met?

No for two (2) reasons.

1. The said “proposal” did not indicate which provisions of Articles VI and VII are actually
being amended which is a must under Section 2, Art. XVII. Otherwise, who shall make the
amendments if the people in a plebiscite approve the same;

2. Changing the form of government from presidential to parliamentary is an act of REVISING

the Constitution which is not allowed under Art. XVII, Section 2. People’s initiative may only be
allowed to propose amendments to the Constitution, not revision.

6. What are the requisites before an amendment to the Constitution by “people’s initiative” is
sufficient in form and in substance?

In the case of RAUL L. LAMBINO and ERICO B. AUMENTADO , together with 6,327,952
registered voters vs. THE COMMISSION ON ELECTIONS, G.R. No. 174153, October 25,
2006, 505 SCRA 160, the following requisites must be present:

1.     The people must author and must sign the entire proposal. No agent or representative can
sign for and on their behalf;

2.     As an initiative upon  a petition, THE PROPOSAL MUST BE EMBODIED IN A

PETITION.

These essential elements are present only if the full text of the proposed amendments  is first
shown to the people who will express  their assent by signing such complete proposal in a
petition. Thus, an amendment is “DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETIITON “ ONLY IF THE PEOPLE SIGN ON A PETITION THAT
OCNTAINS THE FULL TEXT OF THE PROPOSED AMENDMENTS.

7. Distinguish “Revision” from “amendment” of the Constitution.

“Revision” is the  alterations of the different portions of the entire document [Constitution]. It
may result in the rewriting whether the whole constitution, or the greater portion of it, or perhaps
some of its important provisions. But whatever results the revision may produce, the factor that
characterizes it as an act of revision is the original intention and plan authorized to be carried out.
That intention and plan must contemplate a consideration of all the provisions of the Constitution
to determine which one should be altered or suppressed or whether the whole document should
be replaced with an entirely new one.

“Amendment” of the Constitution, on the other hand, envisages a change or only a few specific
provisions. The intention of an act to amend is not to consider the advisability of changing the
entire constitution or of considering that possibility. The intention rather is to improve specific
parts of the existing constitution or to add to it provisions deemed essential on account of
changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading
in their effect. (SINCO, Vicente, PHILIPPINE POLITICAL LAW)

8. May Congress propose amendments to the Constitution while at the same time calling for a
Constitutional Convention to amend the Constitution?

                         Yes, there is no prohibition for Congress to propose amendments to the
Constitution and at the same time call for the convening of a Constitutional Convention to
amend the Constitution. The word “or” in the provision “…Congress, upon a vote of ¾ of all its
members; OR [2] A constitutional Convention” under Section 1, Art. XVII  also means “AND”.
(GONZALES VS. COMELEC, 21 SCRA 774)

             9. What is the “Doctrine of Proper Submission” in connection with proposed

amendments to the Constitution?

             “Doctrine of Proper Submission” means all the proposed amendments to the
Constitution shall be presented to the people for the ratification or rejection at the same time,
not piecemeal. (TOLENTINO VS. COMELEC, 41 SCRA 702)

10. What is the archipelagic doctrine or archipelago theory?

It is the 2nd sentence of Section 1, Art. I of the Constitution which states that “thewaters around,
between and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.”
G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,

vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,

vs.
COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN,

petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction relates
to the power of the incumbent President of the Philippines to propose amendments to
the present Constitution in the absence of the interim National Assembly which has not
been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No.

991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies
("barangays") to resolve, among other things, the issues of martial law, the I . assembly,
its replacement, the powers of such replacement, the period of its existence, the length
of the period for tile exercise by the President of his present powers.1

Twenty days after or on September 22, 1976, the President issued another related
decree, Presidential Decree No. 1031, amending the previous Presidential Decree No.
991, by declaring the provisions of presidential Decree No. 229 providing for the manner
of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the
national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential
Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full text of
which (Section 4) is quoted in the footnote below. 2

On the same date of September 22, 1976, the President issued Presidential Decree No.
1033, stating the questions to be submitted to the people in the referendum-plebiscite
on October 16, 1976. The Decree recites in its "whereas" clauses that the people's
continued opposition to the convening of the National Assembly evinces their desire to
have such body abolished and replaced thru a constitutional amendment, providing for
a legislative body, which will be submitted directly to the people in the referendum-
plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the following
amendments to the Constitution? For the purpose of the second question, the
referendum shall have the effect of a plebiscite within the contemplation of Section 2 of
Article XVI of the Constitution.

PROPOSED AMENDMENTS:

1. There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa. Members of the interim Batasang Pambansa which shall not be more than
120, unless otherwise provided by law, shall include the incumbent President of the
Philippines, representatives elected from the different regions of the nation, those who
shall not be less than eighteen years of age elected by their respective sectors, and
those chosen by the incumbent President from the members of the Cabinet. Regional
representatives shall be apportioned among the regions in accordance with the number
of their respective inhabitants and on the basis of a uniform and progressive ratio while
the sectors shall be determined by law. The number of representatives from each region
or sector and the, manner of their election shall be prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members shall
have the same functions, responsibilities, rights, privileges, and disqualifications as the
interim National Assembly and the regular National Assembly and the members thereof.
However, it shall not exercise the power provided in Article VIII, Section 14(l) of the
Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election and
selection of the members, convene the interim Batasang Pambansa and preside over
its sessions until the Speaker shall have been elected. The incumbent President of the
Philippines shall be the Prime Minister and he shall continue to exercise all his powers
even after the interim Batasang Pambansa is organized and ready to discharge its
functions and likewise he shall continue to exercise his powers and prerogatives under
the nineteen hundred and thirty five. Constitution and the powers vested in the
President and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and
functions, and discharge the responsibilities of the regular President (Prime Minister)
and his Cabinet, and shall be subject only to such disqualifications as the President
(Prime Minister) may prescribe. The President (Prime Minister) if he so desires may
appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem
necessary.

5. The incumbent President shall continue to exercise legislative powers until martial
law shall have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on any
matter for any reason that in his judgment requires immediate action, he may, in order
to meet the exigency, issue the necessary decrees, orders or letters of instructions,
which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their
functions, powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the Commission
on Elections may be called at any time the government deems it necessary to ascertain
the will of the people regarding any important matter whether of national or local
interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall
continue in full force and effect.

9. These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by I majority of the votes cast in the referendum-
plebiscite."

The Commission on Elections was vested with the exclusive supervision and control of
the October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and
son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin
the Commission on Elections from holding and conducting the Referendum Plebiscite
on October 16; to declare without force and effect Presidential Decree Nos. 991 and
1033, insofar as they propose amendments to the Constitution, as well as Presidential
Decree No. 1031, insofar as it directs the Commission on Elections to supervise,
control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the
incumbent President to exercise the constituent power to propose amendments to the
new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no
constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor General principally maintains that petitioners
have no standing to sue; the issue raised is political in nature, beyond judicial
cognizance of this Court; at this state of the transition period, only the incumbent
President has the authority to exercise constituent power; the referendum-plebiscite is a
step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction,
docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971
Constitutional Convention, asserting that the power to propose amendments to, or
revision of the Constitution during the transition period is expressly conferred on the
interim National Assembly under Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5,
1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN,
docketed as L- 44714, to restrain the implementation of Presidential Decrees relative to
the forthcoming Referendum-Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial
Law, the incumbent President cannot act as a constituent assembly to propose
amendments to the Constitution; a referendum-plebiscite is untenable under the
Constitutions of 1935 and 1973; the submission of the proposed amendments in such a
short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the
President need not consult the people via referendum; and allowing 15-.year olds to
vote would amount to an amendment of the Constitution, which confines the right of
suffrage to those citizens of the Philippines 18 years of age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad

and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of
Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid
source of a stature Presidential Decrees are of such nature-may be contested by one
who will sustain a direct injuries as a in result of its enforcement. At the instance of
taxpayers, laws providing for the disbursement of public funds may be enjoined, upon
the theory that the expenditure of public funds by an officer of the State for the purpose
of executing an unconstitutional act constitutes a misapplication of such funds. 4 The
breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for
the effective implementation of its purposes. 5 Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of
the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of
public money sufficiently clothes them with that personality to litigate the validity of the
Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court
enjoys that open discretion to entertain the same or not. 7 For the present case, We
deem it sound to exercise that discretion affirmatively so that the authority upon which
the disputed Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying
outside the domain of judicial review. We disagree. The amending process both as to
proposal and ratification, raises a judicial question. 8 This is especially true in cases
where the power of the Presidency to initiate the of normally exercised by the
legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to
propose amendments o the constitution resides in the interim National Assembly in the
period of transition (See. 15, Transitory provisions). After that period, and the regular
National Assembly in its active session, the power to propose amendments becomes
ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art.
XVI, 1973 constitution). The normal course has not been followed. Rather than calling
the National Assembly to constitute itself into a constituent assembly the incumbent
President undertook the proposal of amendments and submitted the proposed
amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite
on October 16. Unavoidably, the regularity regularity of the procedure for amendments,
written in lambent words in the very Constitution sought to be amended, raises a
contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033,
which commonly purport to have the force and effect of legislation are assailed as
invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within
the competence of this Court to pass upon. Section 2 (2), Article X of the new
Constitution provides: "All cases involving the constitutionality of a treaty, executive
agreement, or law may shall be heard and decided by the Supreme Court en banc and
no treaty, executive agreement, or law may be declared unconstitutional without the
concurrence of at least ten Members. ..." The Supreme Court has the last word in the
construction not only of treaties and statutes, but also of the Constitution itself The
amending, like all other powers organized in the Constitution, is in form a delegated and
hence a limited power, so that the Supreme Court is vested with that authorities to
determine whether that power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular
act. Where the vortex of the controversy refers to the legality or validity of the contested
act, that matter is definitely justiciable or non-political. What is in the heels of the Court
is not the wisdom of the act of the incumbent President in proposing amendments to the
Constitution, but his constitutional authority to perform such act or to assume the power
of a constituent assembly. Whether the amending process confers on the President that
power to propose amendments is therefore a downright justiciable question. Should the
contrary be found, the actuation of the President would merely be a brutum fulmen. If
the Constitution provides how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority assumed was
valid or not. 10

We cannot accept the view of the Solicitor General, in pursuing his theory of non-
justiciability, that the question of the President's authority to propose amendments and
the regularity of the procedure adopted for submission of the proposal to the people
ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not
that the people themselves, by their sovereign act, provided for the authority and
procedure for the amending process when they ratified the present Constitution in
1973? Whether, therefore, the constitutional provision has been followed or not is the
proper subject of inquiry, not by the people themselves of course who exercise no
power of judicial but by the Supreme Court in whom the people themselves vested that
power, a power which includes the competence to determine whether the constitutional
norms for amendments have been observed or not. And, this inquiry must be done a
prior not a posterior i.e., before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the
preference of the Court's majority to treat such issue of Presidential role in the
amending process as one of non-political impression. In the Plebiscite Cases, 11 the
contention of the Solicitor General that the issue on the legality of Presidential Decree
No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the 1971
Constitutional Convention and appropriating fund s therefore "is a political one, was
rejected and the Court unanimously considered the issue as justiciable in nature.
Subsequently in the Ratification Cases 12 involving the issue of whether or not the
validity of Presidential Proclamation No. 1102. announcing the Ratification by the
Filipino people of the constitution proposed by the 1971 Constitutional Convention,"
partakes of the nature of a political question, the affirmative stand of' the Solicitor
General was dismissed, the Court ruled that the question raised is justiciable. Chief
Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned
plebiscite cases, We rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973,
for the ratification or rejection of the proposed new Constitution, was valid or not, was
not a proper subject of judicial inquiry because, they claimed, it partook of a political
nature, and We unanimously declared that the issue was a justiciable one. With
Identical unanimity. We overruled the respondent's contention in the 1971 habeas
corpus cases, questioning Our authority to determine the constitutional sufficiency of the
factual bases of the Presidential proclamation suspending the privilege of the writ of
habeas corpus on August 21, 1971, despite the opposite view taken by this Court in
Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the former
case, which view We, accordingly, abandoned and refused to apply. For the same
reason, We did not apply and expressly modified, in Gonzales vs. Commission on
Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The
return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor
General, was decisively refused by the Court. Chief Justice Concepcion continued: "The
reasons adduced in support thereof are, however, substantially the same as those given
in support on the political question theory advanced in said habeas corpus and
plebiscite cases, which were carefully considered by this Court and found by it to be
legally unsound and constitutionally untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare
decisis which gained added weight by its virtual reiteration."
II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may
be proposed by the National Assembly upon a vote of three-fourths of all
its Members, or by a constitutional convention. (2) The National Assembly
may, by a vote of two-thirds of all its Members, call a constitutional
convention or, by a majority vote of all its Members, submit the question of
calling such a convention to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be

valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not later than three months after the approval of such
amendment or revision.

In the present period of transition, the interim National Assembly instituted in the
Transitory Provisions is conferred with that amending power. Section 15 of the
Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. Such amendments shall take effect
when ratified in accordance with Article Sixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation,
i.e., period of normalcy and period of transition. In times of normally, the amending
process may be initiated by the proposals of the (1) regular National Assembly upon a
vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a
vote of two-thirds of all the Members of the National Assembly. However the calling of a
Constitutional Convention may be submitted to the electorate in an election voted upon
by a majority vote of all the members of the National Assembly. In times of transition,
amendments may be proposed by a majority vote of all the Members of the National
Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent President
is vested with that prerogative of discretion as to when he shall initially convene the
interim National Assembly. Speaking for the majority opinion in that case, Justice
Makasiar said: "The Constitutional Convention intended to leave to the President the
determination of the time when he shall initially convene the interim National Assembly,
consistent with the prevailing conditions of peace and order in the country." Concurring,
Justice Fernandez, himself a member of that Constitutional Convention, revealed:
"(W)hen the Delegates to the Constitutional Convention voted on the Transitory
Provisions, they were aware of the fact that under the same, the incumbent President
was given the discretion as to when he could convene the interim National Assembly; it
was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal
that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The
President's decision to defer the convening of the interim National Assembly soon found
support from the people themselves. In the plebiscite of January 10-15, 1973, at which
the ratification of the 1973 Constitution was submitted, the people voted against the
convening of the interim National Assembly. In the referendum of July 24, 1973, the
Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the
convening of the interim National Assembly. Again, in the referendum of February 27,
1975, the proposed question of whether the interim National Assembly shall be initially
convened was eliminated, because some of the members of Congress and delegates of
the Constitutional Convention, who were deemed automatically members of the I interim
National Assembly, were against its inclusion since in that referendum of January, 1973,
the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of
amendment to a Constitution, that body is not in the usual function of lawmaking. lt is
not legislating when engaged in the amending process.16 Rather, it is exercising a
peculiar power bestowed upon it by the fundamental charter itself. In the Philippines,
that power is provided for in Article XVI of the 1973 Constitution (for the regular National
Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly).
While ordinarily it is the business of the legislating body to legislate for the nation by
virtue of constitutional conferment amending of the Constitution is not legislative in
character. In political science a distinction is made between constitutional content of an
organic character and that of a legislative character'. The distinction, however, is one of
policy, not of law. 17 Such being the case, approval of the President of any proposed
amendment is a misnomer 18 The prerogative of the President to approve or disapprove
applies only to the ordinary cases of legislation. The President has nothing to do with
proposition or adoption of amendments to the Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis

government today are more or less concentrated in the President. 20 According to
Rossiter, "(t)he concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as imperative
that the total power of the government be parceled out among three mutually
independent branches executive, legislature, and judiciary. It is believed to be
destructive of constitutionalism if any one branch should exercise any two or more types
of power, and certainly a total disregard of the separation of powers is, as Madison
wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the
separation of powers forms a distinct obstruction to arbitrary governmental action. By
this same token, in abnormal times it may form an insurmountable barrier to a decisive
emergency action in behalf of the state and its independent existence. There are
moments in the life of any government when all powers must work together in unanimity
of purpose and action, even if this means the temporary union of executive, legislative,
and judicial power in the hands of one man. The more complete the separation of
powers in a constitutional system, the more difficult and yet the more necessary will be
their fusion in time of crisis. This is evident in a comparison of the crisis potentialities of
the cabinet and presidential systems of government. In the former the all-important
harmony of legislature and executive is taken for granted; in the latter it is neither
guaranteed nor to be to confidently expected. As a result, cabinet is more easily
established and more trustworthy than presidential dictatorship. The power of the state
in crisis must not only be concentrated and expanded; it must also be freed from the
normal system of constitutional and legal limitations. 21 John Locke, on the other hand,
claims for the executive in its own right a broad discretion capable even of setting aside
the ordinary laws in the meeting of special exigencies for which the legislative power
had not provided. 22 The rationale behind such broad emergency powers of the
Executive is the release of the government from "the paralysis of constitutional
restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a

conceded valid at. That sun clear authority of the President is saddled on Section 3
(pars. 1 and 2) of the Transitory Provisions, thus: 23

The incumbent President of the Philippines shall initially convene the

interim National Assembly and shall preside over its sessions until the
interim Speaker shall have been elected. He shall continue to exercise his
powers and prerogatives under the nineteen hundred and thirty-five
Constitution and the powers vested in the President and the Prime
Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister,
who shall then exercise their respective powers vested by this
Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated,

issued, or done by the incumbent President shall be part of the law of the
land, and shall remain valid, binding, and effective even after lifting of
martial law or the ratification of this Constitution, unless modified, revoked,
or superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or unless expressly
and explicitly modified or repealed by the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate,
"that the Constitutional Convention, while giving to the President the discretion when to
call the interim National Assembly to session, and knowing that it may not be convened
soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no
one to exercise the lawmaking powers, there would be paralyzation of the entire
governmental machinery." 24 Paraphrasing Rossiter, this is an extremely important
factor in any constitutional dictatorship which extends over a period of time. The
separation of executive and legislature ordained in the Constitution presents a distinct
obstruction to efficient crisis government. The steady increase in executive power is not
too much a cause for as the steady increase in the magnitude and complexity of the
problems the President has been called upon by the Filipino people to solve in their
behalf, which involve rebellion, subversion, secession, recession, inflation, and
economic crisis-a crisis greater than war. In short, while conventional constitutional law
just confines the President's power as Commander-in-Chief to the direction of the
operation of the national forces, yet the facts of our political, social, and economic
disturbances had convincingly shown that in meeting the same, indefinite power should
be attributed to tile President to take emergency measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the

interim National Assembly during the transition period. However, the initial convening of
that Assembly is a matter fully addressed to the judgment of the incumbent President.
And, in the exercise of that judgment, the President opted to defer convening of that
body in utter recognition of the people's preference. Likewise, in the period of transition,
the power to propose amendments to the Constitution lies in the interim National
Assembly upon special call by the President (See. 15 of the Transitory Provisions).
Again, harking to the dictates of the sovereign will, the President decided not to call the
interim National Assembly. Would it then be within the bounds of the Constitution and of
law for the President to assume that constituent power of the interim Assembly vis-a-vis
his assumption of that body's legislative functions? The answer is yes. If the President
has been legitimately discharging the legislative functions of the interim Assembly, there
is no reason why he cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although peculiar, to its gross
legislative power. This, of course, is not to say that the President has converted his
office into a constituent assembly of that nature normally constituted by the legislature.
Rather, with the interim National Assembly not convened and only the Presidency and
the Supreme Court in operation, the urges of absolute necessity render it imperative
upon the President to act as agent for and in behalf of the people to propose
amendments to the Constitution. Parenthetically, by its very constitution, the Supreme
Court possesses no capacity to propose amendments without constitutional infractions.
For the President to shy away from that actuality and decline to undertake the amending
process would leave the governmental machineries at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis
government "to end the crisis and restore normal times." In these parlous times, that
Presidential initiative to reduce into concrete forms the constant voices of the people
reigns supreme. After all, constituent assemblies or constitutional conventions, like the
President now, are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums of

January 1973 and February 1975, the people had already rejected the calling of the
interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, about the same number
of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72
provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing
sentiment of the people is for the abolition of the interim National Assembly. Other
issues concerned the lifting of martial law and amendments to the Constitution .27 The
national organizations of Sangguniang Bayan presently proposed to settle the issues of
martial law, the interim Assembly, its replacement, the period of its existence, the length
of the period for the exercise by the President of its present powers in a referendum to
be held on October 16 . 28 The Batasang Bayan (legislative council) created under
Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9
officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive
committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit
directly to the people in a plebiscite on October 16, the previously quoted proposed
amendments to the Constitution, including the issue of martial law .29 Similarly, the
"barangays" and the "sanggunians" endorsed to the President the submission of the
proposed amendments to the people on October 16. All the foregoing led the President
to initiate the proposal of amendments to the Constitution and the subsequent issuance
of Presidential Decree No, 1033 on September 22, 1976 submitting the questions
(proposed amendments) to the people in the National Referendum-Plebiscite on
October 16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen.
In the Philippines, a republican and unitary state, sovereignty "resides in the people and
all government authority emanates from them .30 In its fourth meaning, Savigny would
treat people as "that particular organized assembly of individuals in which, according to
the Constitution, the highest power exists." 31 This is the concept of popular sovereignty.
It means that the constitutional legislator, namely the people, is sovereign 32 In
consequence, the people may thus write into the Constitution their convictions on any
subject they choose in the absence of express constitutional prohibition. 33 This is
because, as Holmes said, the Constitution "is an experiment, as all life is all
experiment." 34 "The necessities of orderly government," wrote Rottschaefer, "do not
require that one generation should be permitted to permanently fetter all future
generations." A constitution is based, therefore, upon a self-limiting decision of the
people when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise

their sovereign power as constitutional legislator. The proposed amendments, as earlier
discussed, proceed not from the thinking of a single man. Rather, they are the collated
thoughts of the sovereign will reduced only into enabling forms by the authority who can
presently exercise the powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a referendum-plebiscite
expresses but the option of the people themselves implemented only by the authority of
the President. Indeed, it may well be said that the amending process is a sovereign act,
although the authority to initiate the same and the procedure to be followed reside
somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want
martial law to be continued? - is a referendum question, wherein the 15-year olds may
participate. This was prompted by the desire of the Government to reach the larger mas
of the people so that their true pulse may be felt to guide the President in pursuing his
program for a New Order. For the succeeding question on the proposed amendments,
only those of voting age of 18 years may participate. This is the plebiscite aspect, as
contemplated in Section 2, Article XVI of the new Constitution. 36 On this second
question, it would only be the votes of those 18 years old and above which will have
valid bearing on the results. The fact that the voting populace are simultaneously asked
to answer the referendum question and the plebiscite question does not infirm the
referendum-plebiscite. There is nothing objectionable in consulting the people on a
given issue, which is of current one and submitting to them for ratification of proposed
constitutional amendments. The fear of commingled votes (15-year olds and 18-year
olds above) is readily dispelled by the provision of two ballot boxes for every barangay
center, one containing the ballots of voters fifteen years of age and under eighteen, and
another containing the ballots of voters eighteen years of age and above. 37 The ballots
in the ballot box for voters fifteen years of age and under eighteen shall be counted
ahead of the ballots of voters eighteen years and above contained in another ballot box.
And, the results of the referendum-plebiscite shall be separately prepared for the age
groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum"
is merely consultative in character. It is simply a means of assessing public reaction to
the given issues submitted to the people foe their consideration, the calling of which is
derived from or within the totality of the executive power of the President. 39 It is
participated in by all citizens from the age of fifteen, regardless of whether or not they
are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite," on the other hand,
involves the constituent act of those "citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall have resided
in the Philippines for at least one year and in the place wherein they propose to vote for
at least six months preceding the election Literacy, property or any other substantive
requirement is not imposed. It is generally associated with the amending process of the
Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law
stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial law
regime which, in the observation of Justice Fernando, 41 is impressed with a mild
character recorded no State imposition for a muffled voice. To be sure, there are
restraints of the individual liberty, but on certain grounds no total suppression of that
liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the
embracing freedoms of expression and assembly The President himself had announced
that he would not countenance any suppression of dissenting views on the issues, as
he is not interested in winning a "yes" or "no" vote, but on the genuine sentiment of the
people on the issues at hand. 42 Thus, the dissenters soon found their way to the public
forums, voicing out loud and clear their adverse views on the proposed amendments
and even (in the valid ratification of the 1973 Constitution, which is already a settled
matter. 43 Even government employees have been held by the Civil Service Commission
free to participate in public discussion and even campaign for their stand on the
referendum-plebiscite issues. 44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short
for free debates or discussions on the referendum-plebiscite issues. The questions are
not new. They are the issues of the day. The people have been living with them since
the proclamation of martial law four years ago. The referendums of 1973 and 1975
carried the same issue of martial law. That notwithstanding, the contested brief period
for discussion is not without counterparts in previous plebiscites for constitutional
amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old
Society, 15 days were allotted for the publication in three consecutive issues of the
Official Gazette of the women's suffrage amendment to the Constitution before the
scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional
amendment to append as ordinance the complicated Tydings-Kocialskowski was
published in only three consecutive issues of the Official Gazette for 10 days prior to the
scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing
for the bicameral Congress, the reelection of the President and Vice President, and the
creation of the Commission on Elections, 20 days of publication in three consecutive
issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment,
an involved constitutional amendment affecting the economy as well as the
independence of the Republic was publicized in three consecutive issues of the Official
Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the
specific date when the plebiscite shall be held, but simply states that it "shall be held not
later than three months after the approval of such amendment or revision." In Coleman
v. Miller, 46 the United States Supreme court held that this matter of submission involves
"an appraisal of a great variety of relevant conditions, political, social and economic,"
which "are essentially political and not justiciable." The constituent body or in the instant
cases, the President, may fix the time within which the people may act. This is because
proposal and ratification are not treated as unrelated acts, but as succeeding steps in a
single endeavor, the natural inference being that they are not to be widely separated in
time; second, it is only when there is deemed to be a necessity therefor that
amendments are to be proposed, the reasonable implication being that when proposed,
they are to be considered and disposed of presently, and third, ratification is but the
expression of the approbation of the people, hence, it must be done
contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution
proposed today has relation to the sentiment and the felt needs of today, and that, if not
ratified early while that sentiment may fairly be supposed to exist. it ought to be
regarded as waived, and not again to be voted upon, unless a second time proposed by
proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and
1033 political or justiciable?

2. During the present stage of the transition period, and under, the environmental
circumstances now obtaining, does the President possess power to propose
amendments to the Constitution as well as set up the required machinery and prescribe
the procedure for the ratification of his proposals by the people?

3. Is the submission to the people of the proposed amendments within the time frame
allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes
Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is
justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C.
Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate
Justices Teehankee and Munoz Palma voted in the negative. Associate Justice
Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59
SCRA 183), specifically dissents from the proposition that there is concentration of
powers in the Executive during periods of crisis, thus raising serious doubts as to the
power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and proper
submission of the proposed amendments for ratification by the people. Associate
Justices Barredo and Makasiar expressed the hope, however that the period of time
may be extended. Associate Justices Fernando, Makasiar and Antonio are of the view
that the question is political and therefore beyond the competence and cognizance of
this Court, Associate Justice Fernando adheres to his concurrence in the opinion of
Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate
Justices Teehankee and MUNOZ Palma hold that prescinding from the President's lack
of authority to exercise the constituent power to propose the amendments, etc., as
above stated, there is no fair and proper submission with sufficient information and time
to assure intelligent consent or rejection under the standards set by this Court in the
controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as
expressed in his separate opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is immediately executory.

SO ORDERED.
G.R. No. L-56350 April 2, 1981

SAMUEL C. OCCENA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE
NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.

G.R. No. L-56404 April 2, 1981

RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY

ALLAN T. DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.:

The challenge in these two prohibition proceedings against the validity of three
Batasang Pambansa Resolutions 1 proposing constitutional amendments, goes further
than merely assailing their alleged constitutional infirmity. Petitioners Samuel Occena
and Ramon A. Gonzales, both members of the Philippine Bar and former delegates to
the 1971 Constitutional Convention that framed the present Constitution, are suing as
taxpayers. The rather unorthodox aspect of these petitions is the assertion that the 1973
Constitution is not the fundamental law, the Javellana 2 ruling to the contrary
notwithstanding. To put it at its mildest, such an approach has the arresting charm of
novelty – but nothing else. It is in fact self defeating, for if such were indeed the case,
petitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and
apply that Constitution. To contend otherwise as was done here would be, quite clearly,
an exercise in futility. Nor are the arguments of petitioners cast in the traditional form of
constitutional litigation any more persuasive. For reasons to be set forth, we dismiss the
petitions.

The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On
March 10 and 13 respectively, respondents were required to answer each within ten
days from notice. 5 There was a comment on the part of the respondents. Thereafter,
both cases were set for hearing and were duly argued on March 26 by petitioners and
Solicitor General Estelito P. Mendoza for respondents. With the submission of pertinent
data in amplification of the oral argument, the cases were deemed submitted for
decision.

It is the ruling of the Court, as set forth at the outset, that the petitions must be
dismissed.
1. It is much too late in the day to deny the force and applicability of the 1973
Constitution. In the dispositive portion of Javellana v. The Executive Secretary, 6
dismissing petitions for prohibition and mandamus to declare invalid its ratification, this
Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This being the
vote of the majority, there is no further judicial obstacle to the new Constitution being
considered in force and effect." 9 Such a statement served a useful purpose. It could
even be said that there was a need for it. It served to clear the atmosphere. It made
manifest that, as of January 17, 1973, the present Constitution came into force and
effect. With such a pronouncement by the Supreme Court and with the recognition of
the cardinal postulate that what the Supreme Court says is not only entitled to respect
but must also be obeyed, a factor for instability was removed. Thereafter, as a matter of
law, all doubts were resolved. The 1973 Constitution is the fundamental law. It is as
simple as that. What cannot be too strongly stressed is that the function of judicial
review has both a positive and a negative aspect. As was so convincingly demonstrated
by Professors Black 10 and Murphy, 11 the Supreme Court can check as well as
legitimate. In declaring what the law is, it may not only nullify the acts of coordinate
branches but may also sustain their validity. In the latter case, there is an affirmation
that what was done cannot be stigmatized as constitutionally deficient. The mere
dismissal of a suit of this character suffices. That is the meaning of the concluding
statement in Javellana. Since then, this Court has invariably applied the present
Constitution. The latest case in point is People v. Sola, 12 promulgated barely two weeks
ago. During the first year alone of the effectivity of the present Constitution, at least ten
cases may be cited. 13

2. We come to the crucial issue, the power of the Interim Batasang Pambansa to
propose amendments and how it may be exercised. More specifically as to the latter,
the extent of the changes that may be introduced, the number of votes necessary for
the validity of a proposal, and the standard required for a proper submission. As was
stated earlier, petitioners were unable to demonstrate that the challenged resolutions
are tainted by unconstitutionality.

(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The
applicable provision in the 1976 Amendments is quite explicit. Insofar as pertinent it
reads thus: "The Interim Batasang Pambansa shall have the same powers and its
Members shall have the same functions, responsibilities, rights, privileges, and
disqualifications as the interim National Assembly and the regular National Assembly
and the Members thereof." 14 One of such powers is precisely that of proposing
amendments. The 1973 Constitution in its Transitory Provisions vested the Interim
National Assembly with the power to propose amendments upon special call by the
Prime Minister by a vote of the majority of its members to be ratified in accordance with
the Article on Amendments. 15 When, therefore, the Interim Batasang Pambansa, upon
the call of the President and Prime Minister Ferdinand E. Marcos, met as a constituent
body it acted by virtue Of such impotence Its authority to do so is clearly beyond doubt.
It could and did propose the amendments embodied in the resolutions now being
assailed. It may be observed parenthetically that as far as petitioner Occena is
Concerned, the question of the authority of the Interim Batasang Pambansa to propose
amendments is not new. In Occena v. Commission on Elections, 16 filed by the same
petitioner, decided on January 28, 1980, such a question was involved although not
directly passed upon. To quote from the opinion of the Court penned by Justice Antonio
in that case: "Considering that the proposed amendment of Section 7 of Article X of the
Constitution extending the retirement of members of the Supreme Court and judges of
inferior courts from sixty-five (65) to seventy (70) years is but a restoration of the age of
retirement provided in the 1935 Constitution and has been intensively and extensively
discussed at the Interim Batasang Pambansa, as well as through the mass media, it
cannot, therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment." 17

(2) Petitioners would urge upon us the proposition that the amendments proposed are
so extensive in character that they go far beyond the limits of the authority conferred on
the Interim Batasang Pambansa as Successor of the Interim National Assembly. For
them, what was done was to revise and not to amend. It suffices to quote from the
opinion of Justice Makasiar, speaking for the Court, in Del Rosario v. Commission on
Elections 18 to dispose of this contention. Thus: "3. And whether the Constitutional
Convention will only propose amendments to the Constitution or entirely overhaul the
present Constitution and propose an entirely new Constitution based on an Ideology
foreign to the democratic system, is of no moment; because the same will be submitted
to the people for ratification. Once ratified by the sovereign people, there can be no
debate about the validity of the new Constitution. 4. The fact that the present
Constitution may be revised and replaced with a new one ... is no argument against the
validity of the law because 'amendment' includes the 'revision' or total overhaul of the
entire Constitution. At any rate, whether the Constitution is merely amended in part or
revised or totally changed would become immaterial the moment the same is ratified by
the sovereign people." 19 There is here the adoption of the principle so well-known in
American decisions as well as legal texts that a constituent body can propose anything
but conclude nothing. 20 We are not disposed to deviate from such a principle not only
sound in theory but also advantageous in practice.

(3) That leaves only the questions of the vote necessary to propose amendments as
well as the standard for proper submission. Again, petitioners have not made out a case
that calls for a judgment in their favor. The language of the Constitution supplies the
answer to the above questions. The Interim Batasang Pambansa, sitting as a
constituent body, can propose amendments. In that capacity, only a majority vote is
needed. It would be an indefensible proposition to assert that the three-fourth votes
required when it sits as a legislative body applies as well when it has been convened as
the agency through which amendments could be proposed. That is not a requirement as
far as a constitutional convention is concerned. It is not a requirement either when, as in
this case, the Interim Batasang Pambansa exercises its constituent power to propose
amendments. Moreover, even on the assumption that the requirement of three- fourth
votes applies, such extraordinary majority was obtained. It is not disputed that
Resolution No. 1 proposing an amendment allowing a natural-born citizen of the
Philippines naturalized in a foreign country to own a limited area of land for residential
purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the
Presidency, the Prime Minister and the Cabinet, and the National Assembly by a vote of
147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the
Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the
alleged infirmity? As to the requisite standard for a proper submission, the question may
be viewed not only from the standpoint of the period that must elapse before the holding
of the plebiscite but also from the standpoint of such amendments having been called to
the attention of the people so that it could not plausibly be maintained that they were
properly informed as to the proposed changes. As to the period, the Constitution
indicates the way the matter should be resolved. There is no ambiguity to the applicable
provision: "Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision." 21 The three
resolutions were approved by the Interim Batasang Pambansa sitting as a constituent
assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of
the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the
Constitution. Thus any argument to the contrary is unavailing. As for the people being
adequately informed, it cannot be denied that this time, as in the cited 1980 Occena
opinion of Justice Antonio, where the amendment restored to seventy the retirement
age of members of the judiciary, the proposed amendments have "been intensively and
extensively discussed at the Interim Batasang Pambansa, as well as through the mass
media, [ so that ] it cannot, therefore, be said that our people are unaware of the
advantages and disadvantages of the proposed amendment [ s ]." 22

WHEREFORE, the petitions are dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and

Melencio-Herrera, JJ., concur.

Abad Santos, J., is on leave.

Separate Opinions

TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a
temporary restraining order enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of

the October 1976 amendments proposals to the 1973 Constitution for not having been
proposed nor adopted in accordance with the mandatory provisions thereof, as restated
by me in Hidalgo vs. Marcos 2 and De la Llana vs. Comelec 3 , questioning the validity of
the December 17, 1977 referendum – exercise as to the continuance in office as
incumbent President and to be Prime Minister after the organization of the Interim
Batasang Pambansa as provided for in Amendment No. 3 of the 1976 Amendments, I
am constrained to dissent from the majority decision of dismissal of the petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve
amendments to the Constitution as well as to set up the machinery and prescribe the
procedure for the ratification of the amendments proposals has been withheld by the
Constitution from the President (Prime Minister) as sole repository of executive power
and that so long as the regular National Assembly provided for in Article VIII of the
Constitution had not come to existence and the proposals for constitutional
amendments were now deemed necessary to be discussed and adopted for submittal to
the people, strict adherence with the mandatory requirements of the amending process
as provided in the Constitution must be complied with. This means, under the prevailing
doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be valid must
come from the constitutional agency vested with the constituent power to do so, i.e. in
the Interim National Assembly provided in the Transitory Article XVII which would then
have to be convened and not from the executive power as vested in the President
(Prime Minister) from whom such constituent power has been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of

Tolentino, the October 1976 constitutional amendments which created the Interim
Batasang Pambansa in lieu of the Interim National Assembly were invalid since as ruled
by the Court therein, constitutional provisions on amendments "dealing with the
procedure or manner of amending the fundamental law are binding upon the
Convention and the other departments of the government (and) are no less binding
upon the people" and "the very Idea of deparcing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the essence of the rule
of law." The proposed amendments at bar having been adopted by the Interim
Batasang Pambansa as the fruit of the invalid October, 1976 amendments must
necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed
amendments, I reiterate my stand in Sanidad that the doctrine of fair and proper
submission firs enunciated by a simple majority of six Justices (of an eleven member
Court prior to the 1973 Constitution which increased the official composition of the Court
to fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted by the required
constitutional two-thirds majority vote of the Court (of eight votes, then) in Tolentino is
fully applicable in the case at bar. The three resolutions proposing complex,
complicated and radical amendments of our very structure of government were
considered and approved by the Interim Batasang Pambansa sitting as a constituent
assembly on February 27, 1981. It set the date of the plebiscite for thirty-nine days later
on April 7, 1981 which is totally inadequate and far short of the ninety-day period fixed
by the Constitution for submittal to the people to "sufficiently inform them of the
amendments to be voted upon, to conscientiously deliberate thereon and to express
their will in a genuine manner." 6

4. "The minimum requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment" as stated by retired
Justice Conrado V. Sanchez in his separate opinion in Gonzales bears repeating as
follows: "... we take the view that the words 'submitted to the people for their ratification,'
if construed in the light of the nature of the Constitution – a fundamental charter that is
legislation direct from the people, an expression of their sovereign will – is that it can
only be amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps.
They are not to vote blindly. They must be afforded ample opportunity to mull over the
original provisions, compare them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe the word 'submitted' can only
mean that the government, within its maximum capabilities, should strain every short to
inform every citizen of the provisions to be amended, and the proposed amendments
and the meaning, nature and effects thereof. ... What the Constitution in effect directs is
that the government, in submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the people,
educate them with respect to their act of ratification or rejection. For, as we have earlier
stated, one thing is submission and another is ratification. There must be fair
submission, intelligent consent or rejection. If with all these safeguards the people still
approve the amendments no matter how prejudicial it is to them, then so be it. For the
people decree their own fate."

Justice Sanchez therein ended the passage with an apt citation that "... The great men
who builded the structure of our state in this respect had the mental vision of a good
Constitution voiced by Judge Cooley, who has said 'A good Constitution should be
beyond the reach of temporary excitement and popular caprice or passion. It is needed
for stability and steadiness; it must yield to the thought of the people; not to the whim of
the people, or the thought evolved in excitement, or hot blood, but the sober second
thought, which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As Montaign says: 'All
great mutation shake and disorder a state. Good does not necessarily succeed evil;
another evil may succeed and a worse."'

Separate Opinions

TEEHANKEE, J., dissenting:

I vote to give due course to the petitions at bar and to grant the application for a
temporary restraining order enjoining the plebiscite scheduled for April 7, 1981.

1. Consistently with my dissenting opinion in Sanidad vs. Comelec 1 on the invalidity of

the October 1976 amendments proposals to the 1973 Constitution for not having been
proposed nor adopted in accordance with the mandatory provisions thereof, as restated
by me in Hidalgo vs. Marcos 2 and De la Llana vs. Comelec 3 , questioning the validity of
the December 17, 1977 referendum – exercise as to the continuance in office as
incumbent President and to be Prime Minister after the organization of the Interim
Batasang Pambansa as provided for in Amendment No. 3 of the 1976 Amendments, I
am constrained to dissent from the majority decision of dismissal of the petitions.

I had held in Sanidad that the transcendental constituent power to propose and approve
amendments to the Constitution as well as to set up the machinery and prescribe the
procedure for the ratification of the amendments proposals has been withheld by the
Constitution from the President (Prime Minister) as sole repository of executive power
and that so long as the regular National Assembly provided for in Article VIII of the
Constitution had not come to existence and the proposals for constitutional
amendments were now deemed necessary to be discussed and adopted for submittal to
the people, strict adherence with the mandatory requirements of the amending process
as provided in the Constitution must be complied with. This means, under the prevailing
doctrine of Tolentino vs. Comelec 4 that the proposed amendments to be valid must
come from the constitutional agency vested with the constituent power to do so, i.e. in
the Interim National Assembly provided in the Transitory Article XVII which would then
have to be convened and not from the executive power as vested in the President
(Prime Minister) from whom such constituent power has been withheld.

2. As restated by me in the 1977 case of Hidalgo, under the controlling doctrine of

Tolentino, the October 1976 constitutional amendments which created the Interim
Batasang Pambansa in lieu of the Interim National Assembly were invalid since as ruled
by the Court therein, constitutional provisions on amendments "dealing with the
procedure or manner of amending the fundamental law are binding upon the
Convention and the other departments of the government (and) are no less binding
upon the people" and "the very Idea of deparcing from the fundamental law is
anachronistic in the realm of constitutionalism and repugnant to the essence of the rule
of law." The proposed amendments at bar having been adopted by the Interim
Batasang Pambansa as the fruit of the invalid October, 1976 amendments must
necessarily suffer from the same Congenital infirmity.

3. Prescinding from the foregoing and assuming the validity of the proposed
amendments, I reiterate my stand in Sanidad that the doctrine of fair and proper
submission firs enunciated by a simple majority of six Justices (of an eleven member
Court prior to the 1973 Constitution which increased the official composition of the Court
to fifteen) in Gonzales vs. Comelec 5 and subsequently officially adopted by the required
constitutional two-thirds majority vote of the Court (of eight votes, then) in Tolentino is
fully applicable in the case at bar. The three resolutions proposing complex,
complicated and radical amendments of our very structure of government were
considered and approved by the Interim Batasang Pambansa sitting as a constituent
assembly on February 27, 1981. It set the date of the plebiscite for thirty-nine days later
on April 7, 1981 which is totally inadequate and far short of the ninety-day period fixed
by the Constitution for submittal to the people to "sufficiently inform them of the
amendments to be voted upon, to conscientiously deliberate thereon and to express
their will in a genuine manner." 6

4. "The minimum requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment" as stated by retired
Justice Conrado V. Sanchez in his separate opinion in Gonzales bears repeating as
follows: "... we take the view that the words 'submitted to the people for their ratification,'
if construed in the light of the nature of the Constitution – a fundamental charter that is
legislation direct from the people, an expression of their sovereign will – is that it can
only be amended by the people expressing themselves according to the procedure
ordained by the Constitution. Therefore, amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps.
They are not to vote blindly. They must be afforded ample opportunity to mull over the
original provisions, compare them with the proposed amendments, and try to reach a
conclusion as the dictates of their conscience suggest, free from the incubus of
extraneous or possibly insidious influences. We believe the word 'submitted' can only
mean that the government, within its maximum capabilities, should strain every short to
inform every citizen of the provisions to be amended, and the proposed amendments
and the meaning, nature and effects thereof. ... What the Constitution in effect directs is
that the government, in submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the people,
educate them with respect to their act of ratification or rejection. For, as we have earlier
stated, one thing is submission and another is ratification. There must be fair
submission, intelligent consent or rejection. If with all these safeguards the people still
approve the amendments no matter how prejudicial it is to them, then so be it. For the
people decree their own fate."

Justice Sanchez therein ended the passage with an apt citation that "... The great men
who builded the structure of our state in this respect had the mental vision of a good
Constitution voiced by Judge Cooley, who has said 'A good Constitution should be
beyond the reach of temporary excitement and popular caprice or passion. It is needed
for stability and steadiness; it must yield to the thought of the people; not to the whim of
the people, or the thought evolved in excitement, or hot blood, but the sober second
thought, which alone if the government is to be safe, can be allowed efficacy ...
Changes in government are to be feard unless benefit is certain.' As Montaign says: 'All
great mutation shake and disorder a state. Good does not necessarily succeed evil;
another evil may succeed and a worse."'
G.R. No. 160261             November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG
PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE
VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-

ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-
intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING
SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX
WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS
PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-
in-intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G.
DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT
OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO,
JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM
BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS,
DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA
SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL
DANGWA, ALFREDO MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO
AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS
LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR,
WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA
CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO,
ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO
PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR.,
EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO
ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC,
GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH
DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES,
DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE
ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA,
GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN
MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO
MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS,
RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ,
respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA,
NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P.
SERRANO AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS
CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES,
AND THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention,

vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING
SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS
PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN

MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA,
EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD
SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS,
NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN
VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA
A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE
ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO
BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION
LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO
LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO
LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND
EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-
in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C.
DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT
FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.

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

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND
ALL MEMBERS, PHILIPPINE SENATE, respondents.

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

G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE

INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N.
MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE
ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE
MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.

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

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING
SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS
PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents.

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

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE
SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

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

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA,

DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V.
DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS,
ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G.
AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER
CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE
SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE
REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY
THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80
HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT
COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE,
JR. respondents.

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

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner,

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER
OF THE HOUSE OF REPRESENTATIVES, respondents.

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

G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner,

vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN
REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF
IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE
HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES,
REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.

x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA,
AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT
FRANKLIN DRILON, respondents.

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

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF

JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

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

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE
SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON.
FRANKLIN DRILON, respondents.

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

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER,

MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A.
MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE
COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION
OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI,
CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC.
[CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY
THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF
COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC.
[CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST
PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE
PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE
VENECIA, AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR
FRANKLIN DRILON, AS SENATE PRESIDENT, respondents.

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent branches
of government of the nature, scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.

Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one
such today involving the legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.

There may indeed be some legitimacy to the characterization that the present controversy subject
of the instant petitions – whether the filing of the second impeachment complaint against Chief
Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar
provided in the Constitution, and whether the resolution thereof is a political question – has
resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a
political crisis of conscience.

In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first
instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary
nor legally permissible. Both its resolution and protection of the public interest lie in adherence
to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative, executive
or judicial branches of government by no means prescribes for absolute autonomy in the
discharge by each of that part of the governmental power assigned to it by the sovereign people.

