Cases

DIGEST: Macariola vs. Asuncion

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant,
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of
Leyte, respondent.

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent

Judge Elias B. Asuncion of the Court of First Instance of Leyte, now Associate Justice of the
Court of Appeals, with "acts unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate
Justice Cecilia Muñoz Palma of the Court of Appeals now retired Associate Justice of the
Supreme Court, to whom this case was referred on October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint
for partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against
Bernardita R. Macariola, defendant, concerning the properties left by the
deceased Francisco Reyes, the common father of the plaintiff and defendant.

In her defenses to the complaint for partition, Mrs. Macariola alleged among
other things that; a) plaintiff Sinforosa R. Bales was not a daughter of the
deceased Francisco Reyes; b) the only legal heirs of the deceased were
defendant Macariola, she being the only offspring of the first marriage of
Francisco Reyes with Felisa Espiras, and the remaining plaintiffs who were
the children of the deceased by his second marriage with Irene Ondez; c) the
properties left by the deceased were all the conjugal properties of the latter
and his first wife, Felisa Espiras, and no properties were acquired by the
deceased during his second marriage; d) if there was any partition to be
made, those conjugal properties should first be partitioned into two parts, and
one part is to be adjudicated solely to defendant it being the share of the
latter's deceased mother, Felisa Espiras, and the other half which is the
share of the deceased Francisco Reyes was to be divided equally among his
children by his two marriages.
On June 8, 1963, a decision was rendered by respondent Judge Asuncion in
Civil Case 3010, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the

Court, upon a preponderance of evidence, finds and so holds,
and hereby renders judgment (1) Declaring the plaintiffs Luz
R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes
and Priscilla Reyes as the only children legitimated by the
subsequent marriage of Francisco Reyes Diaz to Irene
Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have
been an illegitimate child of Francisco Reyes Diaz; (3)
Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581,
4506 and 1/4 of Lot 1145 as belonging to the conjugal
partnership of the spouses Francisco Reyes Diaz and Felisa
Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416
as belonging to the spouses Francisco Reyes Diaz and Irene
Ondez in common partnership; (5) Declaring that 1/2 of Lot
No. 1184 as belonging exclusively to the deceased Francisco
Reyes Diaz; (6) Declaring the defendant Bernardita R.
Macariola, being the only legal and forced heir of her mother
Felisa Espiras, as the exclusive owner of one-half of each of
Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the
remaining one-half (1/2) of each of said Lots Nos. 4474,
4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of
one-fourth (1/4) of Lot No. 1154 as belonging to the estate of
Francisco Reyes Diaz; (7) Declaring Irene Ondez to be the
exclusive owner of one-half (1/2) of Lot No. 2304 and one-half
(1/2) of one-fourth (1/4) of Lot No. 3416; the remaining one-
half (1/2) of Lot 2304 and the remaining one-half (1/2) of one-
fourth (1/4) of Lot No. 3416 as belonging to the estate of
Francisco Reyes Diaz; (8) Directing the division or partition of
the estate of Francisco Reyes Diaz in such a manner as to
give or grant to Irene Ondez, as surviving widow of Francisco
Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the
whole estate of Francisco Reyes Diaz (Art. 996 in relation to
Art. 892, par 2, New Civil Code), and the remaining portion of
the estate to be divided among the plaintiffs Sinforosa R.
Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes,
Adela Reyes, Priscilla Reyes and defendant Bernardita R.
Macariola, in such a way that the extent of the total share of
plaintiff Sinforosa R. Bales in the hereditary estate shall not
exceed the equivalent of two-fifth (2/5) of the total share of
any or each of the other plaintiffs and the defendant (Art. 983,
New Civil Code), each of the latter to receive equal shares
from the hereditary estate, (Ramirez vs. Bautista, 14 Phil.
528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9)
Directing the parties, within thirty days after this judgment
shall have become final to submit to this court, for approval a
project of partition of the hereditary estate in the proportion
above indicated, and in such manner as the parties may, by
agreement, deemed convenient and equitable to them taking
into consideration the location, kind, quality, nature and value
of the properties involved; (10) Directing the plaintiff Sinforosa
 R. Bales and defendant Bernardita R. Macariola to pay the
costs of this suit, in the proportion of one-third (1/3) by the
first named and two-thirds (2/3) by the second named; and (I
1) Dismissing all other claims of the parties [pp 27-29 of Exh.
C].