At the same time, the corollary doctrine of checks and balances which has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches must be
given effect without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they are
to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people. Verily,
salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

 ARTICLE XI

Accountability of Public Officers

SECTION 1. Public office is a public trust. Public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from office as provided by law, but
not by impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate
all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either
to affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment.
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office
and disqualification to hold any office under the Republic of the Philippines, but the party
 convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between
these two Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES 12TH CONGRESS NEW

RULES

RULE II RULE V

INITIATING IMPEACHMENT BAR AGAINST INITIATION

Section 2. Mode of Initiating
Impeachment. – Impeachment
shall be initiated only by a verified
complaint for impeachment filed
by any Member of the House of
Representatives or by any citizen
upon a resolution of endorsement
by any Member thereof or by a
verified complaint or resolution of
impeachment filed by at least one-
third (1/3) of all the Members of
the House.
OF IMPEACHMENT
PROCEEDINGS AGAINST
THE SAME OFFICIAL
Section 16. – Impeachment
Proceedings Deemed Initiated. –
In cases where a Member of the
House files a verified complaint
of impeachment or a citizen files
a verified complaint that is
endorsed by a Member of the
House through a resolution of
endorsement against an
impeachable officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution
against such official, as the case
may be, is sufficient in substance,
or on the date the House votes to
overturn or affirm the finding of
the said Committee that the
verified complaint and/or
resolution, as the case may be, is
not sufficient in substance.
 In cases where a verified
complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.

RULE V Section 17. Bar Against

BAR AGAINST
IMPEACHMENT
Section 14. Scope of Bar. – No
impeachment proceedings shall be
initiated against the same official
more than once within the period
of one (1) year.
Initiation Of Impeachment
Proceedings. – Within a period
of one (1) year from the date
impeachment proceedings are
deemed initiated as provided in
Section 16 hereof, no
impeachment proceedings, as
such, can be initiated against the
same official. (Italics in the
original; emphasis and
underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures
by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and
other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo
B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice
on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which
reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
 report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment
complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being
insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to
the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.

Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary General of the House12 by Representatives
Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District,
Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the
legislative inquiry initiated by above-mentioned House Resolution. This second impeachment
complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least
one-third (1/3) of all the Members of the House of Representatives.13

Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one
year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the
12th Congress,"14 posits that his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in
the House Impeachment Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8,
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing
respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5)
of the Constitution, to return the second impeachment complaint and/or strike it off the records
of the House of Representatives, and to promulgate rules which are consistent with the
Constitution; and (3) this Court permanently enjoin respondent House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging
that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice
or, in the event that the Senate has accepted the same, from proceeding with the impeachment
trial.

In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a
writ of prohibition enjoining Congress from conducting further proceedings on said second
impeachment complaint.

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that
he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez
v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that
the second impeachment complaint be declared unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House
of Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul
M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their
petition for Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray
that (1) the House Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors
and agents to desist from conducting any proceedings or to act on the impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing
of the second impeachment complaint involves paramount public interest and pray that Sections
16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by
the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III
of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment
complaint.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari
and Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition
for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing
Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for
the issuance of a writ prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and that this Court declare
as unconstitutional the second impeachment complaint and the acts of respondent House of
Representatives in interfering with the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that as an
official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from
receiving the same or giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of
the Chief Justice to disburse the (JDF)."

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging
that as professors of law they have an abiding interest in the subject matter of their petition for
Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to
inculcate in the minds of their students," pray that the House of Representatives be enjoined from
endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays
in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and
Jurisdiction" that the second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the
filing of the second impeachment complaint involve matters of transcendental importance, prays
in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and
(3) respondent Senate be prohibited from accepting the Articles of Impeachment and from
conducting any proceedings thereon.

In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in
their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the
resolution of endorsement and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event
that they have accepted the same, that they be prohibited from proceeding with the impeachment
trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to the
Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of
the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional.

Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of
the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion was
put forth that the second impeachment complaint be formally transmitted to the Senate, but it
was not carried because the House of Representatives adjourned for lack of quorum,19 and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives
and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at
10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this
Court called on petitioners and respondents to maintain the status quo, enjoining all the parties
and others acting for and in their behalf to refrain from committing acts that would render the
petitions moot.

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C.
De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin
the House of Representatives, which is an independent and co-equal branch of government under
the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a
Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the
impeachment court to try and decide impeachment cases, including the one where the Chief
Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of
the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments
on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute
itself as an impeachment court commences only upon its receipt of the Articles of Impeachment,
which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the
proceedings in the House of Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as
the matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang

Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World
War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.

The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3,
2003, to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can
invoke it; on what issues and at what time; and whether it should be exercised by this
Court at this time.

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of

Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of the
reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold
and novel issue of whether or not the power of judicial review extends to those arising from
impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the
power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These
matters shall now be discussed in seriatim.

Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.

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

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the
1935 Constitution whose provisions, unlike the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:

x x x In times of social disquietude or political excitement, the great landmarks of the

Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the several departments
and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this moderating
power of the courts, not to speak of its historical origin and development there, has been
set at rest by popular acquiescence for a period of more than one and a half centuries. In
our case, this moderating power is granted, if not expressly, by clear implication from
section 2 of article VIII of our Constitution.

The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for
 the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned to it by the Constitution
to determine conflicting claims of authority under the Constitution and to establish
for the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution.
Even then, this power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.24 (Italics in the original; emphasis and
underscoring supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial
power itself, which is "the power of the court to settle actual controversies involving rights
which are legally demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular acquiescence for
a period of more than one and a half centuries." To be sure, it was in the 1803 leading case of
Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the supreme
law of the land, the constitution itself is first mentioned; and not the laws of the United
States generally, but those only which shall be made in pursuance of the constitution,
have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28 (Italics in the original; emphasis
supplied)

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the
Civil Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral

component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure coordination in the
workings of the various departments of the government. x x x And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.32 (Emphasis and
underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial
review is the chief, indeed the only, medium of participation – or instrument of intervention – of
the judiciary in that balancing operation."34

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are
mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief
Justice Constitutional Commissioner Roberto Concepcion:
 xxx

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

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

Fellow Members of this Commission, this is actually a product of our experience

during martial law. As a matter of fact, it has some antecedents in the past, but the role
of the judiciary during the deposed regime was marred considerably by the
circumstance that in a number of cases against the government, which then had no
legal defense at all, the solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles concerning particularly the writ of
habeas corpus, that is, the authority of courts to order the release of political detainees,
and other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said: "Well,
since it is political, we have no authority to pass upon it." The Committee on the
Judiciary feels that this was not a proper solution of the questions involved. It did
not merely request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. x x x

xxx

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of government
or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such
matters constitute a political question.35 (Italics in the original; emphasis and
underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional
construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:

We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
be attained. They are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails. As
the Constitution is not primarily a lawyer's document, it being essential for the rule of law
to obtain that it should ever be present in the people's consciousness, its language as
much as possible should be understood in the sense they have in common use. What it
says according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus these are the cases where the need for construction is
reduced to a minimum.37 (Emphasis and underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the

provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to effect that purpose.39
(Emphasis and underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame

Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental

principle of constitutional construction that the intent of the framers of the organic
law and of the people adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the adoption of the Constitution. It may also
 be safely assumed that the people in ratifying the Constitution were guided mainly
by the explanation offered by the framers.41 (Emphasis and underscoring supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in
Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have dedicated a

provision of our Constitution merely for the benefit of one person without
considering that it could also affect others. When they adopted subsection 2, they
permitted, if not willed, that said provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.43 (Emphasis and underscoring supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:

It is a well-established rule in constitutional construction that no one provision of

the Constitution is to be separated from all the others, to be considered alone, but
that all the provisions bearing upon a particular subject are to be brought into view
and to be so interpreted as to effectuate the great purposes of the instrument.
Sections bearing on a particular subject should be considered and interpreted
together as to effectuate the whole purpose of the Constitution and one section is not
to be allowed to defeat another, if by any reasonable construction, the two can be
made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make
the words idle and nugatory.45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention "are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but they give us no
light as to the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution from what appears upon its face."
The proper interpretation therefore depends more on how it was understood by the
people adopting it than in the framers's understanding thereof. 46 (Emphasis and
underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential
application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.

Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a
political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47

For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try"
impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49

In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case of
Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system
of checks and balances, under which impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in fashioning relief.51 Respondents likewise
point to deliberations on the US Constitution to show the intent to isolate judicial power of
review in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution
and American authorities cannot be credited to support the proposition that the Senate's "sole
power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial review to check
and restrain any grave abuse of the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case
of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."

The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the
U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court
and lower courts, as expressly provided for in the Constitution, is not just a power but also a
duty, and it was given an expanded definition to include the power to correct any grave abuse
of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution
with respect to the power of the House of Representatives over impeachment proceedings. While
the U.S. Constitution bestows sole power of impeachment to the House of Representatives
without limitation,54 our Constitution, though vesting in the House of Representatives the
exclusive power to initiate impeachment cases,55 provides for several limitations to the exercise
of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations
include the manner of filing, required vote to impeach, and the one year bar on the impeachment
of one and the same official.

Respondents are also of the view that judicial review of impeachments undermines their finality
and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this
Court to exercise judicial statesmanship on the principle that "whenever possible, the Court
should defer to the judgment of the people expressed legislatively, recognizing full well the
perils of judicial willfulness and pride."56

But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-
defined limits, or in the language of Baker v. Carr,57 "judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial review.

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of
the argument that the impeachment power is beyond the scope of judicial review, are not in
point. These cases concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the exercise of the power of
judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the
House of Representatives withdrawing the nomination, and rescinding the election, of a
congressman as a member of the House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the
House representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the
legislative power is vested exclusively in Congress, this does not detract from the power of the
courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential before such member-
elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review
over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the powers assigned to it
by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have "standing" to challenge; he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue
of constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies
to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the governmental
act that is being challenged. The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not
have standing since only the Chief Justice has sustained and will sustain direct personal injury.
Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
contends.

Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court
had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases
involving paramount public interest70 and transcendental importance,71 and that procedural
matters are subordinate to the need to determine whether or not the other branches of the
government have kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the
U.P. College of Law is of the same opinion, citing transcendental importance and the well-
entrenched rule exception that, when the real party in interest is unable to vindicate his rights by
seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot
himself invoke the jurisdiction of this Court, the courts will grant petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a
particular plaintiff is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties can maintain an
action, standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain areas.

Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law or by
official action taken, but by concerned citizens, taxpayers or voters who actually sue in
the public interest. Hence the question in standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."

xxx

On the other hand, the question as to "real party in interest" is whether he is "the party
who would be benefited or injured by the judgment, or the 'party entitled to the avails of
the suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional
acts of the House of Representatives, none of the petitioners before us asserts a violation of the
personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit;
and members of the bar and of the legal profession – which were supposedly violated by the
alleged unconstitutional acts of the House of Representatives.

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or privilege
to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties
by reason of the statute or act complained of.77 In fine, when the proceeding involves the
assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of personal
interest.

In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that there
is a wastage of public funds through the enforcement of an invalid or unconstitutional law.79
Before he can invoke the power of judicial review, however, he must specifically prove that he
has sufficient interest in preventing the illegal expenditure of money raised by taxation and that
he would sustain a direct injury as a result of the enforcement of the questioned statute or
contract. It is not sufficient that he has merely a general interest common to all members of the
public.80

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation
that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial
of the Chief Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he
claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested
by the Constitution in his office.83

While an association has legal personality to represent its members,84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to
clothe it with standing. Its interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the
issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court
to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle, binding on all members
of the class whether or not they were before the court.89 Where it clearly appears that not all
interests can be sufficiently represented as shown by the divergent issues raised in the numerous
petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners
additionally allege standing as citizens and taxpayers, however, their petition will stand.

The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive:
(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case
of disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and
specific interest in raising the questions being raised.90 Applying these determinants, this Court is
satisfied that the issues raised herein are indeed of transcendental importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public.91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the matter is
totally eliminated. A party must, at the very least, still plead the existence of such interest, it not
being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to allege
any interest in the case. He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the courts when the applicant shows
facts which satisfy the requirements of the law authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise
the same issues and the same standing, and no objection on the part of petitioners Candelaria, et.
al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to
Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to
join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene,
alleging that "they will suffer if this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for intervention had been complied
with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to
raise the additional issue of whether or not the second impeachment complaint against the Chief
Justice is valid and based on any of the grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al.
and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the
matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will undermine
the independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of Congress against
which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues
relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated,
allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:

x x x While, concededly, the elections to be held involve the expenditure of public

moneys, nowhere in their Petition do said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional protection against abuses of
legislative power," or that there is a misapplication of such funds by respondent
COMELEC, or that public money is being deflected to any improper purpose. Neither do
petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being deflected
to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice
to clothe him with standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture."96 Only
then may the courts pass on the validity of what was done, if and when the latter is challenged in
an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned
acts having been carried out, i.e., the second impeachment complaint had been filed with the
House of Representatives and the 2001 Rules have already been already promulgated and
enforced, the prerequisite that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied with.

Related to the issue of ripeness is the question of whether the instant petitions are premature.
Amicus curiae former Senate President Jovito R. Salonga opines that there may be no urgent
need for this Court to render a decision at this time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all remedies in the House and Senate should
first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves when
the Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The
dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief
Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss.

The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of
Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.

Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither
the House of Representatives nor the Senate is clothed with the power to rule with definitiveness
on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as
said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of
the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it.

Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:

[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government."
 It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.99 (Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason,
this Court vacillated on its stance of taking cognizance of cases which involved political
questions. In some cases, this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon political bodies.101 Even
in the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of
whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a
political question, it being a question decided by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial review
and its application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that
the judiciary is the weakest among the three major branches of the service. Since the legislature
holds the purse and the executive the sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and appeal to conscience which, after all,
reflects the will of God, and is the most powerful of all other powers without exception. x x x
And so, with the body's indulgence, I will proceed to read the provisions drafted by the
Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

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

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense
at all, the solicitor general set up the defense of political questions and got away with
it. As a consequence, certain principles concerning particularly the writ of habeas
corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said:
"Well, since it is political, we have no authority to pass upon it." The Committee on the
Judiciary feels that this was not a proper solution of the questions involved. It did
not merely request an encroachment upon the rights of the people, but it, in effect,
encouraged further violations thereof during the martial law regime. I am sure the
members of the Bar are familiar with this situation. But for the benefit of the Members of
the Commission who are not lawyers, allow me to explain. I will start with a decision of
the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am
not mistaken. Martial law was announced on September 22, although the proclamation
was dated September 21. The obvious reason for the delay in its publication was that the
administration had apprehended and detained prominent newsmen on September 21. So
that when martial law was announced on September 22, the media hardly published
anything about it. In fact, the media could not publish any story not only because our
main writers were already incarcerated, but also because those who succeeded them in
their jobs were under mortal threat of being the object of wrath of the ruling party. The
1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22
had not finished the Constitution; it had barely agreed in the fundamentals of the
Constitution. I forgot to say that upon the proclamation of martial law, some delegates to
that 1971 Constitutional Convention, dozens of them, were picked up. One of them was
our very own colleague, Commissioner Calderon. So, the unfinished draft of the
Constitution was taken over by representatives of Malacañang. In 17 days, they finished
what the delegates to the 1971 Constitutional Convention had been unable to accomplish
for about 14 months. The draft of the 1973 Constitution was presented to the President
around December 1, 1972, whereupon the President issued a decree calling a plebiscite
which suspended the operation of some provisions in the martial law decree which
prohibited discussions, much less public discussions of certain matters of public concern.
The purpose was presumably to allow a free discussion on the draft of the Constitution on
which a plebiscite was to be held sometime in January 1973. If I may use a word famous
by our colleague, Commissioner Ople, during the interregnum, however, the draft of the
Constitution was analyzed and criticized with such a telling effect that Malacañang felt
the danger of its approval. So, the President suspended indefinitely the holding of the
plebiscite and announced that he would consult the people in a referendum to be held
from January 10 to January 15. But the questions to be submitted in the referendum were
not announced until the eve of its scheduled beginning, under the supposed supervision
not of the Commission on Elections, but of what was then designated as "citizens
assemblies or barangays." Thus the barangays came into existence. The questions to be
propounded were released with proposed answers thereto, suggesting that it was
unnecessary to hold a plebiscite because the answers given in the referendum should be
regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the
Supreme Court praying that the holding of the referendum be suspended. When the
motion was being heard before the Supreme Court, the Minister of Justice delivered to
the Court a proclamation of the President declaring that the new Constitution was already
in force because the overwhelming majority of the votes cast in the referendum favored
the Constitution. Immediately after the departure of the Minister of Justice, I proceeded
to the session room where the case was being heard. I then informed the Court and the
parties the presidential proclamation declaring that the 1973 Constitution had been
ratified by the people and is now in force.

A number of other cases were filed to declare the presidential proclamation null and void.
The main defense put up by the government was that the issue was a political question
and that the court had no jurisdiction to entertain the case.

xxx

The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme
Court were residents of Manila, but none of them had been notified of any referendum in
their respective places of residence, much less did they participate in the alleged
referendum. None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members
of the Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big difference

between a referendum and a plebiscite. But another group of justices upheld the
defense that the issue was a political question. Whereupon, they dismissed the case.
This is not the only major case in which the plea of "political question" was set up.
There have been a number of other cases in the past.

x x x The defense of the political question was rejected because the issue was clearly
justiciable.

xxx

x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable. There
are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a
decided case, a husband complained that his wife was unwilling to perform her duties as
a wife. The Court said: "We can tell your wife what her duties as such are and that she is
bound to comply with them, but we cannot force her physically to discharge her main
marital duty to her husband. There are some rights guaranteed by law, but they are so
personal that to enforce them by actual compulsion would be highly derogatory to human
dignity."
This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another important
function. The powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is supreme
within its own sphere and independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of government
or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.

I have made these extended remarks to the end that the Commissioners may have an
initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis
supplied)

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power
is not vested in the Supreme Court alone but also in other lower courts as may be
created by law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had abused
 its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not
a political question. Therefore, the court has the duty to decide.

xxx

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme
Court according to the new numerical need for votes.

On another point, is it the intention of Section 1 to do away with the political question
doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

MR. CONCEPCION. No, because whenever there is an abuse of discretion,

amounting to a lack of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away
with the political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial
power. But the Gentleman will notice it says, "judicial power includes" and the
reason being that the definition that we might make may not cover all possible
areas.

FR. BERNAS. So, this is not an attempt to solve the problems arising from the
political question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear
that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two species of political
questions: (1) "truly political questions" and (2) those which "are not truly political questions."

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.

In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide.106 x x x

In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It
cannot abdicate that obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of the principle in
appropriate cases."108 (Emphasis and underscoring supplied)

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under the
expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case of Baker v.
Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving
it; or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a political decision already
made; or the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.112 (Underscoring supplied)

Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion.
These standards are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.

The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether they should pass upon a
constitutional issue.

In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the government properly acted within such
limits. This Court shall thus now apply this standard to the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance with Section
3(4), Article XI of the Constitution.

III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated
fiscal autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the
12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of
the Constitution.

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI
of the Constitution.

The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require
this Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In
fact, an examination of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of betrayal of public trust and
other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon
this court to decide a non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission
on Elections,115 this Court held:

x x x It is a well-established rule that a court should not pass upon a constitutional

question and decide a law to be unconstitutional or invalid, unless such question is raised
by the parties and that when it is raised, if the record also presents some other ground
upon which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a
decision upon such question will be unavoidable.116 [Emphasis and underscoring
supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into such
a question are first satisfied. Thus, there must be an actual case or controversy
involving a conflict of legal rights susceptible of judicial determination, the constitutional
question must have been opportunely raised by the proper party, and the resolution of
the question is unavoidably necessary to the decision of the case itself.118 [Emphasis
supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable
and is the very lis mota or crux of the controversy.

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome
of this controversy could possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by the related cannon of
adjudication that "the court should not form a rule of constitutional law broader than is required
by the precise facts to which it is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling
for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim
to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c)
a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault
on the independence of the judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of
this Court that the issue of the constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in general,
which would thus be broader than is required by the facts of these consolidated cases. This
opinion is further strengthened by the fact that said petitioners have raised other grounds in
support of their petition which would not be adversely affected by the Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.

The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted
provision of the Constitution. Thus, as provided therein, the investigation must be "in aid
of legislation in accordance with its duly published rules of procedure" and that "the
rights of persons appearing in or affected by such inquiries shall be respected." It follows
then that the right rights of persons under the Bill of Rights must be respected, including
the right to due process and the right not be compelled to testify against one's self.123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro,
Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4),
Article XI of the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at

least one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a Resolution
of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the
afore-mentioned section in that the "verified complaint or resolution of impeachment" was not
filed "by at least one-third of all the Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have
verified the same merely as a "Resolution of Endorsement." Intervenors point to the
"Verification" of the Resolution of Endorsement which states that:

"We are the proponents/sponsors of the Resolution of Endorsement of the

abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for
said second impeachment complaint to automatically become the Articles of Impeachment and
for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely
endorsed, by at least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment complaint should
have been calendared and referred to the House Committee on Justice under Section 3(2), Article
XI of the Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from at least one Member
whenever a citizen files a verified impeachment complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the
scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions
would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but
the efforts presented by the other petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary for the determination of
the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute
the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the
House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

Judicial Restraint

Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of impeachment.
Again, this Court reiterates that the power of judicial review includes the power of review over
justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125 But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses because Members of
the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to
take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas,
"jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it,
even if it is vexatious, would be a dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it, it
has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office,
the public has laid on [a member of the judiciary] their confidence that [he] is mentally and
morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him]
to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or
power and to be equipped with a moral fiber strong enough to resist the temptations lurking in
[his] office."130

The duty to exercise the power of adjudication regardless of interest had already been settled in
the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-
Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all
of them were interested parties to said case as respondents therein. This would have reduced the
Tribunal's membership to only its three Justices-Members whose disqualification was not sought,
leaving them to decide the matter. This Court held:
 Where, as here, a situation is created which precludes the substitution of any Senator
sitting in the Tribunal by any of his other colleagues in the Senate without inviting the
same objections to the substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully discharge if shorn
of the participation of its entire membership of Senators.

To our mind, this is the overriding consideration — that the Tribunal be not prevented
from discharging a duty which it alone has the power to perform, the performance of
which is in the highest public interest as evidenced by its being expressly imposed by no
less than the fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the
Constitution could not have been unaware of the possibility of an election contest that
would involve all Senators—elect, six of whom would inevitably have to sit in judgment
thereon. Indeed, such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the
Constitution provides no scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose disqualification may be sought.
Litigants in such situations must simply place their trust and hopes of vindication in the
fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly
and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral

Tribunal may inhibit or disqualify himself from sitting in judgment on any case before
said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain
from participating in the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial judgment. What
we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of Senators and that no
amendment of its Rules can confer on the three Justices-Members alone the power of
valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them,
is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by
the fundamental law. Disqualification of a judge is a deprivation of his judicial power.
And if that judge is the one designated by the Constitution to exercise the jurisdiction of
his court, as is the case with the Justices of this Court, the deprivation of his or their
judicial power is equivalent to the deprivation of the judicial power of the court itself. It
affects the very heart of judicial independence. The proposed mass disqualification, if
sanctioned and ordered, would leave the Court no alternative but to abandon a duty which
it cannot lawfully discharge if shorn of the participation of its entire membership of
Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its power
of judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in
Ashwander v. TVA135 as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide such questions 'is legitimate only in
the last resort, and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'

2. The Court will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented by
the record, if there is also present some other ground upon which the case may be
disposed of. This rule has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter. Appeals from
the highest court of a state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can be sustained on an
independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails
to show that he is injured by its operation. Among the many applications of this rule,
none is more striking than the denial of the right of challenge to one who lacks a personal
or property right. Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the
Court affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first
 ascertain whether a construction of the statute is fairly possible by which the question
may be avoided (citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from
different decisions of the United States Supreme Court, can be encapsulated into the following
categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the facts of the
case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the operation of the
statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement

3. the question of constitutionality must be raised at the earliest possible opportunity

4. the issue of constitutionality must be the very lis mota of the case.136

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and abroad if the
judiciary countermanded the vote of Congress to remove an impeachable official.137 Intervenor
Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial authority and erode public
confidence and faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.

Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded
as settled until the Supreme Court has passed upon the constitutionality of the act
involved, the judgment has not only juridical effects but also political consequences.
Those political consequences may follow even where the Court fails to grant the
petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently,
failure to act explicitly, one way or the other, itself constitutes a decision for the
respondent and validation, or at least quasi-validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were
not enough votes either to grant the petitions, or to sustain respondent's claims,"140 the pre-
existing constitutional order was disrupted which paved the way for the establishment of the
martial law regime.

Such an argument by respondents and intervenor also presumes that the coordinate branches of
the government would behave in a lawless manner and not do their duty under the law to uphold
the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the
branches of government will behave in a precipitate manner and risk social upheaval, violence,
chaos and anarchy by encouraging disrespect for the fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine in
People v. Veneracion, to wit:141

Obedience to the rule of law forms the bedrock of our system of justice. If [public
officers], under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the
duties of their office, then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting under its authority.
Under this system, [public officers] are guided by the Rule of Law, and ought "to protect
and enforce it without fear or favor," resist encroachments by governments, political
parties, or even the interference of their own personal beliefs.142

Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress

Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and
17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our
present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3
(1) is clear in that it is the House of Representatives, as a collective body, which has the
exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to
file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be
accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of
the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any
member; or (3) by at least 1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the
House of Representatives, acting as the collective body, has yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he (Commissioner Regalado) as
amicus curiae affirmed during the oral arguments on the instant petitions held on November 5,
2003 at which he added that the act of "initiating" included the act of taking initial action on the
complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI
(3) and (5) of the Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral arguments
of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles
of impeachment to the Senate. The middle consists of those deliberative moments leading
to the formulation of the articles of impeachment. The beginning or the initiation is the
filing of the complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco
and Fuentebella says that impeachment is "deemed initiated" when the Justice
Committee votes in favor of impeachment or when the House reverses a contrary vote of
the Committee. Note that the Rule does not say "impeachment proceedings" are initiated
but rather are "deemed initiated." The language is recognition that initiation happened
earlier, but by legal fiction there is an attempt to postpone it to a time after actual
initiation. (Emphasis and underscoring supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of
the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its
records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the
substantive provisions on impeachment, I understand there have been many proposals
and, I think, these would need some time for Committee action.

However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the impeachment proceedings
starting with initiation, action of the Speaker committee action, calendaring of
report, voting on the report, transmittal referral to the Senate, trial and judgment
by the Senate.

xxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment
on the floor. The procedure, as I have pointed out earlier, was that the initiation
starts with the filing of the complaint. And what is actually done on the floor is that
the committee resolution containing the Articles of Impeachment is the one
approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite examples
in the case of the impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body who approved the resolution. It
is not the body which initiates it. It only approves or disapproves the resolution. So,
on that score, probably the Committee on Style could help in rearranging these words
because we have to be very technical about this. I have been bringing with me The Rules
of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The
proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but
the Committee has already decided. Nevertheless, I just want to indicate this on record.

xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only in
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
 "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee
or to override its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on
line 25 in the case of the direct filing of a verified compliant of one-third of all the
Members of the House. I will mention again, Madam President, that my amendment will
not vary the substance in any way. It is only in keeping with the uniform procedure of the
House of Representatives of the United States Congress. Thank you, Madam President.143
(Italics in the original; emphasis and udnerscoring supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144

It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting
the phrase "to initiate impeachment proceedings" as contained in the text of the provision of
Section 3 (3) was to settle and make it understood once and for all that the initiation of
impeachment proceedings starts with the filing of the complaint, and the vote of one-third of
the House in a resolution of impeachment does not initiate the impeachment proceedings which
was already initiated by the filing of a verified complaint under Section 3, paragraph (2),
Article XI of the Constitution."145

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,
who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used
in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.

xxx

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The object
in the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision provides that the House, by a vote
of one-third of all its members, can bring a case to the Senate. It is in that sense that the House
has "exclusive power" to initiate all cases of impeachment. No other body can do it. However,
before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin
word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of
several steps: (1) there is the filing of a verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of the House of the
Representatives; (2) there is the processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects
or upholds the complaint, the resolution must be forwarded to the House for further processing;
and (4) there is the processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a contrary resolution by a
vote of one-third of all the members. If at least one third of all the Members upholds the
complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point
that the House "initiates an impeachment case." It is at this point that an impeachable public
official is successfully impeached. That is, he or she is successfully charged with an
impeachment "case" before the Senate as impeachment court.

Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding
and the beginning of another proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is
initiated or begins, when a verified complaint is filed and referred to the Committee on Justice
for action. This is the initiating step which triggers the series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does not initiate impeachment proceeding
but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the
present Constitution.

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action.
By his explanation, this interpretation is founded on the common understanding of the meaning
of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people,
both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary
meaning into ordinary words and not abstruse meaning, they ratify words as they understand it
and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment," This is a misreading of said provision and is
contrary to the principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."

From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing
of the impeachment complaint coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or endorsement
of the impeachment complaint to the House Committee on Justice or, by the filing by at least
one-third of the members of the House of Representatives with the Secretary General of the
House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be filed against the same
official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment

proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that
the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself
affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified complaint or a resolution of impeachment
by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of
Article XI since the rules give the term "initiate" a meaning different meaning from filing and
referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing
Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to Justices
who were delegates to the Constitution Convention) on the matter at issue expressed during this
Court's our deliberations stand on a different footing from the properly recorded utterances of
debates and proceedings." Further citing said case, he states that this Court likened the former
members of the Constitutional Convention to actors who are so absorbed in their emotional roles
that intelligent spectators may know more about the real meaning because of the latter's balanced
perspectives and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions. There are at present
only two members of this Court who participated in the 1986 Constitutional Commission – Chief
Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has examined the records
of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear
and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.

Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations on its power to make rules, viz:

Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary to
either affirm a favorable resolution with the Articles of Impeachment of the Committee,
or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have
the power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be
given to a rule affects persons other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153
Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers
each house to determine its rules of proceedings, it may not by its rules ignore constitutional
restraints or violate fundamental rights, and further that there should be a reasonable relation
between the mode or method of proceeding established by the rule and the result which is sought
to be attained. It is only within these limitations that all matters of method are open to the
determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S.
Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in
the Philippine setting there is even more reason for courts to inquire into the validity of the Rules
of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of power
if we assume jurisdiction over he case at bar. Even in the United States, the principle
of separation of power is no longer an impregnable impediment against the interposition
of judicial power on cases involving breach of rules of procedure by legislators.

Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view
the issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:

"x x x

"The Constitution, in the same section, provides, that each house may determine the rules
of its proceedings." It appears that in pursuance of this authority the House had, prior to
that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be
noted by the clerk and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in determining the presence
of a quorum to do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as
to the validity of this rule, and not what methods the Speaker may of his own motion
resort to for determining the presence of a quorum, nor what matters the Speaker or clerk
may of their own volition place upon the journal. Neither do the advantages or
disadvantages, the wisdom or folly, of such a rule present any matters for judicial
consideration. With the courts the question is only one of power. The Constitution
empowers each house to determine its rules of proceedings. It may not by its rules
ignore constitutional restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceedings established by the rule
and the result which is sought to be attained. But within these limitations all matters of
method are open to the determination of the House, and it is no impeachment of the rule
to say that some other way would be better, more accurate, or even more just. It is no
objection to the validity of a rule that a different one has been prescribed and in force for
a length of time. The power to make rules is not one which once exercised is exhausted.
It is a continuous power, always subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the challenge of any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined by
the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable
relationship with the result sought to be attained. By examining Rule XV, the Court did
not allow its jurisdiction to be defeated by the mere invocation of the principle of
separation of powers.154

xxx

In the Philippine setting, there is a more compelling reason for courts to categorically
reject the political question defense when its interposition will cover up abuse of
power. For section 1, Article VIII of our Constitution was intentionally cobbled to
empower courts "x x x to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and was not granted to our
courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US
Constitution or any foreign state constitution. The CONCOM granted this
enormous power to our courts in view of our experience under martial law where
abusive exercises of state power were shielded from judicial scrutiny by the misuse
of the political question doctrine. Led by the eminent former Chief Justice Roberto
Concepcion, the CONCOM expanded and sharpened the checking powers of the
judiciary vis-à-vis the Executive and the Legislative departments of government.155

xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere
power which it can decline to exercise. Precisely to deter this disinclination, the
Constitution imposed it as a duty of this Court to strike down any act of a branch or
instrumentality of government or any of its officials done with grave abuse of
discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court against the other branches
of government despite their more democratic character, the President and the legislators
being elected by the people.156

xxx

The provision defining judicial power as including the 'duty of the courts of justice. . . to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis-à-vis the other branches of government. This provision was
 dictated by our experience under martial law which taught us that a stronger and more
independent judiciary is needed to abort abuses in government. x x x

xxx

In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court
from passivity to activism. This transformation, dictated by our distinct experience as
nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by initially determining
what it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is
mandated to approach constitutional violations not by finding out what it should not
do but what it must do. The Court must discharge this solemn duty by not resuscitating a
past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of
our power to review violations of the rules of the House. We will not be true to our
trust as the last bulwark against government abuses if we refuse to exercise this new
power or if we wield it with timidity. To be sure, it is this exceeding timidity to
unsheathe the judicial sword that has increasingly emboldened other branches of
government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the
view of former Senator Salonga that this novel provision stretching the latitude of judicial
power is distinctly Filipino and its interpretation should not be depreciated by undue
reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of
our own history should provide us the light and not the experience of foreigners.157
(Italics in the original emphasis and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing more.
It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or
(2) once the House itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different
from "filing."

Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment
complaint and referral to the House Committee on Justice, the initial action taken thereon, the
meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been
initiated in the foregoing manner, another may not be filed against the same official within a one
year period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that takes
the center stage of our individual and collective consciousness as a people with our characteristic
flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two weeks have proven to
be an exasperating, mentally and emotionally exhausting experience. Both sides have fought
bitterly a dialectical struggle to articulate what they respectively believe to be the correct position
or view on the issues involved. Passions had ran high as demonstrators, whether for or against
the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and
chants to air their voice on the matter. Various sectors of society - from the business, retired
military, to the academe and denominations of faith – offered suggestions for a return to a state
of normalcy in the official relations of the governmental branches affected to obviate any
perceived resulting instability upon areas of national life.

Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present petitions
were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference
was made through what are now the arguments of "lack of jurisdiction," "non-justiciability," and
"judicial self-restraint" aimed at halting the Court from any move that may have a bearing on the
impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full of
all the requisite conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a
genuine constitutional material which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis in
fact and in law.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only
the main issue of whether the impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about
assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this Court to assert judicial
dominance over the other two great branches of the government. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and legislative of their own powers to
bring about ultimately the beneficent effects of having founded and ordered our society upon the
rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is
that of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations
or speculations could be made to it, so long as it rendered judgment according to the law and the
facts. Why can it not now be trusted to wield judicial power in these petitions just because it is
the highest ranking magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official act as tested by
the limits set by the Constitution? Of course, there are rules on the inhibition of any member of
the judiciary from taking part in a case in specified instances. But to disqualify this entire
institution now from the suit at bar is to regard the Supreme Court as likely incapable of
impartiality when one of its members is a party to a case, which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of
its agents to secure respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that he gets to have less in law than
anybody else. The law is solicitous of every individual's rights irrespective of his station in life.

The Filipino nation and its democratic institutions have no doubt been put to test once again by
this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted
to no other than the Constitution in search for a solution to what many feared would ripen to a
crisis in government. But though it is indeed immensely a blessing for this Court to have found
answers in our bedrock of legal principles, it is equally important that it went through this
crucible of a democratic process, if only to discover that it can resolve differences without the
use of force and aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario
G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on October
23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.
G.R. No. 155336             November 25, 2004

COMMISSION ON HUMAN RIGHTS EMPLOYEES' ASSOCIATION (CHREA)

Represented by its President, MARCIAL A. SANCHEZ, JR., petitioner,
vs.
COMMISSION ON HUMAN RIGHTS, respondent.

DECISION

CHICO-NAZARIO, J.:

Can the Commission on Human Rights lawfully implement an upgrading and reclassification of
personnel positions without the prior approval of the Department of Budget and Management?

Before this Court is a petition for review filed by petitioner Commission on Human Rights
Employees' Association (CHREA) challenging the Decision1 dated 29 November 2001 of the
Court of Appeals in CA-G.R. SP No. 59678 affirming the Resolutions2 dated 16 December 1999
and 09 June 2000 of the Civil Service Commission (CSC), which sustained the validity of the
upgrading and reclassification of certain personnel positions in the Commission on Human
Rights (CHR) despite the disapproval thereof by the Department of Budget and Management
(DBM). Also assailed is the resolution dated 11 September 2002 of the Court of Appeals denying
the motion for reconsideration filed by petitioner.

The antecedent facts which spawned the present controversy are as follows:

On 14 February 1998, Congress passed Republic Act No. 8522, otherwise known as the General
Appropriations Act of 1998. It provided for Special Provisions Applicable to All Constitutional
Offices Enjoying Fiscal Autonomy. The last portion of Article XXXIII covers the appropriations
of the CHR. These special provisions state:

1. Organizational Structure. Any provision of law to the contrary notwithstanding and

within the limits of their respective appropriations as authorized in this Act, the
Constitutional Commissions and Offices enjoying fiscal autonomy are authorized to
formulate and implement the organizational structures of their respective offices, to fix
and determine the salaries, allowances, and other benefits of their personnel, and
whenever public interest so requires, make adjustments in their personal services
itemization including, but not limited to, the transfer of item or creation of new positions
in their respective offices: PROVIDED, That officers and employees whose positions are
affected by such reorganization or adjustments shall be granted retirement gratuities and
separation pay in accordance with existing laws, which shall be payable from any
unexpended balance of, or savings in the appropriations of their respective offices:
 PROVIDED, FURTHER, That the implementation hereof shall be in accordance with
salary rates, allowances and other benefits authorized under compensation
standardization laws.

2. Use of Savings. The Constitutional Commissions and Offices enjoying fiscal

autonomy are hereby authorized to use savings in their respective appropriations for: (a)
printing and/or publication of decisions, resolutions, and training information materials;
(b) repair, maintenance and improvement of central and regional offices, facilities and
equipment; (c) purchase of books, journals, periodicals and equipment; (d) necessary
expenses for the employment of temporary, contractual and casual employees; (e)
payment of extraordinary and miscellaneous expenses, commutable representation and
transportation allowances, and fringe benefits for their officials and employees as may be
authorized by law; and (f) other official purposes, subject to accounting and auditing
rules and regulations. (Emphases supplied)

on the strength of these special provisions, the CHR, through its then Chairperson Aurora P.
Navarette-Reciña and Commissioners Nasser A. Marohomsalic, Mercedes V. Contreras, Vicente
P. Sibulo, and Jorge R. Coquia, promulgated Resolution No. A98-047 on 04 September 1998,
adopting an upgrading and reclassification scheme among selected positions in the Commission,
to wit:

WHEREAS, the General Appropriations Act, FY 1998, R.A. No. 8522 has provided
special provisions applicable to all Constitutional Offices enjoying Fiscal Autonomy,
particularly on organizational structures and authorizes the same to formulate and
implement the organizational structures of their respective offices to fix and determine
the salaries, allowances and other benefits of their personnel and whenever public interest
so requires, make adjustments in the personnel services itemization including, but not
limited to, the transfer of item or creation of new positions in their respective offices:
PROVIDED, That officers and employees whose positions are affected by such
reorganization or adjustments shall be granted retirement gratuities and separation pay in
accordance with existing laws, which shall be payable from any unexpanded balance of,
or savings in the appropriations of their respective offices;

Whereas, the Commission on Human Rights is a member of the Constitutional Fiscal

Autonomy Group (CFAG) and on July 24, 1998, CFAG passed an approved Joint
Resolution No. 49 adopting internal rules implementing the special provisions heretoforth
mentioned;

NOW THEREFORE, the Commission by virtue of its fiscal autonomy hereby approves
and authorizes the upgrading and augmentation of the commensurate amount generated
from savings under Personal Services to support the implementation of this resolution
effective Calendar Year 1998;

Let the Human Resources Development Division (HRDD) prepare the necessary Notice
of Salary Adjustment and other appropriate documents to implement this resolution; . . . .
3
(Emphasis supplied)
Annexed to said resolution is the proposed creation of ten additional plantilla positions, namely:
one Director IV position, with Salary Grade 28 for the Caraga Regional Office, four Security
Officer II with Salary Grade 15, and five Process Servers, with Salary Grade 5 under the Office
of the Commissioners. 4

On 19 October 1998, CHR issued Resolution No. A98-0555 providing for the upgrading or
raising of salary grades of the following positions in the Commission:

Number Position Salary Grade Total Salary

of Requirements
Positions Title
  From To From To  
12 Attorney VI Director IV 26 28 P229,104.00
(In the
Regional
Field
Offices)
4 Director III Director IV 27 28 38,928.00
1 Financial & Director IV 24 28 36,744.00
Management
Officer II
1 Budget Budget 18 24 51,756.00
Officer III Officer IV
1 Accountant Chief 18 24 51,756.00
III Accountant
1 Cashier III Cashier V 18 24 51,756.00
1 Information Director IV 24 28 36,744.006
Officer V

It, likewise, provided for the creation and upgrading of the following positions:

A. Creation

Number of Position Title Salary Grade Total Salary

Positions Requirements
4 Security Officer II 15 684,780.00
(Coterminous)

B. Upgrading

Number of Position Title Salary Grade Total Salary

Positions Requirements
  From To From To  
 1 Attorney V Director IV 25 28 P28,092.00
2 Security Security 11 15 57,456.00
Officer I Officer II
          ----------------
Total 3         P 85,548.007

To support the implementation of such scheme, the CHR, in the same resolution, authorized the
augmentation of a commensurate amount generated from savings under Personnel Services.

By virtue of Resolution No. A98-062 dated 17 November 1998, the CHR "collapsed" the vacant
positions in the body to provide additional source of funding for said staffing modification.
Among the positions collapsed were: one Attorney III, four Attorney IV, one Chemist III, three
Special Investigator I, one Clerk III, and one Accounting Clerk II.8

The CHR forwarded said staffing modification and upgrading scheme to the DBM with a request
for its approval, but the then DBM secretary Benjamin Diokno denied the request on the
following justification:

… Based on the evaluations made the request was not favorably considered as it effectively
involved the elevation of the field units from divisions to services.

The present proposal seeks further to upgrade the twelve (12) positions of Attorney VI, SG-26 to
Director IV, SG-28. This would elevate the field units to a bureau or regional office, a level even
higher than the one previously denied.

The request to upgrade the three (3) positions of Director III, SG-27 to Director IV, SG-28, in the
Central Office in effect would elevate the services to Office and change the context from support
to substantive without actual change in functions.

In the absence of a specific provision of law which may be used as a legal basis to elevate the
level of divisions to a bureau or regional office, and the services to offices, we reiterate our
previous stand denying the upgrading of the twelve (12) positions of Attorney VI, SG-26 to
Director III, SG-27 or Director IV, SG-28, in the Field Operations Office (FOO) and three (3)
Director III, SG-27 to Director IV, SG-28 in the Central Office.

As represented, President Ramos then issued a Memorandum to the DBM Secretary dated 10
December 1997, directing the latter to increase the number of Plantilla positions in the CHR both
Central and Regional Offices to implement the Philippine Decade Plan on Human Rights
Education, the Philippine Human Rights Plan and Barangay Rights Actions Center in accordance
with existing laws. (Emphasis in the original)

Pursuant to Section 78 of the General Provisions of the General Appropriations Act (GAA) FY
1998, no organizational unit or changes in key positions shall be authorized unless provided by
law or directed by the President, thus, the creation of a Finance Management Office and a Public
Affairs Office cannot be given favorable recommendation.
Moreover, as provided under Section 2 of RA No. 6758, otherwise known as the Compensation
Standardization Law, the Department of Budget and Management is directed to establish and
administer a unified compensation and position classification system in the government. The
Supreme Court ruled in the case of Victorina Cruz vs. Court of Appeals, G.R. No. 119155, dated
January 30, 1996, that this Department has the sole power and discretion to administer the
compensation and position classification system of the National Government.

Being a member of the fiscal autonomy group does not vest the agency with the authority to
reclassify, upgrade, and create positions without approval of the DBM. While the members of
the Group are authorized to formulate and implement the organizational structures of their
respective offices and determine the compensation of their personnel, such authority is not
absolute and must be exercised within the parameters of the Unified Position Classification and
Compensation System established under RA 6758 more popularly known as the Compensation
Standardization Law. We therefore reiterate our previous stand on the matter.9 (Emphases
supplied)

In light of the DBM's disapproval of the proposed personnel modification scheme, the CSC-
National Capital Region Office, through a memorandum dated 29 March 1999, recommended to
the CSC-Central Office that the subject appointments be rejected owing to the DBM's
disapproval of the plantilla reclassification.

Meanwhile, the officers of petitioner CHREA, in representation of the rank and file employees of
the CHR, requested the CSC-Central Office to affirm the recommendation of the CSC-Regional
Office. CHREA stood its ground in saying that the DBM is the only agency with appropriate
authority mandated by law to evaluate and approve matters of reclassification and upgrading, as
well as creation of positions.

The CSC-Central Office denied CHREA's request in a Resolution dated 16 December 1999, and
reversed the recommendation of the CSC-Regional Office that the upgrading scheme be
censured. The decretal portion of which reads:

WHEREFORE, the request of Ronnie N. Rosero, Hubert V. Ruiz, Flordeliza A. Briones,

George Q. Dumlao [and], Corazon A. Santos-Tiu, is hereby denied.10

CHREA filed a motion for reconsideration, but the CSC-Central Office denied the same
on 09 June 2000.

Given the cacophony of judgments between the DBM and the CSC, petitioner CHREA
elevated the matter to the Court of Appeals. The Court of Appeals affirmed the
pronouncement of the CSC-Central Office and upheld the validity of the upgrading,
retitling, and reclassification scheme in the CHR on the justification that such action is
within the ambit of CHR's fiscal autonomy. The fallo of the Court of Appeals decision
provides:
 IN VIEW OF ALL THE FOREGOING, the instant petition is ordered DISMISSED and
the questioned Civil Service Commission Resolution No. 99-2800 dated December 16,
1999 as well as No. 001354 dated June 9, 2000, are hereby AFFIRMED. No cost.11

Unperturbed, petitioner filed this petition in this Court contending that:

A.

…THE COURT OF APPEALS GRAVELY ERRED WHEN IT HELD THAT UNDER

THE 1987 CONSTITUTION, THE COMMISSION ON HUMAN RIGHTS ENJOYS
FISCAL AUTONOMY.

B.

…THE COURT OF APPEALS SERIOUSLY ERRED IN UPHOLDING THE

CONSTRUCTION OF THE COMMISSION ON HUMAN RIGHTS OF REPUBLIC
ACT NO. 8522 (THE GENERAL APPROPRIATIONS ACT FOR THE FISCAL YEAR
1998) DESPITE ITS BEING IN SHARP CONFLICT WITH THE 1987
CONSTITUTION AND THE STATUTE ITSELF.

C.

…THE COURT OF APPEALS SERIOUSLY AND GRAVELY ERRED IN

AFFIRMING THE VALIDITY OF THE CIVIL SERVICE COMMISSION
RESOLUTION NOS. 992800 AND 001354 AS WELL AS THAT OF THE OPINION
OF THE DEPARTMENT OF JUSTICE IN STATING THAT THE COMMISSION ON
HUMAN RIGHTS ENJOYS FISCAL AUTONOMY UNDER THE 1987
CONSTITUTION AND THAT THIS FISCAL AUTONOMY INCLUDES THE
ACTION TAKEN BY IT IN COLLAPSING, UPGRADING AND
RECLASSIFICATION OF POSITIONS THEREIN. 12

The central question we must answer in order to resolve this case is: Can the Commission on
Human Rights validly implement an upgrading, reclassification, creation, and collapsing of
plantilla positions in the Commission without the prior approval of the Department of Budget
and Management?

Petitioner CHREA grouses that the Court of Appeals and the CSC-Central Office both erred in
sanctioning the CHR's alleged blanket authority to upgrade, reclassify, and create positions
inasmuch as the approval of the DBM relative to such scheme is still indispensable. Petitioner
bewails that the CSC and the Court of Appeals erroneously assumed that CHR enjoys fiscal
autonomy insofar as financial matters are concerned, particularly with regard to the upgrading
and reclassification of positions therein.

Respondent CHR sharply retorts that petitioner has no locus standi considering that there exists
no official written record in the Commission recognizing petitioner as a bona fide organization of
its employees nor is there anything in the records to show that its president, Marcial A. Sanchez,
Jr., has the authority to sue the CHR. The CHR contends that it has the authority to cause the
upgrading, reclassification, plantilla creation, and collapsing scheme sans the approval of the
DBM because it enjoys fiscal autonomy.

After a thorough consideration of the arguments of both parties and an assiduous scrutiny of the
records in the case at bar, it is the Court's opinion that the present petition is imbued with merit.

On petitioner's personality to bring this suit, we held in a multitude of cases that a proper party is
one who has sustained or is in immediate danger of sustaining an injury as a result of the act
complained of.13 Here, petitioner, which consists of rank and file employees of respondent CHR,
protests that the upgrading and collapsing of positions benefited only a select few in the upper
level positions in the Commission resulting to the demoralization of the rank and file employees.
This sufficiently meets the injury test. Indeed, the CHR's upgrading scheme, if found to be valid,
potentially entails eating up the Commission's savings or that portion of its budgetary pie
otherwise allocated for Personnel Services, from which the benefits of the employees, including
those in the rank and file, are derived.

Further, the personality of petitioner to file this case was recognized by the CSC when it took
cognizance of the CHREA's request to affirm the recommendation of the CSC-National Capital
Region Office. CHREA's personality to bring the suit was a non-issue in the Court of Appeals
when it passed upon the merits of this case. Thus, neither should our hands be tied by this
technical concern. Indeed, it is settled jurisprudence that an issue that was neither raised in the
complaint nor in the court below cannot be raised for the first time on appeal, as to do so would
be offensive to the basic rules of fair play, justice, and due process.14

We now delve into the main issue of whether or not the approval by the DBM is a condition
precedent to the enactment of an upgrading, reclassification, creation and collapsing of plantilla
positions in the CHR.

Germane to our discussion is Rep. Act No. 6758, An Act Prescribing a Revised Compensation
and Position Classification System in the Government and For Other Purposes, or the Salary
Standardization Law, dated 01 July 1989, which provides in Sections 2 and 4 thereof that it is the
DBM that shall establish and administer a unified Compensation and Position Classification
System. Thus:

SEC. 2. Statement of Policy. -- It is hereby declared the policy of the State to provide
equal pay for substantially equal work and to base differences in pay upon substantive
differences in duties and responsibilities, and qualification requirements of the positions.
In determining rates of pay, due regard shall be given to, among others, prevailing rates
in the private sector for comparable work. For this purpose, the Department of Budget
and Management (DBM) is hereby directed to establish and administer a unified
Compensation and Position Classification System, hereinafter referred to as the System
as provided for in Presidential Decree No. 985, as amended, that shall be applied for all
government entities, as mandated by the Constitution. (Emphasis supplied.)
 SEC. 4. Coverage. – The Compensation and Position Classification System herein
provided shall apply to all positions, appointive or elective, on full or part-time basis,
now existing or hereafter created in the government, including government-owned or
controlled corporations and government financial institutions.

The term "government" refers to the Executive, the Legislative and the Judicial Branches and the
Constitutional Commissions and shall include all, but shall not be limited to, departments,
bureaus, offices, boards, commissions, courts, tribunals, councils, authorities, administrations,
centers, institutes, state colleges and universities, local government units, and the armed forces.
The term "government-owned or controlled corporations and financial institutions" shall include
all corporations and financial institutions owned or controlled by the National Government,
whether such corporations and financial institutions perform governmental or proprietary
functions. (Emphasis supplied.)

The disputation of the Court of Appeals that the CHR is exempt from the long arm of the Salary
Standardization Law is flawed considering that the coverage thereof, as defined above,
encompasses the entire gamut of government offices, sans qualification.

This power to "administer" is not purely ministerial in character as erroneously held by the Court
of Appeals. The word to administer means to control or regulate in behalf of others; to direct or
superintend the execution, application or conduct of; and to manage or conduct public affairs, as
to administer the government of the state.15

The regulatory power of the DBM on matters of compensation is encrypted not only in law, but
in jurisprudence as well. In the recent case of Philippine Retirement Authority (PRA) v. Jesusito
L. Buñag,16 this Court, speaking through Mr. Justice Reynato Puno, ruled that compensation,
allowances, and other benefits received by PRA officials and employees without the requisite
approval or authority of the DBM are unauthorized and irregular. In the words of the Court –

Despite the power granted to the Board of Directors of PRA to establish and fix a compensation
and benefits scheme for its employees, the same is subject to the review of the Department of
Budget and Management. However, in view of the express powers granted to PRA under its
charter, the extent of the review authority of the Department of Budget and Management is
limited. As stated in Intia, the task of the Department of Budget and Management is simply to
review the compensation and benefits plan of the government agency or entity concerned and
determine if the same complies with the prescribed policies and guidelines issued in this regard.
The role of the Department of Budget and Management is supervisorial in nature, its main duty
being to ascertain that the proposed compensation, benefits and other incentives to be given to
PRA officials and employees adhere to the policies and guidelines issued in accordance with
applicable laws.

In Victorina Cruz v. Court of Appeals,17 we held that the DBM has the sole power and discretion
to administer the compensation and position classification system of the national government.

In Intia, Jr. v. Commission on Audit,18 the Court held that although the charter19 of the Philippine
Postal Corporation (PPC) grants it the power to fix the compensation and benefits of its
employees and exempts PPC from the coverage of the rules and regulations of the Compensation
and Position Classification Office, by virtue of Section 6 of P.D. No. 1597, the compensation
system established by the PPC is, nonetheless, subject to the review of the DBM. This Court
intoned:

It should be emphasized that the review by the DBM of any PPC resolution affecting the
compensation structure of its personnel should not be interpreted to mean that the DBM can
dictate upon the PPC Board of Directors and deprive the latter of its discretion on the matter.
Rather, the DBM's function is merely to ensure that the action taken by the Board of Directors
complies with the requirements of the law, specifically, that PPC's compensation system
"conforms as closely as possible with that provided for under R.A. No. 6758." (Emphasis
supplied.)

As measured by the foregoing legal and jurisprudential yardsticks, the imprimatur of the DBM
must first be sought prior to implementation of any reclassification or upgrading of positions in
government. This is consonant to the mandate of the DBM under the Revised Administrative
Code of 1987, Section 3, Chapter 1, Title XVII, to wit:

SEC. 3. Powers and Functions. – The Department of Budget and Management shall assist
the President in the preparation of a national resources and expenditures budget,
preparation, execution and control of the National Budget, preparation and maintenance
of accounting systems essential to the budgetary process, achievement of more economy
and efficiency in the management of government operations, administration of
compensation and position classification systems, assessment of organizational
effectiveness and review and evaluation of legislative proposals having budgetary or
organizational implications. (Emphasis supplied.)

Irrefragably, it is within the turf of the DBM Secretary to disallow the upgrading,
reclassification, and creation of additional plantilla positions in the CHR based on its finding that
such scheme lacks legal justification.

Notably, the CHR itself recognizes the authority of the DBM to deny or approve the proposed
reclassification of positions as evidenced by its three letters to the DBM requesting approval
thereof. As such, it is now estopped from now claiming that the nod of approval it has previously
sought from the DBM is a superfluity.

The Court of Appeals incorrectly relied on the pronouncement of the CSC-Central Office that the
CHR is a constitutional commission, and as such enjoys fiscal autonomy.20

Palpably, the Court of Appeals' Decision was based on the mistaken premise that the CHR
belongs to the species of constitutional commissions. But, Article IX of the Constitution states in
no uncertain terms that only the CSC, the Commission on Elections, and the Commission on
Audit shall be tagged as Constitutional Commissions with the appurtenant right to fiscal
autonomy. Thus:
 Sec. 1. The Constitutional Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and the Commission on Audit.

Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved annual
appropriations shall be automatically and regularly released.

Along the same vein, the Administrative Code, in Chapter 5, Sections 24 and 26 of Book II on
Distribution of Powers of Government, the constitutional commissions shall include only the
Civil Service Commission, the Commission on Elections, and the Commission on Audit, which
are granted independence and fiscal autonomy. In contrast, Chapter 5, Section 29 thereof, is
silent on the grant of similar powers to the other bodies including the CHR. Thus:

SEC. 24. Constitutional Commissions. – The Constitutional Commissions, which shall be

independent, are the Civil Service Commission, the Commission on Elections, and the
Commission on Audit.

SEC. 26. Fiscal Autonomy. – The Constitutional Commissions shall enjoy fiscal
autonomy. The approved annual appropriations shall be automatically and regularly
released.

SEC. 29. Other Bodies. – There shall be in accordance with the Constitution, an Office of
the Ombudsman, a Commission on Human Rights, and independent central monetary
authority, and a national police commission. Likewise, as provided in the Constitution,
Congress may establish an independent economic and planning agency. (Emphasis ours.)

From the 1987 Constitution and the Administrative Code, it is abundantly clear that the CHR is
not among the class of Constitutional Commissions. As expressed in the oft-repeated maxim
expressio unius est exclusio alterius, the express mention of one person, thing, act or
consequence excludes all others. Stated otherwise, expressium facit cessare tacitum – what is
expressed puts an end to what is implied.21

Nor is there any legal basis to support the contention that the CHR enjoys fiscal autonomy. In
essence, fiscal autonomy entails freedom from outside control and limitations, other than those
provided by law. It is the freedom to allocate and utilize funds granted by law, in accordance
with law, and pursuant to the wisdom and dispatch its needs may require from time to time.22 In
Blaquera v. Alcala and Bengzon v. Drilon,23 it is understood that it is only the Judiciary, the Civil
Service Commission, the Commission on Audit, the Commission on Elections, and the Office of
the Ombudsman, which enjoy fiscal autonomy. Thus, in Bengzon,24 we explained:

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil
Service Commission, the Commission on Audit, the Commission on Elections, and the
Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and
utilize their resources with the wisdom and dispatch that their needs require. It recognizes
the power and authority to levy, assess and collect fees, fix rates of compensation not
exceeding the highest rates authorized by law for compensation and pay plans of the
 government and allocate and disburse such sums as may be provided by law or prescribed
by them in the course of the discharge of their functions.

...

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional
offices allocate and utilize the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only of the express mandate of the Constitution but
especially as regards the Supreme Court, of the independence and separation of powers
upon which the entire fabric of our constitutional system is based. In the interest of
comity and cooperation, the Supreme Court, [the] Constitutional Commissions, and the
Ombudsman have so far limited their objections to constant reminders. We now agree
with the petitioners that this grant of autonomy should cease to be a meaningless
provision. (Emphasis supplied.)

Neither does the fact that the CHR was admitted as a member by the Constitutional Fiscal
Autonomy Group (CFAG) ipso facto clothed it with fiscal autonomy. Fiscal autonomy is a
constitutional grant, not a tag obtainable by membership.

We note with interest that the special provision under Rep. Act No. 8522, while cited under the
heading of the CHR, did not specifically mention CHR as among those offices to which the
special provision to formulate and implement organizational structures apply, but merely states
its coverage to include Constitutional Commissions and Offices enjoying fiscal autonomy. In
contrast, the Special Provision Applicable to the Judiciary under Article XXVIII of the General
Appropriations Act of 1998 specifically mentions that such special provision applies to the
judiciary and had categorically authorized the Chief Justice of the Supreme Court to formulate
and implement the organizational structure of the Judiciary, to wit:

1. Organizational Structure. Any provision of law to the contrary notwithstanding and

within the limits of their respective appropriations authorized in this Act, the Chief
Justice of the Supreme Court is authorized to formulate and implement organizational
structure of the Judiciary, to fix and determine the salaries, allowances, and other benefits
of their personnel, and whenever public interest so requires, make adjustments in the
personal services itemization including, but not limited to, the transfer of item or creation
of new positions in the Judiciary; PROVIDED, That officers and employees whose
positions are affected by such reorganization or adjustments shall be granted retirement
gratuities and separation pay in accordance with existing law, which shall be payable
from any unexpended balance of, or savings in the appropriations of their respective
offices: PROVIDED, FURTHER, That the implementation hereof shall be in accordance
with salary rates, allowances and other benefits authorized under compensation
standardization laws. (Emphasis supplied.)

All told, the CHR, although admittedly a constitutional creation is, nonetheless, not included in
the genus of offices accorded fiscal autonomy by constitutional or legislative fiat.
Even assuming en arguendo that the CHR enjoys fiscal autonomy, we share the stance of the
DBM that the grant of fiscal autonomy notwithstanding, all government offices must, all the
same, kowtow to the Salary Standardization Law. We are of the same mind with the DBM on its
standpoint, thus-

Being a member of the fiscal autonomy group does not vest the agency with the authority to
reclassify, upgrade, and create positions without approval of the DBM. While the members of
the Group are authorized to formulate and implement the organizational structures of their
respective offices and determine the compensation of their personnel, such authority is not
absolute and must be exercised within the parameters of the Unified Position Classification and
Compensation System established under RA 6758 more popularly known as the Compensation
Standardization Law.25 (Emphasis supplied.)

The most lucid argument against the stand of respondent, however, is the provision of Rep. Act
No. 8522 "that the implementation hereof shall be in accordance with salary rates, allowances
and other benefits authorized under compensation standardization laws."26

Indeed, the law upon which respondent heavily anchors its case upon has expressly provided that
any form of adjustment in the organizational structure must be within the parameters of the
Salary Standardization Law.

The Salary Standardization Law has gained impetus in addressing one of the basic causes of
discontent of many civil servants.27 For this purpose, Congress has delegated to the DBM the
power to administer the Salary Standardization Law and to ensure that the spirit behind it is
observed. This power is part of the system of checks and balances or system of restraints in our
government. The DBM's exercise of such authority is not in itself an arrogation inasmuch as it is
pursuant to the paramount law of the land, the Salary Standardization Law and the
Administrative Code.

In line with its role to breathe life into the policy behind the Salary Standardization Law of
"providing equal pay for substantially equal work and to base differences in pay upon
substantive differences in duties and responsibilities, and qualification requirements of the
positions," the DBM, in the case under review, made a determination, after a thorough
evaluation, that the reclassification and upgrading scheme proposed by the CHR lacks legal
rationalization.

The DBM expounded that Section 78 of the general provisions of the General Appropriations
Act FY 1998, which the CHR heavily relies upon to justify its reclassification scheme, explicitly
provides that "no organizational unit or changes in key positions shall be authorized unless
provided by law or directed by the President." Here, the DBM discerned that there is no law
authorizing the creation of a Finance Management Office and a Public Affairs Office in the
CHR. Anent CHR's proposal to upgrade twelve positions of Attorney VI, SG-26 to Director IV,
SG-28, and four positions of Director III, SG-27 to Director IV, SG-28, in the Central Office, the
DBM denied the same as this would change the context from support to substantive without
actual change in functions.
This view of the DBM, as the law's designated body to implement and administer a unified
compensation system, is beyond cavil. The interpretation of an administrative government
agency, which is tasked to implement a statute is accorded great respect and ordinarily controls
the construction of the courts. In Energy Regulatory Board v. Court of Appeals,28 we echoed the
basic rule that the courts will not interfere in matters which are addressed to the sound discretion
of government agencies entrusted with the regulation of activities coming under the special
technical knowledge and training of such agencies.

To be sure, considering his expertise on matters affecting the nation's coffers, the Secretary of
the DBM, as the President's alter ego, knows from where he speaks inasmuch as he has the front
seat view of the adverse effects of an unwarranted upgrading or creation of positions in the CHR
in particular and in the entire government in general.

WHEREFORE, the petition is GRANTED, the Decision dated 29 November 2001 of the Court
of Appeals in CA-G.R. SP No. 59678 and its Resolution dated 11 September 2002 are hereby
REVERSED and SET ASIDE. The ruling dated 29 March 1999 of the Civil Service Commision-
National Capital Region is REINSTATED. The Commission on Human Rights Resolution No.
A98-047 dated 04 September 1998, Resolution No. A98-055 dated 19 October 1998 and
Resolution No. A98-062 dated 17 November 1998 without the approval of the Department of
Budget and Management are disallowed. No pronouncement as to costs.

SO ORDERED.
G.R. No. 131719             May 25, 2004

THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY

OF LABOR AND EMPLOYMENT, AND THE SECRETARY OF FOREIGN AFFAIRS,
OWWA PUNO, ADMINISTRATOR, and POEA ADMINISTRATOR, petitioners,
vs.
THE HON. COURT OF APPEALS and ASIAN RECRUITMENT COUNCIL
PHILIPPINE CHAPTER (ARCO-PHIL.), INC., representing its members: Worldcare
Services Internationale, Inc., Steadfast
International Recruitment Corporation, Dragon International Manpower Services
Corporation, Verdant Manpower Mobilization Corporation, Brent Overseas Personnel,
Inc., ARL Manpower Services, Inc., Dahlzhen International Services, Inc., Interworld
Placement Center, Inc., Lakas Tao Contract Services, Ltd. Co., and SSC Multiservices,
respondents.

DECISION

CALLEJO, SR., J.:

In this petition for review on certiorari, the Executive Secretary of the President of the
Philippines, the Secretary of Justice, the Secretary of Foreign Affairs, the Secretary of Labor and
Employment, the POEA Administrator and the OWWA Administrator, through the Office of the
Solicitor General, assail the Decision1 of the Court of Appeals in CA-G.R. SP No. 38815
affirming the Order2 of the Regional Trial Court of Quezon City dated August 21, 1995 in Civil
Case No. Q-95-24401, granting the plea of the petitioners therein for a writ of preliminary
injunction and of the writ of preliminary injunction issued by the trial court on August 24, 1995.

The Antecedents

Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of
1995, took effect on July 15, 1995. The Omnibus Rules and Regulations Implementing the
Migrant Workers and Overseas Filipino Act of 1995 was, thereafter, published in the April 7,
1996 issue of the Manila Bulletin. However, even before the law took effect, the Asian
Recruitment Council Philippine Chapter, Inc. (ARCO-Phil.) filed, on July 17, 1995, a petition for
declaratory relief under Rule 63 of the Rules of Court with the Regional Trial Court of Quezon
City to declare as unconstitutional Section 2, paragraph (g), Section 6, paragraphs (a) to (j), (l)
and (m), Section 7, paragraphs (a) and (b), and Sections 9 and 10 of the law, with a plea for the
issuance of a temporary restraining order and/or writ of preliminary injunction enjoining the
respondents therein from enforcing the assailed provisions of the law.

In a supplement to its petition, the ARCO-Phil. alleged that Rep. Act No. 8042 was self-
executory and that no implementing rules were needed. It prayed that the court issue a temporary
restraining order to enjoin the enforcement of Section 6, paragraphs (a) to (m) on illegal
recruitment, Section 7 on penalties for illegal recruitment, and Section 9 on venue of criminal
actions for illegal recruitments, viz:
 Viewed in the light of the foregoing discussions, there appears to be urgent an imperative
need for this Honorable Court to maintain the status quo by enjoining the implementation
or effectivity of the questioned provisions of RA 8042, by way of a restraining order
otherwise, the member recruitment agencies of the petitioner will suffer grave or
irreparable damage or injury. With the effectivity of RA 8042, a great majority of the
duly licensed recruitment agencies have stopped or suspended their operations for fear of
being prosecuted under the provisions of a law that are unjust and unconstitutional. This
Honorable Court may take judicial notice of the fact that processing of deployment
papers of overseas workers for the past weeks have come to a standstill at the POEA and
this has affected thousands of workers everyday just because of the enactment of RA
8042. Indeed, this has far reaching effects not only to survival of the overseas manpower
supply industry and the active participating recruitment agencies, the country’s economy
which has survived mainly due to the dollar remittances of the overseas workers but more
importantly, to the poor and the needy who are in dire need of income-generating jobs
which can only be obtained from abroad. The loss or injury that the recruitment agencies
will suffer will then be immeasurable and irreparable. As of now, even foreign employers
have already reduced their manpower requirements from the Philippines due to their
knowledge that RA 8042 prejudiced and adversely affected the local recruitment
agencies.3

On August 1, 1995, the trial court issued a temporary restraining order effective for a period of
only twenty (20) days therefrom.

After the petitioners filed their comment on the petition, the ARCO-Phil. filed an amended
petition, the amendments consisting in the inclusion in the caption thereof eleven (11) other
corporations which it alleged were its members and which it represented in the suit, and a plea
for a temporary restraining order enjoining the respondents from enforcing Section 6 subsection
(i), Section 6 subsection (k) and paragraphs 15 and 16 thereof, Section 8, Section 10, paragraphs
1 and 2, and Sections 11 and 40 of Rep. Act No. 8042.

The respondent ARCO-Phil. assailed Section 2(g) and (i), Section 6 subsection (a) to (m),
Section 7(a) to (b), and Section 10 paragraphs (1) and (2), quoted as follows:

(g) THE STATE RECOGNIZES THAT THE ULTIMATE PROTECTION TO ALL

MIGRANT WORKERS IS THE POSSESSION OF SKILLS. PURSUANT TO THIS
AND AS SOON AS PRACTICABLE, THE GOVERNMENT SHALL DEPLOY
AND/OR ALLOW THE DEPLOYMENT ONLY OF SKILLED FILIPINO WORKERS. 4

Sec. 2 subsection (i, 2nd par.)

Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-

based, by local service contractors and manning agents employing them shall be
encourages (sic). Appropriate incentives may be extended to them.

…
 II. ILLEGAL RECRUITMENT

SEC. 6. Definition. – For purposes of this Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers
and includes referring, contract services, promising or advertising for employment
abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of
authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended,
otherwise known as the Labor Code of the Philippines: Provided, That any such non-
licensee or non-holder who, in any manner, offers or promises for a fee employment
abroad to two or more persons shall be deemed so engaged. It shall, likewise, include the
following acts, whether committed by any person, whether a non-licensee, non-holder,
licensee or holder of authority:

(a) To charge or accept directly or indirectly any amount greater than that
specified in the schedule of allowable fees prescribed by the Secretary of Labor
and Employment, or to make a worker pay any amount greater than that actually
received by him as a loan or advance;

(b) To furnish or publish any false notice or information or document in relation

to recruitment or employment;

(c) To give any false notice, testimony, information or document or commit any
act of misrepresentation for the purpose of securing a license or authority under
the Labor Code;

(d) To induce or attempt to induce a worker already employed to quit his

employment in order to offer him another unless the transfer is designed to
liberate a worker from oppressive terms and conditions of employment;

(e) To influence or attempt to influence any person or entity not to employ any
worker who has not applied for employment through his agency;

(f) To engage in the recruitment or placement of workers in jobs harmful to public

health or morality or to the dignity of the Republic of the Philippines;

(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and

Employment or by his duly authorized representative;

(h) To fail to submit reports on the status of employment, placement vacancies,

remittance of foreign exchange earnings, separation from jobs, departures and
such other matters or information as may be required by the Secretary of Labor
and Employment;

(i) To substitute or alter to the prejudice of the worker, employment contracts

approved and verified by the Department of Labor and Employment from the time
of actual signing thereof by the parties up to and including the period of the
 expiration of the same without the approval of the Department of Labor and
Employment;

(j) For an officer or agent of a recruitment or placement agency to become an

officer or member of the Board of any corporation engaged in travel agency or to
be engaged directly or indirectly in the management of a travel agency;

(k) To withhold or deny travel documents from applicant workers before

departure for monetary or financial considerations other than those authorized
under the Labor Code and its implementing rules and regulations;

(l) Failure to actually deploy without valid reason as determined by the

Department of Labor and Employment; and

(m) Failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker’s fault. Illegal
recruitment when committed by a syndicate or in large scale shall be considered
an offense involving economic sabotage.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three

(3) or more persons conspiring or confederating with one another. It is deemed
committed in large scale if committed against three (3) or more persons individually or as
a group.

The persons criminally liable for the above offenses are the principals, accomplices and
accessories. In case of juridical persons, the officers having control, management or
direction of their business shall be liable.

SEC. 7. Penalties. –

(a) Any person found guilty of illegal recruitment shall suffer the penalty of
imprisonment of not less than six (6) years and one (1) day but not more than twelve (12)
years and a fine of not less than two hundred thousand pesos (P200,000.00) nor more
than five hundred thousand pesos (P500,000.00).

(b) The penalty of life imprisonment and a fine of not less than five hundred thousand
pesos (P500,000.00) nor more than one million pesos (P1,000,000.00) shall be imposed if
illegal recruitment constitutes economic sabotage as defined herein.

Provided, however, That the maximum penalty shall be imposed if the person illegally
recruited is less than eighteen (18) years of age or committed by a non-licensee or non-
holder of authority.
 Sec. 8.

Prohibition on Officials and Employees. – It shall be unlawful for any official or

employee of the Department of Labor and Employment, the Philippine Overseas
Employment Administration (POEA), or the Overseas Workers Welfare Administration
(OWWA), or the Department of Foreign Affairs, or other government agencies involved
in the implementation of this Act, or their relatives within the fourth civil degree of
consanguinity or affinity, to engage, directly or indirectly, in the business of recruiting
migrant workers as defined in this Act. The penalties provided in the immediate
preceding paragraph shall be imposed upon them. (underscoring supplied)

Sec. 10, pars. 1 & 2.

Money Claims. – Notwithstanding any provision of law to the contrary, the Labor
Arbiters of the National Labor Relations Commission (NLRC) shall have the original and
exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing
of the complaint, the claims arising out of an employer-employee relationship or by
virtue of any law or contract involving Filipino workers for overseas deployment
including claims for actual, moral, exemplary and other forms of damages.

The liability of the principal/employer and the recruitment/placement agency for any and
all claims under this section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall be a condition precedent
for its approval. The performance bond to be filed by the recruitment/placement agency,
as provided by law, shall be answerable for all money claims or damages that may be
awarded to the workers. If the recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may be, shall themselves be
jointly and solidarily liable with the corporation or partnership for the aforesaid claims
and damages.

SEC. 11. Mandatory Periods for Resolution of Illegal Recruitment Cases. – The
preliminary investigations of cases under this Act shall be terminated within a period of
thirty (30) calendar days from the date of their filing. Where the preliminary investigation
is conducted by a prosecution officer and a prima facie case is established, the
corresponding information shall be filed in court within twenty-four (24) hours from the
termination of the investigation. If the preliminary investigation is conducted by a judge
and a prima facie case is found to exist, the corresponding information shall be filed by
the proper prosecution officer within forty-eight (48) hours from the date of receipt of the
records of the case.

The respondent averred that the aforequoted provisions of Rep. Act No. 8042 violate Section 1,
Article III of the Constitution.5 According to the respondent, Section 6(g) and (i) discriminated
against unskilled workers and their families and, as such, violated the equal protection clause, as
well as Article II, Section 126 and Article XV, Sections 17 and 3(3) of the Constitution.8 As the
law encouraged the deployment of skilled Filipino workers, only overseas skilled workers are
granted rights. The respondent stressed that unskilled workers also have the right to seek
employment abroad. According to the respondent, the right of unskilled workers to due process
is violated because they are prevented from finding employment and earning a living abroad. It
cannot be argued that skilled workers are immune from abuses by employers, while unskilled
workers are merely prone to such abuses. It was pointed out that both skilled and unskilled
workers are subjected to abuses by foreign employers. Furthermore, the prohibition of the
deployment of unskilled workers abroad would only encourage fly-by-night illegal recruiters.

According to the respondent, the grant of incentives to service contractors and manning agencies
to the exclusion of all other licensed and authorized recruiters is an invalid classification.
Licensed and authorized recruiters are thus deprived of their right to property and due process
and to the "equality of the person." It is understandable for the law to prohibit illegal recruiters,
but to discriminate against licensed and registered recruiters is unconstitutional.

The respondent, likewise, alleged that Section 6, subsections (a) to (m) is unconstitutional
because licensed and authorized recruitment agencies are placed on equal footing with illegal
recruiters. It contended that while the Labor Code distinguished between recruiters who are
holders of licenses and non-holders thereof in the imposition of penalties, Rep. Act No. 8042
does not make any distinction. The penalties in Section 7(a) and (b) being based on an invalid
classification are, therefore, repugnant to the equal protection clause, besides being excessive;
hence, such penalties are violative of Section 19(1), Article III of the Constitution.9 It was also
pointed out that the penalty for officers/officials/employees of recruitment agencies who are
found guilty of economic sabotage or large-scale illegal recruitment under Rep. Act No. 8042 is
life imprisonment. Since recruitment agencies usually operate with a manpower of more than
three persons, such agencies are forced to shut down, lest their officers and/or employees be
charged with large scale illegal recruitment or economic sabotage and sentenced to life
imprisonment. Thus, the penalty imposed by law, being disproportionate to the prohibited acts,
discourages the business of licensed and registered recruitment agencies.

The respondent also posited that Section 6(m) and paragraphs (15) and (16), Sections 8, 9 and
10, paragraph 2 of the law violate Section 22, Article III of the Constitution10 prohibiting ex-post
facto laws and bills of attainder. This is because the provisions presume that a licensed and
registered recruitment agency is guilty of illegal recruitment involving economic sabotage, upon
a finding that it committed any of the prohibited acts under the law. Furthermore, officials,
employees and their relatives are presumed guilty of illegal recruitment involving economic
sabotage upon such finding that they committed any of the said prohibited acts.

The respondent further argued that the 90-day period in Section 10, paragraph (1) within which a
labor arbiter should decide a money claim is relatively short, and could deprive licensed and
registered recruiters of their right to due process. The period within which the summons and the
complaint would be served on foreign employees and, thereafter, the filing of the answer to the
complaint would take more than 90 days. This would thereby shift on local licensed and
authorized recruiters the burden of proving the defense of foreign employers. Furthermore, the
respondent asserted, Section 10, paragraph 2 of the law, which provides for the joint and several
liability of the officers and employees, is a bill of attainder and a violation of the right of the said
corporate officers and employees to due process. Considering that such corporate officers and
employees act with prior approval of the board of directors of such corporation, they should not
be liable, jointly and severally, for such corporate acts.

The respondent asserted that the following provisions of the law are unconstitutional:

SEC. 9. Venue. – A criminal action arising from illegal recruitment as defined herein
shall be filed with the Regional Trial Court of the province or city where the offense was
committed or where the offended party actually resides at the time of the commission of
the offense: Provided, That the court where the criminal action is first filed shall acquire
jurisdiction to the exclusion of other courts: Provided, however, That the aforestated
provisions shall also apply to those criminal actions that have already been filed in court
at the time of the effectivity of this Act.

SEC. 10. Money Claims. – Notwithstanding any provision of law to the contrary, the
Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the
original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days
after the filing of the complaint, the claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino workers for overseas
deployment including claims for actual, moral, exemplary and other forms of damages.

Sec. 40.

The departments and agencies charged with carrying out the provisions of this Act shall,
within ninety (90) days after the effectiviy of this Act, formulate the necessary rules and
regulations for its effective implementation.

According to the respondent, the said provisions violate Section 5(5), Article VIII of the
Constitution11 because they impair the power of the Supreme Court to promulgate rules of
procedure.

In their answer to the petition, the petitioners alleged, inter alia, that (a) the respondent has no
cause of action for a declaratory relief; (b) the petition was premature as the rules implementing
Rep. Act No. 8042 not having been released as yet; (c) the assailed provisions do not violate any
provisions of the Constitution; and, (d) the law was approved by Congress in the exercise of the
police power of the State. In opposition to the respondent’s plea for injunctive relief, the
petitioners averred that:

As earlier shown, the amended petition for declaratory relief is devoid of merit for failure of
petitioner to demonstrate convincingly that the assailed law is unconstitutional, apart from the
defect and impropriety of the petition. One who attacks a statute, alleging unconstitutionality
must prove its invalidity beyond reasonable doubt (Caleon v. Agus Development Corporation,
207 SCRA 748). All reasonable doubts should be resolved in favor of the constitutionality of a
statute (People v. Vera, 65 Phil. 56). This presumption of constitutionality is based on the
doctrine of separation of powers which enjoin upon each department a becoming respect for the
acts of the other departments (Garcia vs. Executive Secretary, 204 SCRA 516 [1991]).
Necessarily, the ancillary remedy of a temporary restraining order and/or a writ of preliminary
injunction prayed for must fall. Besides, an act of legislature approved by the executive is
presumed to be within constitutional bounds (National Press Club v. Commission on Elections,
207 SCRA 1).12

After the respective counsels of the parties were heard on oral arguments, the trial court issued
on August 21, 1995, an order granting the petitioner’s plea for a writ of preliminary injunction
upon a bond of P50,000. The petitioner posted the requisite bond and on August 24, 1995, the
trial court issued a writ of preliminary injunction enjoining the enforcement of the following
provisions of Rep. Act No. 8042 pending the termination of the proceedings:

… Section 2, subsections (g) and (i, 2nd par.); Section 6, subsections (a) to (m), and pars.
15 & 16; Section 7, subsections (a) & (b); Section 8; Section 9; Section 10; pars. 1 & 2;
Section 11; and Section 40 of Republic Act No. 8042, otherwise known as the Migrant
Workers and Overseas Filipinos Act of 1995. …13

The petitioners filed a petition for certiorari with the Court of Appeals assailing the order and the
writ of preliminary injunction issued by the trial court on the following grounds:

1. Respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its
member-agencies to be protected by the injunctive relief and/or violation of said rights by
the enforcement of the assailed sections of R.A. 8042;

2. Respondent Judge fixed a P50,000 injunction bond which is grossly inadequate to

answer for the damage which petitioner-officials may sustain, should respondent ARCO-
PHIL. be finally adjudged as not being entitled thereto.14

The petitioners asserted that the respondent is not the real party-in-interest as petitioner in the
trial court. It is inconceivable how the respondent, a non-stock and non-profit corporation, could
sustain direct injury as a result of the enforcement of the law. They argued that if, at all, any
damage would result in the implementation of the law, it is the licensed and registered
recruitment agencies and/or the unskilled Filipino migrant workers discriminated against who
would sustain the said injury or damage, not the respondent. The respondent, as petitioner in the
trial court, was burdened to adduce preponderant evidence of such irreparable injury, but failed
to do so. The petitioners further insisted that the petition a quo was premature since the rules and
regulations implementing the law had yet to be promulgated when such petition was filed.
Finally, the petitioners averred that the respondent failed to establish the requisites for the
issuance of a writ of preliminary injunction against the enforcement of the law and the rules and
regulations issued implementing the same.

On December 5, 1997, the appellate court came out with a four-page decision dismissing the
petition and affirming the assailed order and writ of preliminary injunction issued by the trial
court. The appellate court, likewise, denied the petitioners’ motion for reconsideration of the said
decision.

The petitioners now come to this Court in a petition for review on certiorari on the following
grounds:

1. Private respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of
its member-agencies to be protected by the injunctive relief and/or violation of said rights
by the enforcement of the assailed sections of R.A. 8042;

2. The P50,000 injunction bond fixed by the court a quo and sustained by the Court of
Appeals is grossly inadequate to answer for the damage which petitioners-officials may
sustain, should private respondent ARCO-PHIL. be finally adjudged as not being entitled
thereto.15

On February 16, 1998, this Court issued a temporary restraining order enjoining the respondents
from enforcing the assailed order and writ of preliminary injunction.

The Issues

The core issue in this case is whether or not the trial court committed grave abuse of its
discretion amounting to excess or lack of jurisdiction in issuing the assailed order and the writ of
preliminary injunction on a bond of only P50,000 and whether or not the appellate court erred in
affirming the trial court’s order and the writ of preliminary injunction issued by it.

The petitioners contend that the respondent has no locus standi. It is a non-stock, non-profit
organization; hence, not the real party-in-interest as petitioner in the action. Although the
respondent filed the petition in the Regional Trial Court in behalf of licensed and registered
recruitment agencies, it failed to adduce in evidence a certified copy of its Articles of
Incorporation and the resolutions of the said members authorizing it to represent the said
agencies in the proceedings. Neither is the suit of the respondent a class suit so as to vest in it a
personality to assail Rep. Act No. 8042; the respondent is service-oriented while the recruitment
agencies it purports to represent are profit-oriented. The petitioners assert that the law is
presumed constitutional and, as such, the respondent was burdened to make a case strong enough
to overcome such presumption and establish a clear right to injunctive relief.

The petitioners bewail the P50,000 bond fixed by the trial court for the issuance of a writ of
preliminary injunction and affirmed by the appellate court. They assert that the amount is grossly
inadequate to answer for any damages that the general public may suffer by reason of the non-
enforcement of the assailed provisions of the law. The trial court committed a grave abuse of its
discretion in granting the respondent’s plea for injunctive relief, and the appellate court erred in
affirming the order and the writ of preliminary injunction issued by the trial court.

The respondent, for its part, asserts that it has duly established its locus standi and its right to
injunctive relief as gleaned from its pleadings and the appendages thereto. Under Section 5, Rule
58 of the Rules of Court, it was incumbent on the petitioners, as respondents in the RTC, to show
cause why no injunction should issue. It avers that the injunction bond posted by the respondent
was more than adequate to answer for any injury or damage the petitioners may suffer, if any, by
reason of the writ of preliminary injunction issued by the RTC. In any event, the assailed
provisions of Rep. Act No. 8042 exposed its members to the immediate and irreparable damage
of being deprived of their right to a livelihood without due process, a property right protected
under the Constitution.

The respondent contends that the commendable purpose of the law to eradicate illegal recruiters
should not be done at the expense and to the prejudice of licensed and authorized recruitment
agencies. The writ of preliminary injunction was necessitated by the great number of duly
licensed recruitment agencies that had stopped or suspended their business operations for fear
that their officers and employees would be indicted and prosecuted under the assailed oppressive
penal provisions of the law, and meted excessive penalties. The respondent, likewise, urges that
the Court should take judicial notice that the processing of deployment papers of overseas
workers have come to a virtual standstill at the POEA.

The Court’s Ruling

The petition is meritorious.

The Respondent Has Locus Standi

To File the Petition in the RTC in Representation of the Eleven Licensed and Registered
Recruitment Agencies Impleaded in the Amended Petition

The modern view is that an association has standing to complain of injuries to its members. This
view fuses the legal identity of an association with that of its members.16 An association has
standing to file suit for its workers despite its lack of direct interest if its members are affected by
the action. An organization has standing to assert the concerns of its constituents.17

In Telecommunications and Broadcast Attorneys of the Philippines v. Commission on

Elections,18 we held that standing jus tertii would be recognized only if it can be shown that the
party suing has some substantial relation to the third party, or that the right of the third party
would be diluted unless the party in court is allowed to espouse the third party’s constitutional
claims.

In this case, the respondent filed the petition for declaratory relief under Rule 64 of the Rules of
Court for and in behalf of its eleven (11) licensed and registered recruitment agencies which are
its members, and which approved separate resolutions expressly authorizing the respondent to
file the said suit for and in their behalf. We note that, under its Articles of Incorporation, the
respondent was organized for the purposes inter alia of promoting and supporting the growth and
development of the manpower recruitment industry, both in the local and international levels;
providing, creating and exploring employment opportunities for the exclusive benefit of its
general membership; enhancing and promoting the general welfare and protection of Filipino
workers; and, to act as the representative of any individual, company, entity or association on
matters related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate
party to assert the rights of its members, because it and its members are in every practical sense
identical. The respondent asserts that the assailed provisions violate the constitutional rights of
its members and the officers and employees thereof. The respondent is but the medium through
which its individual members seek to make more effective the expression of their voices and the
redress of their grievances.19

However, the respondent has no locus standi to file the petition for and in behalf of unskilled
workers. We note that it even failed to implead any unskilled workers in its petition.
Furthermore, in failing to implead, as parties-petitioners, the eleven licensed and registered
recruitment agencies it claimed to represent, the respondent failed to comply with Section 2 of
Rule 6320 of the Rules of Court. Nevertheless, since the eleven licensed and registered
recruitment agencies for which the respondent filed the suit are specifically named in the
petition, the amended petition is deemed amended to avoid multiplicity of suits.21

The Assailed Order and Writ of

Preliminary Injunction Is Mooted

By Case Law

The respondent justified its plea for injunctive relief on the allegation in its amended petition that
its members are exposed to the immediate and irreparable danger of being deprived of their right
to a livelihood and other constitutional rights without due process, on its claim that a great
number of duly licensed recruitment agencies have stopped or suspended their operations for fear
that (a) their officers and employees would be prosecuted under the unjust and unconstitutional
penal provisions of Rep. Act No. 8042 and meted equally unjust and excessive penalties,
including life imprisonment, for illegal recruitment and large scale illegal recruitment without
regard to whether the recruitment agencies involved are licensed and/or authorized; and, (b) if
the members of the respondent, which are licensed and authorized, decide to continue with their
businesses, they face the stigma and the curse of being labeled "illegal recruiters." In granting the
respondent’s plea for a writ of preliminary injunction, the trial court held, without stating the
factual and legal basis therefor, that the enforcement of Rep. Act No. 8042, pendente lite, would
cause grave and irreparable injury to the respondent until the case is decided on its merits.

We note, however, that since Rep. Act No. 8042 took effect on July 15, 1995, the Court had, in a
catena of cases, applied the penal provisions in Section 6, including paragraph (m) thereof, and
the last two paragraphs therein defining large scale illegal recruitment committed by officers
and/or employees of recruitment agencies by themselves and in connivance with private
individuals, and imposed the penalties provided in Section 7 thereof, including the penalty of life
imprisonment.22 The Informations therein were filed after preliminary investigations as provided
for in Section 11 of Rep. Act No. 8042 and in venues as provided for in Section 9 of the said act.
In People v. Chowdury,23 we held that illegal recruitment is a crime of economic sabotage and
must be enforced.
In People v. Diaz,24 we held that Rep. Act No. 8042 is but an amendment of the Labor Code of
the Philippines and is not an ex-post facto law because it is not applied retroactively. In JMM
Promotion and Management, Inc. v. Court of Appeals,25 the issue of the extent of the police
power of the State to regulate a business, profession or calling vis-à-vis the equal protection
clause and the non-impairment clause of the Constitution were raised and we held, thus:

A profession, trade or calling is a property right within the meaning of our constitutional
guarantees. One cannot be deprived of the right to work and the right to make a living
because these rights are property rights, the arbitrary and unwarranted deprivation of
which normally constitutes an actionable wrong.

Nevertheless, no right is absolute, and the proper regulation of a profession, calling,

business or trade has always been upheld as a legitimate subject of a valid exercise of the
police power by the state particularly when their conduct affects either the execution of
legitimate governmental functions, the preservation of the State, the public health and
welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas,
it must of course be within the legitimate range of legislative action to define the mode
and manner in which every one may so use his own property so as not to pose injury to
himself or others.

In any case, where the liberty curtailed affects at most the rights of property, the
permissible scope of regulatory measures is certainly much wider. To pretend that
licensing or accreditation requirements violates the due process clause is to ignore the
settled practice, under the mantle of the police power, of regulating entry to the practice
of various trades or professions. Professionals leaving for abroad are required to pass
rigid written and practical exams before they are deemed fit to practice their trade.
Seamen are required to take tests determining their seamanship. Locally, the Professional
Regulation Commission has begun to require previously licensed doctors and other
professionals to furnish documentary proof that they had either re-trained or had
undertaken continuing education courses as a requirement for renewal of their licenses. It
is not claimed that these requirements pose an unwarranted deprivation of a property
right under the due process clause. So long as professionals and other workers meet
reasonable regulatory standards no such deprivation exists.

Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause
of the Constitution to support their argument that the government cannot enact the
assailed regulatory measures because they abridge the freedom to contract. In Philippine
Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment
clause of the Constitution … must yield to the loftier purposes targeted by the
government." Equally important, into every contract is read provisions of existing law,
and always, a reservation of the police power for so long as the agreement deals with a
subject impressed with the public welfare.

A last point. Petitioners suggest that the singling out of entertainers and performing artists
under the assailed department orders constitutes class legislation which violates the equal
protection clause of the Constitution. We do not agree.
 The equal protection clause is directed principally against undue favor and individual or
class privilege. It is not intended to prohibit legislation which is limited to the object to
which it is directed or by the territory in which it is to operate. It does not require
absolute equality, but merely that all persons be treated alike under like conditions both
as to privileges conferred and liabilities imposed. We have held, time and again, that the
equal protection clause of the Constitution does not forbid classification for so long as
such classification is based on real and substantial differences having a reasonable
relation to the subject of the particular legislation. If classification is germane to the
purpose of the law, concerns all members of the class, and applies equally to present and
future conditions, the classification does not violate the equal protection guarantee.26

The validity of Section 6 of R.A. No. 8042 which provides that employees of recruitment
agencies may be criminally liable for illegal recruitment has been upheld in People v.
Chowdury:27

As stated in the first sentence of Section 6 of RA 8042, the persons who may be held
liable for illegal recruitment are the principals, accomplices and accessories. An
employee of a company or corporation engaged in illegal recruitment may be held liable
as principal, together with his employer, if it is shown that he actively and consciously
participated in illegal recruitment. It has been held that the existence of the corporate
entity does not shield from prosecution the corporate agent who knowingly and
intentionally causes the corporation to commit a crime. The corporation obviously acts,
and can act, only by and through its human agents, and it is their conduct which the law
must deter. The employee or agent of a corporation engaged in unlawful business
naturally aids and abets in the carrying on of such business and will be prosecuted as
principal if, with knowledge of the business, its purpose and effect, he consciously
contributes his efforts to its conduct and promotion, however slight his contribution may
be. …28

By its rulings, the Court thereby affirmed the validity of the assailed penal and procedural
provisions of Rep. Act No. 8042, including the imposable penalties therefor. Until the Court, by
final judgment, declares that the said provisions are unconstitutional, the enforcement of the said
provisions cannot be enjoined.