The decision in civil case 3010 became final for lack of an appeal, and on
October 16, 1963, a project of partition was submitted to Judge Asuncion
which is marked Exh. A. Notwithstanding the fact that the project of partition
was not signed by the parties themselves but only by the respective counsel
of plaintiffs and defendant, Judge Asuncion approved it in his Order dated
October 23, 1963, which for convenience is quoted hereunder in full:

The parties, through their respective counsels, presented to

this Court for approval the following project of partition:

COMES NOW, the plaintiffs and the defendant in the above-

entitled case, to this Honorable Court respectfully submit the
following Project of Partition:

l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong
exclusively to Bernardita Reyes Macariola;

2. A portion of Lot No. 3416 consisting of 2,373.49 square

meters along the eastern part of the lot shall be awarded
likewise to Bernardita R. Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to

Sinforosa Reyes Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square

meters along the western part of the lot shall likewise be
awarded to Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among

Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes,
Adela Reyes and Priscilla Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416
after taking the portions awarded under item (2) and (4)
above shall be awarded to Luz Reyes Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in
equal shares, provided, however that the remaining portion of
Lot No. 3416 shall belong exclusively to Priscilla Reyes.

WHEREFORE, it is respectfully prayed that the Project of

Partition indicated above which is made in accordance with
the decision of the Honorable Court be approved.

Tacloban City, October 16, 1963.

 (SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban
City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban

City

While the Court thought it more desirable for all the parties to
have signed this Project of Partition, nevertheless, upon
assurance of both counsels of the respective parties to this
Court that the Project of Partition, as above- quoted, had
been made after a conference and agreement of the plaintiffs
and the defendant approving the above Project of Partition,
and that both lawyers had represented to the Court that they
are given full authority to sign by themselves the Project of
Partition, the Court, therefore, finding the above-quoted
Project of Partition to be in accordance with law, hereby
approves the same. The parties, therefore, are directed to
execute such papers, documents or instrument sufficient in
form and substance for the vesting of the rights, interests and
participations which were adjudicated to the respective
parties, as outlined in the Project of Partition and the delivery
of the respective properties adjudicated to each one in view of
said Project of Partition, and to perform such other acts as
are legal and necessary to effectuate the said Project of
Partition.

SO ORDERED.

Given in Tacloban City, this 23rd day of October, 1963.

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963,
only for the purpose of giving authority to the Register of Deeds of the
Province of Leyte to issue the corresponding transfer certificates of title to the
respective adjudicatees in conformity with the project of partition (see Exh.
U).

One of the properties mentioned in the project of partition was Lot 1184 or
rather one-half thereof with an area of 15,162.5 sq. meters. This lot, which
according to the decision was the exclusive property of the deceased
Francisco Reyes, was adjudicated in said project of partition to the plaintiffs
Luz, Anacorita Ruperto, Adela, and Priscilla all surnamed Reyes in equal
shares, and when the project of partition was approved by the trial court the
adjudicatees caused Lot 1184 to be subdivided into five lots denominated as
Lot 1184-A to 1184-E inclusive (Exh. V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge

Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area
of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon
 (Exh. 2) who was issued transfer certificate of title No. 2338 of the Register of
Deeds of the city of Tacloban (Exh. 12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot
1184-E with an area of around 1,306 sq. meters to Judge Asuncion and his
wife, Victoria S. Asuncion (Exh. 11), which particular portion was declared by
the latter for taxation purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed

their respective shares and interest in Lot 1184-E to "The Traders
Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the time of said
sale the stockholders of the corporation were Dominador Arigpa Tan, Humilia
Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's wife,
Victoria S. Asuncion, with Judge Asuncion as the President and Mrs.
Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of
"The Traders Manufacturing and Fishing Industries, Inc." which we shall
henceforth refer to as "TRADERS" were registered with the Securities and
Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].

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

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was
filed on October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We
referred this case to then Justice Cecilia Muñoz Palma of the Court of Appeals, for
investigation, report and recommendation. After hearing, the said Investigating Justice
submitted her report dated May 27, 1971 recommending that respondent Judge should be
reprimanded or warned in connection with the first cause of action alleged in the complaint,
and for the second cause of action, respondent should be warned in case of a finding that he
is prohibited under the law to engage in business. On the third and fourth causes of action,
Justice Palma recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.),
complainant herein instituted an action before the Court of First Instance of Leyte, entitled
"Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants," which was
docketed as Civil Case No. 4235, seeking the annulment of the project of partition made
pursuant to the decision in Civil Case No. 3010 and the two orders issued by respondent
Judge approving the same, as well as the partition of the estate and the subsequent
conveyances with damages. It appears, however, that some defendants were dropped from
the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he
was no longer a real party in interest when Civil Case No. 4234 was filed, having already
conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August 31,
1966 the remainder was sold to the Traders Manufacturing and Fishing Industries, Inc.
Similarly, the case against defendant Victoria Asuncion was dismissed on the ground that
she was no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was
filed as the portion of Lot 1184 acquired by her and respondent Judge from Dr. Arcadio
Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing
industries, Inc. Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus,
Ben Barraza Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R.
Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and
Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the conformity of
complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte,
who was directed and authorized on June 2, 1969 by the then Secretary (now Minister) of
Justice and now Minister of National Defense Juan Ponce Enrile to hear and decide Civil
Case No. 4234, rendered a decision, the dispositive portion of which reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has
jurisdiction to take cognizance of the issue of the legality and validity of the
Project of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"]
approving the partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant

Judge Elias B. Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS

[P400,000.00] for moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS

[P200,000.001 for exemplary damages;

(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for

nominal damages; and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for

Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA

VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE
DECEASED GERARDO VILLASIN —

(1) Dismissing the complaint against the defendants Mariquita Villasin and
the heirs of the deceased Gerardo Villasin;
 (2) Directing the plaintiff to pay the defendants Mariquita Villasin and the
heirs of Gerardo Villasin the cost of the suit.

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA

R. BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE
NO. 3010 —

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R.

Herrer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O.
Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO

RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the
suit.

SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated to the Court of
Appeals upon perfection of the appeal on February 22, 1971.

WE find that there is no merit in the contention of complainant Bernardita R. Macariola,

under her first cause of action, that respondent Judge Elias B. Asuncion violated Article
1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-
E which was one of those properties involved in Civil Case No. 3010. 'That Article provides:

Article 1491. The following persons cannot acquire by purchase, even at a

public or judicial action, either in person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior

courts, and other officers and employees connected with the administration
of justice, the property and rights in litigation or levied upon an execution
before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by
assignment and shall apply to lawyers, with respect to the property and rights
which may be the object of any litigation in which they may take part by virtue
of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property
which is the subject of litigation to the persons disqualified therein. WE have already ruled
that "... for the prohibition to operate, the sale or assignment of the property must take
place during the pendency of the litigation involving the property" (The Director of Lands vs.
Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA
641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot
1184-E, the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already
final because none of the parties therein filed an appeal within the reglementary period;
hence, the lot in question was no longer subject of the litigation. Moreover, at the time of the
sale on March 6, 1965, respondent's order dated October 23, 1963 and the amended order
dated November 11, 1963 approving the October 16, 1963 project of partition made
pursuant to the June 8, 1963 decision, had long become final for there was no appeal from
said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly
from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier
purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes,
Adela Reyes, and Luz R. Bakunawa after the finality of the decision in Civil Case No. 3010. It
may be recalled that Lot 1184 or more specifically one-half thereof was adjudicated in equal
shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes
in the project of partition, and the same was subdivided into five lots denominated as Lot
1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for
which he was issued TCT No. 2338 by the Register of Deeds of Tacloban City, and on
March 6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared
the same for taxation purposes only. The subsequent sale on August 31, 1966 by spouses
Asuncion and spouses Galapon of their respective shares and interest in said Lot 1184-E to
the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the
president and his wife was the secretary, took place long after the finality of the decision in
Civil Case No. 3010 and of the subsequent two aforesaid orders therein approving the
project of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action
before the Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul
the project of partition and the two orders approving the same, as well as the partition of the
estate and the subsequent conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-
E from Dr. Arcadio Galapon; hence, after the finality of the decision which he rendered
on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated October 23,
1963 and November 11, 1963. Therefore, the property was no longer subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer
alter, change or affect the aforesaid facts — that the questioned sale to respondent Judge,
now Court of Appeals Justice, was effected and consummated long after the finality of the
aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place
over one year after the finality of the decision in Civil Case No. 3010 as well as the two
orders approving the project of partition, and not during the pendency of the litigation, there
was no violation of paragraph 5, Article 1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr.
Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere
scheme to conceal the illegal and unethical transfer of said lot to respondent Judge as a
consideration for the approval of the project of partition. In this connection, We agree with
the findings of the Investigating Justice thus:
 And so we are now confronted with this all-important question whether or not
the acquisition by respondent of a portion of Lot 1184-E and the subsequent
transfer of the whole lot to "TRADERS" of which respondent was the
President and his wife the Secretary, was intimately related to the Order of
respondent approving the project of partition, Exh. A.