The RTC Committed Grave Abuse of Its Discretion Amounting to Excess or Lack of Jurisdiction
in Issuing the Assailed Order and the Writ of Preliminary Injunction

The matter of whether to issue a writ of preliminary injunction or not is addressed to the sound
discretion of the trial court. However, if the court commits grave abuse of its discretion in issuing
the said writ amounting to excess or lack of jurisdiction, the same may be nullified via a writ of
certiorari and prohibition.

In Social Security Commission v. Judge Bayona,29 we ruled that a law is presumed constitutional
until otherwise declared by judicial interpretation. The suspension of the operation of the law is a
matter of extreme delicacy because it is an interference with the official acts not only of the duly
elected representatives of the people but also of the highest magistrate of the land.
In Younger v. Harris, Jr.,30 the Supreme Court of the United States emphasized, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect
to their separate and distinct prohibitions, are not to be granted as a matter of course, even
if such statutes are unconstitutional. No citizen or member of the community is immune
from prosecution, in good faith, for his alleged criminal acts. The imminence of such a
prosecution even though alleged to be unauthorized and, hence, unlawful is not alone
ground for relief in equity which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. 752 Beal v. Missouri Pacific Railroad
Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 420, 85 L.Ed. 577.

And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that:

"It does not appear from the record that petitioners have been threatened with any injury
other than that incidental to every criminal proceeding brought lawfully and in good faith
…" 319 U.S., at 164, 63 S.Ct., at 881.31

The possible unconstitutionality of a statute, on its face, does not of itself justify an injunction
against good faith attempts to enforce it, unless there is a showing of bad faith, harassment, or
any other unusual circumstance that would call for equitable relief.32 The "on its face"
invalidation of statutes has been described as "manifestly strong medicine," to be employed
"sparingly and only as a last resort," and is generally disfavored.33

To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be

unconstitutional, the party must establish that it will suffer irreparable harm in the absence of
injunctive relief and must demonstrate that it is likely to succeed on the merits, or that there are
sufficiently serious questions going to the merits and the balance of hardships tips decidedly in
its favor.34 The higher standard reflects judicial deference toward "legislation or regulations
developed through presumptively reasoned democratic processes." Moreover, an injunction will
alter, rather than maintain, the status quo, or will provide the movant with substantially all the
relief sought and that relief cannot be undone even if the defendant prevails at a trial on the
merits.35 Considering that injunction is an exercise of equitable relief and authority, in assessing
whether to issue a preliminary injunction, the courts must sensitively assess all the equities of the
situation, including the public interest.36 In litigations between governmental and private parties,
courts go much further both to give and withhold relief in furtherance of public interest than they
are accustomed to go when only private interests are involved.37 Before the plaintiff may be
entitled to injunction against future enforcement, he is burdened to show some substantial
hardship.38

The fear or chilling-effect of the assailed penal provisions of the law on the members of the
respondent does not by itself justify prohibiting the State from enforcing them against those
whom the State believes in good faith to be punishable under the laws:

… Just as the incidental "chilling effect" of such statutes does not automatically render
them unconstitutional, so the chilling effect that admittedly can result from the very
existence of certain laws on the statute books does not in itself justify prohibiting the
 State from carrying out the important and necessary task of enforcing these laws against
socially harmful conduct that the State believes in good faith to be punishable under its
laws and the Constitution.39

It must be borne in mind that subject to constitutional limitations, Congress is empowered to

define what acts or omissions shall constitute a crime and to prescribe punishments therefor.40
The power is inherent in Congress and is part of the sovereign power of the State to maintain
peace and order. Whatever views may be entertained regarding the severity of punishment,
whether one believes in its efficiency or its futility, these are peculiarly questions of legislative
policy.41 The comparative gravity of crimes and whether their consequences are more or less
injurious are matters for the State and Congress itself to determine.42 Specification of penalties
involves questions of legislative policy.43

Due process prohibits criminal stability from shifting the burden of proof to the accused,
punishing wholly passive conduct, defining crimes in vague or overbroad language and failing to
grant fair warning of illegal conduct.44 Class legislation is such legislation which denies rights to
one which are accorded to others, or inflicts upon one individual a more severe penalty than is
imposed upon another in like case offending.45 Bills of attainder are legislative acts which inflict
punishment on individuals or members of a particular group without a judicial trial. Essential to a
bill of attainder are a specification of certain individuals or a group of individuals, the imposition
of a punishment, penal or otherwise, and the lack of judicial trial.46

Penalizing unlicensed and licensed recruitment agencies and their officers and employees and
their relatives employed in government agencies charged with the enforcement of the law for
illegal recruitment and imposing life imprisonment for those who commit large scale illegal
recruitment is not offensive to the Constitution. The accused may be convicted of illegal
recruitment and large scale illegal recruitment only if, after trial, the prosecution is able to prove
all the elements of the crime charged.47

The possibility that the officers and employees of the recruitment agencies, which are members
of the respondent, and their relatives who are employed in the government agencies charged in
the enforcement of the law, would be indicted for illegal recruitment and, if convicted sentenced
to life imprisonment for large scale illegal recruitment, absent proof of irreparable injury, is not
sufficient on which to base the issuance of a writ of preliminary injunction to suspend the
enforcement of the penal provisions of Rep. Act No. 8042 and avert any indictments under the
law.48 The normal course of criminal prosecutions cannot be blocked on the basis of allegations
which amount to speculations about the future.49

There is no allegation in the amended petition or evidence adduced by the respondent that the
officers and/or employees of its members had been threatened with any indictments for
violations of the penal provisions of Rep. Act No. 8042. Neither is there any allegation therein
that any of its members and/or their officers and employees committed any of the acts
enumerated in Section 6(a) to (m) of the law for which they could be indicted. Neither did the
respondent adduce any evidence in the RTC that any or all of its members or a great number of
other duly licensed and registered recruitment agencies had to stop their business operations
because of fear of indictments under Sections 6 and 7 of Rep. Act No. 8042. The respondent
merely speculated and surmised that licensed and registered recruitment agencies would close
shop and stop business operations because of the assailed penal provisions of the law. A writ of
preliminary injunction to enjoin the enforcement of penal laws cannot be based on such
conjectures or speculations. The Court cannot take judicial notice that the processing of
deployment papers of overseas workers have come to a virtual standstill at the POEA because of
the assailed provisions of Rep. Act No. 8042. The respondent must adduce evidence to prove its
allegation, and the petitioners accorded a chance to adduce controverting evidence.

The respondent even failed to adduce any evidence to prove irreparable injury because of the
enforcement of Section 10(1)(2) of Rep. Act No. 8042. Its fear or apprehension that, because of
time constraints, its members would have to defend foreign employees in cases before the Labor
Arbiter is based on speculations. Even if true, such inconvenience or difficulty is hardly
irreparable injury.

The trial court even ignored the public interest involved in suspending the enforcement of Rep.
Act No. 8042 vis-à-vis the eleven licensed and registered recruitment agencies represented by the
respondent. In People v. Gamboa,50 we emphasized the primary aim of Rep. Act No. 8042:

Preliminarily, the proliferation of illegal job recruiters and syndicates preying on innocent
people anxious to obtain employment abroad is one of the primary considerations that led
to the enactment of The Migrant Workers and Overseas Filipinos Act of 1995. Aimed at
affording greater protection to overseas Filipino workers, it is a significant improvement
on existing laws in the recruitment and placement of workers for overseas employment.
Otherwise known as the Magna Carta of OFWs, it broadened the concept of illegal
recruitment under the Labor Code and provided stiffer penalties thereto, especially those
that constitute economic sabotage, i.e., Illegal Recruitment in Large Scale and Illegal
Recruitment Committed by a Syndicate.51

By issuing the writ of preliminary injunction against the petitioners sans any evidence, the trial
court frustrated, albeit temporarily, the prosecution of illegal recruiters and allowed them to
continue victimizing hapless and innocent people desiring to obtain employment abroad as
overseas workers, and blocked the attainment of the salutary policies52 embedded in Rep. Act
No. 8042. It bears stressing that overseas workers, land-based and sea-based, had been remitting
to the Philippines billions of dollars which over the years had propped the economy.

In issuing the writ of preliminary injunction, the trial court considered paramount the interests of
the eleven licensed and registered recruitment agencies represented by the respondent, and
capriciously overturned the presumption of the constitutionality of the assailed provisions on the
barefaced claim of the respondent that the assailed provisions of Rep. Act No. 8042 are
unconstitutional. The trial court committed a grave abuse of its discretion amounting to excess or
lack of jurisdiction in issuing the assailed order and writ of preliminary injunction. It is for this
reason that the Court issued a temporary restraining order enjoining the enforcement of the writ
of preliminary injunction issued by the trial court.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of
the appellate court is REVERSED AND SET ASIDE. The Order of the Regional Trial Court
dated August 21, 1995 in Civil Case No. Q-95-24401 and the Writ of Preliminary Injunction
issued by it in the said case on August 24, 1995 are NULLIFIED. No costs.
G.R. No. 159139             January 13, 2004

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA.

CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO C. LAGMAN,
REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR.,
petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.;
COMELEC BIDDING and AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS
and MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P.
LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.;
and MEGA PACIFIC CONSORTIUM, respondents.

DECISION

PANGANIBAN, J.:

There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or
jurisprudence;1 or (2) when it is executed whimsically, capriciously or arbitrarily out of malice,
ill will or personal bias.2 In the present case, the Commission on Elections approved the assailed
Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence,
but also in reckless disregard of its own bidding rules and procedure. For the automation of the
counting and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to
"Mega Pacific Consortium" an entity that had not participated in the bidding. Despite this grant,
the poll body signed the actual automation Contract with "Mega Pacific eSolutions, Inc.," a
company that joined the bidding but had not met the eligibility requirements.

Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately
checking and observing mandatory financial, technical and legal requirements. It also accepted
the proferred computer hardware and software even if, at the time of the award, they had
undeniably failed to pass eight critical requirements designed to safeguard the integrity of
elections, especially the following three items:

· They failed to achieve the accuracy rating criteria of 99.9995 percent set-up by the
Comelec itself

· They were not able to detect previously downloaded results at various canvassing or
consolidation levels and to prevent these from being inputted again

· They were unable to print the statutorily required audit trails of the count/canvass at
different levels without any loss of data

Because of the foregoing violations of law and the glaring grave abuse of discretion committed
by Comelec, the Court has no choice but to exercise its solemn "constitutional duty"3 to void the
assailed Resolution and the subject Contract. The illegal, imprudent and hasty actions of the
Commission have not only desecrated legal and jurisprudential norms, but have also cast serious
doubts upon the poll body’s ability and capacity to conduct automated elections. Truly, the pith
and soul of democracy -- credible, orderly, and peaceful elections -- has been put in jeopardy by
the illegal and gravely abusive acts of Comelec.

The Case

Before us is a Petition4 under Rule 65 of the Rules of Court, seeking (1) to declare null and void
Resolution No. 6074 of the Commission on Elections (Comelec), which awarded "Phase II of the
Modernization Project of the Commission to Mega Pacific Consortium (MPC);" (2) to enjoin the
implementation of any further contract that may have been entered into by Comelec "either with
Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI);" and (3) to compel
Comelec to conduct a re-bidding of the project.

The Facts

The following facts are not disputed. They were culled from official documents, the parties’
pleadings, as well as from admissions during the Oral Argument on October 7, 2003.

On June 7, 1995, Congress passed Republic Act 8046,5 which authorized Comelec to conduct a
nationwide demonstration of a computerized election system and allowed the poll body to pilot-
test the system in the March 1996 elections in the Autonomous Region in Muslim Mindanao
(ARMM).

On December 22, 1997, Congress enacted Republic Act 84366 authorizing Comelec to use an
automated election system (AES) for the process of voting, counting votes and
canvassing/consolidating the results of the national and local elections. It also mandated the poll
body to acquire automated counting machines (ACMs), computer equipment, devices and
materials; and to adopt new electoral forms and printing materials.

Initially intending to implement the automation during the May 11, 1998 presidential elections,
Comelec -- in its Resolution No. 2985 dated February 9, 19987 -- eventually decided against full
national implementation and limited the automation to the Autonomous Region in Muslim
Mindanao (ARMM). However, due to the failure of the machines to read correctly some
automated ballots in one town, the poll body later ordered their manual count for the entire
Province of Sulu.8

In the May 2001 elections, the counting and canvassing of votes for both national and local
positions were also done manually, as no additional ACMs had been acquired for that electoral
exercise allegedly because of time constraints.

On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization program for
the 2004 elections. It resolved to conduct biddings for the three (3) phases of its Automated
Election System; namely, Phase I - Voter Registration and Validation System; Phase II -
Automated Counting and Canvassing System; and Phase III - Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,
which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004 elections. Upon
the request of Comelec, she authorized the release of an additional P500 million.

On January 28, 2003, the Commission issued an "Invitation to Apply for Eligibility and to Bid,"
which we quote as follows:

"INVITATION TO APPLY FOR ELIGIBILITY AND TO BID

The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act

Nos. 8189 and 8436, invites interested offerors, vendors, suppliers or lessors to apply for
eligibility and to bid for the procurement by purchase, lease, lease with option to
purchase, or otherwise, supplies, equipment, materials and services needed for a
comprehensive Automated Election System, consisting of three (3) phases: (a)
registration/verification of voters, (b) automated counting and consolidation of votes, and
(c) electronic transmission of election results, with an approved budget of TWO
BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos.

Only bids from the following entities shall be entertained:

a. Duly licensed Filipino citizens/proprietorships;

b. Partnerships duly organized under the laws of the Philippines and of which at
least sixty percent (60%) of the interest belongs to citizens of the Philippines;

c. Corporations duly organized under the laws of the Philippines, and of which at
least sixty percent (60%) of the outstanding capital stock belongs to citizens of the
Philippines;

d. Manufacturers, suppliers and/or distributors forming themselves into a joint

venture, i.e., a group of two (2) or more manufacturers, suppliers and/or
distributors that intend to be jointly and severally responsible or liable for a
particular contract, provided that Filipino ownership thereof shall be at least sixty
percent (60%); and

e. Cooperatives duly registered with the Cooperatives Development Authority.

Bid documents for the three (3) phases may be obtained starting 10 February 2003,
during office hours from the Bids and Awards Committee (BAC) Secretariat/Office of
Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del Governador, Intramuros,
Manila, upon payment at the Cash Division, Commission on Elections, in cash or
cashier’s check, payable to the Commission on Elections, of a non-refundable amount of
FIFTEEN THOUSAND PESOS (Php15,000.00) for each phase. For this purpose,
interested offerors, vendors, suppliers or lessors have the option to participate in any or
all of the three (3) phases of the comprehensive Automated Election System.
 A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall,
Commission on Elections, Postigo Street, Intramuros, Manila. Should there be questions
on the bid documents, bidders are required to submit their queries in writing to the BAC
Secretariat prior to the scheduled Pre-Bid Conference.

Deadline for submission to the BAC of applications for eligibility and bid envelopes for
the supply of the comprehensive Automated Election System shall be at the Session Hall,
Commission on Elections, Postigo Street, Intramuros, Manila on 28 February 2003 at
9:00 a.m.

The COMELEC reserves the right to review the qualifications of the bidders after the
bidding and before the contract is executed. Should such review uncover any
misrepresentation made in the eligibility statements, or any changes in the situation of the
bidder to materially downgrade the substance of such statements, the COMELEC shall
disqualify the bidder upon due notice without any obligation whatsoever for any expenses
or losses that may be incurred by it in the preparation of its bid."9

On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility criteria
for bidders and the schedule of activities for the project bidding, as follows:

"1.) Open to Filipino and foreign corporation duly registered and licensed to do business
and is actually doing business in the Philippines, subject to Sec. 43 of RA 9184 (An Act
providing In the Modernization Standardization and Regulation of the Procurement
Activities of the Government and for other purposes etc.)

2.) Track Record:

a) For counting machines – should have been used in at least one (1) political
exercise with no less than Twenty Million Voters;

b) For verification of voters – the reference site of an existing data base

installation using Automated Fingerprint Identification System (AFIS) with at
least Twenty Million.

3.) Ten percent (10%) equity requirement shall be based on the total project cost; and

4.) Performance bond shall be twenty percent (20%) of the bid offer.

RESOLVED moreover, that:

1) A. Due to the decision that the eligibility requirements and the rest of the Bid
documents shall be released at the same time, and the memorandum of Comm.
Resurreccion Z. Borra dated February 7, 2003, the documents to be released on
Friday, February 14, 2003 at 2:00 o’clock p.m. shall be the eligibility criteria,
Terms of Reference (TOR) and other pertinent documents;
 B. Pre-Bid conference shall be on February 18, 2003; and

C. Deadline for the submission and receipt of the Bids shall be on March
5, 2003.

2) The aforementioned documents will be available at the following offices:

a) Voters Validation: Office of Comm. Javier

b) Automated Counting Machines: Office of Comm. Borra

c) Electronic Transmission: Office of Comm. Tancangco"10

On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure the
election automation machines. The Bids and Awards Committee (BAC) of Comelec convened a
pre-bid conference on February 18, 2003 and gave prospective bidders until March 10, 2003 to
submit their respective bids.

Among others, the RFP provided that bids from manufacturers, suppliers and/or distributors
forming themselves into a joint venture may be entertained, provided that the Philippine
ownership thereof shall be at least 60 percent. Joint venture is defined in the RFP as "a group of
two or more manufacturers, suppliers and/or distributors that intend to be jointly and severally
responsible or liable for a particular contract."11

Basically, the public bidding was to be conducted under a two-envelope/two stage system. The
bidder’s first envelope or the Eligibility Envelope should establish the bidder’s eligibility to bid
and its qualifications to perform the acts if accepted. On the other hand, the second envelope
would be the Bid Envelope itself. The RFP outlines the bidding procedures as follows:

"25. Determination of Eligibility of Prospective Bidders

"25.1 The eligibility envelopes of prospective Bidders shall be opened first to

determine their eligibility. In case any of the requirements specified in Clause 20
is missing from the first bid envelope, the BAC shall declare said prospective
Bidder as ineligible to bid. Bid envelopes of ineligible Bidders shall be
immediately returned unopened.

"25.2 The eligibility of prospective Bidders shall be determined using simple

‘pass/fail’ criteria and shall be determined as either eligible or ineligible. If the
prospective Bidder is rated ‘passed’ for all the legal, technical and financial
requirements, he shall be considered eligible. If the prospective Bidder is rated
‘failed’ in any of the requirements, he shall be considered ineligible.

"26. Bid Examination/Evaluation

 "26.1 The BAC will examine the Bids to determine whether they are complete,
whether any computational errors have been made, whether required securities
have been furnished, whether the documents have been properly signed, and
whether the Bids are generally in order.

"26.2 The BAC shall check the submitted documents of each Bidder against the
required documents enumerated under Clause 20, to ascertain if they are all
present in the Second bid envelope (Technical Envelope). In case one (1) or more
of the required documents is missing, the BAC shall rate the Bid concerned as
‘failed’ and immediately return to the Bidder its Third bid envelope (Financial
Envelope) unopened. Otherwise, the BAC shall rate the first bid envelope as
‘passed’.

"26.3 The BAC shall immediately open the Financial Envelopes of the Bidders
whose Technical Envelopes were passed or rated on or above the passing score.
Only Bids that are determined to contain all the bid requirements for both
components shall be rated ‘passed’ and shall immediately be considered for
evaluation and comparison.

"26.4 In the opening and examination of the Financial Envelope, the BAC shall
announce and tabulate the Total Bid Price as calculated. Arithmetical errors will
be rectified on the following basis: If there is a discrepancy between words and
figures, the amount in words will prevail. If there is a discrepancy between the
unit price and the total price that is obtained by multiplying the unit price and the
quantity, the unit price shall prevail and the total price shall be corrected
accordingly. If there is a discrepancy between the Total Bid Price and the sum of
the total prices, the sum of the total prices prevail and the Total Bid Price shall be
corrected accordingly.

"26.5 Financial Proposals which do not clearly state the Total Bid Price shall be
rejected. Also, Total Bid Price as calculated that exceeds the approved budget for
the contract shall also be rejected.

27. Comparison of Bids

27.1 The bid price shall be deemed to embrace all costs, charges and fees
associated with carrying out all the elements of the proposed Contract, including
but not limited to, license fees, freight charges and taxes.

27.2 The BAC shall establish the calculated prices of all Bids rated ‘passed’ and
rank the same in ascending order.

xxxxxxxxx

"29. Postqualification
 "29.1 The BAC will determine to its satisfaction whether the Bidder selected as
having submitted the lowest calculated bid is qualified to satisfactorily perform
the Contract.

"29.2 The determination will take into account the Bidder’s financial, technical
and production capabilities/resources. It will be based upon an examination of the
documentary evidence of the Bidder’s qualification submitted by the Bidder as
well as such other information as the BAC deems necessary and appropriate.

"29.3 A bid determined as not substantially responsive will be rejected by the

BAC and may not subsequently be made responsive by the Bidder by correction
of the non-conformity.

"29.4 The BAC may waive any informality or non-conformity or irregularity in a

bid which does not constitute a material deviation, provided such waiver does not
prejudice or affect the relative ranking of any Bidder.

"29.5 Should the BAC find that the Bidder complies with the legal, financial and
technical requirements, it shall make an affirmative determination which shall be
a prerequisite for award of the Contract to the Bidder. Otherwise, it will make a
negative determination which will result in rejection of the Bidder’s bid, in which
event the BAC will proceed to the next lowest calculated bid to make a similar
determination of that Bidder’s capabilities to perform satisfactorily."12

Out of the 57 bidders,13 the BAC found MPC and the Total Information Management
Corporation (TIMC) eligible. For technical evaluation, they were referred to the BAC’s
Technical Working Group (TWG) and the Department of Science and Technology (DOST).

In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that both
MPC and TIMC had obtained a number of failed marks in the technical evaluation.
Notwithstanding these failures, Comelec en banc, on April 15, 2003, promulgated Resolution
No. 6074 awarding the project to MPC. The Commission publicized this Resolution and the
award of the project to MPC on May 16, 2003.

On May 29, 2003, five individuals and entities (including the herein Petitioners Information
Technology Foundation of the Philippines, represented by its president, Alfredo M. Torres; and
Ma. Corazon Akol) wrote a letter14 to Comelec Chairman Benjamin Abalos Sr. They protested
the award of the Contract to Respondent MPC "due to glaring irregularities in the manner in
which the bidding process had been conducted." Citing therein the noncompliance with
eligibility as well as technical and procedural requirements (many of which have been discussed
at length in the Petition), they sought a re-bidding.

In a letter-reply dated June 6, 2003,15 the Comelec chairman -- speaking through Atty. Jaime Paz,
his head executive assistant -- rejected the protest and declared that the award "would stand up to
the strictest scrutiny."
Hence, the present Petition.16

The Issues

In their Memorandum, petitioners raise the following issues for our consideration:

"1. The COMELEC awarded and contracted with a non-eligible entity; x x x

"2. Private respondents failed to pass the Technical Test as required in the RFP.
Notwithstanding, such failure was ignored. In effect, the COMELEC changed the rules
after the bidding in effect changing the nature of the contract bidded upon.

"3. Petitioners have locus standi.

"4. Instant Petition is not premature. Direct resort to the Supreme Court is justified."17

In the main, the substantive issue is whether the Commission on Elections, the agency vested
with the exclusive constitutional mandate to oversee elections, gravely abused its discretion
when, in the exercise of its administrative functions, it awarded to MPC the contract for the
second phase of the comprehensive Automated Election System.

Before discussing the validity of the award to MPC, however, we deem it proper to first pass
upon the procedural issues: the legal standing of petitioners and the alleged prematurity of the
Petition.

This Court’s Ruling

The Petition is meritorious.

First Procedural Issue:

Locus Standi of Petitioners

Respondents chorus that petitioners do not possess locus standi, inasmuch as they are not
challenging the validity or constitutionality of RA 8436. Moreover, petitioners supposedly
admitted during the Oral Argument that no law had been violated by the award of the Contract.
Furthermore, they allegedly have no actual and material interest in the Contract and, hence, do
not stand to be injured or prejudiced on account of the award.

On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters and
concerned citizens -- respond that the issues central to this case are "of transcendental
importance and of national interest." Allegedly, Comelec’s flawed bidding and questionable
award of the Contract to an unqualified entity would impact directly on the success or the failure
of the electoral process. Thus, any taint on the sanctity of the ballot as the expression of the will
of the people would inevitably affect their faith in the democratic system of government.
Petitioners further argue that the award of any contract for automation involves disbursement of
public funds in gargantuan amounts; therefore, public interest requires that the laws governing
the transaction must be followed strictly.

We agree with petitioners. Our nation’s political and economic future virtually hangs in the
balance, pending the outcome of the 2004 elections. Hence, there can be no serious doubt that
the subject matter of this case is "a matter of public concern and imbued with public interest";18
in other words, it is of "paramount public interest"19 and "transcendental importance."20 This fact
alone would justify relaxing the rule on legal standing, following the liberal policy of this Court
whenever a case involves "an issue of overarching significance to our society."21 Petitioners’
legal standing should therefore be recognized and upheld.

Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of "illegal
disbursement of public funds,"22 or if public money is being "deflected to any improper
purpose";23 or when petitioners seek to restrain respondent from "wasting public funds through
the enforcement of an invalid or unconstitutional law."24 In the instant case, individual
petitioners, suing as taxpayers, assert a material interest in seeing to it that public funds are
properly and lawfully used. In the Petition, they claim that the bidding was defective, the
winning bidder not a qualified entity, and the award of the Contract contrary to law and
regulation. Accordingly, they seek to restrain respondents from implementing the Contract and,
necessarily, from making any unwarranted expenditure of public funds pursuant thereto. Thus,
we hold that petitioners possess locus standi.

Second Procedural Issue:

Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies

Respondents claim that petitioners acted prematurely, since they had not first utilized the protest
mechanism available to them under RA 9184, the Government Procurement Reform Act, for the
settlement of disputes pertaining to procurement contracts.

Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards
Committee in all stages of procurement may be lodged with the head of the procuring entity by
filing a verified position paper and paying a protest fee. Section 57 of the same law mandates
that in no case shall any such protest stay or delay the bidding process, but it must first be
resolved before any award is made.

On the other hand, Section 58 provides that court action may be resorted to only after the protests
contemplated by the statute shall have been completed. Cases filed in violation of this process
are to be dismissed for lack of jurisdiction. Regional trial courts shall have jurisdiction over final
decisions of the head of the procuring entity, and court actions shall be instituted pursuant to
Rule 65 of the 1997 Rules of Civil Procedure.

Respondents assert that throughout the bidding process, petitioners never questioned the BAC
Report finding MPC eligible to bid and recommending the award of the Contract to it (MPC).
According to respondents, the Report should have been appealed to the Comelc en banc,
pursuant to the aforementioned sections of RA 9184. In the absence of such appeal, the
determination and recommendation of the BAC had become final.

The Court is not persuaded.

Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15, 2003,
awarding the project to Respondent MPC even before the BAC managed to issue its written
report and recommendation on April 21, 2003. Thus, how could petitioners have appealed the
BAC’s recommendation or report to the head of the procuring entity (the chairman of Comelec),
when the Comelec en banc had already approved the award of the contract to MPC even before
petitioners learned of the BAC recommendation?

It is claimed25 by Comelec that during its April 15, 2003 session, it received and approved the
verbal report and recommendation of the BAC for the award of the Contract to MPC, and that
the BAC subsequently re-affirmed its verbal report and recommendation by submitting it in
writing on April 21, 2003. Respondents insist that the law does not require that the BAC Report
be in writing before Comelec can act thereon; therefore, there is allegedly nothing irregular about
the Report as well as the en banc Resolution.

However, it is obvious that petitioners could have appealed the BAC’s report and
recommendation to the head of the procuring entity (the Comelec chair) only upon their
discovery thereof, which at the very earliest would have been on April 21, 2003, when the BAC
actually put its report in writing and finally released it. Even then, what would have been the use
of protesting/appealing the report to the Comelec chair, when by that time the Commission en
banc (including the chairman himself) had already approved the BAC Report and awarded the
Contract to MPC?

And even assuming arguendo that petitioners had somehow gotten wind of the verbal BAC
report on April 15, 2003 (immediately after the en banc session), at that point the Commission en
banc had already given its approval to the BAC Report along with the award to MPC. To put it
bluntly, the Comelec en banc itself made it legally impossible for petitioners to avail themselves
of the administrative remedy that the Commission is so impiously harping on. There is no doubt
that they had not been accorded the opportunity to avail themselves of the process provided
under Section 55 of RA 9184, according to which a protest against a decision of the BAC may be
filed with the head of the procuring entity. Nemo tenetur ad impossible,26 to borrow private
respondents’ favorite Latin excuse.27

Some Observations on the BAC Report to the Comelec

We shall return to this issue of alleged prematurity shortly, but at this interstice, we would just
want to put forward a few observations regarding the BAC Report and the Comelec en banc’s
approval thereof.

First, Comelec contends that there was nothing unusual about the fact that the Report submitted
by the BAC came only after the former had already awarded the Contract, because the latter had
been asked to render its report and recommendation orally during the Commission’s en banc
session on April 15, 2003. Accordingly, Comelec supposedly acted upon such oral
recommendation and approved the award to MPC on the same day, following which the
recommendation was subsequently reduced into writing on April 21, 2003. While not entirely
outside the realm of the possible, this interesting and unique spiel does not speak well of the
process that Comelec supposedly went through in making a critical decision with respect to a
multi-billion-peso contract.

We can imagine that anyone else standing in the shoes of the Honorable Commissioners would
have been extremely conscious of the overarching need for utter transparency. They would have
scrupulously avoided the slightest hint of impropriety, preferring to maintain an exacting
regularity in the performance of their duties, instead of trying to break a speed record in the
award of multi-billion-peso contracts. After all, between April 15 and April 21 were a mere six
(6) days. Could Comelec not have waited out six more days for the written report of the BAC,
instead of rushing pell-mell into the arms of MPC? Certainly, respondents never cared to explain
the nature of the Commission’s dire need to act immediately without awaiting the formal, written
BAC Report.

In short, the Court finds it difficult to reconcile the uncommon dispatch with which Comelec
acted to approve the multi-billion-peso deal, with its claim of having been impelled by only the
purest and most noble of motives.

At any rate, as will be discussed later on, several other factors combine to lend negative credence
to Comelec’s tale.

Second, without necessarily ascribing any premature malice or premeditation on the part of the
Comelec officials involved, it should nevertheless be conceded that this cart-before-the-horse
maneuver (awarding of the Contract ahead of the BAC’s written report) would definitely serve as
a clever and effective way of averting and frustrating any impending protest under Section 55.

Having made the foregoing observations, we now go back to the question of exhausting
administrative remedies. Respondents may not have realized it, but the letter addressed to
Chairman Benjamin Abalos Sr. dated May 29, 200328 serves to eliminate the prematurity issue as
it was an actual written protest against the decision of the poll body to award the Contract. The
letter was signed by/for, inter alia, two of herein petitioners: the Information Technology
Foundation of the Philippines, represented by its president, Alfredo M. Torres; and Ma. Corazon
Akol.

Such letter-protest is sufficient compliance with the requirement to exhaust administrative

remedies particularly because it hews closely to the procedure outlined in Section 55 of RA
9184.

And even without that May 29, 2003 letter-protest, the Court still holds that petitioners need not
exhaust administrative remedies in the light of Paat v. Court of Appeals.29 Paat enumerates the
instances when the rule on exhaustion of administrative remedies may be disregarded, as
follows:
 "(1) when there is a violation of due process,

(2) when the issue involved is purely a legal question,

(3) when the administrative action is patently illegal amounting to lack or excess of
jurisdiction,

(4) when there is estoppel on the part of the administrative agency concerned,

(5) when there is irreparable injury,

(6) when the respondent is a department secretary whose acts as an alter ego of the
President bears the implied and assumed approval of the latter,

(7) when to require exhaustion of administrative remedies would be unreasonable,

(8) when it would amount to a nullification of a claim,

(9) when the subject matter is a private land in land case proceedings,

(10) when the rule does not provide a plain, speedy and adequate remedy, and

(11) when there are circumstances indicating the urgency of judicial intervention."30

The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11: "(7)
when to require exhaustion of administrative remedies would be unreasonable; (10) when the
rule does not provide a plain, speedy and adequate remedy, and (11) when there are
circumstances indicating the urgency of judicial intervention." As already stated, Comelec itself
made the exhaustion of administrative remedies legally impossible or, at the very least,
"unreasonable."

In any event, the peculiar circumstances surrounding the unconventional rendition of the BAC
Report and the precipitate awarding of the Contract by the Comelec en banc -- plus the fact that
it was racing to have its Contract with MPC implemented in time for the elections in May 2004
(barely four months away) -- have combined to bring about the urgent need for judicial
intervention, thus prompting this Court to dispense with the procedural exhaustion of
administrative remedies in this case.

Main Substantive Issue:

Validity of the Award to MPC

We come now to the meat of the controversy. Petitioners contend that the award is invalid, since
Comelec gravely abused its discretion when it did the following:

1. Awarded the Contract to MPC though it did not even participate in the bidding
 2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory
eligibility requirements

3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the
issuance by the BAC of its Report, which formed the basis of the assailed Resolution,
only on April 21, 200331

4. Awarded the Contract, notwithstanding the fact that during the bidding process, there
were violations of the mandatory requirements of RA 8436 as well as those set forth in
Comelec’s own Request for Proposal on the automated election system

5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of
the bidders to pass the technical tests conducted by the Department of Science and
Technology

6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for the
automated counting machines

After reviewing the slew of pleadings as well as the matters raised during the Oral Argument, the
Court deems it sufficient to focus discussion on the following major areas of concern that
impinge on the issue of grave abuse of discretion:

A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder

B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests

C. Remedial measures and re-testings undertaken by Comelec and DOST after the award,
and their effect on the present controversy

A.

Failure to Establish the Identity, Existence and Eligibility of the Alleged Consortium as a Bidder

On the question of the identity and the existence of the real bidder, respondents insist that,
contrary to petitioners’ allegations, the bidder was not Mega Pacific eSolutions, Inc. (MPEI),
which was incorporated only on February 27, 2003, or 11 days prior to the bidding itself. Rather,
the bidder was Mega Pacific Consortium (MPC), of which MPEI was but a part. As proof
thereof, they point to the March 7, 2003 letter of intent to bid, signed by the president of MPEI
allegedly for and on behalf of MPC. They also call attention to the official receipt issued to
MPC, acknowledging payment for the bidding documents, as proof that it was the "consortium"
that participated in the bidding process.

We do not agree. The March 7, 2003 letter, signed by only one signatory -- "Willy U. Yu,
President, Mega Pacific eSolutions, Inc., (Lead Company/ Proponent) For: Mega Pacific
Consortium" -- and without any further proof, does not by itself prove the existence of the
consortium. It does not show that MPEI or its president have been duly pre-authorized by the
other members of the putative consortium to represent them, to bid on their collective behalf and,
more important, to commit them jointly and severally to the bid undertakings. The letter is purely
self-serving and uncorroborated.

Neither does an official receipt issued to MPC, acknowledging payment for the bidding
documents, constitute proof that it was the purported consortium that participated in the bidding.
Such receipts are issued by cashiers without any legally sufficient inquiry as to the real identity
orexistence of the supposed payor.

To assure itself properly of the due existence (as well as eligibility and qualification) of the
putative consortium, Comelec’s BAC should have examined the bidding documents submitted
on behalf of MPC. They would have easily discovered the following fatal flaws.

Two-Envelope,

Two-Stage System

As stated earlier in our factual presentation, the public bidding system designed by Comelec
under its RFP (Request for Proposal for the Automation of the 2004 Election) mandated the use
of a two-envelope, two-stage system. A bidder’s first envelope (Eligibility Envelope) was meant
to establish its eligibility to bid and its qualifications and capacity to perform the contract if its
bid was accepted, while the second envelope would be the Bid Envelope itself.

The Eligibility Envelope was to contain legal documents such as articles of incorporation,
business registrations, licenses and permits, mayor’s permit, VAT certification, and so forth;
technical documents containing documentary evidence to establish the track record of the bidder
and its technical and production capabilities to perform the contract; and financial documents,
including audited financial statements for the last three years, to establish the bidder’s financial
capacity.

In the case of a consortium or joint venture desirous of participating in the bidding, it goes
without saying that the Eligibility Envelope would necessarily have to include a copy of the joint
venture agreement, the consortium agreement or memorandum of agreement -- or a business plan
or some other instrument of similar import -- establishing the due existence, composition and
scope of such aggrupation. Otherwise, how would Comelec know who it was dealing with, and
whether these parties are qualified and capable of delivering the products and services being
offered for bidding?32

In the instant case, no such instrument was submitted to Comelec during the bidding process.
This fact can be conclusively ascertained by scrutinizing the two-inch thick "Eligibility
Requirements" file submitted by Comelec last October 9, 2003, in partial compliance with this
Court’s instructions given during the Oral Argument. This file purports to replicate the eligibility
documents originally submitted to Comelec by MPEI allegedly on behalf of MPC, in connection
with the bidding conducted in March 2003. Included in the file are the incorporation papers and
financial statements of the members of the supposed consortium and certain certificates, licenses
and permits issued to them.
However, there is no sign whatsoever of any joint venture agreement, consortium agreement,
memorandum of agreement, or business plan executed among the members of the purported
consortium.

The only logical conclusion is that no such agreement was ever submitted to the Comelec for its
consideration, as part of the bidding process.

It thus follows that, prior the award of the Contract, there was no documentary or other basis for
Comelec to conclude that a consortium had actually been formed amongst MPEI, SK C&C and
WeSolv, along with Election.com and ePLDT.33 Neither was there anything to indicate the exact
relationships between and among these firms; their diverse roles, undertakings and prestations, if
any, relative to the prosecution of the project, the extent of their respective investments (if any)
in the supposed consortium or in the project; and the precise nature and extent of their respective
liabilities with respect to the contract being offered for bidding. And apart from the self-serving
letter of March 7, 2003, there was not even any indication that MPEI was the lead company duly
authorized to act on behalf of the others.

So, it necessarily follows that, during the bidding process, Comelec had no basis at all for
determining that the alleged consortium really existed and was eligible and qualified; and that the
arrangements among the members were satisfactory and sufficient to ensure delivery on the
Contract and to protect the government’s interest.

Notwithstanding such deficiencies, Comelec still deemed the "consortium" eligible to participate
in the bidding, proceeded to open its Second Envelope, and eventually awarded the bid to it,
even though -- per the Comelec’s own RFP -- the BAC should have declared the MPC ineligible
to bid and returned the Second (Bid) Envelope unopened.

Inasmuch as Comelec should not have considered MPEI et al. as comprising a consortium or
joint venture, it should not have allowed them to avail themselves of the provision in Section 5.4
(b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer Law), as amended by RA 7718. This
provision states in part that a joint venture/consortium proponent shall be evaluated based on the
individual or collective experience of the member-firms of the joint venture or consortium and of
the contractor(s) that it has engaged for the project. Parenthetically, respondents have uniformly
argued that the said IRR of RA 6957, as amended, have suppletory application to the instant
case.

Hence, had the proponent MPEI been evaluated based solely on its own experience, financial and
operational track record or lack thereof, it would surely not have qualified and would have been
immediately considered ineligible to bid, as respondents readily admit.

At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe
its own rules, policies and guidelines with respect to the bidding process, thereby negating a fair,
honest and competitive bidding.

Commissioners Not Aware of Consortium

In this regard, the Court is beguiled by the statements of Commissioner Florentino Tuason Jr.,
given in open court during the Oral Argument last October 7, 2003. The good commissioner
affirmed that he was aware, of his own personal knowledge, that there had indeed been a written
agreement among the "consortium" members,34 although it was an internal matter among them,35
and of the fact that it would be presented by counsel for private respondent.36

However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C. Vitug,
Commissioner Tuason in effect admitted that, while he was the commissioner-in-charge of
Comelec’s Legal Department, he had never seen, even up to that late date, the agreement he
spoke of.37 Under further questioning, he was likewise unable to provide any information
regarding the amounts invested into the project by several members of the claimed consortium.38
A short while later, he admitted that the Commission had not taken a look at the agreement (if
any).39

He tried to justify his position by claiming that he was not a member of the BAC. Neither was he
the commissioner-in-charge of the Phase II Modernization project (the automated election
system); but that, in any case, the BAC and the Phase II Modernization Project Team did look
into the aspect of the composition of the consortium.

It seems to the Court, though, that even if the BAC or the Phase II Team had taken charge of
evaluating the eligibility, qualifications and credentials of the consortium-bidder, still, in all
probability, the former would have referred the task to Commissioner Tuason, head of
Comelec’s Legal Department. That task was the appreciation and evaluation of the legal effects
and consequences of the terms, conditions, stipulations and covenants contained in any joint
venture agreement, consortium agreement or a similar document -- assuming of course that any
of these was available at the time. The fact that Commissioner Tuason was barely aware of the
situation bespeaks the complete absence of such document, or the utter failure or neglect of the
Comelec to examine it -- assuming it was available at all -- at the time the award was made on
April 15, 2003.

In any event, the Court notes for the record that Commissioner Tuason basically contradicted his
statements in open court about there being one written agreement among all the consortium
members, when he subsequently referred40 to the four (4) Memoranda of Agreement (MOAs)
executed by them.41

At this juncture, one might ask: What, then, if there are four MOAs instead of one or none at all?
Isn’t it enough that there are these corporations coming together to carry out the automation
project? Isn’t it true, as respondent aver, that nowhere in the RFP issued by Comelec is it
required that the members of the joint venture execute a single written agreement to prove the
existence of a joint venture. Indeed, the intention to be jointly and severally liable may be
evidenced not only by a single joint venture agreement, but also by supplementary documents
executed by the parties signifying such intention. What then is the big deal?

The problem is not that there are four agreements instead of only one. The problem is that
Comelec never bothered to check. It never based its decision on documents or other proof that
would concretely establish the existence of the claimed consortium or joint venture or
agglomeration. It relied merely on the self-serving representation in an uncorroborated letter
signed by only one individual, claiming that his company represented a "consortium" of several
different corporations. It concluded forthwith that a consortium indeed existed, composed of
such and such members, and thereafter declared that the entity was eligible to bid.

True, copies of financial statements and incorporation papers of the alleged "consortium"
members were submitted. But these papers did not establish the existence of a consortium, as
they could have been provided by the companies concerned for purposes other than to prove that
they were part of a consortium or joint venture. For instance, the papers may have been intended
to show that those companies were each qualified to be a sub-contractor (and nothing more) in a
major project. Those documents did not by themselves support the assumption that a consortium
or joint venture existed among the companies.

In brief, despite the absence of competent proof as to the existence and eligibility of the alleged
consortium (MPC), its capacity to deliver on the Contract, and the members’ joint and several
liability therefor, Comelec nevertheless assumed that such consortium existed and was eligible. It
then went ahead and considered the bid of MPC, to which the Contract was eventually awarded,
in gross violation of the former’s own bidding rules and procedures contained in its RFP. Therein
lies Comelec’s grave abuse of discretion.

Sufficiency of the Four Agreements

Instead of one multilateral agreement executed by, and effective and binding on, all the five
"consortium members" -- as earlier claimed by Commissioner Tuason in open court -- it turns
out that what was actually executed were four (4) separate and distinct bilateral Agreements.42
Obviously, Comelec was furnished copies of these Agreements only after the bidding process
had been terminated, as these were not included in the Eligibility Documents. These Agreements
are as follows:

· A Memorandum of Agreement between MPEI and SK C&C

· A Memorandum of Agreement between MPEI and WeSolv

· A "Teaming Agreement" between MPEI and Election.com Ltd.

· A "Teaming Agreement" between MPEI and ePLDT

In sum, each of the four different and separate bilateral Agreements is valid and binding only
between MPEI and the other contracting party, leaving the other "consortium" members total
strangers thereto. Under this setup, MPEI dealt separately with each of the "members," and the
latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had nothing to do with one another,
each dealing only with MPEI.

Respondents assert that these four Agreements were sufficient for the purpose of enabling the
corporations to still qualify (even at that late stage) as a consortium or joint venture, since the
first two Agreements had allegedly set forth the joint and several undertakings among the parties,
whereas the latter two clarified the parties’ respective roles with regard to the Project, with MPEI
being the independent contractor and Election.com and ePLDT the subcontractors.

Additionally, the use of the phrase "particular contract" in the Comelec’s Request for Proposal
(RFP), in connection with the joint and several liabilities of companies in a joint venture, is taken
by them to mean that all the members of the joint venture need not be solidarily liable for the
entire project or joint venture, because it is sufficient that the lead company and the member in
charge of a particular contract or aspect of the joint venture agree to be solidarily liable.

At this point, it must be stressed most vigorously that the submission of the four bilateral
Agreements to Comelec after the end of the bidding process did nothing to eliminate the grave
abuse of discretion it had already committed on April 15, 2003.

Deficiencies Have Not Been "Cured"

In any event, it is also claimed that the automation Contract awarded by Comelec incorporates all
documents executed by the "consortium" members, even if these documents are not referred to
therein. The basis of this assertion appears to be the passages from Section 1.4 of the Contract,
which is reproduced as follows:

"All Contract Documents shall form part of the Contract even if they or any one of them
is not referred to or mentioned in the Contract as forming a part thereof. Each of the
Contract Documents shall be mutually complementary and explanatory of each other
such that what is noted in one although not shown in the other shall be considered
contained in all, and what is required by any one shall be as binding as if required by all,
unless one item is a correction of the other.

"The intent of the Contract Documents is the proper, satisfactory and timely execution
and completion of the Project, in accordance with the Contract Documents.
Consequently, all items necessary for the proper and timely execution and completion of
the Project shall be deemed included in the Contract."

Thus, it is argued that whatever perceived deficiencies there were in the supplementary contracts
-- those entered into by MPEI and the other members of the "consortium" as regards their joint
and several undertakings -- have been cured. Better still, such deficiencies have supposedly been
prevented from arising as a result of the above-quoted provisions, from which it can be
immediately established that each of the members of MPC assumes the same joint and several
liability as the other members.

The foregoing argument is unpersuasive. First, the contract being referred to, entitled "The
Automated Counting and Canvassing Project Contract," is between Comelec and MPEI, not the
alleged consortium, MPC. To repeat, it is MPEI -- not MPC -- that is a party to the Contract.
Nowhere in that Contract is there any mention of a consortium or joint venture, of members
thereof, much less of joint and several liability. Supposedly executed sometime in May 2003,43
the Contract bears a notarization date of June 30, 2003, and contains the signature of Willy U.
Yu signing as president of MPEI (not for and on behalf of MPC), along with that of the Comelec
chair. It provides in Section 3.2 that MPEI (not MPC) is to supply the Equipment and perform
the Services under the Contract, in accordance with the appendices thereof; nothing whatsoever
is said about any consortium or joint venture or partnership.

Second, the portions of Section 1.4 of the Contract reproduced above do not have the effect of
curing (much less preventing) deficiencies in the bilateral agreements entered into by MPEI with
the other members of the "consortium," with respect to their joint and several liabilities. The term
"Contract Documents," as used in the quoted passages of Section 1.4, has a well-defined
meaning and actually refers only to the following documents:

· The Contract itself along with its appendices

· The Request for Proposal (also known as "Terms of Reference") issued by the Comelec,
including the Tender Inquiries and Bid Bulletins

· The Tender Proposal submitted by MPEI

In other words, the term "Contract Documents" cannot be understood as referring to or including
the MOAs and the Teaming Agreements entered into by MPEI with SK C&C, WeSolv,
Election.com and ePLDT. This much is very clear and admits of no debate. The attempt to use
the provisions of Section 1.4 to shore up the MOAs and the Teaming Agreements is simply
unwarranted.

Third and last, we fail to see how respondents can arrive at the conclusion that, from the above-
quoted provisions, it can be immediately established that each of the members of MPC assumes
the same joint and several liability as the other members. Earlier, respondents claimed exactly
the opposite -- that the two MOAs (between MPEI and SK C&C, and between MPEI and
WeSolv) had set forth the joint and several undertakings among the parties; whereas the two
Teaming Agreements clarified the parties’ respective roles with regard to the Project, with MPEI
being the independent contractor and Election.com and ePLDT the subcontractors.

Obviously, given the differences in their relationships, their respective liabilities cannot be the
same. Precisely, the very clear terms and stipulations contained in the MOAs and the Teaming
Agreements -- entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT -- negate
the idea that these "members" are on a par with one another and are, as such, assuming the same
joint and several liability.

Moreover, respondents have earlier seized upon the use of the term "particular contract" in the
Comelec’s Request for Proposal (RFP), in order to argue that all the members of the joint
venture did not need to be solidarily liable for the entire project or joint venture. It was sufficient
that the lead company and the member in charge of a particular contract or aspect of the joint
venture would agree to be solidarily liable. The glaring lack of consistency leaves us at a loss.
Are respondents trying to establish the same joint and solidary liability among all the "members"
or not?

Enforcement of Liabilities Problematic

Next, it is also maintained that the automation Contract between Comelec and the MPEI
confirms the solidary undertaking of the lead company and the consortium member concerned
for each particular Contract, inasmuch as the position of MPEI and anyone else performing the
services contemplated under the Contract is described therein as that of an independent
contractor.

The Court does not see, however, how this conclusion was arrived at. In the first place, the
contractual provision being relied upon by respondents is Article 14, "Independent Contractors,"
which states: "Nothing contained herein shall be construed as establishing or creating between
the COMELEC and MEGA the relationship of employee and employer or principal and agent, it
being understood that the position of MEGA and of anyone performing the Services
contemplated under this Contract, is that of an independent contractor."

Obviously, the intent behind the provision was simply to avoid the creation of an employer-
employee or a principal-agent relationship and the complications that it would produce. Hence,
the Article states that the role or position of MPEI, or anyone else performing on its behalf, is
that of an independent contractor. It is obvious to the Court that respondents are stretching
matters too far when they claim that, because of this provision, the Contract in effect confirms
the solidary undertaking of the lead company and the consortium member concerned for the
particular phase of the project. This assertion is an absolute non sequitur.

Enforcement of Liabilities Under the Civil Code Not Possible

In any event, it is claimed that Comelec may still enforce the liability of the "consortium"
members under the Civil Code provisions on partnership, reasoning that MPEI et al. represented
themselves as partners and members of MPC for purposes of bidding for the Project. They are,
therefore, liable to the Comelec to the extent that the latter relied upon such representation. Their
liability as partners is solidary with respect to everything chargeable to the partnership under
certain conditions.

The Court has two points to make with respect to this argument. First, it must be recalled that SK
C&C, WeSolv, Election.com and ePLDT never represented themselves as partners and members
of MPC, whether for purposes of bidding or for something else. It was MPEI alone that
represented them to be members of a "consortium" it supposedly headed. Thus, its acts may not
necessarily be held against the other "members."

Second, this argument of the OSG in its Memorandum44 might possibly apply in the absence of a
joint venture agreement or some other writing that discloses the relationship of the "members"
with one another. But precisely, this case does not deal with a situation in which there is nothing
in writing to serve as reference, leaving Comelec to rely on mere representations and therefore
justifying a falling back on the rules on partnership. For, again, the terms and stipulations of the
MOAs entered into by MPEI with SK C&C and WeSolv, as well as the Teaming Agreements of
MPEI with Election.com and ePLDT (copies of which have been furnished the Comelec) are
very clear with respect to the extent and the limitations of the firms’ respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and
several with MPEI, are limited only to the particular areas of work wherein their services are
engaged or their products utilized. As for Election.com and ePLDT, their separate "Teaming
Agreements" specifically ascribe to them the role of subcontractor vis-à-vis MPEI as contractor
and, based on the terms of their particular agreements, neither Election.com nor ePLDT is, with
MPEI, jointly and severally liable to Comelec.45 It follows then that in the instant case, there is
no justification for anyone, much less Comelec, to resort to the rules on partnership and partners’
liabilities.

Eligibility of a Consortium Based on the Collective Qualifications of Its Members

Respondents declare that, for purposes of assessing the eligibility of the bidder, the members of
MPC should be evaluated on a collective basis. Therefore, they contend, the failure of MPEI to
submit financial statements (on account of its recent incorporation) should not by itself
disqualify MPC, since the other members of the "consortium" could meet the criteria set out in
the RFP.

Thus, according to respondents, the collective nature of the undertaking of the members of MPC,
their contribution of assets and sharing of risks, and the community of their interest in the
performance of the Contract lead to these reasonable conclusions: (1) that their collective
qualifications should be the basis for evaluating their eligibility; (2) that the sheer enormity of
the project renders it improbable to expect any single entity to be able to comply with all the
eligibility requirements and undertake the project by itself; and (3) that, as argued by the OSG,
the RFP allows bids from manufacturers, suppliers and/or distributors that have formed
themselves into a joint venture, in recognition of the virtual impossibility of a single entity’s
ability to respond to the Invitation to Bid.

Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957 (the
Build-Operate-Transfer Law) as amended by RA 7718 would be applicable, as proponents of
BOT projects usually form joint ventures or consortiums. Under the IRR, a joint
venture/consortium proponent shall be evaluated based on the individual or the collective
experience of the member-firms of the joint venture/consortium and of the contractors the
proponent has engaged for the project.

Unfortunately, this argument seems to assume that the "collective" nature of the undertaking of
the members of MPC, their contribution of assets and sharing of risks, and the "community" of
their interest in the performance of the Contract entitle MPC to be treated as a joint venture or
consortium; and to be evaluated accordingly on the basis of the members’ collective
qualifications when, in fact, the evidence before the Court suggest otherwise.

This Court in Kilosbayan v. Guingona46 defined joint venture as "an association of persons or
companies jointly undertaking some commercial enterprise; generally, all contribute assets and
share risks. It requires a community of interest in the performance of the subject matter, a right to
direct and govern the policy in connection therewith, and [a] duty, which may be altered by
agreement to share both in profit and losses."
Going back to the instant case, it should be recalled that the automation Contract with Comelec
was not executed by the "consortium" MPC -- or by MPEI for and on behalf of MPC -- but by
MPEI, period. The said Contract contains no mention whatsoever of any consortium or members
thereof. This fact alone seems to contradict all the suppositions about a joint undertaking that
would normally apply to a joint venture or consortium: that it is a commercial enterprise
involving a community of interest, a sharing of risks, profits and losses, and so on.

Now let us consider the four bilateral Agreements, starting with the Memorandum of Agreement
between MPEI and WeSolv Open Computing, Inc., dated March 5, 2003. The body of the MOA
consists of just seven (7) short paragraphs that would easily fit in one page! It reads as follows:

"1. The parties agree to cooperate in successfully implementing the Project in the
substance and form as may be most beneficial to both parties and other subcontractors
involved in the Project.

"2. Mega Pacific shall be responsible for any contract negotiations and signing with the
COMELEC and, subject to the latter’s approval, agrees to give WeSolv an opportunity to
be present at meetings with the COMELEC concerning WeSolv’s portion of the Project.

"3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular
products and/or services supplied by the former for the Project.

"4. Each party shall bear its own costs and expenses relative to this agreement unless
otherwise agreed upon by the parties.

"5. The parties undertake to do all acts and such other things incidental to, necessary or
desirable or the attainment of the objectives and purposes of this Agreement.

"6. In the event that the parties fail to agree on the terms and conditions of the supply of
the products and services including but not limited to the scope of the products and
services to be supplied and payment terms, WeSolv shall cease to be bound by its
obligations stated in the aforementioned paragraphs.

"7. Any dispute arising from this Agreement shall be settled amicably by the parties
whenever possible. Should the parties be unable to do so, the parties hereby agree to
settle their dispute through arbitration in accordance with the existing laws of the
Republic of the Philippines." (Underscoring supplied.)

Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd., dated
March 9, 2003, the body of which consists of only six (6) paragraphs, which we quote:

"1. All parties agree to cooperate in achieving the Consortium’s objective of successfully
implementing the Project in the substance and form as may be most beneficial to the
Consortium members and in accordance w/ the demand of the RFP.
 "2. Mega Pacific shall have full powers and authority to represent the Consortium with
the Comelec, and to enter and sign, for and in behalf of its members any and all
agreement/s which maybe required in the implementation of the Project.

"3. Each of the individual members of the Consortium shall be jointly and severally liable
with the Lead Firm for the particular products and/or services supplied by such individual
member for the project, in accordance with their respective undertaking or sphere of
responsibility.

"4. Each party shall bear its own costs and expenses relative to this agreement unless
otherwise agreed upon by the parties.

"5. The parties undertake to do all acts and such other things incidental to, necessary or
desirable for the attainment of the objectives and purposes of this Agreement.

"6. Any dispute arising from this Agreement shall be settled amicably by the parties
whenever possible. Should the parties be unable to do so, the parties hereby agree to
settle their dispute through arbitration in accordance with the existing laws of the
Republic of the Philippines." (Underscoring supplied.)

It will be noted that the two Agreements quoted above are very similar in wording. Neither of
them contains any specifics or details as to the exact nature and scope of the parties’ respective
undertakings, performances and deliverables under the Agreement with respect to the automation
project. Likewise, the two Agreements are quite bereft of pesos-and-centavos data as to the
amount of investments each party contributes, its respective share in the revenues and/or profit
from the Contract with Comelec, and so forth -- all of which are normal for agreements of this
nature. Yet, according to public and private respondents, the participation of MPEI, WeSolv and
SK C&C comprises fully 90 percent of the entire undertaking with respect to the election
automation project, which is worth about P1.3 billion.

As for Election.com and ePLDT, the separate "Teaming Agreements" they entered into with
MPEI for the remaining 10 percent of the entire project undertaking are ironically much longer
and more detailed than the MOAs discussed earlier. Although specifically ascribing to them the
role of subcontractor vis-à-vis MPEI as contractor, these Agreements are, however, completely
devoid of any pricing data or payment terms. Even the appended Schedules supposedly
containing prices of goods and services are shorn of any price data. Again, as mentioned earlier,
based on the terms of their particular Agreements, neither Election.com nor ePLDT -- with MPEI
-- is jointly and severally liable to Comelec.

It is difficult to imagine how these bare Agreements -- especially the first two -- could be
implemented in practice; and how a dispute between the parties or a claim by Comelec against
them, for instance, could be resolved without lengthy and debilitating litigations. Absent any
clear-cut statement as to the exact nature and scope of the parties’ respective undertakings,
commitments, deliverables and covenants, one party or another can easily dodge its obligation
and deny or contest its liability under the Agreement; or claim that it is the other party that
should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of investments to be contributed
by each party, disbursements for expenses, the parties’ respective shares in the profits and the
like, it seems to the Court that this situation could readily give rise to all kinds of
misunderstandings and disagreements over money matters.

Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed joint
and several liabilities of the members of the "consortium." The Court is not even mentioning the
possibility of a situation arising from a failure of WeSolv and MPEI to agree on the scope, the
terms and the conditions for the supply of the products and services under the Agreement. In that
situation, by virtue of paragraph 6 of its MOA, WeSolv would perforce cease to be bound by its
obligations -- including its joint and solidary liability with MPEI under the MOA -- and could
forthwith disengage from the project. Effectively, WeSolv could at any time unilaterally exit
from its MOA with MPEI by simply failing to agree. Where would that outcome leave MPEI and
Comelec?

To the Court, this strange and beguiling arrangement of MPEI with the other companies does not
qualify them to be treated as a consortium or joint venture, at least of the type that government
agencies like the Comelec should be dealing with. With more reason is it unable to agree to the
proposal to evaluate the members of MPC on a collective basis.

In any event, the MPC members claim to be a joint venture/consortium; and respondents have
consistently been arguing that the IRR for RA 6957, as amended, should be applied to the instant
case in order to allow a collective evaluation of consortium members. Surprisingly, considering
these facts, respondents have not deemed it necessary for MPC members to comply with Section
5.4 (a) (iii) of the IRR for RA 6957 as amended.

According to the aforementioned provision, if the project proponent is a joint venture or

consortium, the members or participants thereof are required to submit a sworn statement that, if
awarded the contract, they shall bind themselves to be jointly, severally and solidarily liable for
the project proponent’s obligations thereunder. This provision was supposed to mirror Section 5
of RA 6957, as amended, which states: "In all cases, a consortium that participates in a bid must
present proof that the members of the consortium have bound themselves jointly and severally to
assume responsibility for any project. The withdrawal of any member of the consortium prior to
the implementation of the project could be a ground for the cancellation of the contract." The
Court has certainly not seen any joint and several undertaking by the MPC members that even
approximates the tenor of that which is described above. We fail to see why respondents should
invoke the IRR if it is for their benefit, but refuse to comply with it otherwise.

B.

DOST Technical Tests Flunked by the Automated Counting Machines

Let us now move to the second subtopic, which deals with the substantive issue: the ACM’s
failure to pass the tests of the Department of Science and Technology (DOST).
After respondent "consortium" and the other bidder, TIM, had submitted their respective bids on
March 10, 2003, the Comelec’s BAC -- through its Technical Working Group (TWG) and the
DOST -- evaluated their technical proposals. Requirements that were highly technical in nature
and that required the use of certain equipment in the evaluation process were referred to the
DOST for testing. The Department reported thus:

TEST RESULTS MATRIX47

Technical Evaluation of Automated Counting Machine

MEGA-PACIFIC TOTAL
KEY REQUIREMENTS CONSORTIUM INFORMATION
QUESTIONS MANAGEMENT
YES NO YES NO
1. Does the machine have an accuracy √   √  
rating of at least 99.995 percent
At COLD environmental condition   √   √
At NORMAL environmental conditions   √ √  
At HARSH environmental conditions        
2. Accurately records and reports the date √   √  
and time of the start and end of counting of
ballots per precinct?
3. Prints election returns without any loss √   √  
of date during generation of such reports?
4. Uninterruptible back-up power system,        
that will engage immediately to allow √ √
operation of at least 10 minutes after
outage, power surge or abnormal electrical
occurrences?
5. Machine reads two-sided ballots in one √     √
pass?
Note: This
particular
requirement
needs further
verification
6. Machine can detect previously counted  √      √
ballots and prevent previously counted
ballots from being counted more than
once?
7. Stores results of counted votes by √     √
precinct in external (removable) storage
device? Note: This
particular
requirement
needs further
verification
8. Data stored in external media is √     √
encrypted?
Note: This
particular
requirement
needs further
verification
9. Physical key or similar device allows, √   √  
limits, or restricts operation of the
machine?
10. CPU speed is at least 400mHz? √     √

Note: This
particular
requirement
needs further
verification
11. Port to allow use of dot-matrix √   √  
printers?
12. Generates printouts of the election        
returns in a format specified by the
COMELEC?
Generates printouts √   √  
In format specified by COMELEC   √   √
13. Prints election returns without any loss √   √  
of data during generation of such report?
14. Generates an audit trail of the counting        
machine, both hard copy and soft copy?
Hard copy √   √  
Soft copy √     √

Note: This
particular
requirement
needs further
verification
15. Does the City/Municipal Canvassing √     √
System consolidate results from all
precincts within it using the encrypted soft Note: This
copy of the data generated by the counting particular
machine and stored on the removable data requirement
storage device? needs further
verification
16. Does the City/Municipal Canvassing   √   √
System consolidate results from all
precincts within it using the encrypted soft Note: This Note: This
copy of the data generated by the counting particular particular
machine and transmitted through an requirement requirement
electronic transmission media? needs further needs further
verification verification
17. Does the system output a Zero √     √
City/Municipal Canvass Report, which is
printed on election day prior to the conduct Note: This
of the actual canvass operation, that shows particular
that all totals for all the votes for all the requirement
candidates and other information, are needs further
indeed zero or null? verification
18. Does the system consolidate results √     √
from all precincts in the city/municipality
using the data storage device coming from Note: This
the counting machine? particular
requirement
needs further
verification
19. Is the machine 100% accurate? √     √

Note: This
particular
requirement
needs further
 verification
20. Is the Program able to detect   √   √
previously downloaded precinct results
and prevent these from being inputted Note: This
again into the System? particular
requirement
needs further
verification
21. The System is able to print the        
specified reports and the audit trail without
any loss of data during generation of the
above-mentioned reports?
Prints specified reports √     √
Audit Trail   √   √
22. Can the result of the city/municipal √     √
consolidation be stored in a data storage
device? Note: This
particular
requirement
needs further
verification
23. Does the system consolidate results √     √
from all precincts in the provincial/district/
national using the data storage device from Note: This
different levels of consolidation? particular
requirement
needs further
verification
24. Is the system 100% accurate? √     √

Note: This
particular
requirement
needs further
verification
25. Is the Program able to detect   √   √
previously downloaded precinct results
and prevent these from being inputted Note: This
again into the System? particular
 requirement
needs further
verification
26. The System is able to print the        
specified reports and the audit trail without
any loss of data during generation of the
abovementioned reports?
Prints specified reports √     √
Audit Trail   √   √

Note: This
particular
requirement
needs further
verification
27. Can the results of the √     √
provincial/district/national consolidation
be stored in a data storage device? Note: This
particular
requirement
needs further
verification

According to respondents, it was only after the TWG and the DOST had conducted their separate
tests and submitted their respective reports that the BAC, on the basis of these reports formulated
its comments/recommendations on the bids of the consortium and TIM.

The BAC, in its Report dated April 21, 2003, recommended that the Phase II project involving
the acquisition of automated counting machines be awarded to MPEI. It said:

"After incisive analysis of the technical reports of the DOST and the Technical Working
Group for Phase II – Automated Counting Machine, the BAC considers adaptability to
advances in modern technology to ensure an effective and efficient method, as well as the
security and integrity of the system.

"The results of the evaluation conducted by the TWG and that of the DOST (14 April
2003 report), would show the apparent advantage of Mega-Pacific over the other
competitor, TIM.

"The BAC further noted that both Mega-Pacific and TIM obtained some ‘failed marks’ in
the technical evaluation. In general, the ‘failed marks’ of Total Information Management
as enumerated above affect the counting machine itself which are material in nature,
constituting non-compliance to the RFP. On the other hand, the ‘failed marks’ of Mega-
Pacific are mere formalities on certain documentary requirements which the BAC may
waive as clearly indicated in the Invitation to Bid.

"In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting
machine itself as stated earlier. These are requirements of the RFP and therefore the BAC
cannot disregard the same.

"Mega-Pacific failed in 8 items however these are mostly on the software which can be
corrected by reprogramming the software and therefore can be readily corrected.

"The BAC verbally inquired from DOST on the status of the retest of the counting
machines of the TIM and was informed that the report will be forthcoming after the holy
week. The BAC was informed that the retest is on a different parameters they’re being
two different machines being tested. One purposely to test if previously read ballots will
be read again and the other for the other features such as two sided ballots.

"The said machine and the software therefore may not be considered the same machine
and program as submitted in the Technical proposal and therefore may be considered an
enhancement of the original proposal.

"Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive

Director Ronaldo T. Viloria of DOST is that the result of the test in the two counting
machines of TIM contains substantial errors that may lead to the failure of these
machines based on the specific items of the RFP that DOST has to certify.

OPENING OF FINANCIAL BIDS

"The BAC on 15 April 2003, after notifying the concerned bidders opened the financial
bids in their presence and the results were as follows:

Mega-Pacific:

Option 1 – Outright purchase: Bid Price if Php1,248,949,088.00

Option 2 – Lease option:

70% Down payment of cost of hardware or Php642,755,757.07

Remainder payable over 50 months or a total of Php642,755,757.07

Discount rate of 15% p.a. or 1.2532% per month.

Total Number of Automated Counting Machine – 1,769 ACMs (Nationwide)

TIM:
 Total Bid Price – Php1,297,860,560.00

Total Number of Automated Counting Machine – 2,272 ACMs (Mindanao and NCR
only)

"Premises considered, it appears that the bid of Mega Pacific is the lowest calculated
responsive bid, and therefore, the Bids and Awards Committee (BAC) recommends that
the Phase II project re Automated Counting Machine be awarded to Mega Pacific
eSolutions, Inc."48

The BAC, however, also stated on page 4 of its Report: "Based on the 14 April 2003 report
(Table 6) of the DOST, it appears that both Mega-Pacific and TIM (Total Information
Management Corporation) failed to meet some of the requirements. Below is a comparative
presentation of the requirements wherein Mega-Pacific or TIM or both of them failed: x x x."
What followed was a list of "key requirements," referring to technical requirements, and an
indication of which of the two bidders had failed to meet them.

Failure to Meet the Required Accuracy Rating

The first of the key requirements was that the counting machines were to have an accuracy
rating of at least 99.9995 percent. The BAC Report indicates that both Mega Pacific and TIM
failed to meet this standard.

The key requirement of accuracy rating happens to be part and parcel of the Comelec’s Request
for Proposal (RFP). The RFP, on page 26, even states that the ballot counting machines and
ballot counting software "must have an accuracy rating of 99.9995% (not merely 99.995%) or
better as certified by a reliable independent testing agency."

When questioned on this matter during the Oral Argument, Commissioner Borra tried to wash
his hands by claiming that the required accuracy rating of 99.9995 percent had been set by a
private sector group in tandem with Comelec. He added that the Commission had merely
adopted the accuracy rating as part of the group’s recommended bid requirements, which it had
not bothered to amend even after being advised by DOST that such standard was unachievable.
This excuse, however, does not in any way lessen Comelec’s responsibility to adhere to its own
published bidding rules, as well as to see to it that the consortium indeed meets the accuracy
standard. Whichever accuracy rating is the right standard -- whether 99.995 or 99.9995 percent
-- the fact remains that the machines of the so-called "consortium" failed to even reach the lesser
of the two. On this basis alone, it ought to have been disqualified and its bid rejected outright.

At this point, the Court stresses that the essence of public bidding is violated by the practice of
requiring very high standards or unrealistic specifications that cannot be met -- like the 99.9995
percent accuracy rating in this case -- only to water them down after the bid has been award.
Such scheme, which discourages the entry of prospective bona fide bidders, is in fact a sure
indication of fraud in the bidding, designed to eliminate fair competition. Certainly, if no bidder
meets the mandatory requirements, standards or specifications, then no award should be made
and a failed bidding declared.
Failure of Software to Detect Previously Downloaded Data

Furthermore, on page 6 of the BAC Report, it appears that the "consortium" as well as TIM
failed to meet another key requirement -- for the counting machine’s software program to be
able to detect previously downloaded precinct results and to prevent these from being
entered again into the counting machine. This same deficiency on the part of both bidders
reappears on page 7 of the BAC Report, as a result of the recurrence of their failure to meet the
said key requirement.

That the ability to detect previously downloaded data at different canvassing or consolidation
levels is deemed of utmost importance can be seen from the fact that it is repeated three times in
the RFP. On page 30 thereof, we find the requirement that the city/municipal canvassing system
software must be able to detect previously downloaded precinct results and prevent these from
being "inputted" again into the system. Again, on page 32 of the RFP, we read that the
provincial/district canvassing system software must be able to detect previously downloaded
city/municipal results and prevent these from being "inputted" again into the system. And once
more, on page 35 of the RFP, we find the requirement that the national canvassing system
software must be able to detect previously downloaded provincial/district results and prevent
these from being "inputted" again into the system.

Once again, though, Comelec chose to ignore this crucial deficiency, which should have been a
cause for the gravest concern. Come May 2004, unscrupulous persons may take advantage of and
exploit such deficiency by repeatedly downloading and feeding into the computers results
favorable to a particular candidate or candidates. We are thus confronted with the grim prospect
of election fraud on a massive scale by means of just a few key strokes. The marvels and woes
of the electronic age!

Inability to Print the Audit Trail

But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the ACMs of
both bidders were unable to print the audit trail without any loss of data. In the case of MPC,
the audit trail system was "not yet incorporated" into its ACMs.

This particular deficiency is significant, not only to this bidding but to the cause of free and
credible elections. The purpose of requiring audit trails is to enable Comelec to trace and verify
the identities of the ACM operators responsible for data entry and downloading, as well as the
times when the various data were downloaded into the canvassing system, in order to forestall
fraud and to identify the perpetrators.

Thus, the RFP on page 27 states that the ballot counting machines and ballot counting software
must print an audit trail of all machine operations for documentation and verification purposes.
Furthermore, the audit trail must be stored on the internal storage device and be available on
demand for future printing and verifying. On pages 30-31, the RFP also requires that the
city/municipal canvassing system software be able to print an audit trail of the canvassing
operations, including therein such data as the date and time the canvassing program was started,
the log-in of the authorized users (the identity of the machine operators), the date and time the
canvass data were downloaded into the canvassing system, and so on and so forth. On page 33 of
the RFP, we find the same audit trail requirement with respect to the provincial/district
canvassing system software; and again on pages 35-36 thereof, the same audit trail requirement
with respect to the national canvassing system software.

That this requirement for printing audit trails is not to be lightly brushed aside by the BAC or
Comelec itself as a mere formality or technicality can be readily gleaned from the provisions of
Section 7 of RA 8436, which authorizes the Commission to use an automated system for
elections.

The said provision which respondents have quoted several times, provides that ACMs are to
possess certain features divided into two classes: those that the statute itself considers mandatory
and other features or capabilities that the law deems optional. Among those considered
mandatory are "provisions for audit trails"! Section 7 reads as follows: "The System shall contain
the following features: (a) use of appropriate ballots; (b) stand-alone machine which can count
votes and an automated system which can consolidate the results immediately; (c) with
provisions for audit trails; (d) minimum human intervention; and (e) adequate
safeguard/security measures." (Italics and emphases supplied.)

In brief, respondents cannot deny that the provision requiring audit trails is indeed mandatory,
considering the wording of Section 7 of RA 8436. Neither can Respondent Comelec deny that it
has relied on the BAC Report, which indicates that the machines or the software was deficient in
that respect. And yet, the Commission simply disregarded this shortcoming and awarded the
Contract to private respondent, thereby violating the very law it was supposed to implement.

C.

Inadequacy of Post Facto Remedial Measures

Respondents argue that the deficiencies relating to the detection of previously downloaded data,
as well as provisions for audit trails, are mere shortcomings or minor deficiencies in software or
programming, which can be rectified. Perhaps Comelec simply relied upon the BAC Report,
which states on page 8 thereof that "Mega Pacific failed in 8 items[;] however these are mostly
on the software which can be corrected by re-programming x x x and therefore can be readily
corrected."

The undersigned ponente’s questions, some of which were addressed to Commissioner Borra
during the Oral Argument, remain unanswered to this day. First of all, who made the
determination that the eight "fail" marks of Mega Pacific were on account of the software -- was
it DOST or TWG? How can we be sure these failures were not the results of machine defects?
How was it determined that the software could actually be re-programmed and thereby rectified?
Did a qualified technical expert read and analyze the source code49 for the programs and
conclude that these could be saved and remedied? (Such determination cannot be done by any
other means save by the examination and analysis of the source code.)
Who was this qualified technical expert? When did he carry out the study? Did he prepare a
written report on his findings? Or did the Comelec just make a wild guess? It does not follow
that all defects in software programs can be rectified, and the programs saved. In the information
technology sector, it is common knowledge that there are many badly written programs, with
significant programming errors written into them; hence it does not make economic sense to try
to correct the programs; instead, programmers simply abandon them and just start from scratch.
There’s no telling if any of these programs is unrectifiable, unless a qualified programmer reads
the source code.

And if indeed a qualified expert reviewed the source code, did he also determine how much work
would be needed to rectify the programs? And how much time and money would be spent for
that effort? Who would carry out the work? After the rectification process, who would ascertain
and how would it be ascertained that the programs have indeed been properly rectified, and that
they would work properly thereafter? And of course, the most important question to ask: could
the rectification be done in time for the elections in 2004?

Clearly, none of the respondents bothered to think the matter through. Comelec simply took the
word of the BAC as gospel truth, without even bothering to inquire from DOST whether it was
true that the deficiencies noted could possibly be remedied by re-programming the software.
Apparently, Comelec did not care about the software, but focused only on purchasing the
machines.

What really adds to the Court’s dismay is the admission made by Commissioner Borra during the
Oral Argument that the software currently being used by Comelec was merely the "demo"
version, inasmuch as the final version that would actually be used in the elections was still being
developed and had not yet been finalized.

It is not clear when the final version of the software would be ready for testing and deployment.
It seems to the Court that Comelec is just keeping its fingers crossed and hoping the final product
would work. Is there a "Plan B" in case it does not? Who knows? But all these software
programs are part and parcel of the bidding and the Contract awarded to the Consortium. Why is
it that the machines are already being brought in and paid for, when there is as yet no way of
knowing if the final version of the software would be able to run them properly, as well as
canvass and consolidate the results in the manner required?

The counting machines, as well as the canvassing system, will never work properly without the
correct software programs. There is an old adage that is still valid to this day: "Garbage in,
garbage out." No matter how powerful, advanced and sophisticated the computers and the
servers are, if the software being utilized is defective or has been compromised, the results will
be no better than garbage. And to think that what is at stake here is the 2004 national elections --
the very basis of our democratic life.

Correction of Defects?

To their Memorandum, public respondents proudly appended 19 Certifications issued by DOST

declaring that some 285 counting machines had been tested and had passed the acceptance
testing conducted by the Department on October 8-18, 2003. Among those tested were some
machines that had failed previous tests, but had undergone adjustments and thus passed re-
testing.

Unfortunately, the Certifications from DOST fail to divulge in what manner and by what
standards or criteria the condition, performance and/or readiness of the machines were re-
evaluated and re-appraised and thereafter given the passing mark. Apart from that fact, the
remedial efforts of respondents were, not surprisingly, apparently focused again on the machines
-- the hardware. Nothing was said or done about the software -- the deficiencies as to detection
and prevention of downloading and entering previously downloaded data, as well as the
capability to print an audit trail. No matter how many times the machines were tested and re-
tested, if nothing was done about the programming defects and deficiencies, the same danger of
massive electoral fraud remains. As anyone who has a modicum of knowledge of computers
would say, "That’s elementary!"

And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as saying
that the new automated poll system would be used nationwide in May 2004, even as the software
for the system remained unfinished. It also reported that a certain Titus Manuel of the Philippine
Computer Society, which was helping Comelec test the hardware and software, said that the
software for the counting still had to be submitted on December 15, while the software for the
canvassing was due in early January.

Even as Comelec continues making payments for the ACMs, we keep asking ourselves: who is
going to ensure that the software would be tested and would work properly?

At any rate, the re-testing of the machines and/or the 100 percent testing of all machines (testing
of every single unit) would not serve to eradicate the grave abuse of discretion already
committed by Comelec when it awarded the Contract on April 15, 2003, despite the obvious and
admitted flaws in the bidding process, the failure of the "winning bidder" to qualify, and the
inability of the ACMs and the intended software to meet the bid requirements and rules.

Comelec’s Latest "Assurances" Are Unpersuasive

Even the latest pleadings filed by Comelec do not serve to allay our apprehensions. They merely
affirm and compound the serious violations of law and gravely abusive acts it has committed. Let
us examine them.

The Resolution issued by this Court on December 9, 2003 required respondents to inform it as to
the number of ACMs delivered and paid for, as well as the total payment made to date for the
purchase thereof. They were likewise instructed to submit a certification from the DOST
attesting to the number of ACMs tested, the number found to be defective; and "whether the
reprogrammed software has been tested and found to have complied with the requirements
under Republic Act No. 8436."50

In its "Partial Compliance and Manifestation" dated December 29, 2003, Comelec informed the
Court that 1,991 ACMs had already been delivered to the Commission as of that date. It further
certified that it had already paid the supplier the sum of P849,167,697.41, which corresponded to
1,973 ACM units that had passed the acceptance testing procedures conducted by the MIRDC-
DOST51 and which had therefore been accepted by the poll body.

In the same submission, for the very first time, Comelec also disclosed to the Court the
following:

"The Automated Counting and Canvassing Project involves not only the manufacturing
of the ACM hardware but also the development of three (3) types of software, which are
intended for use in the following:

1. Evaluation of Technical Bids

2. Testing and Acceptance Procedures

3. Election Day Use."

Purchase of the First Type of Software Without Evaluation

In other words, the first type of software was to be developed solely for the purpose of enabling
the evaluation of the bidder’s technical bid. Comelec explained thus: "In addition to the
presentation of the ACM hardware, the bidders were required to develop a ‘base’ software
program that will enable the ACM to function properly. Since the software program utilized
during the evaluation of bids is not the actual software program to be employed on election day,
there being two (2) other types of software program that will still have to be developed and
thoroughly tested prior to actual election day use, defects in the ‘base’ software that can be
readily corrected by reprogramming are considered minor in nature, and may therefore be
waived."

In short, Comelec claims that it evaluated the bids and made the decision to award the Contract
to the "winning" bidder partly on the basis of the operation of the ACMs running a "base"
software. That software was therefore nothing but a sample or "demo" software, which would
not be the actual one that would be used on election day. Keeping in mind that the Contract
involves the acquisition of not just the ACMs or the hardware, but also the software that would
run them, it is now even clearer that the Contract was awarded without Comelec having seen,
much less evaluated, the final product -- the software that would finally be utilized come election
day. (Not even the "near-final" product, for that matter).

What then was the point of conducting the bidding, when the software that was the subject of the
Contract was still to be created and could conceivably undergo innumerable changes before
being considered as being in final form? And that is not all!

No Explanation for Lapses in the Second Type of Software

The second phase, allegedly involving the second type of software, is simply denominated
"Testing and Acceptance Procedures." As best as we can construe, Comelec is claiming that this
second type of software is also to be developed and delivered by the supplier in connection with
the "testing and acceptance" phase of the acquisition process. The previous pleadings, though --
including the DOST reports submitted to this Court -- have not heretofore mentioned any
statement, allegation or representation to the effect that a particular set of software was to be
developed and/or delivered by the supplier in connection with the testing and acceptance of
delivered ACMs.

What the records do show is that the imported ACMs were subjected to the testing and
acceptance process conducted by the DOST. Since the initial batch delivered included a high
percentage of machines that had failed the tests, Comelec asked the DOST to conduct a 100
percent testing; that is, to test every single one of the ACMs delivered. Among the machines
tested on October 8 to 18, 2003, were some units that had failed previous tests but had
subsequently been re-tested and had passed. To repeat, however, until now, there has never been
any mention of a second set or type of software pertaining to the testing and acceptance process.

In any event, apart from making that misplaced and uncorroborated claim, Comelec in the same
submission also professes (in response to the concerns expressed by this Court) that the
reprogrammed software has been tested and found to have complied with the requirements
of RA 8436. It reasoned thus: "Since the software program is an inherent element in the
automated counting system, the certification issued by the MIRDC-DOST that one thousand nine
hundred seventy-three (1,973) units passed the acceptance test procedures is an official
recognition by the MIRDC-DOST that the software component of the automated election system,
which has been reprogrammed to comply with the provisions of Republic Act No. 8436 as
prescribed in the Ad Hoc Technical Evaluation Committee’s ACM Testing and Acceptance
Manual, has passed the MIRDC-DOST tests."

The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC-DOST
letter dated December 15, 2003,52 which it relied upon, does not justify its grand conclusion. For
clarity’s sake, we quote in full the letter-certification, as follows:

"15 December 2003

"HON. RESURRECCION Z. BORRA

Commissioner-in-Charge

Phase II, Modernization Project

Commission on Elections

Intramuros, Manila

Attention: Atty. Jose M. Tolentino, Jr.

Project Director
 "Dear Commissioner Borra:

"We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering
158 units of automated counting machines (ACMs) that we have tested from 02-12
December 2003.

"To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)

1st batch - 30 units 4th batch - 438 units

2nd batch - 288 units 5th batch - 438 units

3rd batch - 414 units 6th batch - 383 units

"It should be noted that a total of 18 units have failed the test. Out of these 18 units, only
one (1) unit has failed the retest.

"Thank you and we hope you will find everything in order.

"Very truly yours,

"ROLANDO T. VILORIA, CESO III

Executive Director cum

Chairman, DOST-Technical Evaluation Committee"

Even a cursory glance at the foregoing letter shows that it is completely bereft of anything that
would remotely support Comelec’s contention that the "software component of the automated
election system x x x has been reprogrammed to comply with" RA 8436, and "has passed the
MIRDC-DOST tests." There is no mention at all of any software reprogramming. If the MIRDC-
DOST had indeed undertaken the supposed reprogramming and the process turned out to be
successful, that agency would have proudly trumpeted its singular achievement.

How Comelec came to believe that such reprogramming had been undertaken is unclear. In any
event, the Commission is not forthright and candid with the factual details. If reprogramming has
been done, who performed it and when? What exactly did the process involve? How can we be
assured that it was properly performed? Since the facts attendant to the alleged reprogramming
are still shrouded in mystery, the Court cannot give any weight to Comelec’s bare allegations.

The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-DOST tests does
not by itself serve as an endorsement of the soundness of the software program, much less as a
proof that it has been reprogrammed. In the first place, nothing on record shows that the tests and
re-tests conducted on the machines were intended to address the serious deficiencies noted
earlier. As a matter of fact, the MIRDC-DOST letter does not even indicate what kinds of tests or
re-tests were conducted, their exact nature and scope, and the specific objectives thereof.53 The
absence of relevant supporting documents, combined with the utter vagueness of the letter,
certainly fails to inspire belief or to justify the expansive confidence displayed by Comelec. In
any event, it goes without saying that remedial measures such as the alleged reprogramming
cannot in any way mitigate the grave abuse of discretion already committed as early as April 15,
2003.

Rationale of Public Bidding Negated

by the Third Type of Software

Respondent Comelec tries to assuage this Court’s anxiety in these words: "The reprogrammed
software that has already passed the requirements of Republic Act No. 8436 during the MIRDC-
DOST testing and acceptance procedures will require further customization since the following
additional elements, among other things, will have to be considered before the final software can
be used on election day: 1. Final Certified List of Candidates x x x 2. Project of Precincts x x x 3.
Official Ballot Design and Security Features x x x 4. Encryption, digital certificates and digital
signatures x x x. The certified list of candidates for national elective positions will be finalized
on or before 23 January 2004 while the final list of projects of precincts will be prepared also on
the same date. Once all the above elements are incorporated in the software program, the Test
Certification Group created by the Ad Hoc Technical Evaluation Committee will conduct
meticulous testing of the final software before the same can be used on election day. In addition
to the testing to be conducted by said Test Certification Group, the Comelec will conduct mock
elections in selected areas nationwide not only for purposes of public information but also to
further test the final election day program. Public respondent Comelec, therefore, requests that
it be given up to 16 February 2004 to comply with this requirement."

The foregoing passage shows the imprudent approach adopted by Comelec in the bidding and
acquisition process. The Commission says that before the software can be utilized on election
day, it will require "customization" through addition of data -- like the list of candidates, project
of precincts, and so on. And inasmuch as such data will become available only in January 2004
anyway, there is therefore no perceived need on Comelec’s part to rush the supplier into
producing the final (or near-final) version of the software before that time. In any case, Comelec
argues that the software needed for the electoral exercise can be continuously developed, tested,
adjusted and perfected, practically all the way up to election day, at the same time that the
Commission is undertaking all the other distinct and diverse activities pertinent to the elections.

Given such a frame of mind, it is no wonder that Comelec paid little attention to the counting and
canvassing software during the entire bidding process, which took place in February-March
2003. Granted that the software was defective, could not detect and prevent the re-use of
previously downloaded data or produce the audit trail -- aside from its other shortcomings --
nevertheless, all those deficiencies could still be corrected down the road. At any rate, the
software used for bidding purposes would not be the same one that will be used on election day,
so why pay any attention to its defects? Or to the Comelec’s own bidding rules for that matter?

Clearly, such jumbled ratiocinations completely negate the rationale underlying the bidding
process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly violated the public policy on
public biddings (1) by allowing MPC/MPEI to participate in the bidding even though it was not
qualified to do so; and (2) by eventually awarding the Contract to MPC/MPEI. Now, with the
latest explanation given by Comelec, it is clear that the Commission further desecrated the law
on public bidding by permitting the winning bidder to change and alter the subject of the
Contract (the software), in effect allowing a substantive amendment without public bidding.

This stance is contrary to settled jurisprudence requiring the strict application of pertinent rules,
regulations and guidelines for public bidding for the purpose of placing each bidder, actual or
potential, on the same footing. The essence of public bidding is, after all, an opportunity for fair
competition, and a fair basis for the precise comparison of bids. In common parlance, public
bidding aims to "level the playing field." That means each bidder must bid under the same
conditions; and be subject to the same guidelines, requirements and limitations, so that the best
offer or lowest bid may be determined, all other things being equal.

Thus, it is contrary to the very concept of public bidding to permit a variance between the
conditions under which bids are invited and those under which proposals are submitted and
approved; or, as in this case, the conditions under which the bid is won and those under which
the awarded Contract will be complied with. The substantive amendment of the contract bidded
out, without any public bidding -- after the bidding process had been concluded -- is violative of
the public policy on public biddings, as well as the spirit and intent of RA 8436. The whole point
in going through the public bidding exercise was completely lost. The very rationale of public
bidding was totally subverted by the Commission.

From another perspective, the Comelec approach also fails to make sense. Granted that, before
election day, the software would still have to be customized to each precinct, municipality, city,
district, and so on, there still was nothing at all to prevent Comelec from requiring prospective
suppliers/bidders to produce, at the very start of the bidding process, the "next-to-final" versions
of the software (the best software the suppliers had) -- pre-tested and ready to be customized to
the final list of candidates and project of precincts, among others, and ready to be deployed
thereafter. The satisfaction of such requirement would probably have provided far better bases
for evaluation and selection, as between suppliers, than the so-called demo software.Respondents
contend that the bidding suppliers’ counting machines were previously used in at least one
political exercise with no less than 20 million voters. If so, it stands to reason that the software
used in that past electoral exercise would probably still be available and, in all likelihood, could
have been adopted for use in this instance. Paying for machines and software of that category
(already tried and proven in actual elections and ready to be adopted for use) would definitely
make more sense than paying the same hundreds of millions of pesos for demo software and
empty promises of usable programs in the future.

But there is still another gut-level reason why the approach taken by Comelec is reprehensible. It
rides on the perilous assumption that nothing would go wrong; and that, come election day, the
Commission and the supplier would have developed, adjusted and "re-programmed" the software
to the point where the automated system could function as envisioned. But what if such
optimistic projection does not materialize? What if, despite all their herculean efforts, the
software now being hurriedly developed and tested for the automated system performs dismally
and inaccurately or, worse, is hacked and/or manipulated?54 What then will we do with all the
machines and defective software already paid for in the amount of P849 million of our tax
money? Even more important, what will happen to our country in case of failure of the
automation?

The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to be able to
submit a "certification relative to the additional elements of the software that will be
customized," because for us to do so would unnecessarily delay the resolution of this case and
would just give the poll body an unwarranted excuse to postpone the 2004 elections. On the
other hand, because such certification will not cure the gravely abusive actions complained of by
petitioners, it will be utterly useless.

Is this Court being overly pessimistic and perhaps even engaging in speculation? Hardly. Rather,
the Court holds that Comelec should not have gambled on the unrealistic optimism that the
supplier’s software development efforts would turn out well. The Commission should have
adopted a much more prudent and judicious approach to ensure the delivery of tried and tested
software, and readied alternative courses of action in case of failure. Considering that the
nation’s future is at stake here, it should have done no less.

Epilogue

Once again, the Court finds itself at the crossroads of our nation’s history. At stake in this
controversy is not just the business of a computer supplier, or a questionable proclamation by
Comelec of one or more public officials. Neither is it about whether this country should switch
from the manual to the automated system of counting and canvassing votes. At its core is the
ability and capacity of the Commission on Elections to perform properly, legally and prudently
its legal mandate to implement the transition from manual to automated elections.

Unfortunately, Comelec has failed to measure up to this historic task. As stated at the start of this
Decision, Comelec has not merely gravely abused its discretion in awarding the Contract for the
automation of the counting and canvassing of the ballots. It has also put at grave risk the holding
of credible and peaceful elections by shoddily accepting electronic hardware and software that
admittedly failed to pass legally mandated technical requirements. Inadequate as they are, the
remedies it proffers post facto do not cure the grave abuse of discretion it already committed (1)
on April 15, 2003, when it illegally made the award; and (2) "sometime" in May 2003 when it
executed the Contract for the purchase of defective machines and non-existent software from a
non-eligible bidder.

For these reasons, the Court finds it totally unacceptable and unconscionable to place its
imprimatur on this void and illegal transaction that seriously endangers the breakdown of our
electoral system. For this Court to cop-out and to close its eyes to these illegal transactions, while
convenient, would be to abandon its constitutional duty of safeguarding public interest.

As a necessary consequence of such nullity and illegality, the purchase of the machines and all
appurtenances thereto including the still-to-be-produced (or in Comelec’s words, to be
"reprogrammed") software, as well as all the payments made therefor, have no basis whatsoever
in law. The public funds expended pursuant to the void Resolution and Contract must therefore
be recovered from the payees and/or from the persons who made possible the illegal
disbursements, without prejudice to possible criminal prosecutions against them.

Furthermore, Comelec and its officials concerned must bear full responsibility for the failed
bidding and award, and held accountable for the electoral mess wrought by their grave abuse of
discretion in the performance of their functions. The State, of course, is not bound by the
mistakes and illegalities of its agents and servants.

True, our country needs to transcend our slow, manual and archaic electoral process. But before
it can do so, it must first have a diligent and competent electoral agency that can properly and
prudently implement a well-conceived automated election system.

At bottom, before the country can hope to have a speedy and fraud-free automated election, it
must first be able to procure the proper computerized hardware and software legally, based on a
transparent and valid system of public bidding. As in any democratic system, the ultimate goal of
automating elections must be achieved by a legal, valid and above-board process of acquiring the
necessary tools and skills therefor. Though the Philippines needs an automated electoral process,
it cannot accept just any system shoved into its bosom through improper and illegal methods. As
the saying goes, the end never justifies the means. Penumbral contracting will not produce
enlightened results.

WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID
Comelec Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific
Consortium (MPC). Also declared null and void is the subject Contract executed between
Comelec and Mega Pacific eSolutions (MPEI).55 Comelec is further ORDERED to refrain from
implementing any other contract or agreement entered into with regard to this project.

Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the
criminal liability, if any, of the public officials (and conspiring private individuals, if any)
involved in the subject Resolution and Contract. Let the Office of the Solicitor General also take
measures to protect the government and vindicate public interest from the ill effects of the illegal
disbursements of public funds made by reason of the void Resolution and Contract.

SO ORDERED.
[G.R. No. 148334. January 21, 2004]

ARTURO M. TOLENTINO and ARTURO C. MOJICA, petitioners, vs. COMMISSION ON

ELECTIONS, SENATOR RALPH G. RECTO and SENATOR GREGORIO B. HONASAN,
respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for prohibition to set aside Resolution No. NBC 01-005 dated 5 June 2001
(Resolution No. 01-005) and Resolution No. NBC 01-006 dated 20 July 2001 (Resolution No.
01-006) of respondent Commission on Elections (COMELEC). Resolution No. 01-005
proclaimed the 13 candidates elected as Senators in the 14 May 2001 elections while Resolution
No. 01-006 declared official and final the ranking of the 13 Senators proclaimed in Resolution
No. 01-005.

The Facts

Shortly after her succession to the Presidency in January 2001, President Gloria Macapagal-
Arroyo nominated then Senator Teofisto T. Guingona, Jr. (Senator Guingona) as Vice-President.
Congress confirmed the nomination of Senator Guingona who took his oath as Vice-President on
9 February 2001.

Following Senator Guingonas confirmation, the Senate on 8 February 2001 passed Resolution
No. 84 (Resolution No. 84) certifying to the existence of a vacancy in the Senate. Resolution No.
84 called on COMELEC to fill the vacancy through a special election to be held simultaneously
with the regular elections on 14 May 2001. Twelve Senators, with a 6-year term each, were due
to be elected in that election.54[1] Resolution No. 84 further provided that the Senatorial
candidate garnering the 13th highest number of votes shall serve only for the unexpired term of
former Senator Teofisto T. Guingona, Jr., which ends on 30 June 2004.55[2]

On 5 June 2001, after COMELEC had canvassed the election results from all the provinces but
one (Lanao del Norte), COMELEC issued Resolution No. 01-005 provisionally proclaiming 13
candidates as the elected Senators. Resolution No. 01-005 also provided that the first twelve (12)
Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve the
unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr. who was appointed Vice-

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President.56[3] Respondents Ralph Recto (Recto) and Gregorio Honasan (Honasan) ranked 12th
and 13th, respectively, in Resolution No. 01-005.

On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica (petitioners), as voters and
taxpayers, filed the instant petition for prohibition, impleading only COMELEC as respondent.
Petitioners sought to enjoin COMELEC from proclaiming with finality the candidate for Senator
receiving the 13th highest number of votes as the winner in the special election for a single three-
year term seat. Accordingly, petitioners prayed for the nullification of Resolution No. 01-005 in
so far as it makes a proclamation to such effect.

Petitioners contend that COMELEC issued Resolution No. 01-005 without jurisdiction because:
(1) it failed to notify the electorate of the position to be filled in the special election as required
under Section 2 of Republic Act No. 6645 (R.A. No. 6645);57[4] (2) it failed to require senatorial
candidates to indicate in their certificates of candidacy whether they seek election under the
special or regular elections as allegedly required under Section 73 of Batas Pambansa Blg. 881;58
[5] and, consequently, (3) it failed to specify in the Voters Information Sheet the candidates
seeking election under the special or regular senatorial elections as purportedly required under
Section 4, paragraph 4 of Republic Act No. 6646 (R.A. No. 6646).59[6] Petitioners add that
because of these omissions, COMELEC canvassed all the votes cast for the senatorial candidates
in the 14 May 2001 elections without distinction such that there were no two separate Senate
elections held simultaneously but just a single election for thirteen seats, irrespective of term.60
[7]

Stated otherwise, petitioners claim that if held simultaneously, a special and a regular election
must be distinguished in the documentation as well as in the canvassing of their results. To
support their claim, petitioners cite the special elections simultaneously held with the regular
elections of 13 November 1951 and 8 November 1955 to fill the seats vacated by Senators
Fernando Lopez and Carlos P. Garcia, respectively, who became Vice-Presidents during their
tenures in the Senate.61[8] Petitioners point out that in those elections, COMELEC separately
canvassed the votes cast for the senatorial candidates running under the regular elections from
the votes cast for the candidates running under the special elections. COMELEC also separately
proclaimed the winners in each of those elections.62[9]

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58

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Petitioners sought the issuance of a temporary restraining order during the pendency of their
petition.

Without issuing any restraining order, we required COMELEC to Comment on the petition.

On 20 July 2001, after COMELEC had canvassed the results from all the provinces, it issued
Resolution No. 01-006 declaring official and final the ranking of the 13 Senators proclaimed in
Resolution No. 01-005. The 13 Senators took their oaths of office on 23 July 2001.

In view of the issuance of Resolution No. 01-006, the Court required petitioners to file an
amended petition impleading Recto and Honasan as additional respondents. Petitioners
accordingly filed an amended petition in which they reiterated the contentions raised in their
original petition and, in addition, sought the nullification of Resolution No. 01-006.

In their Comments, COMELEC, Honasan, and Recto all claim that a special election to fill the
seat vacated by Senator Guingona was validly held on 14 May 2001. COMELEC and Honasan
further raise preliminary issues on the mootness of the petition and on petitioners standing to
litigate. Honasan also claims that the petition, which seeks the nullity of his proclamation as
Senator, is actually a quo warranto petition and the Court should dismiss the same for lack of
jurisdiction. For his part, Recto, as the 12th ranking Senator, contends he is not a proper party to
this case because the petition only involves the validity of the proclamation of the 13th placer in
the 14 May 2001 senatorial elections.

The Issues

The following are the issues presented for resolution:

(1) Procedurally

(a) whether the petition is in fact a petition for quo warranto over which the Senate Electoral
Tribunal is the sole judge;

(b) whether the petition is moot; and

(c) whether petitioners have standing to litigate.

(2) On the merits, whether a special election to fill a vacant three-year term Senate seat was
validly held on 14 May 2001.

The Ruling of the Court

The petition has no merit.

On the Preliminary Matters

The Nature of the Petition and the Courts Jurisdiction

A quo warranto proceeding is, among others, one to determine the right of a public officer in the
exercise of his office and to oust him from its enjoyment if his claim is not well-founded.63[10]
Under Section 17, Article VI of the Constitution, the Senate Electoral Tribunal is the sole judge
of all contests relating to the qualifications of the members of the Senate.

A perusal of the allegations contained in the instant petition shows, however, that what
petitioners are questioning is the validity of the special election on 14 May 2001 in which
Honasan was elected. Petitioners various prayers are, namely: (1) a declaration that no special
election was held simultaneously with the general elections on 14 May 2001; (2) to enjoin
COMELEC from declaring anyone as having won in the special election; and (3) to annul
Resolution Nos. 01-005 and 01-006 in so far as these Resolutions proclaim Honasan as the
winner in the special election. Petitioners anchor their prayers on COMELECs alleged failure to
comply with certain requirements pertaining to the conduct of that special election. Clearly then,
the petition does not seek to determine Honasans right in the exercise of his office as Senator.
Petitioners prayer for the annulment of Honasans proclamation and, ultimately, election is
merely incidental to petitioners cause of action. Consequently, the Court can properly exercise
jurisdiction over the instant petition.

On the Mootness of the Petition

COMELEC contends that its proclamation on 5 June 2001 of the 13 Senators and its subsequent
confirmation on 20 July 2001 of the ranking of the 13 Senators render the instant petition to set
aside Resolutions Nos. 01-005 and 01-006 moot and academic.

Admittedly, the office of the writ of prohibition is to command a tribunal or board to desist from
committing an act threatened to be done without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.64[11] Consequently, the writ will not lie to enjoin
acts already done.65[12] However, as an exception to the rule on mootness, courts will decide a
question otherwise moot if it is capable of repetition yet evading review.66[13] Thus, in Alunan
III v. Mirasol,67[14] we took cognizance of a petition to set aside an order canceling the general
elections for the Sangguniang Kabataan (SK) on 4 December 1992 despite that at the time the
petition was filed, the SK election had already taken place. We noted in Alunan that since the
question of the validity of the order sought to be annulled is likely to arise in every SK elections
and yet the question may not be decided before the date of such elections, the mootness of the
petition is no bar to its resolution. This observation squarely applies to the instant case. The
question of the validity of a special election to fill a vacancy in the Senate in relation to
COMELECs failure to comply with requirements on the conduct of such special election is likely

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65

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to arise in every such election. Such question, however, may not be decided before the date of
the election.

On Petitioners Standing

Honasan questions petitioners standing to bring the instant petition as taxpayers and voters
because petitioners do not claim that COMELEC illegally disbursed public funds. Neither do
petitioners claim that they sustained personal injury because of the issuance of Resolution Nos.
01-005 and 01-006.

Legal standing or locus standi refers to a personal and substantial interest in a case such that the
party has sustained or will sustain direct injury because of the challenged governmental act.68[15]
The requirement of standing, which necessarily sharpens the presentation of issues,69[16] relates
to the constitutional mandate that this Court settle only actual cases or controversies.70[17] Thus,
generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely
to be redressed by a favorable action.71[18]

Applied strictly, the doctrine of standing to litigate will indeed bar the instant petition. In
questioning, in their capacity as voters, the validity of the special election on 14 May 2001,
petitioners assert a harm classified as a generalized grievance. This generalized grievance is
shared in substantially equal measure by a large class of voters, if not all the voters, who voted in
that election.72[19] Neither have petitioners alleged, in their capacity as taxpayers, that the Court
should give due course to the petition because in the special election held on 14 May 2001 tax
money [was] x x x extracted and spent in violation of specific constitutional protections against
abuses of legislative power or that there [was] misapplication of such funds by COMELEC or
that public money [was] deflected to any improper purpose.73[20]

On the other hand, we have relaxed the requirement on standing and exercised our discretion to
give due course to voters suits involving the right of suffrage.74[21] Also, in the recent case of
Integrated Bar of the Philippines v. Zamora,75[22] we gave the same liberal treatment to a

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petition filed by the Integrated Bar of the Philippines (IBP). The IBP questioned the validity of a
Presidential directive deploying elements of the Philippine National Police and the Philippine
Marines in Metro Manila to conduct patrols even though the IBP presented too general an
interest. We held:

[T]he IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law
and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in
support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case.
This is too general an interest which is shared by other groups and the whole citizenry x x x.

Having stated the foregoing, this Court has the discretion to take cognizance of a suit which does
not satisfy the requirement of legal standing when paramount interest is involved. In not a few
cases, the court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people. Thus, when the
issues raised are of paramount importance to the public, the Court may brush aside technicalities
of procedure. In this case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Moreover, because peace and order are under constant threat
and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao
insurgency problem, the legal controversy raised in the petition almost certainly will not go
away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on
standing and to resolve the issue now, rather than later.76[23] (Emphasis supplied)

We accord the same treatment to petitioners in the instant case in their capacity as voters since
they raise important issues involving their right of suffrage, considering that the issue raised in
this petition is likely to arise again.

Whether a Special Election for a Single, Three-Year Term

Senatorial Seat was Validly Held on 14 May 2001

Under Section 9, Article VI of the Constitution, a special election may be called to fill any
vacancy in the Senate and the House of Representatives in the manner prescribed by law, thus:

In case of vacancy in the Senate or in the House of Representatives, a special election may be
called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the
House of Representatives thus elected shall serve only for the unexpired term. (Emphasis
supplied)

To implement this provision of the Constitution, Congress passed R.A. No. 6645, which provides
in pertinent parts:

SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House
of Representatives at least one (1) year before the next regular election for Members of
Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House

76
of Representatives, as the case may be, certifying to the existence of such vacancy and calling for
a special election, shall hold a special election to fill such vacancy. If Congress is in recess, an
official communication on the existence of the vacancy and call for a special election by the
President of the Senate or by the Speaker of the House of Representatives, as the case may be,
shall be sufficient for such purpose. The Senator or Member of the House of Representatives
thus elected shall serve only for the unexpired term.

SECTION 2. The Commission on Elections shall fix the date of the special election, which shall
not be earlier than forty-five (45) days nor later than ninety (90) days from the date of such
resolution or communication, stating among other things the office or offices to be voted for:
Provided, however, That if within the said period a general election is scheduled to be held, the
special election shall be held simultaneously with such general election. (Emphasis supplied)

Section 4 of Republic Act No. 7166 subsequently amended Section 2 of R.A. No. 6645, as
follows:

Postponement, Failure of Election and Special Elections. x x x In case a permanent vacancy

shall occur in the Senate or House of Representatives at least one (1) year before the expiration
of the term, the Commission shall call and hold a special election to fill the vacancy not earlier
than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy.
However, in case of such vacancy in the Senate, the special election shall be held simultaneously
with the next succeeding regular election. (Emphasis supplied)

Thus, in case a vacancy arises in Congress at least one year before the expiration of the term,
Section 2 of R.A. No. 6645, as amended, requires COMELEC: (1) to call a special election by
fixing the date of the special election, which shall not be earlier than sixty (60) days nor later
than ninety (90) after the occurrence of the vacancy but in case of a vacancy in the Senate, the
special election shall be held simultaneously with the next succeeding regular election; and (2) to
give notice to the voters of, among other things, the office or offices to be voted for.

Did COMELEC, in conducting the special senatorial election simultaneously with the 14 May
2001 regular elections, comply with the requirements in Section 2 of R.A. No. 6645?

A survey of COMELECs resolutions relating to the conduct of the 14 May 2001 elections
reveals that they contain nothing which would amount to a compliance, either strict or
substantial, with the requirements in Section 2 of R.A. No. 6645, as amended. Thus, nowhere in
its resolutions77[24] or even in its press releases78[25] did COMELEC state that it would hold a
special election for a single three-year term Senate seat simultaneously with the regular elections
on 14 May 2001. Nor did COMELEC give formal notice that it would proclaim as winner the
senatorial candidate receiving the 13th highest number of votes in the special election.

The controversy thus turns on whether COMELECs failure, assuming it did fail, to comply with
the requirements in Section 2 of R.A. No. 6645, as amended, invalidated the conduct of the

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special senatorial election on 14 May 2001 and accordingly rendered Honasans proclamation as
the winner in that special election void. More precisely, the question is whether the special
election is invalid for lack of a call for such election and for lack of notice as to the office to be
filled and the manner by which the winner in the special election is to be determined. For reasons
stated below, the Court answers in the negative.

COMELECs Failure to Give Notice

of the Time of the Special Election Did Not
Negate the Calling of such Election

The calling of an election, that is, the giving notice of the time and place of its occurrence,
whether made by the legislature directly or by the body with the duty to give such call, is
indispensable to the elections validity.79[26] In a general election, where the law fixes the date of
the election, the election is valid without any call by the body charged to administer the
election.80[27]

In a special election to fill a vacancy, the rule is that a statute that expressly provides that an
election to fill a vacancy shall be held at the next general elections fixes the date at which the
special election is to be held and operates as the call for that election. Consequently, an election
held at the time thus prescribed is not invalidated by the fact that the body charged by law with
the duty of calling the election failed to do so.81[28] This is because the right and duty to hold the
election emanate from the statute and not from any call for the election by some authority82[29]
and the law thus charges voters with knowledge of the time and place of the election.83[30]

Conversely, where the law does not fix the time and place for holding a special election but
empowers some authority to fix the time and place after the happening of a condition precedent,
the statutory provision on the giving of notice is considered mandatory, and failure to do so will
render the election a nullity.84[31]

In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of vacancy in the
Senate, the special election to fill such vacancy shall be held simultaneously with the next
succeeding regular election. Accordingly, the special election to fill the vacancy in the Senate
arising from Senator Guingonas appointment as Vice-President in February 2001 could not be
held at any other time but must be held simultaneously with the next succeeding regular elections
on 14 May 2001. The law charges the voters with knowledge of this statutory notice and

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COMELECs failure to give the additional notice did not negate the calling of such special
election, much less invalidate it.

Our conclusion might be different had the present case involved a special election to fill a
vacancy in the House of Representatives. In such a case, the holding of the special election is
subject to a condition precedent, that is, the vacancy should take place at least one year before
the expiration of the term. The time of the election is left to the discretion of COMELEC subject
only to the limitation that it holds the special election within the range of time provided in
Section 2 of R.A. No. 6645, as amended. This makes mandatory the requirement in Section 2 of
R.A. No. 6645, as amended, for COMELEC to call x x x a special election x x x not earlier than
60 days nor longer than 90 days after the occurrence of the vacancy and give notice of the office
to be filled. The COMELECs failure to so call and give notice will nullify any attempt to hold a
special election to fill the vacancy. Indeed, it will be well-nigh impossible for the voters in the
congressional district involved to know the time and place of the special election and the office
to be filled unless the COMELEC so notifies them.

No Proof that COMELECs

Failure to Give Notice of the Office
to be Filled and the Manner of
Determining the Winner in the Special
Election Misled Voters

The test in determining the validity of a special election in relation to the failure to give notice of
the special election is whether the want of notice has resulted in misleading a sufficient number
of voters as would change the result of the special election. If the lack of official notice misled a
substantial number of voters who wrongly believed that there was no special election to fill a
vacancy, a choice by a small percentage of voters would be void.85[32]

The required notice to the voters in the 14 May 2001 special senatorial election covers two
matters. First, that COMELEC will hold a special election to fill a vacant single three-year term
Senate seat simultaneously with the regular elections scheduled on the same date. Second, that
COMELEC will proclaim as winner the senatorial candidate receiving the 13th highest number of
votes in the special election. Petitioners have neither claimed nor proved that COMELECs
failure to give this required notice misled a sufficient number of voters as would change the
result of the special senatorial election or led them to believe that there was no such special
election.

Instead, what petitioners did is conclude that since COMELEC failed to give such notice, no
special election took place. This bare assertion carries no value. Section 2 of R.A. No. 6645, as
amended, charged those who voted in the elections of 14 May 2001 with the knowledge that the
vacancy in the Senate arising from Senator Guingonas appointment as Vice-President in
February 2001 was to be filled in the next succeeding regular election of 14 May 2001.
Similarly, the absence of formal notice from COMELEC does not preclude the possibility that
the voters had actual notice of the special election, the office to be voted in that election, and the
manner by which COMELEC would determine the winner. Such actual notice could come from

85
many sources, such as media reports of the enactment of R.A. No. 6645 and election propaganda
during the campaign.86[33]

More than 10 million voters cast their votes in favor of Honasan, the party who stands most
prejudiced by the instant petition. We simply cannot disenfranchise those who voted for
Honasan, in the absence of proof that COMELECs omission prejudiced voters in the exercise of
their right of suffrage so as to negate the holding of the special election. Indeed, this Court is
loathe to annul elections and will only do so when it is impossible to distinguish what votes are
lawful and what are unlawful, or to arrive at any certain result whatever, or that the great body of
the voters have been prevented by violence, intimidation, and threats from exercising their
franchise.87[34]

Otherwise, the consistent rule has been to respect the electorates will and let the results of the
election stand, despite irregularities that may have attended the conduct of the elections.88[35]
This is but to acknowledge the purpose and role of elections in a democratic society such as ours,
which is:

to give the voters a direct participation in the affairs of their government, either in determining
who shall be their public officials or in deciding some question of public interest; and for that
purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their
ballot. When that is done and no frauds have been committed, the ballots should be counted and
the election should not be declared null. Innocent voters should not be deprived of their
participation in the affairs of their government for mere irregularities on the part of the election
officers, for which they are in no way responsible. A different rule would make the manner and
method of performing a public duty of greater importance than the duty itself.89[36] (Emphasis in
the original)

Separate Documentation and Canvassing

not Required under Section 2 of R.A. No. 6645,

Neither is there basis in petitioners claim that the manner by which COMELEC conducted the
special senatorial election on 14 May 2001 is a nullity because COMELEC failed to document
separately the candidates and to canvass separately the votes cast for the special election. No
such requirements exist in our election laws. What is mandatory under Section 2 of R.A. No.
6645 is that COMELEC fix the date of the election, if necessary, and state, among others, the
office or offices to be voted for. Similarly, petitioners reliance on Section 73 of B.P. Blg. 881 on
the filing of certificates of candidacy, and on Section 4(4) of R.A. No. 6646 on the printing of
election returns and tally sheets, to support their claim is misplaced. These provisions govern

86

87

88

89
elections in general and in no way require separate documentation of candidates or separate
canvass of votes in a jointly held regular and special elections.

Significantly, the method adopted by COMELEC in conducting the special election on 14 May
2001 merely implemented the procedure specified by the Senate in Resolution No. 84. Initially,
the original draft of Resolution No. 84 as introduced by Senator Francisco Tatad (Senator Tatad)
made no mention of the manner by which the seat vacated by former Senator Guingona would be
filled. However, upon the suggestion of Senator Raul Roco (Senator Roco), the Senate agreed to
amend Resolution No. 84 by providing, as it now appears, that the senatorial candidate garnering
the thirteenth (13th) highest number of votes shall serve only for the unexpired term of former
Senator Teofisto T. Guingona, Jr. Senator Roco introduced the amendment to spare COMELEC
and the candidates needless expenditures and the voters further inconvenience, thus:

S[ENATOR] T[ATAD]. Mr. President, I move that we now consider Proposed Senate
Resolution No. 934 [later converted to Resolution No. 84].

T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none, the motion is
approved.

Consideration of Proposed Senate Resolution No. 934 is now in order. With the permission of
the Body, the Secretary will read only the title and text of the resolution.

T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled

RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN THE SENATE

AND CALLING ON THE COMMISSION ON ELECTIONS (COMELEC) TO FILL UP SUCH
VACANCY THROUGH ELECTION TO BE HELD SIMULTANEOUSLY WITH THE
REGULAR ELECTION ON MAY 14, 2001 AND THE SENATOR THUS ELECTED TO
SERVE ONLY FOR THE UNEXPIRED TERM

WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator of the Philippines in
1998 for a term which will expire on June 30, 2004;

WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal Arroyo

nominated Senator Guingona as Vice-President of the Philippines;

WHEREAS, the nomination of Senator Guingona has been confirmed by a majority vote of all
the members of both House of Congress, voting separately;

WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of the Philippines
on February 9, 2001;

WHEREAS, Republic Act No. 7166 provides that the election for twelve (12) Senators, all
elective Members of the House of Representatives, and all elective provincial city and municipal
officials shall be held on the second Monday and every three years thereafter; Now, therefore, be
it
RESOLVED by the Senate, as it is hereby resolved, to certify, as it hereby certifies, the existence
of a vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up such
vacancy through election to be held simultaneously with the regular election on May 14, 2001
and the Senator thus elected to serve only for the unexpired term.

Adopted,

(Sgd.) FRANCISCO S. TATAD

Senator

S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this resolution.

S[ENATOR] O[SMEA] (J). Mr. President.

T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized.

S[ENATOR] O[SMEA] (J). Thank you, Mr. President. Will the distinguished Majority Leader,
Chairman of the Committee on Rules, author of this resolution, yield for a few questions?

S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]

S[ENATOR] O[SMEA] (J). What a way of flattery. [Laughter]

Mr. President, I think I recall that sometime in 1951 or 1953, there was a special election for a
vacant seat in the Senate. As a matter of fact, the one who was elected in that special election
was then Congressman, later Senator Feli[s]berto Verano.

In that election, Mr. President, the candidates contested the seat. In other words, the electorate
had to cast a vote for a ninth senator because at that time there were only eight to elect a member
or rather, a candidate to that particular seat.

Then I remember, Mr. President, that when we ran after the EDSA revolution, twice there were
24 candidates and the first 12 were elected to a six-year term and the next 12 were elected to a
three-year term.

My question therefore is, how is this going to be done in this election? Is the candidate with the
13th largest number of votes going to be the one to take a three-year term? Or is there going to be
an election for a position of senator for the unexpired term of Sen. Teofisto Guingona?

S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the
Commission on Elections. But personally, I would like to suggest that probably, the candidate
obtaining the 13th largest number of votes be declared as elected to fill up the unexpired term of
Senator Guingona.

S[ENATOR] O[SMEA] (J). Is there a law that would allow the Comelec to conduct such an
election? Is it not the case that the vacancy is for a specific office? I am really at a loss. I am
rising here because I think it is something that we should consider. I do not know if we can No,
this is not a Concurrent Resolution.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.

T[HE] P[RESIDENT]. May I share this information that under Republic Act No. 6645, what is
needed is a resolution of this Chamber calling attention to the need for the holding of a special
election to fill up the vacancy created, in this particular case, by the appointment of our
colleague, Senator Guingona, as Vice President.

It can be managed in the Commission on Elections so that a slot for the particular candidate to
fill up would be that reserved for Mr. Guingonas unexpired term. In other words, it can be
arranged in such a manner.

xxxx

S[ENATOR] R[OCO]. Mr. President.

T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.

S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to the effect
that in the simultaneous elections, the 13th placer be therefore deemed to be the special election
for this purpose. So we just nominate 13 and it is good for our colleagues. It is better for the
candidates. It is also less expensive because the ballot will be printed and there will be less
disfranchisement.

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be such a special
election, maybe, we satisfy the requirement of the law.

T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec.

S[ENATOR] R[OCO]. Yes.

T[HE] P[RESIDENT]. to implement.

S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming elections that
will be held simultaneously as a special election under this law as we understand it.

T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.

S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better,
Mr. President.

T[HE] P[RESIDENT]. What does the sponsor say?

S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal because I do not
believe that there will be anyone running specifically

T[HE] P[RESIDENT]. Correct.

S[ENATOR] T[ATAD]. to fill up this position for three years and campaigning nationwide.

T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidate will be
running with specific groups.

S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.

T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution.

S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other
amendment, I move for the adoption of this resolution.

xxxx

ADOPTION OF S. RES. NO. 934

If there are no other proposed amendments, I move that we adopt this resolution.

T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection?
[Silence] There being none, the motion is approved.90[37]

Evidently, COMELEC, in the exercise of its discretion to use means and methods to conduct the
special election within the confines of R.A. No. 6645, merely chose to adopt the Senates
proposal, as embodied in Resolution No. 84. This Court has consistently acknowledged and
affirmed COMELECs wide latitude of discretion in adopting means to carry out its mandate of
ensuring free, orderly, and honest elections subject only to the limitation that the means so
adopted are not illegal or do not constitute grave abuse of discretion.91[38] COMELECs decision
to abandon the means it employed in the 13 November 1951 and 8 November 1955 special
elections and adopt the method embodied in Resolution No. 84 is but a legitimate exercise of its
discretion. Conversely, this Court will not interfere should COMELEC, in subsequent special
senatorial elections, choose to revert to the means it followed in the 13 November 1951 and 8
November 1955 elections. That COMELEC adopts means that are novel or even disagreeable is
no reason to adjudge it liable for grave abuse of discretion. As we have earlier noted:

90

91
The Commission on Elections is a constitutional body. It is intended to play a distinct and
important part in our scheme of government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this Court also. It should be allowed
considerable latitude in devising means and methods that will insure the accomplishment of the
great objective for which it was created free, orderly and honest elections. We may not agree
fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere.92[39]

A Word to COMELEC

The calling of a special election, if necessary, and the giving of notice to the electorate of
necessary information regarding a special election, are central to an informed exercise of the
right of suffrage. While the circumstances attendant to the present case have led us to conclude
that COMELECs failure to so call and give notice did not invalidate the special senatorial
election held on 14 May 2001, COMELEC should not take chances in future elections. We
remind COMELEC to comply strictly with all the requirements under applicable laws relative to
the conduct of regular elections in general and special elections in particular.

WHEREFORE, we DISMISS the petition for lack of merit.

92
G.R. No. L-45685             November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI

BANKING CORPORATION, petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for
respondent Cu Unjieng.
No appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on August 19, 1937, for the issuance of the writ
of certiorari and of prohibition to the Court of First Instance of Manila so that this court may
review the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled
"The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the
application of the defendant Mariano Cu Unjieng therein for probation under the provisions of
Act No. 4221, and thereafter prohibit the said Court of First Instance from taking any further
action or entertaining further the aforementioned application for probation, to the end that the
defendant Mariano Cu Unjieng may be forthwith committed to prison in accordance with the
final judgment of conviction rendered by this court in said case (G. R. No. 41200). 1

Petitioners herein, the People of the Philippine and the Hongkong and Shanghai
Banking Corporation, are respectively the plaintiff and the offended party, and the
respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case
entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal
case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this
court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh
branch of the Court of First Instance of Manila, who heard the application of the
defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.

The information in the aforesaid criminal case was filed with the Court of First Instance
of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking
Corporation intervening in the case as private prosecutor. After a protracted trial
unparalleled in the annals of Philippine jurisprudence both in the length of time spent by
the court as well as in the volume in the testimony and the bulk of the exhibits
presented, the Court of First Instance of Manila, on January 8, 1934, rendered a
judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate
penalty ranging from four years and two months of prision correccional to eight years of
prision mayor, to pay the costs and with reservation of civil action to the offended party,
the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March
26, 1935, modified the sentence to an indeterminate penalty of from five years and six
months of prision correccional to seven years, six months and twenty-seven days of
prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed
a motion for reconsideration and four successive motions for new trial which were
denied on December 17, 1935, and final judgment was accordingly entered on
December 18, 1935. The defendant thereupon sought to have the case elevated on
certiorari to the Supreme Court of the United States but the latter denied the petition for
certiorari in             November, 1936. This court, on             November 24, 1936, denied
the petition subsequently filed by the defendant for leave to file a second alternative
motion for reconsideration or new trial and thereafter remanded the case to the court of
origin for execution of the judgment.

The instant proceedings have to do with the application for probation filed by the herein
respondent Mariano Cu Unjieng on             November 27, 1936, before the trial court,
under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein
respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the
crime of which he was convicted, that he has no criminal record and that he would
observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro
Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First
Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for
hearing on April 5, 1937.

On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of
probation to the herein respondent Mariano Cu Unjieng. The private prosecution also
filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221,
assuming that it has not been repealed by section 2 of Article XV of the Constitution, is
nevertheless violative of section 1, subsection (1), Article III of the Constitution
guaranteeing equal protection of the laws for the reason that its applicability is not
uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their
respective or otherwise in their respective provinces. The private prosecution also filed
a supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the
provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal
concurred in the opposition of the private prosecution except with respect to the
questions raised concerning the constitutionality of Act No. 4221.

On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution
with a finding that "las pruebas no han establecido de unamanera concluyente la
culpabilidad del peticionario y que todos los hechos probados no son inconsistentes o
incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu
Unjieng "es inocente por duda racional" of the crime of which he stands convicted by
this court in G.R. No. 41200, but denying the latter's petition for probation for the reason
that:

. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la

historia social que se han expuesto en el cuerpo de esta resolucion, que hacen
al peticionario acreedor de la misma, una parte de la opinion publica, atizada por
los recelos y las suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de una causa
criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer
a la superficie conclusiones enteramente differentes, en menoscabo del interes
publico que demanda el respeto de las leyes y del veredicto judicial.

On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an
exception to the resolution denying probation and a notice of intention to file a motion
for reconsideration. An alternative motion for reconsideration or new trial was filed by
counsel on July 13, 1937. This was supplemented by an additional motion for
reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing
on July 31, 1937, but said hearing was postponed at the petition of counsel for the
respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as
amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial
court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion
subsequently filed a petition for leave to withdraw his appearance as amicus curiae on
the ground that the motion for leave to intervene as amici curiae was circulated at a
banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and
that he signed the same "without mature deliberation and purely as a matter of courtesy
to the person who invited me (him)."

On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for
the issuance of an order of execution of the judgment of this court in said case and
forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to
said judgment.

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to
intervene as amici curiae aforementioned, asking that a date be set for a hearing of the
same and that, at all events, said motion should be denied with respect to certain
attorneys signing the same who were members of the legal staff of the several counsel
for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera
issued an order requiring all parties including the movants for intervention as amici
curiae to appear before the court on August 14, 1937. On the last-mentioned date, the
Fiscal of the City of Manila moved for the hearing of his motion for execution of
judgment in preference to the motion for leave to intervene as amici curiae but, upon
objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the
hearing of both motions. The respondent judge thereupon set the hearing of the motion
for execution on August 21, 1937, but proceeded to consider the motion for leave to
intervene as amici curiae as in order. Evidence as to the circumstances under which
said motion for leave to intervene as amici curiae was signed and submitted to court
was to have been heard on August 19, 1937. But at this juncture, herein petitioners
came to this court on extraordinary legal process to put an end to what they alleged was
an interminable proceeding in the Court of First Instance of Manila which fostered "the
campaign of the defendant Mariano Cu Unjieng for delay in the execution of the
sentence imposed by this Honorable Court on him, exposing the courts to criticism and
ridicule because of the apparent inability of the judicial machinery to make effective a
final judgment of this court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly suspended upon the
issuance of a temporary restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and
prohibition, herein petitioners allege that the respondent judge has acted without
jurisdiction or in excess of his jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu
Unjieng under probation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is
made to apply only to the provinces of the Philippines; it nowhere states that it is
to be made applicable to chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect
that in the absence of a special provision, the term "province" may be construed
to include the City of Manila for the purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not a law of general application
because it is made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221
would not be applicable to it because it has provided for the salary of a probation
officer as required by section 11 thereof; it being immaterial that there is an
Insular Probation Officer willing to act for the City of Manila, said Probation
Officer provided for in section 10 of Act No. 4221 being different and distinct from
the Probation Officer provided for in section 11 of the same Act.

II. Because even if the respondent judge originally had jurisdiction to entertain the
application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted
without jurisdiction or in excess thereof in continuing to entertain the motion for
reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application
for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221
to the granting or denying of applications for probation.
 (2) After he had issued the order denying Mariano Cu Unjieng's petition for
probation on June 28, 1937, it became final and executory at the moment of its
rendition.

(3) No right on appeal exists in such cases.

(4) The respondent judge lacks the power to grant a rehearing of said order or to
modify or change the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent
of the crime for which he was convicted by final judgment of this court, which finding is
not only presumptuous but without foundation in fact and in law, and is furthermore in
contempt of this court and a violation of the respondent's oath of office as ad interim
judge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which
became imperative when he issued his order of June 28, 1937, denying the application
for probation, to commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the
ordinary course of law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and

Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine
Legislature providing for a system of probation for persons eighteen years of age or
over who are convicted of crime, is unconstitutional because it is violative of section 1,
subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal
protection of the laws because it confers upon the provincial board of its province the
absolute discretion to make said law operative or otherwise in their respective
provinces, because it constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the Jones Law
(section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the
National Assembly; and for the further reason that it gives the provincial boards, in
contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28),
the authority to enlarge the powers of the Court of First Instance of different provinces
without uniformity. In another supplementary petition dated September 14, 1937, the
Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the
Philippine Islands, concurs for the first time with the issues raised by other petitioner
regarding the constitutionality of Act No. 4221, and on the oral argument held on
October 6, 1937, further elaborated on the theory that probation is a form of reprieve
and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief
Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two
memorandums in which he contended that Act No. 4221 not only encroaches upon the
pardoning power to the executive, but also constitute an unwarranted delegation of
legislative power and a denial of the equal protection of the laws. On October 9, 1937,
two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in
behalf of the People of the Philippine Islands, and by counsel for the petitioner, the
Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to
impugn the validity of its own laws and the other contending that Act No. 4221
constitutes an unwarranted delegation of legislative power, were presented. Another
joint memorandum was filed by the same persons on the same day, October 9, 1937,
alleging that Act No. 4221 is unconstitutional because it denies the equal protection of
the laws and constitutes an unlawful delegation of legislative power and, further, that the
whole Act is void: that the Commonwealth is not estopped from questioning the validity
of its laws; that the private prosecution may intervene in probation proceedings and may
attack the probation law as unconstitutional; and that this court may pass upon the
constitutional question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument
and memorandums, challenge each and every one of the foregoing proposition raised
by the petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.

(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and
was still pending resolution before the trial court when the present petition was
filed with this court.

(3) That the petitioners having themselves raised the question as to the
execution of judgment before the trial court, said trial court has acquired
exclusive jurisdiction to resolve the same under the theory that its resolution
denying probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the
Court of First Instance to decide the question as to whether or not the execution
will lie, this court nevertheless cannot exercise said jurisdiction while the Court of
First Instance has assumed jurisdiction over the same upon motion of herein
petitioners themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to
deprive the trial court of its jurisdiction over the case and elevate the proceedings
to this court, should not be tolerated because it impairs the authority and dignity
of the trial court which court while sitting in the probation cases is "a court of
limited jurisdiction but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the
question submitted to and pending resolution by the trial court, the present action
would not lie because the resolution of the trial court denying probation is
 appealable; for although the Probation Law does not specifically provide that an
applicant for probation may appeal from a resolution of the Court of First Instance
denying probation, still it is a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable to the superior court.

(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and
executory for the reason that the said respondent had filed an alternative motion
for reconsideration and new trial within the requisite period of fifteen days, which
motion the trial court was able to resolve in view of the restraining order
improvidently and erroneously issued by this court.lawphi1.net

(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when
he presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.

(9) That under the supposition that the order of the trial court denying probation is
not appealable, it is incumbent upon the accused to file an action for the
issuance of the writ of certiorari with mandamus, it appearing that the trial court,
although it believed that the accused was entitled to probation, nevertheless
denied probation for fear of criticism because the accused is a rich man; and
that, before a petition for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a
motion for reconsideration specifying the error committed so that the trial court
could have an opportunity to correct or cure the same.

(10) That on hypothesis that the resolution of this court is not appealable, the trial
court retains its jurisdiction within a reasonable time to correct or modify it in
accordance with law and justice; that this power to alter or modify an order or
resolution is inherent in the courts and may be exercise either motu proprio or
upon petition of the proper party, the petition in the latter case taking the form of
a motion for reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as
respondent allege, said court cannot order execution of the same while it is on
appeal, for then the appeal would not be availing because the doors of probation
will be closed from the moment the accused commences to serve his sentence
(Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937, counsel for the respondents maintain
that Act No. 4221 is constitutional because, contrary to the allegations of the petitioners,
it does not constitute an undue delegation of legislative power, does not infringe the
equal protection clause of the Constitution, and does not encroach upon the pardoning
power of the Executive. In an additional memorandum filed on the same date, counsel
for the respondents reiterate the view that section 11 of Act No. 4221 is free from
constitutional objections and contend, in addition, that the private prosecution may not
intervene in probation proceedings, much less question the validity of Act No. 4221; that
both the City Fiscal and the Solicitor-General are estopped from questioning the validity
of the Act; that the validity of Act cannot be attacked for the first time before this court;
that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is
separable from the rest of the Act. The last memorandum for the respondent Mariano
Cu Unjieng was denied for having been filed out of time but was admitted by resolution
of this court and filed anew on             November 5, 1937. This memorandum elaborates
on some of the points raised by the respondents and refutes those brought up by the
petitioners.

In the scrutiny of the pleadings and examination of the various aspects of the present
case, we noted that the court below, in passing upon the merits of the application of the
respondent Mariano Cu Unjieng and in denying said application assumed the task not
only of considering the merits of the application, but of passing upon the culpability of
the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No.
41200.) Probation implies guilt be final judgment. While a probation case may look into
the circumstances attending the commission of the offense, this does not authorize it to
reverse the findings and conclusive of this court, either directly or indirectly, especially
wherefrom its own admission reliance was merely had on the printed briefs, averments,
and pleadings of the parties. As already observed by this court in Shioji vs. Harvey
([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every
Court of First Instance could enjoy the privilege of overruling decisions of the Supreme
Court, there would be no end to litigation, and judicial chaos would result." A becoming
modesty of inferior courts demands conscious realization of the position that they
occupy in the interrelation and operation of the intergrated judicial system of the nation.

After threshing carefully the multifarious issues raised by both counsel for the petitioners
and the respondents, this court prefers to cut the Gordian knot and take up at once the
two fundamental questions presented, namely, (1) whether or not the constitutionality of
Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative,
whether or not said Act is constitutional. Considerations of these issues will involve a
discussion of certain incidental questions raised by the parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles
is necessary. It is a well-settled rule that the constitutionality of an act of the legislature
will not be determined by the courts unless that question is properly raised and
presented inappropriate cases and is necessary to a determination of the case; i.e., the
issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and
Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently raised in

ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies,
particularly where the remedies in the ordinary course of law even if available, are not
plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818),
this court held that the question of the constitutionality of a statute may be raised by the
petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of
the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this
court declared an act of the legislature unconstitutional in an action of quo warranto
brought in the name of the Government of the Philippines. It has also been held that the
constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J.,
p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to
the contrary; on an application for injunction to restrain action under the challenged
statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an
application for preliminary injunction where the determination of the constitutional
question is necessary to a decision of the case. (12 C. J., p. 783.) The same may be
said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil.,
385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court
[1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N.
S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this
court twelve years ago was, like the present one, an original action for certiorari and
prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese
Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue
was not met squarely by the respondent in a demurrer. A point was raised "relating to
the propriety of the constitutional question being decided in original proceedings in
prohibition." This court decided to take up the constitutional question and, with two
justices dissenting, held that Act No. 2972 was constitutional. The case was elevated on
writ of certiorari to the Supreme Court of the United States which reversed the judgment
of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On
the question of jurisdiction, however, the Federal Supreme Court, though its Chief
Justice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516, the
Philippine supreme court is granted concurrent jurisdiction in prohibition with
courts of first instance over inferior tribunals or persons, and original jurisdiction
over courts of first instance, when such courts are exercising functions without or
in excess of their jurisdiction. It has been held by that court that the question of
the validity of the criminal statute must usually be raised by a defendant in the
trial court and be carried regularly in review to the Supreme Court. (Cadwallader-
Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new
act seriously affected numerous persons and extensive property rights, and was
likely to cause a multiplicity of actions, the Supreme Court exercised its discretion
to bring the issue to the act's validity promptly before it and decide in the interest
of the orderly administration of justice. The court relied by analogy upon the
cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932;
28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law.
ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and
Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup.
Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was
raise by demurrer to the petition, this is now disclaimed on behalf of the
respondents, and both parties ask a decision on the merits. In view of the broad
 powers in prohibition granted to that court under the Island Code, we acquiesce
in the desire of the parties.

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior
tribunal from usurping a jurisdiction with which it is not legally vested. (High,
Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in
the cases, is that the merit of prohibition will not lie whether the inferior court has
jurisdiction independent of the statute the constitutionality of which is questioned,
because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and
consequently the complainant in such cases ordinarily has adequate remedy by appeal
without resort to the writ of prohibition. But where the inferior court or tribunal derives its
jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ
of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51
Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384;
84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W.
Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely
from Act No. 4221 which prescribes in detailed manner the procedure for granting
probation to accused persons after their conviction has become final and before they
have served their sentence. It is true that at common law the authority of the courts to
suspend temporarily the execution of the sentence is recognized and, according to a
number of state courts, including those of Massachusetts, Michigan, New York, and
Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex
rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58
Ohio St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27;
61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355),
the Supreme Court of the United States expressed the opinion that under the common
law the power of the court was limited to temporary suspension, and brushed aside the
contention as to inherent judicial power saying, through Chief Justice White:

Indisputably under our constitutional system the right to try offenses against the
criminal laws and upon conviction to impose the punishment provided by law is
judicial, and it is equally to be conceded that, in exerting the powers vested in
them on such subject, courts inherently possess ample right to exercise
reasonable, that is, judicial, discretion to enable them to wisely exert their
authority. But these concessions afford no ground for the contention as to power
here made, since it must rest upon the proposition that the power to enforce
begets inherently a discretion to permanently refuse to do so. And the effect of
the proposition urged upon the distribution of powers made by the Constitution
will become apparent when it is observed that indisputable also is it that the
authority to define and fix the punishment for crime is legislative and includes the
right in advance to bring within judicial discretion, for the purpose of executing
 the statute, elements of consideration which would be otherwise beyond the
scope of judicial authority, and that the right to relieve from the punishment, fixed
by law and ascertained according to the methods by it provided belongs to the
executive department.

Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons
vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also
reached the conclusion that the power to suspend the execution of sentences
pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he
said, "that in the absence of statutory authority, it does not lie within the power of the
courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are
correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on
application for prohibition where the question has not been properly brought to the
attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30
S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case
at bar, it is unquestionable that the constitutional issue has been squarely presented not
only before this court by the petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court
below, declined to pass upon the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may not raise said question. The
respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec.
177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E.,
742, 743), as authority for the proposition that a court will not consider any attack made
on the constitutionality of a statute by one who has no interest in defeating it because
his rights are not affected by its operation. The respondent judge further stated that it
may not motu proprio take up the constitutional question and, agreeing with Cooley that
"the power to declare a legislative enactment void is one which the judge, conscious of
the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the
assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits
that the constitutional question was raised before it, it refused to consider the question
solely because it was not raised by a proper party. Respondents herein reiterates this
view. The argument is advanced that the private prosecution has no personality to
appear in the hearing of the application for probation of defendant Mariano Cu Unjieng
in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue
of constitutionality was not properly raised in the lower court. Although, as a general
rule, only those who are parties to a suit may question the constitutionality of a statute
involved in a judicial decision, it has been held that since the decree pronounced by a
court without jurisdiction is void, where the jurisdiction of the court depends on the
validity of the statute in question, the issue of the constitutionality will be considered on
its being brought to the attention of the court by persons interested in the effect to be
given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the
issue was not properly raised in the court below by the proper party, it does not follow
that the issue may not be here raised in an original action of certiorari and prohibitions.
It is true that, as a general rule, the question of constitutionality must be raised at the
earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised
at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J.,
p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-
195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sounds discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is
said that the question may be raised for the first time at any stage of the proceedings,
either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been
held that it is the duty of a court to pass on the constitutional question, though raised for
the first time on appeal, if it appears that a determination of the question is necessary to
a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky.,
674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S.
W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And
it has been held that a constitutional question will be considered by an appellate court at
any time, where it involves the jurisdiction of the court below (State vs. Burke [1911],
175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional
question raised for the first time before this court in these proceedings, we turn again
and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the
hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the
private prosecution, is not the proper party to raise the constitutional question here — a
point we do not now have to decide — we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is
such a proper party in the present proceedings. The unchallenged rule is that the
person who impugns the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustained, direct injury as a result
of its enforcement. It goes without saying that if Act No. 4221 really violates the
constitution, the People of the Philippines, in whose name the present action is brought,
has a substantial interest in having it set aside. Of grater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule
that the state can challenge the validity of its own laws. In Government of the Philippine
Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of
the legislature unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W.
426, 428, 429), the State of Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to renew a mining corporation,
alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief
law officer of the state to question the constitutionality of the statute was though, as a
general rule, only those who are parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held that since the decree pronounced
by a court without jurisdiction in void, where the jurisdiction of the court depends on the
validity of the statute in question, the issue of constitutionality will be considered on its
being brought to the attention of the court by persons interested in the effect to begin
the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue
was not properly raised in the court below by the proper party, it does not follow that the
issue may not be here raised in an original action of certiorari and prohibition. It is true
that, as a general rule, the question of constitutionality must be raised at the earliest
opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the
trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p.
786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-
195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question affecting the
constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is
said that the question may be raised for the first time at any state of the proceedings,
either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been
held that it is the duty of a court to pass on the constitutional question, though raised for
first time on appeal, if it appears that a determination of the question is necessary to a
decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky.,
674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S.
W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And
it has been held that a constitutional question will be considered by an appellate court at
any time, where it involves the jurisdiction of the court below (State vs. Burke [1911],
175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional
question raised for the first time before this court in these proceedings, we turn again
and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the
hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the
private prosecution, is not the proper party to raise the constitutional question here — a
point we do not now have to decide — we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is
such a proper party in the present proceedings. The unchallenged rule is that the
person who impugns the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as a result of
its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is brought,
has a substantial interest in having it set aside. Of greater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule
that the state can challenge the validity of its own laws. In Government of the Philippine
Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of
the legislature unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W.,
426, 428, 429), the State of Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to renew a mining corporation,
alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief
law officer of the state to question the constitutionality of the statute was itself
questioned. Said the Supreme Court of Michigan, through Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the
validity of a law enacted by their representatives; that to an accusation by the
people of Michigan of usurpation their government, a statute enacted by the
people of Michigan is an adequate answer. The last proposition is true, but, if the
statute relied on in justification is unconstitutional, it is statute only in form, and
lacks the force of law, and is of no more saving effect to justify action under it
than if it had never been enacted. The constitution is the supreme law, and to its
behests the courts, the legislature, and the people must bow . . . The legislature
and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an
acquiescence by a party affected by an unconstitutional act of the legislature:
"The people have a deep and vested interest in maintaining all the constitutional
limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum.,
314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action
(mandamus) was brought by the Attorney-General of Kansas to test the constitutionality
of a statute of the state. In disposing of the question whether or not the state may bring
the action, the Supreme Court of Kansas said:

. . . the state is a proper party — indeed, the proper party — to bring this action.
The state is always interested where the integrity of its Constitution or statutes is
involved.