Respondent vehemently denies any interest or participation in the

transactions between the Reyeses and the Galapons concerning Lot 1184-E,
and he insists that there is no evidence whatsoever to show that Dr. Galapon
had acted, in the purchase of Lot 1184-E, in mediation for him and his wife.
(See p. 14 of Respondent's Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record
showing that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in
acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this
investigator as a respectable citizen, credible and sincere, and I believe him
when he testified that he bought Lot 1184-E in good faith and for valuable
consideration from the Reyeses without any intervention of, or previous
understanding with Judge Asuncion (pp. 391- 394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving
the project of partition although it was not signed by the parties, We quote with approval the
findings of the Investigating Justice, as follows:

1. I agree with complainant that respondent should have required the

signature of the parties more particularly that of Mrs. Macariola on the project
of partition submitted to him for approval; however, whatever error was
committed by respondent in that respect was done in good faith as according
to Judge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of
record of Mrs. Macariola, That he was authorized by his client to submit said
project of partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is
true that such written authority if there was any, was not presented by
respondent in evidence, nor did Atty. Ramo appear to corroborate the
statement of respondent, his affidavit being the only one that was presented
as respondent's Exh. 10, certain actuations of Mrs. Macariola lead this
investigator to believe that she knew the contents of the project of partition,
Exh. A, and that she gave her conformity thereto. I refer to the following
documents:

1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the
Tacloban Cadastral Survey in which the deceased Francisco Reyes holds a
"1/4 share" (Exh. 9-a). On tills certificate of title the Order dated November
11, 1963, (Exh. U) approving the project of partition was duly entered and
registered on November 26, 1963 (Exh. 9-D);

2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita

Reyes Macariola on October 22, 1963, conveying to Dr. Hector Decena the
one-fourth share of the late Francisco Reyes-Diaz in Lot 1154. In this deed of
sale the vendee stated that she was the absolute owner of said one-fourth
share, the same having been adjudicated to her as her share in the estate of
 her father Francisco Reyes Diaz as per decision of the Court of First Instance
of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was duly
registered and annotated at the back of OCT 19520 on December 3, 1963
(see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in the

project of partition dated October 16, 1963, which was approved by
respondent on October 23, 1963, followed by an amending Order on
November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs.
Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr.
Decena on October 22, 1963, several days after the preparation of the
project of partition.

Counsel for complainant stresses the view, however, that the latter sold her
one-fourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and
not because of the project of partition, Exh. A. Such contention is absurd
because from the decision, Exh. C, it is clear that one-half of one- fourth of
Lot 1154 belonged to the estate of Francisco Reyes Diaz while the other half
of said one-fourth was the share of complainant's mother, Felisa Espiras; in
other words, the decision did not adjudicate the whole of the one-fourth of Lot
1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became
the owner of the entire one-fourth of Lot 1154 only by means of the project of
partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22,
1963, it was for no other reason than that she was wen aware of the
distribution of the properties of her deceased father as per Exhs. A and B. It
is also significant at this point to state that Mrs. Macariola admitted during the
cross-examination that she went to Tacloban City in connection with the sale
of Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can
deduce that she could not have been kept ignorant of the proceedings in civil
case 3010 relative to the project of partition.

Complainant also assails the project of partition because according to her the
properties adjudicated to her were insignificant lots and the least valuable.
Complainant, however, did not present any direct and positive evidence to
prove the alleged gross inequalities in the choice and distribution of the real
properties when she could have easily done so by presenting evidence on
the area, location, kind, the assessed and market value of said properties.
Without such evidence there is nothing in the record to show that there were
inequalities in the distribution of the properties of complainant's father (pp.
386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the
New Civil Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his
court, it was, however, improper for him to have acquired the same. He should be reminded
of Canon 3 of the Canons of Judicial Ethics which requires that: "A judge's official conduct
should be free from the appearance of impropriety, and his personal behavior, not only upon
the bench and in the performance of judicial duties, but also in his everyday life, should be
beyond reproach." And as aptly observed by the Investigating Justice: "... it was unwise and
indiscreet on the part of respondent to have purchased or acquired a portion of a piece of
property that was or had been in litigation in his court and caused it to be transferred to a
corporation of which he and his wife were ranking officers at the time of such transfer. One
who occupies an exalted position in the judiciary has the duty and responsibility of
maintaining the faith and trust of the citizenry in the courts of justice, so that not only must he
be truly honest and just, but his actuations must be such as not give cause for doubt and
mistrust in the uprightness of his administration of justice. In this particular case of
respondent, he cannot deny that the transactions over Lot 1184-E are damaging and render
his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot
1184-E was no longer in litigation in his court and that he was purchasing it from a third
person and not from the parties to the litigation, he should nonetheless have refrained from
buying it for himself and transferring it to a corporation in which he and his wife were
financially involved, to avoid possible suspicion that his acquisition was related in one way or
another to his official actuations in civil case 3010. The conduct of respondent gave cause
for the litigants in civil case 3010, the lawyers practising in his court, and the public in general
to doubt the honesty and fairness of his actuations and the integrity of our courts of justice"
(pp. 395396, rec.).