"It has an interest in seeing that the will of the Legislature is not
disregarded, and need not, as an individual plaintiff must, show
grounds of fearing more specific injury. (State vs. Kansas City 60
Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103
Pac., 839.)

Where the constitutionality of a statute is in doubt the state's law officer, its
Attorney-General, or county attorney, may exercise his bet judgment as to what
sort of action he will bring to have the matter determined, either by quo warranto
to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49
L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley,
82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its
questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45
Pac., 122).

Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co.
[1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs.
Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39
Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E.,
1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176
La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said:

It is contended by counsel for Herbert Watkins that a district attorney, being

charged with the duty of enforcing the laws, has no right to plead that a law is
unconstitutional. In support of the argument three decisions are cited, viz.: State
ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann.,
1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans
(41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor
(47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid
a district attorney to plead that a statute is unconstitutional if he finds if in conflict
with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs.
Judge, etc., the ruling was the judge should not, merely because he believed a
certain statute to be unconstitutional forbid the district attorney to file a bill of
information charging a person with a violation of the statute. In other words, a
judge should not judicially declare a statute unconstitutional until the question of
constitutionality is tendered for decision, and unless it must be decided in order
to determine the right of a party litigant. State ex rel. Nicholls, Governor, etc., is
authority for the proposition merely that an officer on whom a statute imposes the
duty of enforcing its provisions cannot avoid the duty upon the ground that he
considers the statute unconstitutional, and hence in enforcing the statute he is
immune from responsibility if the statute be unconstitutional. State ex rel.
Banking Co., etc., is authority for the proposition merely that executive officers,
e.g., the state auditor and state treasurer, should not decline to perform
ministerial duties imposed upon them by a statute, on the ground that they
believe the statute is unconstitutional.

It is the duty of a district attorney to enforce the criminal laws of the state, and,
above all, to support the Constitution of the state. If, in the performance of his
duty he finds two statutes in conflict with each other, or one which repeals
another, and if, in his judgment, one of the two statutes is unconstitutional, it is
his duty to enforce the other; and, in order to do so, he is compelled to submit to
the court, by way of a plea, that one of the statutes is unconstitutional. If it were
not so, the power of the Legislature would be free from constitutional limitations
in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general
proposition that the state may impugn the validity of its laws. They have not cited any
authority running clearly in the opposite direction. In fact, they appear to have
proceeded on the assumption that the rule as stated is sound but that it has no
application in the present case, nor may it be invoked by the City Fiscal in behalf of the
People of the Philippines, one of the petitioners herein, the principal reasons being that
the validity before this court, that the City Fiscal is estopped from attacking the validity
of the Act and, not authorized challenge the validity of the Act in its application outside
said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and
23.)

The mere fact that the Probation Act has been repeatedly relied upon the past and all
that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the
contrary, has been impliedly regarded by him as constitutional, is no reason for
considering the People of the Philippines estopped from nor assailing its validity. For
courts will pass upon a constitutional questions only when presented before it in bona
fide cases for determination, and the fact that the question has not been raised before is
not a valid reason for refusing to allow it to be raised later. The fiscal and all others are
justified in relying upon the statute and treating it as valid until it is held void by the
courts in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221
is necessary to the resolution of the instant case. For, ". . . while the court will meet the
question with firmness, where its decision is indispensable, it is the part of wisdom, and
just respect for the legislature, renders it proper, to waive it, if the case in which it arises,
can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2
Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that
the determination of a constitutional question is necessary whenever it is essential to
the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy
[1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann.
Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed.,
520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R.
Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely
on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co.
vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81;
74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to
probation solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact
that the Probation Act is a new addition to our statute books and its validity has never
before been passed upon by the courts; that may persons accused and convicted of
crime in the City of Manila have applied for probation; that some of them are already on
probation; that more people will likely take advantage of the Probation Act in the future;
and that the respondent Mariano Cu Unjieng has been at large for a period of about four
years since his first conviction. All wait the decision of this court on the constitutional
question. Considering, therefore, the importance which the instant case has assumed
and to prevent multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People
vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis
vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga
and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra,
an analogous situation confronted us. We said: "Inasmuch as the property and personal
rights of nearly twelve thousand merchants are affected by these proceedings, and
inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest
of the public welfare and for the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that we may decide the main issue.
We have here an extraordinary situation which calls for a relaxation of the general rule."
Our ruling on this point was sustained by the Supreme Court of the United States. A
more binding authority in support of the view we have taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act No.
4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce
the Constitution. This court, by clear implication from the provisions of section 2,
subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of
the national legislature invalid because in conflict with the fundamental lay. It will not
shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not
hesitate to give effect to the supreme law by setting aside a statute in conflict therewith.
This is of the essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all
reasonable doubts should be resolved in favor of the constitutionality of a statute. An act
of the legislature approved by the executive, is presumed to be within constitutional
limitations. The responsibility of upholding the Constitution rests not on the courts alone
but on the legislature as well. "The question of the validity of every statute is first
determined by the legislative department of the government itself." (U.S. vs. Ten Yu
[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276;
U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts
sustained by the sanction of the executive. The members of the Legislature and the
Chief Executive have taken an oath to support the Constitution and it must be presumed
that they have been true to this oath and that in enacting and sanctioning a particular
law they did not intend to violate the Constitution. The courts cannot but cautiously
exercise its power to overturn the solemn declarations of two of the three grand
departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political
philosophy which bids the judiciary to reflect the wisdom of the people as expressed
through an elective Legislature and an elective Chief Executive. It follows, therefore,
that the courts will not set aside a law as violative of the Constitution except in a clear
case. This is a proposition too plain to require a citation of authorities.

One of the counsel for respondents, in the course of his impassioned argument, called
attention to the fact that the President of the Philippines had already expressed his
opinion against the constitutionality of the Probation Act, adverting that as to the
Executive the resolution of this question was a foregone conclusion. Counsel, however,
reiterated his confidence in the integrity and independence of this court. We take notice
of the fact that the President in his message dated September 1, 1937, recommended
to the National Assembly the immediate repeal of the Probation Act (No. 4221); that this
message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing
the probation Act, subject to certain conditions therein mentioned; but that said bill was
vetoed by the President on September 13, 1937, much against his wish, "to have
stricken out from the statute books of the Commonwealth a law . . . unfair and very likely
unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill
referred to, the President exercised his constitutional prerogative. He may express the
reasons which he may deem proper for taking such a step, but his reasons are not
binding upon us in the determination of actual controversies submitted for our
determination. Whether or not the Executive should express or in any manner insinuate
his opinion on a matter encompassed within his broad constitutional power of veto but
which happens to be at the same time pending determination in this court is a question
of propriety for him exclusively to decide or determine. Whatever opinion is expressed
by him under these circumstances, however, cannot sway our judgment on way or
another and prevent us from taking what in our opinion is the proper course of action to
take in a given case. It if is ever necessary for us to make any vehement affirmance
during this formative period of our political history, it is that we are independent of the
Executive no less than of the Legislative department of our government — independent
in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn
duty as we see it and as we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That
said Act encroaches upon the pardoning power of the Executive; (2) that its constitutes
an undue delegation of legislative power and (3) that it denies the equal protection of
the laws.

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones
Law, in force at the time of the approval of Act No. 4221, otherwise known as the
Probation Act, vests in the Governor-General of the Philippines "the exclusive power to
grant pardons and reprieves and remit fines and forfeitures". This power is now vested
in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the
Jones Law and the Constitution differ in some respects. The adjective "exclusive" found
in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at
common law, pardon could be granted any time after the commission of the offense,
either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In
re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus
empowered, like the President of the United States, to pardon a person before the facts
of the case were fully brought to light. The framers of our Constitution thought this
undesirable and, following most of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So, too, under the new Constitution, the
pardoning power does not extend to "cases of impeachment". This is also the rule
generally followed in the United States (Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar
of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace is further
restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421;
Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake
[1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In
England, Judgment on impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed. The House of Lords, on a
conviction may, by its sentence, inflict capital punishment, perpetual banishment,
perpetual banishment, fine or imprisonment, depending upon the gravity of the offense
committed, together with removal from office and incapacity to hold office. (Com. vs.
Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and
of the power of the executive to impose, in the pardons he may grant, such conditions,
restrictions and limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the National
Assembly. We need not dwell at length on the significance of these fundamental
changes. It is sufficient for our purposes to state that the pardoning power has remained
essentially the same. The question is: Has the pardoning power of the Chief Executive
under the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief
Executive. The exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away
nor fettered by any legislative restrictions, nor can like power be given by the legislature
to any other officer or authority. The coordinate departments of government have
nothing to do with the pardoning power, since no person properly belonging to one of
the departments can exercise any powers appertaining to either of the others except in
cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . .
. where the pardoning power is conferred on the executive without express or implied
limitations, the grant is exclusive, and the legislature can neither exercise such power
itself nor delegate it elsewhere, nor interfere with or control the proper exercise
thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any
pardoning power upon the courts it is for that reason unconstitutional and void. But does
it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of
the United States ruled in 1916 that an order indefinitely suspending sentenced was
void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an
exhaustive review of the authorities, expressed the opinion of the court that under the
common law the power of the court was limited to temporary suspension and that the
right to suspend sentenced absolutely and permanently was vested in the executive
branch of the government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ". . . and so
far as the future is concerned, that is, the causing of the imposition of penalties as fixed
to be subject, by probation legislation or such other means as the legislative mind may
devise, to such judicial discretion as may be adequate to enable courts to meet by the
exercise of an enlarged but wise discretion the infinite variations which may be
presented to them for judgment, recourse must be had Congress whose legislative
power on the subject is in the very nature of things adequately complete." (Quoted in
Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation
Association and others to agitate for the enactment by Congress of a federal probation
law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C.
title 18, sec. 724). This was followed by an appropriation to defray the salaries and
expenses of a certain number of probation officers chosen by civil service. (Johnson,
Probation for Juveniles and Adults, p. 14.)

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed.,
309), the Supreme Court of the United States, through Chief Justice Taft, held that
when a person sentenced to imprisonment by a district court has begun to serve his
sentence, that court has no power under the Probation Act of March 4, 1925 to grant
him probation even though the term at which sentence was imposed had not yet
expired. In this case of Murray, the constitutionality of the probation Act was not
considered but was assumed. The court traced the history of the Act and quoted from
the report of the Committee on the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts
exercised a form of probation either, by suspending sentence or by placing the
defendants under state probation officers or volunteers. In this case, however (Ex
parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup.
Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the
district courts to suspend sentenced. In the same opinion the court pointed out
the necessity for action by Congress if the courts were to exercise probation
powers in the future . . .

Since this decision was rendered, two attempts have been made to enact
probation legislation. In 1917, a bill was favorably reported by the Judiciary
Committee and passed the House. In 1920, the judiciary Committee again
favorably reported a probation bill to the House, but it was never reached for
definite action.

If this bill is enacted into law, it will bring the policy of the Federal government
with reference to its treatment of those convicted of violations of its criminal laws
in harmony with that of the states of the Union. At the present time every state
has a probation law, and in all but twelve states the law applies both to adult and
juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults
[1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal
courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth
Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under
consideration have been reviewed by the Circuit Court of Appeals of the Ninth
Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the
 same held in no manner to encroach upon the pardoning power of the President.
This case will be found to contain an able and comprehensive review of the law
applicable here. It arose under the act we have to consider, and to it and the
authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590,
594), as is also to a decision of the Circuit Court of Appeals of the Seventh
Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and
unequivocal language, pointed to Congress as possessing the requisite power to enact
probation laws, that a federal probation law as actually enacted in 1925, and that the
constitutionality of the Act has been assumed by the Supreme Court of the United
States in 1928 and consistently sustained by the inferior federal courts in a number of
earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United
States, may legally enact a probation law under its broad power to fix the punishment of
any and all penal offenses. This conclusion is supported by other authorities. In Ex
parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said:
"It is clearly within the province of the Legislature to denominate and define all classes
of crime, and to prescribe for each a minimum and maximum punishment." And in State
vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B,
1189), the court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial judges, if it
sees fit, the largest discretion as to the sentence to be imposed, as to the beginning and
end of the punishment and whether it should be certain or indeterminate or conditional."
(Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine
Legislature has defined all crimes and fixed the penalties for their violation. Invariably,
the legislature has demonstrated the desire to vest in the courts — particularly the trial
courts — large discretion in imposing the penalties which the law prescribes in particular
cases. It is believed that justice can best be served by vesting this power in the courts,
they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain
from imposing a sentence merely because, taking into consideration the degree of
malice and the injury caused by the offense, the penalty provided by law is clearly
excessive, the courts being allowed in such case to submit to the Chief Executive,
through the Department of Justice, such statement as it may deem proper (see art. 5,
Revised Penal Code), in cases where both mitigating and aggravating circumstances
are attendant in the commission of a crime and the law provides for a penalty composed
of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty
according to the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S.
vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the
Revised Penal Code empowers the courts to determine, within the limits of each
periods, in case the penalty prescribed by law contains three periods, the extent of the
evil produced by the crime. In the imposition of fines, the courts are allowed to fix any
amount within the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the culprit. (Art.
66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a
discretionary penalty shall be imposed" upon a person under fifteen but over nine years
of age, who has not acted without discernment, but always lower by two degrees at
least than that prescribed by law for the crime which he has committed. Article 69 of the
same Code provides that in case of "incomplete self-defense", i.e., when the crime
committed is not wholly excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature of the conditions
of exemption present or lacking." And, in case the commission of what are known as
"impossible" crimes, "the court, having in mind the social danger and the degree of
criminality shown by the offender," shall impose upon him either arresto mayor or a fine
ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment
is deducted form the entire term of imprisonment, except in certain cases expressly
mentioned (art. 29); the death penalty is not imposed when the guilty person is more
than seventy years of age, or where upon appeal or revision of the case by the
Supreme Court, all the members thereof are not unanimous in their voting as to the
propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised
Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is
not to be inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of age (art.
83); and when a convict shall become insane or an imbecile after final sentence has
been pronounced, or while he is serving his sentenced, the execution of said sentence
shall be suspended with regard to the personal penalty during the period of such
insanity or imbecility (art. 79).

But the desire of the legislature to relax what might result in the undue harshness of the
penal laws is more clearly demonstrated in various other enactments, including the
probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No.
4103 and subsequently amended by Act No. 4225, establishing a system of parole
(secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the
law. Section 1 of the law as amended provides; "hereafter, in imposing a prison
sentence for an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the said Code, and to a minimum which shall be within the
range of the penalty next lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum
fixed by said law and the minimum shall not be less than the minimum term prescribed
by the same." Certain classes of convicts are, by section 2 of the law, excluded from the
operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act
No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original
Act and section 1 of the amendatory Act have become article 80 of the Revised Penal
Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended
by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested
the intention of the legislature to "humanize" the penal laws. It allows, in effect, the
modification in particular cases of the penalties prescribed by law by permitting the
suspension of the execution of the judgment in the discretion of the trial court, after due
hearing and after investigation of the particular circumstances of the offenses, the
criminal record, if any, of the convict, and his social history. The Legislature has in
reality decreed that in certain cases no punishment at all shall be suffered by the convict
as long as the conditions of probation are faithfully observed. It this be so, then, it
cannot be said that the Probation Act comes in conflict with the power of the Chief
Executive to grant pardons and reprieves, because, to use the language of the
Supreme Court of New Mexico, "the element of punishment or the penalty for the
commission of a wrong, while to be declared by the courts as a judicial function under
and within the limits of law as announced by legislative acts, concerns solely the
procedure and conduct of criminal causes, with which the executive can have nothing to
do." (Ex parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843),
the court upheld the constitutionality of the Georgia probation statute against the
contention that it attempted to delegate to the courts the pardoning power lodged by the
constitution in the governor alone is vested with the power to pardon after final sentence
has been imposed by the courts, the power of the courts to imposed any penalty which
may be from time to time prescribed by law and in such manner as may be defined
cannot be questioned."

We realize, of course, the conflict which the American cases disclose. Some cases hold
it unlawful for the legislature to vest in the courts the power to suspend the operation of
a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning
power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St.
Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran
[1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1
Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650;
People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230;
Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S.
W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104
Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs.
Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N.
W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590;
Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A.
4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R.,
1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89
Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac.,
874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69
Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371;
Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257
Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R.
A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle
[1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529;
State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs.
Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel.
Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J.
Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151
Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L.
R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn
[1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y.
Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart
[1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29
Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69;
State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas.,
1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn.,
100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.
State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex.
Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S.
W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs.
State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197;
136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs.
Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich
[1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long
catena of authorities holding that the courts may be legally authorized by the legislature
to suspend sentence by the establishment of a system of probation however
characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac.,
29; 26 A. L. R., 393), deserved particular mention. In that case, a statute enacted in
1921 which provided for the suspension of the execution of a sentence until otherwise
ordered by the court, and required that the convicted person be placed under the
charge of a parole or peace officer during the term of such suspension, on such terms
as the court may determine, was held constitutional and as not giving the court a power
in violation of the constitutional provision vesting the pardoning power in the chief
executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually
district and different from each other, both in origin and in nature. In People ex rel.
Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R.
A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said:

. . . The power to suspend sentence and the power to grant reprieves and
pardons, as understood when the constitution was adopted, are totally distinct
and different in their nature. The former was always a part of the judicial power;
the latter was always a part of the executive power. The suspension of the
sentence simply postpones the judgment of the court temporarily or indefinitely,
but the conviction and liability following it, and the civil disabilities, remain and
become operative when judgment is rendered. A pardon reaches both the
 punishment prescribed for the offense and the guilt of the offender. It releases
the punishment, and blots out of existence the guilt, so that in the eye of the law,
the offender is as innocent as if he had never committed the offense. It removes
the penalties and disabilities, and restores him to all his civil rights. It makes him,
as it were, a new man, and gives him a new credit and capacity. (Ex parte
Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13
Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly familiar with
the principles governing the power to grant pardons, and it was conferred by
these instruments upon the executive with full knowledge of the law upon the
subject, and the words of the constitution were used to express the authority
formerly exercised by the English crown, or by its representatives in the colonies.
(Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was
understood, it did not comprehend any part of the judicial functions to suspend
sentence, and it was never intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the exercise of that power in
regard to its own judgments, that criminal courts has so long maintained. The two
powers, so distinct and different in their nature and character, were still left
separate and distinct, the one to be exercised by the executive, and the other by
the judicial department. We therefore conclude that a statute which, in terms,
authorizes courts of criminal jurisdiction to suspend sentence in certain cases
after conviction, — a power inherent in such courts at common law, which was
understood when the constitution was adopted to be an ordinary judicial function,
and which, ever since its adoption, has been exercised of legislative power under
the constitution. It does not encroach, in any just sense, upon the powers of the
executive, as they have been understood and practiced from the earliest times.
(Quoted with approval in Directors of Prisons vs. Judge of First Instance of
Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.)

In probation, the probationer is in no true sense, as in pardon, a free man. He is not

finally and completely exonerated. He is not exempt from the entire punishment which
the law inflicts. Under the Probation Act, the probationer's case is not terminated by the
mere fact that he is placed on probation. Section 4 of the Act provides that the probation
may be definitely terminated and the probationer finally discharged from supervision
only after the period of probation shall have been terminated and the probation officer
shall have submitted a report, and the court shall have found that the probationer has
complied with the conditions of probation. The probationer, then, during the period of
probation, remains in legal custody — subject to the control of the probation officer and
of the court; and, he may be rearrested upon the non-fulfillment of the conditions of
probation and, when rearrested, may be committed to prison to serve the sentence
originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)

The probation described in the act is not pardon. It is not complete liberty, and
may be far from it. It is really a new mode of punishment, to be applied by the
judge in a proper case, in substitution of the imprisonment and find prescribed by
 the criminal laws. For this reason its application is as purely a judicial act as any
other sentence carrying out the law deemed applicable to the offense. The
executive act of pardon, on the contrary, is against the criminal law, which binds
and directs the judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible unconstitutionality of the
Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the
sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.],
1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in
support of their contention that the power to grant pardons and reprieves, having been
vested exclusively upon the Chief Executive by the Jones Law, may not be conferred by
the legislature upon the courts by means of probation law authorizing the indefinite
judicial suspension of sentence. We have examined that case and found that although
the Court of Criminal Appeals of Texas held that the probation statute of the state in
terms conferred on the district courts the power to grant pardons to persons convicted
of crime, it also distinguished between suspensions sentence on the one hand, and
reprieve and commutation of sentence on the other. Said the court, through Harper, J.:

That the power to suspend the sentence does not conflict with the power of the
Governor to grant reprieves is settled by the decisions of the various courts; it
being held that the distinction between a "reprieve" and a suspension of
sentence is that a reprieve postpones the execution of the sentence to a day
certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1
Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases
cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict
with the power confiding in the Governor to grant commutations of punishment,
for a commutations is not but to change the punishment assessed to a less
punishment.

In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the
Supreme Court of Montana had under consideration the validity of the adult probation
law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of
1921. The court held the law valid as not impinging upon the pardoning power of the
executive. In a unanimous decision penned by Justice Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood
meaning at the time our Constitution was adopted, and no one of them was
intended to comprehend the suspension of the execution of the judgment as that
phrase is employed in sections 12078-12086. A "pardon" is an act of grace,
proceeding from the power intrusted with the execution of the laws which
exempts the individual on whom it is bestowed from the punishment the law
inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8
Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So.,
816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law,
326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a
 remission of a part of the punishment; a substitution of a less penalty for the one
originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich
vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's Commentaries,
394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.],
272), a temporary suspension of execution (Butler vs. State, 97 Ind., 373).

Few adjudicated cases are to be found in which the validity of a statute similar to
our section 12078 has been determined; but the same objections have been
urged against parole statutes which vest the power to parole in persons other
than those to whom the power of pardon is granted, and these statutes have
been upheld quite uniformly, as a reference to the numerous cases cited in the
notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A.,
1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)

We conclude that the Probation Act does not conflict with the pardoning power of the
Executive. The pardoning power, in respect to those serving their probationary
sentences, remains as full and complete as if the Probation Law had never been
enacted. The President may yet pardon the probationer and thus place it beyond the
power of the court to order his rearrest and imprisonment. (Riggs vs. United States
[1926],
14 F. [2d], 5, 7.)

2. But while the Probation Law does not encroach upon the pardoning power of the
executive and is not for that reason void, does section 11 thereof constitute, as
contended, an undue delegation of legislative power?

Under the constitutional system, the powers of government are distributed among three
coordinate and substantially independent organs: the legislative, the executive and the
judicial. Each of these departments of the government derives its authority from the
Constitution which, in turn, is the highest expression of popular will. Each has exclusive
cognizance of the matters within its jurisdiction, and is supreme within its own sphere.

The power to make laws — the legislative power — is vested in a bicameral Legislature
by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution
(Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the
National Assembly may not escape its duties and responsibilities by delegating that
power to any other body or authority. Any attempt to abdicate the power is
unconstitutional and void, on the principle that potestas delegata non delegare potest.
This principle is said to have originated with the glossators, was introduced into English
law through a misreading of Bracton, there developed as a principle of agency, was
established by Lord Coke in the English public law in decisions forbidding the delegation
of judicial power, and found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the principle of separation of
powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is
that of Locke, namely: "The legislative neither must nor can transfer the power of
making laws to anybody else, or place it anywhere but where the people have." (Locke
on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following
oft-quoted language: "One of the settled maxims in constitutional law is, that the power
conferred upon the legislature to make laws cannot be delegated by that department to
any other body or authority. Where the sovereign power of the state has located the
authority, there it must remain; and by the constitutional agency alone the laws must be
made until the Constitution itself is charged. The power to whose judgment, wisdom,
and patriotism this high prerogative has been intrusted cannot relieve itself of the
responsibilities by choosing other agencies upon which the power shall be devolved,
nor can it substitute the judgment, wisdom, and patriotism of any other body for those to
which alone the people have seen fit to confide this sovereign trust." (Cooley on
Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs.
Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that
such a delegated power constitutes not only a right but a duty to be performed by the
delegate by the instrumentality of his own judgment acting immediately upon the matter
of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra,
at p. 330.)

The rule, however, which forbids the delegation of legislative power is not absolute and
inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice
permits the central legislative body to delegate legislative powers to local authorities.
(Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918],
39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup.
Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our
system of government, that local affairs shall be managed by local authorities, and
general affairs by the central authorities; and hence while the rule is also fundamental
that the power to make laws cannot be delegated, the creation of the municipalities
exercising local self government has never been held to trench upon that rule. Such
legislation is not regarded as a transfer of general legislative power, but rather as the
grant of the authority to prescribed local regulations, according to immemorial practice,
subject of course to the interposition of the superior in cases of necessity."
(Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to
delegate legislative power to such agencies in the territories of the United States as it
may select. A territory stands in the same relation to Congress as a municipality or city
to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct.
Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S.,
138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also
sustained the delegation of legislative power to the people at large. Some authorities
maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing
People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616).
However, the question of whether or not a state has ceased to be republican in form
because of its adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U.
S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such
laws has been looked upon with favor by certain progressive courts, the sting of the
decisions of the more conservative courts has been pretty well drawn. (Opinions of the
Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland
[1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific
States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be
delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the
Constitution of the Philippines provides that "The National Assembly may by law
authorize the President, subject to such limitations and restrictions as it may impose, to
fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage
dues." And section 16 of the same article of the Constitution provides that "In times of
war or other national emergency, the National Assembly may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribed, to
promulgate rules and regulations to carry out a declared national policy." It is beyond
the scope of this decision to determine whether or not, in the absence of the foregoing
constitutional provisions, the President could be authorized to exercise the powers
thereby vested in him. Upon the other hand, whatever doubt may have existed has
been removed by the Constitution itself.

The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial
boards have provided for the salary of a probation officer at rates not lower than
those now provided for provincial fiscals. Said probation officer shall be
appointed by the Secretary of Justice and shall be subject to the direction of the
Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or not, it

is usual to inquire whether the statute was complete in all its terms and provisions when
it left the hands of the legislature so that nothing was left to the judgment of any other
appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs.
Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held
an act of the legislature void in so far as it undertook to authorize the Governor-General,
in his discretion, to issue a proclamation fixing the price of rice and to make the sale of it
in violation of the proclamation a crime. (See and cf. Compañia General de Tabacos vs.
Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however,
is limited by another rule that to a certain extent matters of detail may be left to be filled
in by rules and regulations to be adopted or promulgated by executive officers and
administrative boards. (6 R. C. L., pp. 177-179.)

For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should take effect
in their respective provinces. They are the agents or delegates of the legislature in this
respect. The rules governing delegation of legislative power to administrative and
executive officers are applicable or are at least indicative of the rule which should be
here adopted. An examination of a variety of cases on delegation of power to
administrative bodies will show that the ratio decidendi is at variance but, it can be
broadly asserted that the rationale revolves around the presence or absence of a
standard or rule of action — or the sufficiency thereof — in the statute, to aid the
delegate in exercising the granted discretion. In some cases, it is held that the standard
is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a
rule, an act of the legislature is incomplete and hence invalid if it does not lay down any
rule or definite standard by which the administrative officer or board may be guided in
the exercise of the discretionary powers delegated to it. (See Schecter vs. United States
[1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People
ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500
and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at
bar, what rules are to guide the provincial boards in the exercise of their discretionary
power to determine whether or not the Probation Act shall apply in their respective
provinces? What standards are fixed by the Act? We do not find any and none has been
pointed to us by the respondents. The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards any standard or guide in the
exercise of their discretionary power. What is granted, if we may use the language of
Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which
enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act,
the legislature does not seemingly on its own authority extend the benefits of the
Probation Act to the provinces but in reality leaves the entire matter for the various
provincial boards to determine. In other words, the provincial boards of the various
provinces are to determine for themselves, whether the Probation Law shall apply to
their provinces or not at all. The applicability and application of the Probation Act are
entirely placed in the hands of the provincial boards. If the provincial board does not
wish to have the Act applied in its province, all that it has to do is to decline to
appropriate the needed amount for the salary of a probation officer. The plain language
of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of power to make
the law, which necessarily involves a discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati,
W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also,
Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of
this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil.,
547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the
validity of the law conferring upon the Governor-General authority to adjust provincial
and municipal boundaries. In the second case, this court held it lawful for the legislature
to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be
selected by the provincial governor and approved by the provincial board. In the third
case, it was held proper for the legislature to vest in the Governor-General authority to
suspend or not, at his discretion, the prohibition of the importation of the foreign cattle,
such prohibition to be raised "if the conditions of the country make this advisable or if
deceased among foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."

It should be observed that in the case at bar we are not concerned with the simple
transference of details of execution or the promulgation by executive or administrative
officials of rules and regulations to carry into effect the provisions of a law. If we were,
recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil.,
327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53
Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez
[1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)

It is connected, however, that a legislative act may be made to the effect as law after it
leaves the hands of the legislature. It is true that laws may be made effective on certain
contingencies, as by proclamation of the executive or the adoption by the people of a
particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th
ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the
Supreme Court of the United State ruled that the legislature may delegate a power not
legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins.
Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is
such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a
law. That is a mental process common to all branches of the government. (Dowling vs.
Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97
N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field
vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding
the apparent tendency, however, to relax the rule prohibiting delegation of legislative
authority on account of the complexity arising from social and economic forces at work
in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The
Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,
"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147,
152), the orthodox pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the
United States in the following language — speaking of declaration of legislative power
to administrative agencies: "The principle which permits the legislature to provide that
the administrative agent may determine when the circumstances are such as require
the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is
determined by the legislature. In other words, the legislature, as it its duty to do,
determines that, under given circumstances, certain executive or administrative action is
to be taken, and that, under other circumstances, different of no action at all is to be
taken. What is thus left to the administrative official is not the legislative determination of
what public policy demands, but simply the ascertainment of what the facts of the case
require to be done according to the terms of the law by which he is governed."
(Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller
vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971,
974), it was said: "The efficiency of an Act as a declaration of legislative will must, of
course, come from Congress, but the ascertainment of the contingency upon which the
Act shall take effect may be left to such agencies as it may designate." (See, also, 12
C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343,
258.) The legislature, then may provide that a contingencies leaving to some other
person or body the power to determine when the specified contingencies has arisen.
But, in the case at bar, the legislature has not made the operation of the Prohibition Act
contingent upon specified facts or conditions to be ascertained by the provincial board.
It leaves, as we have already said, the entire operation or non-operation of the law upon
the provincial board. the discretion vested is arbitrary because it is absolute and
unlimited. A provincial board need not investigate conditions or find any fact, or await
the happening of any specified contingency. It is bound by no rule, — limited by no
principle of expendiency announced by the legislature. It may take into consideration
certain facts or conditions; and, again, it may not. It may have any purpose or no
purpose at all. It need not give any reason whatsoever for refusing or failing to
appropriate any funds for the salary of a probation officer. This is a matter which rest
entirely at its pleasure. The fact that at some future time — we cannot say when — the
provincial boards may appropriate funds for the salaries of probation officers and thus
put the law into operation in the various provinces will not save the statute. The time of
its taking into effect, we reiterate, would yet be based solely upon the will of the
provincial boards and not upon the happening of a certain specified contingency, or
upon the ascertainment of certain facts or conditions by a person or body other than
legislature itself.

The various provincial boards are, in practical effect, endowed with the power of
suspending the operation of the Probation Law in their respective provinces. In some
jurisdiction, constitutions provided that laws may be suspended only by the legislature
or by its authority. Thus, section 28, article I of the Constitution of Texas provides that
"No power of suspending laws in this state shall be exercised except by the legislature";
and section 26, article I of the Constitution of Indiana provides "That the operation of the
laws shall never be suspended, except by authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute power of suspension upon the legislature.
While it may be undoubted that the legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to certain individuals only, leaving
the law to be enjoyed by others. The suspension must be general, and cannot be made
for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass.,
396; 6 Am. Dec., 174, 177, 178), it was said:

By the twentieth article of the declaration of rights in the constitution of this

commonwealth, it is declared that the power of suspending the laws, or the
execution of the laws, ought never to be exercised but by the legislature, or by
authority derived from it, to be exercised in such particular cases only as the
legislature shall expressly provide for. Many of the articles in that declaration of
rights were adopted from the Magna Charta of England, and from the bill of rights
passed in the reign of William and Mary. The bill of rights contains an
enumeration of the oppressive acts of James II, tending to subvert and extirpate
the protestant religion, and the laws and liberties of the kingdom; and the first of
 them is the assuming and exercising a power of dispensing with and suspending
the laws, and the execution of the laws without consent of parliament. The first
article in the claim or declaration of rights contained in the statute is, that the
exercise of such power, by legal authority without consent of parliament, is
illegal. In the tenth section of the same statute it is further declared and enacted,
that "No dispensation by non obstante of or to any statute, or part thereof, should
be allowed; but the same should be held void and of no effect, except a
dispensation be allowed of in such statute." There is an implied reservation of
authority in the parliament to exercise the power here mentioned; because,
according to the theory of the English Constitution, "that absolute despotic power,
which must in all governments reside somewhere," is intrusted to the parliament:
1 Bl. Com., 160.

The principles of our government are widely different in this particular. Here the
sovereign and absolute power resides in the people; and the legislature can only
exercise what is delegated to them according to the constitution. It is obvious that
the exercise of the power in question would be equally oppressive to the subject,
and subversive of his right to protection, "according to standing laws," whether
exercised by one man or by a number of men. It cannot be supposed that the
people when adopting this general principle from the English bill of rights and
inserting it in our constitution, intended to bestow by implication on the general
court one of the most odious and oppressive prerogatives of the ancient kings of
England. It is manifestly contrary to the first principles of civil liberty and natural
justice, and to the spirit of our constitution and laws, that any one citizen should
enjoy privileges and advantages which are denied to all others under like
circumstances; or that ant one should be subject to losses, damages, suits, or
actions from which all others under like circumstances are exempted.

To illustrate the principle: A section of a statute relative to dogs made the owner of any
dog liable to the owner of domestic animals wounded by it for the damages without
proving a knowledge of it vicious disposition. By a provision of the act, power was given
to the board of supervisors to determine whether or not during the current year their
county should be governed by the provisions of the act of which that section constituted
a part. It was held that the legislature could not confer that power. The court observed
that it could no more confer such a power than to authorize the board of supervisors of
a county to abolish in such county the days of grace on commercial paper, or to
suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A
similar statute in Missouri was held void for the same reason in State vs. Field ([1853,
17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system
contained a provision that "if the county court of any county should be of opinion that the
provisions of the act should not be enforced, they might, in their discretion, suspend the
operation of the same for any specified length of time, and thereupon the act should
become inoperative in such county for the period specified in such order; and thereupon
order the roads to be opened and kept in good repair, under the laws theretofore in
force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent
provisions of a former act, and yet it is left to the county court to say which act shall be
enforce in their county. The act does not submit the question to the county court as an
original question, to be decided by that tribunal, whether the act shall commence its
operation within the county; but it became by its own terms a law in every county not
excepted by name in the act. It did not, then, require the county court to do any act in
order to give it effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous laws, the county
court is . . . empowered, to suspend this act and revive the repealed provisions of the
former act. When the question is before the county court for that tribunal to determine
which law shall be in force, it is urge before us that the power then to be exercised by
the court is strictly legislative power, which under our constitution, cannot be delegated
to that tribunal or to any other body of men in the state. In the present case, the
question is not presented in the abstract; for the county court of Saline county, after the
act had been for several months in force in that county, did by order suspend its
operation; and during that suspension the offense was committed which is the subject of
the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different from those
applicable to other localities and, while recognizing the force of the principle
hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of
the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option
laws thus sustained treat of subjects purely local in character which should receive
different treatment in different localities placed under different circumstances. "They
relate to subjects which, like the retailing of intoxicating drinks, or the running at large of
cattle in the highways, may be differently regarded in different localities, and they are
sustained on what seems to us the impregnable ground, that the subject, though not
embraced within the ordinary powers of municipalities to make by-laws and ordinances,
is nevertheless within the class of public regulations, in respect to which it is proper that
the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p.
148.) So that, while we do not deny the right of local self-government and the propriety
of leaving matters of purely local concern in the hands of local authorities or for the
people of small communities to pass upon, we believe that in matters of general of
general legislation like that which treats of criminals in general, and as regards the
general subject of probation, discretion may not be vested in a manner so unqualified
and absolute as provided in Act No. 4221. True, the statute does not expressly state
that the provincial boards may suspend the operation of the Probation Act in particular
provinces but, considering that, in being vested with the authority to appropriate or not
the necessary funds for the salaries of probation officers, they thereby are given
absolute discretion to determine whether or not the law should take effect or operate in
their respective provinces, the provincial boards are in reality empowered by the
legislature to suspend the operation of the Probation Act in particular provinces, the Act
to be held in abeyance until the provincial boards should decide otherwise by
appropriating the necessary funds. The validity of a law is not tested by what has been
done but by what may be done under its provisions. (Walter E. Olsen & Co. vs.
Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature not only
in the expression of what may be termed legislative policy but in the elaboration and
execution thereof. "Without this power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government
lives because of the inexhaustible reservoir of power behind it. It is unquestionable that
the mass of powers of government is vested in the representatives of the people and
that these representatives are no further restrained under our system than by the
express language of the instrument imposing the restraint, or by particular provisions
which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936],
35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should
be borne in mind that a constitution is both a grant and a limitation of power and one of
these time-honored limitations is that, subject to certain exceptions, legislative power
shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful
delegation of legislative authority to the provincial boards and is, for this reason,
unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights
which prohibits the denial to any person of the equal protection of the laws (Act. III, sec.
1 subsec. 1. Constitution of the Philippines.)

This basic individual right sheltered by the Constitution is a restraint on all the tree
grand departments of our government and on the subordinate instrumentalities and
subdivision thereof, and on many constitutional power, like the police power, taxation
and eminent domain. The equal protection of laws, sententiously observes the Supreme
Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs.
Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs.
North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course,
what may be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be formulated.
(Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46
Law. ed., 679.) Class legislation discriminating against some and favoring others in
prohibited. But classification on a reasonable basis, and nor made arbitrarily or
capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75;
32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law.
ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.)
The classification, however, to be reasonable must be based on substantial distinctions
which make real differences; it must be germane to the purposes of the law; it must not
be limited to existing conditions only, and must apply equally to each member of the
class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A.,
649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150;
Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377;
31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough
[1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs.
Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas.,
1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the
unwarranted delegation of legislative power, although perhaps this is not necessarily the
result in every case. Adopting the example given by one of the counsel for the
petitioners in the course of his oral argument, one province may appropriate the
necessary fund to defray the salary of a probation officer, while another province may
refuse or fail to do so. In such a case, the Probation Act would be in operation in the
former province but not in the latter. This means that a person otherwise coming within
the purview of the law would be liable to enjoy the benefits of probation in one province
while another person similarly situated in another province would be denied those same
benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the
provincial boards to appropriate the necessary funds for the salaries of the probation
officers in their respective provinces, in which case no inequality would result for the
obvious reason that probation would be in operation in each and every province by the
affirmative action of appropriation by all the provincial boards. On that hypothesis, every
person coming within the purview of the Probation Act would be entitled to avail of the
benefits of the Act. Neither will there be any resulting inequality if no province, through
its provincial board, should appropriate any amount for the salary of the probation officer
— which is the situation now — and, also, if we accept the contention that, for the
purpose of the Probation Act, the City of Manila should be considered as a province and
that the municipal board of said city has not made any appropriation for the salary of the
probation officer. These different situations suggested show, indeed, that while
inequality may result in the application of the law and in the conferment of the benefits
therein provided, inequality is not in all cases the necessary result. But whatever may
be the case, it is clear that in section 11 of the Probation Act creates a situation in which
discrimination and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court should
assume the task of setting aside a law vulnerable on that score, but premises and
circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits
of the denial of the equal protection of the law and is on that account bad. We see no
difference between a law which permits of such denial. A law may appear to be fair on
its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination,
it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876],
292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law.
ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware
[1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703;
28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220;
Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed.,
1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed.,
Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62
Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of
their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct.
Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl.,
944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of
the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup.
Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94
Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104;
36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may
said Act be in force in one or several provinces and not be in force in other provinces,
but one province may appropriate for the salary of the probation officer of a given year
— and have probation during that year — and thereafter decline to make further
appropriation, and have no probation is subsequent years. While this situation goes
rather to the abuse of discretion which delegation implies, it is here indicated to show
that the Probation Act sanctions a situation which is intolerable in a government of laws,
and to prove how easy it is, under the Act, to make the guaranty of the equality clause
but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150
154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net

Great reliance is placed by counsel for the respondents on the case of Ocampo vs.
United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme
Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to
uphold the contention that there was a denial of the equal protection of the laws
because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S.,
220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial
uniformity. It should be observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted by General Orders No. 58.
No question of legislative authority was involved and the alleged denial of the equal
protection of the laws was the result of the subsequent enactment of Act No. 612,
amending the charter of the City of Manila (Act No. 813) and providing in section 2
thereof that "in cases triable only in the court of first instance of the City of Manila, the
defendant . . . shall not be entitled as of right to a preliminary examination in any case
where the prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon the other hand, an
analysis of the arguments and the decision indicates that the investigation by the
prosecuting attorney — although not in the form had in the provinces — was considered
a reasonable substitute for the City of Manila, considering the peculiar conditions of the
city as found and taken into account by the legislature itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has
reference to a situation where the constitution of Missouri permits appeals to the
Supreme Court of the state from final judgments of any circuit court, except those in
certain counties for which counties the constitution establishes a separate court of
appeals called St. Louis Court of Appeals. The provision complained of, then, is found in
the constitution itself and it is the constitution that makes the apportionment of territorial
jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void
because it is also repugnant to equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already
stated, the next inquiry is whether or not the entire Act should be avoided.

In seeking the legislative intent, the presumption is against any mutilation of a

statute, and the courts will resort to elimination only where an unconstitutional
provision is interjected into a statute otherwise valid, and is so independent and
separable that its removal will leave the constitutional features and purposes of
the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J.
Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard
Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115;
60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court
stated the well-established rule concerning partial invalidity of statutes in the
following language:

. . . where part of the a statute is void, as repugnant to the Organic Law, while
another part is valid, the valid portion, if separable from the valid, may stand and
be enforced. But in order to do this, the valid portion must be in so far
independent of the invalid portion that it is fair to presume that the Legislative
would have enacted it by itself if they had supposed that they could not
constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86
N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek
Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a
complete, intelligible, and valid statute, which carries out the legislative intent.
(Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be
eliminated without causing results affecting the main purpose of the Act, in a
manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56
Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26
L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565;
People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135;
State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the
invalid part of a statute can have no legal force or efficacy for any purpose
whatever, and what remains must express the legislative will, independently of
the void part, since the court has no power to legislate. (State vs. Junkin, 85
Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez
[1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S.,
601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act applicable only in
those provinces in which the respective provincial boards provided for the salaries of
probation officers were inoperative on constitutional grounds, the remainder of the Act
would still be valid and may be enforced. We should be inclined to accept the
suggestions but for the fact that said section is, in our opinion, is inseparably linked with
the other portions of the Act that with the elimination of the section what would be left is
the bare idealism of the system, devoid of any practical benefit to a large number of
people who may be deserving of the intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful examination of the whole context, is
to make the application of the system dependent entirely upon the affirmative action of
the different provincial boards through appropriation of the salaries for probation officers
at rates not lower than those provided for provincial fiscals. Without such action on the
part of the various boards, no probation officers would be appointed by the Secretary of
Justice to act in the provinces. The Philippines is divided or subdivided into provinces
and it needs no argument to show that if not one of the provinces — and this is the
actual situation now — appropriate the necessary fund for the salary of a probation
officer, probation under Act No. 4221 would be illusory. There can be no probation
without a probation officer. Neither can there be a probation officer without the probation
system.

Section 2 of the Acts provides that the probation officer shall supervise and visit the
probationer. Every probation officer is given, as to the person placed in probation under
his care, the powers of the police officer. It is the duty of the probation officer to see that
the conditions which are imposed by the court upon the probationer under his care are
complied with. Among those conditions, the following are enumerated in section 3 of the
Act:

That the probationer (a) shall indulge in no injurious or vicious habits;

(b) Shall avoid places or persons of disreputable or harmful character;

(c) Shall report to the probation officer as directed by the court or probation
officers;

(d) Shall permit the probation officer to visit him at reasonable times at his place
of abode or elsewhere;

(e) Shall truthfully answer any reasonable inquiries on the part of the probation
officer concerning his conduct or condition; "(f) Shall endeavor to be employed
regularly; "(g) Shall remain or reside within a specified place or locality;

(f) Shall make reparation or restitution to the aggrieved parties for actual
damages or losses caused by his offense;

(g) Shall comply with such orders as the court may from time to time make; and

(h) Shall refrain from violating any law, statute, ordinance, or any by-law or
regulation, promulgated in accordance with law.

The court is required to notify the probation officer in writing of the period and terms of
probation. Under section 4, it is only after the period of probation, the submission of a
report of the probation officer and appropriate finding of the court that the probationer
has complied with the conditions of probation that probation may be definitely
terminated and the probationer finally discharged from supervision. Under section 5, if
the court finds that there is non-compliance with said conditions, as reported by the
probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an
opportunity to be heard, the court may revoke, continue or modify the probation, and if
revoked, the court shall order the execution of the sentence originally imposed. Section
6 prescribes the duties of probation officers: "It shall be the duty of every probation
officer to furnish to all persons placed on probation under his supervision a statement of
the period and conditions of their probation, and to instruct them concerning the same;
to keep informed concerning their conduct and condition; to aid and encourage them by
friendly advice and admonition, and by such other measures, not inconsistent with the
conditions imposed by court as may seem most suitable, to bring about improvement in
their conduct and condition; to report in writing to the court having jurisdiction over said
probationers at least once every two months concerning their conduct and condition; to
keep records of their work; make such report as are necessary for the information of the
Secretary of Justice and as the latter may require; and to perform such other duties as
are consistent with the functions of the probation officer and as the court or judge may
direct. The probation officers provided for in this Act may act as parole officers for any
penal or reformatory institution for adults when so requested by the authorities thereof,
and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."

It is argued, however, that even without section 11 probation officers maybe appointed
in the provinces under section 10 of Act which provides as follows:

There is hereby created in the Department of Justice and subject to its

supervision and control, a Probation Office under the direction of a Chief
Probation Officer to be appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four eight hundred pesos per
annum. To carry out this Act there is hereby appropriated out of any funds in the
Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to
be disbursed by the Secretary of Justice, who is hereby authorized to appoint
probation officers and the administrative personnel of the probation officer under
civil service regulations from among those who possess the qualifications,
training and experience prescribed by the Bureau of Civil Service, and shall fix
the compensation of such probation officers and administrative personnel until
such positions shall have been included in the Appropriation Act.

But the probation officers and the administrative personnel referred to in the foregoing
section are clearly not those probation officers required to be appointed for the
provinces under section 11. It may be said, reddendo singula singulis, that the probation
officers referred to in section 10 above-quoted are to act as such, not in the various
provinces, but in the central office known as the Probation Office established in the
Department of Justice, under the supervision of the Chief Probation Officer. When the
law provides that "the probation officer" shall investigate and make reports to the court
(secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec.
2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3,
par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully
answer any reasonable inquiries on the part of "the probation officer" concerning his
conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in
writing of the period and terms of probation (sec. 3, last par.), it means the probation
officer who is in charge of a particular probationer in a particular province. It never could
have been intention of the legislature, for instance, to require the probationer in
Batanes, to report to a probationer officer in the City of Manila, or to require a probation
officer in Manila to visit the probationer in the said province of Batanes, to place him
under his care, to supervise his conduct, to instruct him concerning the conditions of his
probation or to perform such other functions as are assigned to him by law.

That under section 10 the Secretary of Justice may appoint as many probation officers
as there are provinces or groups of provinces is, of course possible. But this would be
arguing on what the law may be or should be and not on what the law is. Between is
and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass
upon. We may think a law better otherwise than it is. But much as has been said
regarding progressive interpretation and judicial legislation we decline to amend the law.
We are not permitted to read into the law matters and provisions which are not there.
Not for any purpose — not even to save a statute from the doom of invalidity.

Upon the other hand, the clear intention and policy of the law is not to make the Insular
Government defray the salaries of probation officers in the provinces but to make the
provinces defray them should they desire to have the Probation Act apply thereto. The
sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied,
among other things, for the salaries of probation officers in the central office at Manila.
These probation officers are to receive such compensations as the Secretary of Justice
may fix "until such positions shall have been included in the Appropriation Act". It was
the intention of the legislature to empower the Secretary of Justice to fix the salaries of
the probation officers in the provinces or later on to include said salaries in an
appropriation act. Considering, further, that the sum of P50,000 appropriated in section
10 is to cover, among other things, the salaries of the administrative personnel of the
Probation Office, what would be left of the amount can hardly be said to be sufficient to
pay even nominal salaries to probation officers in the provinces. We take judicial notice
of the fact that there are 48 provinces in the Philippines and we do not think it is
seriously contended that, with the fifty thousand pesos appropriated for the central
office, there can be in each province, as intended, a probation officer with a salary not
lower than that of a provincial fiscal. If this a correct, the contention that without section
11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of
the Act, unless it is conceded that in our case there can be a system of probation in the
provinces without probation officers.

Probation as a development of a modern penology is a commendable system.

Probation laws have been enacted, here and in other countries, to permit what modern
criminologist call the "individualization of the punishment", the adjustment of the penalty
to the character of the criminal and the circumstances of his particular case. It provides
a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed
that, in any cases, convicts may be reformed and their development into hardened
criminals aborted. It, therefore, takes advantage of an opportunity for reformation and
avoids imprisonment so long as the convicts gives promise of reform. (United States vs.
Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep.,
146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and
aim. The benefit to the individual convict is merely incidental. But while we believe that
probation is commendable as a system and its implantation into the Philippines should
be welcomed, we are forced by our inescapable duty to set the law aside because of
the repugnancy to our fundamental law.

In arriving at this conclusion, we have endeavored to consider the different aspects

presented by able counsel for both parties, as well in their memorandums as in their
oral argument. We have examined the cases brought to our attention, and others we
have been able to reach in the short time at our command for the study and deliberation
of this case. In the examination of the cases and in then analysis of the legal principles
involved we have inclined to adopt the line of action which in our opinion, is supported
better reasoned authorities and is more conducive to the general welfare. (Smith, Bell &
Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our attention, except
where the point or principle is settled directly or by clear implication by the more
authoritative pronouncements of the Supreme Court of the United States. This line of
approach is justified because:

(a) The constitutional relations between the Federal and the State governments
of the United States and the dual character of the American Government is a
situation which does not obtain in the Philippines;

(b) The situation of s state of the American Union of the District of Columbia with
reference to the Federal Government of the United States is not the situation of
the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th
Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d],
871),

(c) The distinct federal and the state judicial organizations of the United States do
not embrace the integrated judicial system of the Philippines (Schneckenburger
vs. Moran [1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases" (Justice Holmes in

Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to
keep pace with . . . new developments of times and circumstances" (Chief
Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S.,
1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142),
fundamental principles should be interpreted having in view existing local
conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is,
accordingly, granted. Without any pronouncement regarding costs. So ordered.
G.R. No. L-59524 February 18, 1985

JOVITO R. SALONGA, petitioner,

vs.
HON. ERNANI CRUZ PAÑO, Presiding Judge of the Court of First Instance of Rizal
Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ, Presiding Judge of
the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL
SERGIO APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN
MADELLA, respondents.

GUTIERREZ, JR., J.:

The petitioner invokes the constitutionally protected right to life and liberty guaranteed
by the due process clause, alleging that no prima facie case has been established to
warrant the filing of an information for subversion against him. Petitioner asks this Court
to prohibit and prevent the respondents from using the iron arm of the law to harass,
oppress, and persecute him, a member of the democratic opposition in the Philippines.

The background of this case is a matter of public knowledge.

A rash of bombings occurred in the Metro Manila area in the months of August,
September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a
Philippine-born American citizen from Los Angeles, California, almost killed himself and
injured his younger brother, Romeo, as a result of the explosion of a small bomb inside
his room at the YMCA building in Manila. Found in Lovely's possession by police and
military authorities were several pictures taken sometime in May, 1980 at the birthday
party of former Congressman Raul Daza held at the latter's residence in a Los Angeles
suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses
appeared in the group pictures together with other guests, including Lovely.

As a result of the serious injuries he suffered, Lovely was brought by military and police
authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in the
custody and detention of Col. Roman P. Madella, under the over-all direction of General
Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly
afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged
with subversion, illegal possession of explosives, and damage to property.

On September 12, 1980, bombs once again exploded in Metro Manila including one
which resulted in the death of an American lady who was shopping at Rustan's
Supermarket in Makati and others which caused injuries to a number of persons.

On September 20, 1980, the President's anniversary television radio press conference
was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the
conference. In his interview, Romeo stated that he had driven his elder brother, Victor,
to the petitioner's house in Greenhills on two occasions. The first time was on August
20, 1980. Romeo stated that Victor did not bring any bag with him on that day when he
went to the petitioner's residence and did not carry a bag when he left. The second time
was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the
petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return
that day to pick up his brother.

The next day, newspapers came out with almost Identical headlines stating in effect that
petitioner had been linked to the various bombings in Metro Manila.

Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive
care unit and transferred to the office of Col. Madella where he was held
incommunicado for some time.

On the night of October 4, 1980, more bombs were reported to have exploded at three
big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila
Peninsula. The bombs injured nine people. A meeting of the General Military Council
was called for October 6, 1980.

On October 19, 1980, minutes after the President had finished delivering his speech
before the International Conference of the American Society of Travel Agents at the
Philippine International Convention Center, a small bomb exploded. Within the next
twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against
persons who were apparently implicated by Victor Lovely in the series of bombings in
Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a
"state witness" and in his letter to the President, he stated that he will reveal everything
he knows about the bombings.

On October 21, 1980, elements of the military went to the hospital room of the petitioner
at the Manila Medical Center where he was confined due to his recurrent and chronic
ailment of bronchial asthma and placed him under arrest. The arresting officer showed
the petitioner the ASSO form which however did not specify the charge or charges
against him. For some time, the petitioner's lawyers were not permitted to visit him in his
hospital room until this Court in the case of Ordoñez v. Gen. Fabian Ver, et al., (G.R.
No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be
visited by counsel be respected.

On November 2, 1980, the petitioner was transferred against his objections from his
hospital arrest to an isolation room without windows in an army prison camp at Fort
Bonifacio, Makati. The petitioner states that he was not informed why he was
transferred and detained, nor was he ever investigated or questioned by any military or
civil authority.
Subsequently, on November 27, 1980, the petitioner was released for humanitarian
reasons from military custody and placed "under house arrest in the custody of Mrs.
Lydia Salonga" still without the benefit of any investigation or charges.

On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of
Preliminary Investigation" in People v. Benigno Aquino, Jr., et al. (which included
petitioner as a co-accused), stating that "the preliminary investigation of the above-
entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that
petitioner was given ten (10) days from receipt of the charge sheet and the supporting
evidence within which to file his counter-evidence. The petitioner states that up to the
time martial law was lifted on January 17, 1981, and despite assurance to the contrary,
he has not received any copies of the charges against him nor any copies of the so-
called supporting evidence.

On February 9, 1981, the records of the case were turned over by the Judge Advocate
General's Office to the Ministry of Justice.

On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner,
among others of having violated Republic Act No. 1700, as amended by P.D. 885 and
Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code. The
inquest court set the preliminary investigation for March 17, 1981.

On March 6, 1981, the petitioner was allowed to leave the country to attend a series of
church conferences and undergo comprehensive medical examinations of the heart,
stomach, liver, eye and ear including a possible removal of his left eye to save his right
eye. Petitioner Salonga almost died as one of the principal victims of the dastardly
bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he
has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces still
remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel
lodged one millimeter from his aorta. The petitioner has limited use of his one remaining
hand and arms, is completely blind and physical in the left eye, and has scar like
formations in the remaining right eye. He is totally deaf in the right ear and partially deaf
in the left ear. The petitioner's physical ailments led him to seek treatment abroad.

On or around March 26, 1981, the counsel for petitioner was furnished a copy of an
amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging
the petitioner, along with 39 other accused with the violation of R.A. 1700, as amended
by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary
investigation were conducted. The prosecution presented as its witnesses Ambassador
Armando Fernandez, the Consul General of the Philippines in Los Angeles, California,
Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential
Security Command and Victor Lovely himself.

On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges
against petitioner for failure of the prosecution to establish a prima facie case against
him.
On December 2, 1981, the respondent judge denied the motion. On January 4, 1982,
he issued a resolution ordering the filing of an information for violation of the Revised
Anti-Subversion Act, as amended, against forty (40) people, including herein petitioner.

The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982
are now the subject of the petition. It is the contention of the petitioner that no prima
facie case has been established by the prosecution to justify the filing of an information
against him. He states that to sanction his further prosecution despite the lack of
evidence against him would be to admit that no rule of law exists in the Philippines
today.

After a painstaking review of the records, this Court finds the evidence offered by the
prosecution utterly insufficient to establish a prima facie case against the petitioner. We
grant the petition.

However, before going into the merits of the case, we shall pass upon a procedural
issue raised by the respondents.

The respondents call for adherence to the consistent rule that the denial of a motion to
quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari;
that since the question of dismissal will again be considered by the court when it
decides the case, the movant has a plain, speedy and adequate remedy in the ordinary
course of law; and that public interest dictates that criminal prosecutions should not be
enjoined.

The general rule is correctly stated. However, the respondents fail to appreciate or take
into account certain exceptions when a petition for certiorari is clearly warranted. The
case at bar is one such exception.

In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by
the respondents to wit:

xxx xxx xxx

... Respondents advert to the rule that when a motion to quash filed by an
accused in a criminal case shall be denied, the remedy of the accused-
movant is not to file a petition for certiorari or mandamus or prohibition, the
proper recourse being to go to trial, without prejudice to his right to
reiterate the grounds invoked in his motion to quash if an adverse
judgment is rendered against him, in the appeal that he may take
therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil.
599; Echarol v. Purisima, et al., 13 SCRA 309.)

On this argument, we ruled:

 There is no disputing the validity and wisdom of the rule invoked by the
respondents. However, it is also recognized that, under certain situations,
recourse to the extraordinary legal remedies of certiorari, prohibition or
mandamus to question the denial of a motion to quash is considered
proper in the interest of "more enlightened and substantial justice", as was
so declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969."

Infinitely more important than conventional adherence to general rules of criminal

procedure is respect for the citizen's right to be free not only from arbitrary arrest and
punishment but also from unwarranted and vexatious prosecution. The integrity of a
democratic society is corrupted if a person is carelessly included in the trial of around
forty persons when on the very face of the record no evidence linking him to the alleged
conspiracy exists. Ex-Senator Jovito Salonga, himself a victim of the still unresolved
and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while
hospitalized for bronchial asthma. When arrested, he was not informed of the nature of
the charges against him. Neither was counsel allowed to talk to him until this Court
intervened through the issuance of an order directing that his lawyers be permitted to
visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only
after four months of detention was the petitioner informed for the first time of the nature
of the charges against him. After the preliminary investigation, the petitioner moved to
dismiss the complaint but the same was denied. Subsequently, the respondent judge
issued a resolution ordering the filing of an information after finding that a prima facie
case had been established against an of the forty persons accused.

In the light of the failure to show prima facie that the petitioner was probably guilty of
conspiring to commit the crime, the initial disregard of petitioner's constitutional rights
together with the massive and damaging publicity made against him, justifies the
favorable consideration of this petition by this Court. With former Senator Benigno
Aquino, Jr. now deceased, there are at least 38 other co-accused to be tried with the
petitioner. The prosecution must present proof beyond reasonable doubt against each
and every one of the 39 accused, most of whom have varying participations in the
charge for subversion. The prosecution's star witness Victor Lovely and the only source
of information with regard to the alleged link between the petitioner and the series of
terrorist bombings is now in the United States. There is reason to believe the petitioner's
citation of international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to
the Philippines to testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be
made to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the
foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely abused his
discretion in issuing the questioned resolutions.

The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by then, is not sufficient
to prove the petitioner's guilt, he would anyway be acquitted. Yes, but under the circumstances of this case, at what cost not only to the
petitioner but to the basic fabric of our criminal justice system?

The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports
or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction. The question raised before us now is:
Were the evidences against the petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone,
sufficiently overcome the presumption of innocence and warrant his conviction?

We do not think so.

The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col. Balbino Diego and
Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive organizations in the United States nowhere
mentioned the petitioner as an organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations
mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to gather against the petitioner depended
only on the statement of Lovely "that it was the residence of ex-Senator Salonga where they met together with Renato Tañada, one of the
brains of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the U.S.A.
was also revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In
concluding that a conspiracy exists to overthrow by violent means the government of the Philippines in the United States, his only bases
were "documentary as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate
personal knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations, whether
petitioner was an organizer, officer or a member, the witness replied:

A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor,
please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted
always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of
operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15)

Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It
should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or not, -has no probative value
as the affiant could not have been cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112
SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court, there was no need for the testimony of Col. Diego.
Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently
implicated petitioner in the bombings which eventually led to the filing of the information.

Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made before Col. Diego
and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a prosecution or state witness
but only as a defense witness for his two younger brothers, Romeo and Baltazar, who were both included in the complaint but who were later
dropped from the information. Victor Lovely was examined by his counsel and cross-examined by the fiscal. In the process, he Identified the
statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the
court that it was adopting Lovely as a prosecution witness.

According to Lovely's statement, the following events took place:

36. Q. Did Psinakis tell you where to stay?

A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would
come to contact me and give the materials needed in the execution of my mission. I thought this
was not safe so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit
the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to
give the materials I needed to accomplish my mission

37. Q. Did you comply as instructed?

A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua,
husband of my business partner, then I went to the Hospital where I visited my mother and
checked-in at Room 303 of the YMCA at Concepcion Street, Manila.

38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis?

A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last
was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone
about three or four times. On my first visit, I told him "I am expecting an attache case from
somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang
nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives,
I'll just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so
just come back on the 31st of August at 4 P.M." On that date, I was with friends at Batulao Resort
and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's place
at exactly 4 P.M.

39. Q. What happened then?

A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in
the sala. Sen. Salonga informed me that somebody will be coming to give me the attache case
but did not tell me the name.
 40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your
materials?

A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza
in setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told
him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the
airport telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and
the latest opposition group activities but it seems he is well informed.

41. Q. How long did you wait until that somebody arrived?

A. About thirty (30) minutes.

41. Q. What happened when the man arrived?

A. This man arrived and I was greatly surprised to see Atty. Renato Tañada Jovy Salonga was
the one who met him and as I observed parang nasa sariling bahay si Tañada nung dumating.
They talked for five (5) minutes in very low tones so I did not hear what they talked about. After
their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Tañada told me
"Nasa akin ang kailangan mo, nasa kotse."

43. Q. Were the materials given to you?

A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits"
Tañadas old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I
alighted, Atty. Tañada handed me a "Puma" bag containing all the materials I needed.

xxx xxx xxx

45. Q. What were the contents of the Puma bag?

A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical
blasting caps 4" length, ten (10) pieces non-electrical blasting caps 1 " length, nine (9) pieces
volts dry cell battery, two (2) improvised electrical testers. ten (10) plastic packs of high explosive
about 1 pound weight each.

However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also offered as
evidence by the accused, Lovely gave a different story which negates the above testimony insofar as the petitioner's participation was
concerned:

xxx xxx xxx

Q. Who were the people that you contacted in Manila and for what purpose?

A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the
Plaza Hotel, and somebody would just deliver the materials I would need. I disapproved of this,
and I told him I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis
suggested the residence of Sen. Salonga.

And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out.
The next day I made a call again. I was able to contact him. I made an appointment t see him. I
went to Sen. Salonga's house the following day. I asked Sen. Salonga if someone had given him
an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen.
Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house
on the 31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Tañada arrived.
When he had a chance to be near me, he (Atty. Tanada) whispered to me that he had the
attache case and the materials I needed in his car. These materials were given to me by Atty.
Tanada When I alighted at the Broadway Centrum. (Emphasis supplied)

During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter mentioned in his
sworn statement:

Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-
called destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein
 Jovito Salonga was also present, was this destabilization plan as alleged by you already
formulated?

WITNESS:

A. Not to my knowledge.

COURT TO WITNESS:

Q. Mr. Witness, who invited you to the party?

A. Raul Daza, your Honor.

Q. Were you told that Mr. Salonga would be present in the party.

A. I am really not quite sure, your Honor.

Q. Alright. You said initially it was social but then it became political. Was there any political
action taken as a result of the party?

A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84).

Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he really implicated
petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection,
the Court said:

Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening
the avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at
least, as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as
the contact point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of
this witness. That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67)

Respondent judge further said:

COURT:

As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming
to Manila already then the matter of . . . I have gone over the statement and there is no mention
of Salonga insofar as activities in the United States is concerned. I don't know why it concerns
this cross-examination.

ATTY. YAP:

Because according to him, it was in pursuance of the plan that he came to Manila.

COURT:

According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga
was introduced only when he (Lovely) came here. Now, the tendency of the question is also to
connect Salonga to the activities in the United States. It seems to be the thrust of the questions.

COURT:

In other words, the point of the Court as of the time when you asked him question, the focus on
Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the
name of Salonga came up. There was no mention of Salonga in the formulation of the
destabilization plan as affirmed by him. But you are bringing this up although you are only cross-
examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN.
July 8, 1981, pp. 73-74).
Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation" in the bombing
mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Tañada, which was all that Lovely really
stated in his testimony.

However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the
United States as his basis for denying the motion to dismiss:

On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of
my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not
instituted by President Marcos immediately.

It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that
excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born
on foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the
Philippines with the use of force and for that purpose it has linked itself with even communist organizations to achieve
its end. It appears to rely on aliens for its supporters and financiers.

The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not only inexplicable
but without foundation.

The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. There is no
proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of subversive organizations for two
reasons-

(1) Because his house was used as a "contactpoint"; and

(2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President
Marcos immediately."

The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to conclude that
Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some plotters, masquerading as
visitors, have somehow met in his house or office would be to establish a dangerous precedent. The right of citizens to be secure against
abuse of governmental processes in criminal prosecutions would be seriously undermined.

The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Tañada could not have
whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator Salonga at a Manglapus party in
Washington, D.C. in 1977 because the petitioner left for the United States only on November, 1978. Senator Salonga denies having known
Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors from week to week in his residence but cannot
recall any Victor Lovely.

The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a guest is not
proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed with all kinds of people in
various groups and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro
Valencia stated that Filipinos love to pose with important visitors and the picture proves nothing.

It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of all kinds to be
visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or even
visit him with others in his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a subversive group.
More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and
dismiss the refutations and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding.

The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed activities of
the Movement for Free Philippines or any subversive organization mentioned in the complaint. Lovely had already testified that during the
party of former Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP, no political action
was taken but only political discussion. Furthermore, the alleged opinion of the petitioner about the likelihood of a violent struggle here in the
Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought
and expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W.
Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the Constitution that more imperatively calls for
attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we
hate."

We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than substantive
economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental postulate of our constitutional
system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this
must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable
condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly
concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political
discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments.

The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the moral propriety
or even moral necessity for a resort to force and violence and speech which would prepare a group for violent action and steel it to such
action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally protected
speech.

It stated:

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must
interpret the language Congress chose against the background of a profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan (376
U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive,
and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a
political opposition to the President.

In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to
organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms
are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is
protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444) states that the
constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such
action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years away from such type of
proscribed advocacy.

Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and
expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. Under
Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute, prima facie evidence of membership in a
subversive organization if such discussion amounts to:

(6) Conferring with officers or other members of such association or organization in furtherance of any plan or
enterprise thereof.

As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any subversive
organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof
whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government through illegal means. The
alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either advocacy of or incitement to violence or
furtherance of the objectives of a subversive organization.

Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that occurred
after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He
further testified that:

WITNESS:

Actually, it was not my intention to do some kind of bombing against the government. My
bombing mission was directed against the particular family (referring to the Cabarrus family [TSN,
p. 11, July 9, 1981] [Rollo, p. 10].

Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been
commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the first place. The
respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner:

COURT:

Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate
Jovito Salonga?

A. No, your Honor. I did not try to implicate Salonga.

It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a prosecution witness.
Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some
kind of bombing against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted
by the prosecution who could supposedly establish the link between the petitioner and the bombing incidents.

The respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the
petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case at
bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it ignores the subsequent
disclaimers of Lovely and without relying on mere affidavits including those made by Lovely during his detention.

The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the bombings as
part of the alleged destabilization plan and the people behind the same were accorded such credibility by the respondent judge as if they had
already been proved beyond reasonable doubt.

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him
from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from
useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary
investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA
277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More
important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative
upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused.
Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the
conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the
examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise
Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some
credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It
bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should
continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93).

The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft ponencia was
circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of
respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice,
the prosecution restudied its evidence and decided to seek the exclusion of petitioner Jovito Salonga as one of the accused in the
information filed under the questioned resolution.

We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from circulating for
concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations.

Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been rendered moot
and academic by the action of the prosecution.

Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same acts because
the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not completely academic.

Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions.

The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual
as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's
functions.

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

In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally
void, escaped from the provincial jail while his petition was pending. The petition became moot because of his escape but we nonetheless
rendered a decision and stated:

The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and
unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution
that excessive bail shall not be required.

In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive
order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative powers under martial law.
Stan, this Court discussed the constitutional mandate on the preservation and development of Filipino culture for national Identity. (Article
XV, Section 9, Paragraph 2 of the Constitution).
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released from
custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal possession of
firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its symbolic function from
promulgating one of the most voluminous decisions ever printed in the Reports.

In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima facie case
against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government or as an officer or leader of any
subversive organization. They have taken the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that
this Court will not validate the filing of an information based on the kind of evidence against the petitioner found in the records.

WHEREFORE, the petition is DISMISSED for having become moot and academic.
G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED
NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR,
BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades
"Strike — but hear me first!" It is this cry that the petitioner in effect repeats here as he
challenges the constitutionality of Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the interprovincial

movement of carabaos and the slaughtering of carabaos not complying
with the requirements of Executive Order No. 626 particularly with respect
to age;

WHEREAS, it has been observed that despite such orders the violators
still manage to circumvent the prohibition against inter-provincial
movement of carabaos by transporting carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive

Order No. 626 and the prohibition against interprovincial movement of
carabaos, it is necessary to strengthen the said Executive Order and
provide for the disposition of the carabaos and carabeef subject of the
violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the

Philippines, by virtue of the powers vested in me by the Constitution, do
hereby promulgate the following:

SECTION 1. Executive Order No. 626 is hereby amended such that

henceforth, no carabao regardless of age, sex, physical condition or
purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this Executive
Order as amended shall be subject to confiscation and forfeiture by the
government, to be distributed to charitable institutions and other similar
 institutions as the Chairman of the National Meat Inspection Commission
may ay see fit, in the case of carabeef, and to deserving farmers through
dispersal as the Director of Animal Industry may see fit, in the case of
carabaos.

SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our
Lord, nineteen hundred and eighty.

(SGD.)
FERDINAND E.
MARCOS

Presid
ent

Republic of the
Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on
January 13, 1984, when they were confiscated by the police station commander of
Barotac Nuevo, Iloilo, for violation of the above measure. 1 The petitioner sued for recovery, and the
Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of
the case, the court sustained the confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the
bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for
2
its presumed validity.

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, **
and he has now come before us in this petition for review on certiorari.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef
being transported across provincial boundaries. His claim is that the penalty is invalid because it is imposed without according the owner a
right to be heard before a competent and impartial court as guaranteed by due process. He complains that the measure should not have
been presumed, and so sustained, as constitutional. There is also a challenge to the improper exercise of the legislative power by the former
4
President under Amendment No. 6 of the 1973 Constitution.

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here.
The question raised there was the necessity of the previous publication of the measure in the Official
Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due
process of law. In doing so, however, this Court did not, as contended by the Solicitor General, impliedly
affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter.

This Court has declared that while lower courts should observe a becoming modesty in examining
constitutional questions, they are nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution to
"review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide,"
final judgments and orders of lower courts in, among others, all cases involving the constitutionality of
certain measures. 7 This simply means that the resolution of such cases may be made in the first instance
by these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption is not by any means
conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the
need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice
Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by
simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe
the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the
wound or excise the affliction.

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the
task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of
the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his
legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment
there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or
was unable to act adequately on any matter that in his judgment required immediate action, he could, in
order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and
effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power
then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since
the determination of the grounds was supposed to have been made by the President "in his judgment, " a
phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of
this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more
fundamental question of due process.

It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That is the
Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the
wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in
the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the
Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due
process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all
seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make
it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal
straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. Instead, they have
preferred to leave the import of the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion
in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no
farther than to define due process — and in so doing sums it all up — as nothing more and nothing less than "the embodiment of the sporting
Idea of fair play." 12

When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for
themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John
made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every
person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is
formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the question; the other half must also be
considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is indispensable that the
two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or
the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or
useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with because they
are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this
country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have
consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster
described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which
proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach
of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword.

This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted exceptions. The
conclusive presumption, for example, bars the admission of contrary evidence as long as such presumption is based on human experience
or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the need
for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the
loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials,
contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a
criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily
padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing
may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the
general welfare from a clear and present danger.

The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The
police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18
By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most
demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is
hemmed in by the police power, which affects him even before he is born and follows him still after he is dead — from the womb to beyond
the tomb — in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even
so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper
but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the benefit of the greater number.

It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No.
626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in
one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers
who rely on them for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy crisis and the
increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not
taken steps to protect and preserve them.

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large
cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having
slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was
sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic
had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn
had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-
rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that
the questioned statute was a valid exercise of the police power and declared in part as follows:

To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the
public generally, as distinguished from those of a particular class, require such interference; and second, that the
means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals. ...

From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration
was required by "the interests of the public generally, as distinguished from those of a particular class" and that the
prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or
draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of
the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or
by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be
measurably and dangerously affected.

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct
relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also
reasonably necessary for the purpose sought to be achieved and not unduly oppressive upon individuals, again following the above-cited
doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven
years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and
preventing their improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal
certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure,
Executive Order No. 626-A imposes an absolute ban not on the slaughter of the carabaos but on their movement, providing that "no carabao
regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of
the prohibition escapes us. The reasonable connection between the means employed and the purpose sought to be achieved by the
questioned measure is missing
We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that
they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not
prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the
prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps
so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there
is no reason either to prohibit their transfer as, not to be flippant dead meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the
measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted
out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was
fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no
such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as
forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he
had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce
the carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed
punishment, which was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be
heard, thus denying him the centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual
requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative
20
proceedings as procedural due process is not necessarily judicial only. In the exceptional cases accepted, however. there
is a justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem
sought to be corrected and the urgency of the need to correct it.

In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory
treatment. The properties involved were not even inimical per se as to require their instant destruction.
There certainly was no reason why the offense prohibited by the executive order should not have been
proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under
the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is
penal in nature, the violation thereof should have been pronounced not by the police only but by a court of
justice, which alone would have had the authority to impose the prescribed penalty, and only after trial
and conviction of the accused.

We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as
prescribed in the questioned executive order. It is there authorized that the seized property shall "be
distributed to charitable institutions and other similar institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal
as the Director of Animal Industry may see fit, in the case of carabaos." (Emphasis supplied.) The phrase
"may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous
opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard
and the reasonable guidelines, or better still, the limitations that the said officers must observe when they
make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive
discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not
"canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid
delegation of legislative powers.

To sum up then, we find that the challenged measure is an invalid exercise of the police power because
the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law
and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated
is denied the right to be heard in his defense and is immediately condemned and punished. The
conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is
a clear encroachment on judicial functions and militates against the doctrine of separation of powers.
There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are
granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we
hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander who confiscated the
petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its
mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the
police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to
declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it.
Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all
their superior authority, to question the order we now annul.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this
case would never have reached us and the taking of his property under the challenged measure would
have become a fait accompli despite its invalidity. We commend him for his spirit. Without the present
challenge, the matter would have ended in that pump boat in Masbate and another violation of the
Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon
forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke
them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They
become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright
and sharp with use by those who are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above,
the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount
thereof is ordered restored to the petitioner. No costs.

SO ORDERED.
G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,

vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine
Overseas Employment Administration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:
This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and seizure under Article 38 of the Labor Code,
prohibiting illegal recruitment.

The facts are as follows:

xxx xxx xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in a sworn statement filed with the
Philippine Overseas Employment Administration (POEA for brevity) charged petitioner Hortencia Salazar, viz:

04. T: Ano ba ang dahilan at ikaw ngayon ay narito at

nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay

ayaw ibigay sa akin ng dati kong manager. — Horty
Salazar — 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang panloloko sa

iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha

ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said complaint was assigned, sent to
the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ POEA ANTI
ILLEGAL RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA COR. ORTIGAS AVE.
MANDALUYONG MM ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU.
FAIL NOT UNDER PENALTY OF LAW.

4. On the same day, having ascertained that the petitioner had no license to operate a recruitment agency, public
respondent Administrator Tomas D. Achacoso issued his challenged CLOSURE AND SEIZURE ORDER NO. 1205
which reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022, I hereby
order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St., Mandaluyong, Metro
Manila and the seizure of the documents and paraphernalia being used or intended to be used as the means of
committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and Employment to recruit and
deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation
to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B. Espiritu issued an office order
designating respondents Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro as members of a team tasked to
implement Closure and Seizure Order No. 1205. Doing so, the group assisted by Mandaluyong policemen and
mediamen Lito Castillo of the People's Journal and Ernie Baluyot of News Today proceeded to the residence of the
petitioner at 615 R.O. Santos St., Mandaluyong, Metro Manila. There it was found that petitioner was operating
Hannalie Dance Studio. Before entering the place, the team served said Closure and Seizure order on a certain Mrs.
Flora Salazar who voluntarily allowed them entry into the premises. Mrs. Flora Salazar informed the team that Hannalie
Dance Studio was accredited with Moreman Development (Phil.). However, when required to show credentials, she
was unable to produce any. Inside the studio, the team chanced upon twelve talent performers — practicing a dance
number and saw about twenty more waiting outside, The team confiscated assorted costumes which were duly
receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora Salazar.

6. On January 28, 1988, petitioner filed with POEA the following letter:

Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we respectfully request that the
personal properties seized at her residence last January 26, 1988 be immediately returned on the ground that said
seizure was contrary to law and against the will of the owner thereof. Among our reasons are the following:

1. Our client has not been given any prior notice or hearing, hence the Closure and Seizure Order
No. 1205 dated November 3, 1987 violates "due process of law" guaranteed under Sec. 1, Art. III,
of the Philippine Constitution.

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which guarantees right of the
people "to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose."

3. The premises invaded by your Mr. Ferdi Marquez and five (5) others (including 2 policemen)
are the private residence of the Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her consent and were done with
unreasonable force and intimidation, together with grave abuse of the color of authority, and
constitute robbery and violation of domicile under Arts. 293 and 128 of the Revised Penal Code.

Unless said personal properties worth around TEN THOUSAND PESOS (P10,000.00) in all (and
which were already due for shipment to Japan) are returned within twenty-four (24) hours from
your receipt hereof, we shall feel free to take all legal action, civil and criminal, to protect our
client's interests.

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant petition; on even date, POEA
1
filed a criminal complaint against her with the Pasig Provincial Fiscal, docketed as IS-88-836.
On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be barred are
already fait accompli, thereby making prohibition too late, we consider the petition as one for certiorari in
view of the grave public interest involved.

The Court finds that a lone issue confronts it: May the Philippine Overseas Employment Administration (or
the Secretary of Labor) validly issue warrants of search and seizure (or arrest) under Article 38 of the
Labor Code? It is also an issue squarely raised by the petitioner for the Court's resolution.

Under the new Constitution, which states:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized. 2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that mayors
may not exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the state of
the law as it was in September, 1985. The law has since been altered. No longer does
the mayor have at this time the power to conduct preliminary investigations, much less
issue orders of arrest. Section 143 of the Local Government Code, conferring this power
on the mayor has been abrogated, rendered functus officio by the 1987 Constitution
which took effect on February 2, 1987, the date of its ratification by the Filipino people.
Section 2, Article III of the 1987 Constitution pertinently provides that "no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the
person or things to be seized." The constitutional proscription has thereby been
manifested that thenceforth, the function of determining probable cause and issuing, on
the basis thereof, warrants of arrest or search warrants, may be validly exercised only by
judges, this being evidenced by the elimination in the present Constitution of the phrase,
"such other responsible officer as may be authorized by law" found in the counterpart
provision of said 1973 Constitution, who, aside from judges, might conduct preliminary
investigations and issue warrants of arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to
exercise, prosecutorial powers, and on that ground, it cannot be said to be a neutral and
detached "judge" to determine the existence of probable cause for purposes of arrest or
search. Unlike a magistrate, a prosecutor is naturally interested in the success of his
case. Although his office "is to see that justice is done and not necessarily to secure the
conviction of the person accused," he stands, invariably, as the accused's adversary and
his accuser. To permit him to issue search warrants and indeed, warrants of arrest, is to
make him both judge and jury in his own right, when he is neither. That makes, to our
mind and to that extent, Presidential Decree No. 1936 as amended by Presidential
Decree No. 2002, unconstitutional. 5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential Decree
No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973 Constitution.
Under the latter, the then Minister of Labor merely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power to
recommend the arrest and detention of any person engaged in illegal recruitment. 6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of
giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of Labor
arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the arrest and
detention of such non-licensee or non-holder of authority if after proper investigation it is
determined that his activities constitute a danger to national security and public order or
will lead to further exploitation of job-seekers. The Minister shall order the closure of
companies, establishment and entities found to be engaged in the recruitment of workers
for overseas employment, without having been licensed or authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor
Minister search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives shall
have the power to cause the arrest and detention of such non-licensee or non-holder of
authority if after investigation it is determined that his activities constitute a danger to
national security and public order or will lead to further exploitation of job-seekers. The
Minister shall order the search of the office or premises and seizure of documents,
paraphernalia, properties and other implements used in illegal recruitment activities and
the closure of companies, establishment and entities found to be engaged in the
recruitment of workers for overseas employment, without having been licensed or
authorized to do so. 8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight
moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that extent, we declare Article
38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect.

The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a
deportation case, governed by Section 69 of the defunct Revised Administrative Code and by Section 37
of the Immigration Law. We have ruled that in deportation cases, an arrest (of an undesirable alien)
ordered by the President or his duly authorized representatives, in order to carry out a final decision of
deportation is valid. 10 It is valid, however, because of the recognized supremacy of the Executive in
matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes,
228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the
Chief Executive "when he deems such action necessary for the peace and domestic
tranquility of the nation." Justice Johnson's opinion is that when the Chief Executive finds
that there are aliens whose continued presence in the country is injurious to the public
 interest, "he may, even in the absence of express law, deport them". (Forbes vs. Chuoco
Tiaco and Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41).

The right of a country to expel or deport aliens because their continued presence is
detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs.
Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956). 12

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the
power to order arrests) can not be made to extend to other cases, like the one at bar. Under the
Constitution, it is the sole domain of the courts.

Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was validly
issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive
Order No. 1022, I hereby order the CLOSURE of your recruitment agency being operated
at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the
documents and paraphernalia being used or intended to be used as the means of
committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and

Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New

Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and void,
thus:

xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants
describe the articles sought to be seized in this wise:

1) All printing equipment, paraphernalia, paper, ink, photo equipment,

typewriters, cabinets, tables, communications/ recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing
of the "WE FORUM" newspaper and any and all
documents/communications, letters and facsimile of prints related to the
"WE FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other

publications to promote the objectives and purposes of the subversive
organizations known as Movement for Free Philippines, Light-a-Fire
Movement and April 6 Movement; and

3) Motor vehicles used in the distribution/circulation of the "WE FORUM"

and other subversive materials and propaganda, more particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;

 2) DATSUN, pick-up colored white with Plate No. NKV 969;

3) A delivery truck with Plate No. NBS 542;

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking
"Bagong Silang."

In Stanford v. State of Texas, the search warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other
written instruments concerning the Communist Parties of Texas, and the operations of
the Community Party in Texas," was declared void by the U.S. Supreme Court for being
too general. In like manner, directions to "seize any evidence in connection with the
violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a
search warrant which authorized the seizure of any "paraphernalia which could be used
to violate Sec. 54-197 of the Connecticut General Statutes (the statute dealing with the
crime of conspiracy)" was held to be a general warrant, and therefore invalid. The
description of the articles sought to be seized under the search warrants in question
cannot be characterized differently.

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in English
history; the era of disaccord between the Tudor Government and the English Press,
when "Officers of the Crown were given roving commissions to search where they
pleased in order to suppress and destroy the literature of dissent both Catholic and
Puritan." Reference herein to such historical episode would not be relevant for it is not the
policy of our government to suppress any newspaper or publication that speaks with "the
voice of non-conformity" but poses no clear and imminent danger to state security. 14

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, who
may issue warrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens, whom the
President or the Commissioner of Immigration may order arrested, following a final order
of deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials seized
as a result of the implementation of Search and Seizure Order No. 1205.
Facts
Roe (P), a pregnant single woman, brought a class action suit challenging the constitutionality of
the Texas abortion laws. These laws made it a crime to obtain or attempt an abortion except on
medical advice to save the life of the mother.

Other plaintiffs in the lawsuit included Hallford, a doctor who faced criminal prosecution for
violating the state abortion laws; and the Does, a married couple with no children, who sought an
injunction against enforcement of the laws on the grounds that they were unconstitutional. The
defendant was county District Attorney Wade (D).

A three-judge District Court panel tried the cases together and held that Roe and Hallford had
standing to sue and presented justiciable controversies, and that declaratory relief was warranted.
The court also ruled however that injunctive relief was not warranted and that the Does’
complaint was not justiciable.

Roe and Hallford won their lawsuits at trial. The district court held that the Texas abortion
statutes were void as vague and for overbroadly infringing the Ninth and Fourteenth Amendment
rights of the plaintiffs. The Does lost, however, because the district court ruled that injunctive
relief against enforcement of the laws was not warranted.

The Does appealed directly to the Supreme Court of the United States and Wade cross-appealed
the district court’s judgment in favor of Roe and Hallford.

Issues
1. Do abortion laws that criminalize all abortions, except those required on medical advice
to save the life of the mother, violate the Constitution of the United States?
2. Does the Due Process Clause of the Fourteenth Amendment to the United States
Constitution protect the right to privacy, including the right to obtain an abortion?
3. Are there any circumstances where a state may enact laws prohibiting abortion?
4. Did the fact that Roe’s pregnancy had already terminated naturally before this case was
decided by the Supreme Court render her lawsuit moot?
5. Was the district court correct in denying injunctive relief?

Holding and Rule (Blackmun)

1. Yes. State criminal abortion laws that except from criminality only life-saving procedures
on the mother’s behalf, and that do not take into consideration the stage of pregnancy and
other interests, are unconstitutional for violating the Due Process Clause of the
Fourteenth Amendment.
2. Yes. The Due Process Clause protects the right to privacy, including a woman’s right to
terminate her pregnancy, against state action.
 3. Yes. Though a state cannot completely deny a woman the right to terminate her
pregnancy, it has legitimate interests in protecting both the pregnant woman’s health and
the potentiality of human life at various stages of pregnancy.
4. No. The natural termination of Roe’s pregnancy did not render her suit moot.
5. Yes. The district court was correct in denying injunctive relief.

The Court held that, in regard to abortions during the first trimester, the decision must be left to
the judgment of the pregnant woman’s doctor. In regard to second trimester pregnancies, states
may promote their interests in the mother’s health by regulating abortion procedures related to
the health of the mother. Regarding third trimester pregnancies, states may promote their
interests in the potentiality of human life by regulating or even prohibiting abortion, except when
necessary to preserve the life or health of the mother.

The Supreme Court held that litigation involving pregnancy, which is “capable of repetition, yet
evading review,” is an exception to the general rule that an actual controversy must exist at each
stage of judicial review, and not merely when the action is initiated.

The Court held that while 28 U.S.C. § 1253 does not authorize a party seeking only declaratory
relief to appeal directly to the Supreme Court, review is not foreclosed when the case is brought
on appeal from specific denial of injunctive relief and the arguments on the issues of both
injunctive and declaratory relief are necessarily identical.

The Does’ complaint seeking injunctive relief was based on contingencies which might or might
not occur and was therefore too speculative to present an actual case or controversy. It was
unnecessary for the Court to decide Hallford’s case for injunctive relief because once the Court
found the laws unconstitutional, the Texas authorities were prohibited from enforcing them.

Disposition
Roe wins – the district court judgment is affirmed.

Hallford loses – the district court judgment is reversed.

The Does lose – the district court judgment is affirmed.

See Singleton v. Wulff for an abortion rights constitutional law case brief involving issues of
injunctive and declaratory relief in the context of the enforcement of abortion legislation.
Syllabus

A pregnant single woman (Roe) brought a class action challenging the constitutionality of the
Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on
medical advice for the purpose of saving the mother's life. A licensed physician (Hallford), who
had two state abortion prosecutions pending against him, was permitted to intervene. A childless
married couple (the Does), the wife not being pregnant, separately attacked the laws, basing
alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for
parenthood, and impairment of the wife's health. A three-judge District Court, which
consolidated the actions, held that Roe and Hallford, and members of their classes, had standing
to sue and presented justiciable controversies. Ruling that declaratory, though not injunctive,
relief was warranted, the court declared the abortion statutes void as vague and overbroadly
infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does'
complaint not justiciable. Appellants directly appealed to this Court on the injunctive rulings,
and appellee cross-appealed from the District Court's grant of declaratory relief to Roe and
Hallford.

Held:

1. While 28 U.S.C. § 1253 authorizes no direct appeal to this Court from the grant or denial of
declaratory relief alone, review is not foreclosed when the case is properly before the Court on
appeal from specific denial of injunctive relief and the arguments as to both injunctive and
declaratory relief are necessarily identical. P. 123.

2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.

(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her
suit. Litigation involving pregnancy, which is "capable of repetition, yet evading review," is an
exception to the usual federal rule that an actual controversy [p114] must exist at review stages,
and not simply when the action is initiated. Pp. 124-125.

(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to
Hallford, who alleged no federally protected right not assertable as a defense against the good
faith state prosecutions pending against him. Samuels v. Mackell, 401 U.S. 66. Pp. 125-127.

(c) The Does' complaint, based as it is on contingencies, any one or more of which may not
occur, is too speculative to present an actual case or controversy. Pp. 127-129.

3. State criminal abortion laws, like those involved here, that except from criminality only a life-
saving procedure on the mother's behalf without regard to the stage of her pregnancy and other
interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects
against state action the right to privacy, including a woman's qualified right to terminate her
pregnancy. Though the State cannot override that right, it has legitimate interests in protecting
both the pregnant woman's health and the potentiality of human life, each of which interests
grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp.
147-164.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its
effectuation must be left to the medical judgment of the pregnant woman's attending physician.
Pp. 163, 164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in
promoting its interest in the health of the mother, may, if it chooses, regulate the abortion
procedure in ways that are reasonably related to maternal health. Pp. 163, 164.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of
human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-
164; 164-165.

4. The State may define the term "physician" to mean only a physician currently licensed by the
State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.

5. It is unnecessary to decide the injunctive relief issue, since the Texas authorities will doubtless
fully recognize the Court's ruling [p115] that the Texas criminal abortion statutes are
unconstitutional. P. 166.

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS,
BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., post, p. 207,
DOUGLAS, J., post, p. 209, and STEWART, J., post, p. 167, filed concurring opinions. WHITE,
J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 221. REHNQUIST, J.,
filed a dissenting opinion, post, p. 171. [p116]