II

With respect to the second cause of action, the complainant alleged that respondent Judge
violated paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated
himself with the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a
ranking officer, said corporation having been organized to engage in business. Said Article
provides that:

Article 14 — The following cannot engage in commerce, either in person or

by proxy, nor can they hold any office or have any direct, administrative, or
financial intervention in commercial or industrial companies within the limits
of the districts, provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department of

public prosecution in active service. This provision shall not be applicable to
mayors, municipal judges, and municipal prosecuting attorneys nor to those
who by chance are temporarily discharging the functions of judge or
prosecuting attorney.

xxx xxx xxx

5. Those who by virtue of laws or special provisions may not engage in

commerce in a determinate territory.

It is Our considered view that although the aforestated provision is incorporated in the Code
of Commerce which is part of the commercial laws of the Philippines, it, however, partakes of
the nature of a political law as it regulates the relationship between the government and
certain public officers and employees, like justices and judges.

Political Law has been defined as that branch of public law which deals with the organization
and operation of the governmental organs of the State and define the relations of the state
with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be
recalled that political law embraces constitutional law, law of public corporations,
administrative law including the law on public officers and elections. Specifically, Article 14 of
the Code of Commerce partakes more of the nature of an administrative law because it
regulates the conduct of certain public officers and employees with respect to engaging in
business: hence, political in essence.
It is significant to note that the present Code of Commerce is the Spanish Code of
Commerce of 1885, with some modifications made by the "Commission de Codificacion de
las Provincias de Ultramar," which was extended to the Philippines by the Royal Decree of
August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the United
States to the Republic of the Philippines, Article 14 of this Code of Commerce must be
deemed to have been abrogated because where there is change of sovereignty, the political
laws of the former sovereign, whether compatible or not with those of the new sovereign, are
automatically abrogated, unless they are expressly re-enacted by affirmative act of the new
sovereign.

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by one nation to

another, either following a conquest or otherwise, ... those laws which are
political in their nature and pertain to the prerogatives of the former
government immediately cease upon the transfer of sovereignty. (Opinion,
Atty. Gen., July 10, 1899).

While municipal laws of the newly acquired territory not in conflict with the,
laws of the new sovereign continue in force without the express assent or
affirmative act of the conqueror, the political laws do not. (Halleck's Int. Law,
chap. 34, par. 14). However, such political laws of the prior sovereignty as
are not in conflict with the constitution or institutions of the new sovereign,
may be continued in force if the conqueror shall so declare by affirmative act
of the commander-in-chief during the war, or by Congress in time of peace.
(Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the
case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26
U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:

On such transfer (by cession) of territory, it has never been

held that the relations of the inhabitants with each other
undergo any change. Their relations with their former
sovereign are dissolved, and new relations are created
between them and the government which has acquired their
territory. The same act which transfers their country, transfers
the allegiance of those who remain in it; and the law which
may be denominated political, is necessarily changed,
although that which regulates the intercourse and general
conduct of individuals, remains in force, until altered by the
newly- created power of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a
general principle of the public law that on acquisition of territory the previous political
relations of the ceded region are totally abrogated. "

There appears no enabling or affirmative act that continued the effectivity of the aforestated
provision of the Code of Commerce after the change of sovereignty from Spain to the United
States and then to the Republic of the Philippines. Consequently, Article 14 of the Code of
Commerce has no legal and binding effect and cannot apply to the respondent, then Judge
of the Court of First Instance, now Associate Justice of the Court of Appeals.
It is also argued by complainant herein that respondent Judge violated paragraph H, Section
3 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act,
which provides that:

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions

of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to
be unlawful:

x x x           x x x          x x x

(h) Directly or indirectly having financial or pecuniary interest

in any business, contract or transaction in connection with
which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any Iaw from
having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is
no showing that respondent participated or intervened in his official capacity in the business
or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at bar,
the business of the corporation in which respondent participated has obviously no relation or
connection with his judicial office. The business of said corporation is not that kind where
respondent intervenes or takes part in his capacity as Judge of the Court of First Instance.
As was held in one case involving the application of Article 216 of the Revised Penal Code
which has a similar prohibition on public officers against directly or indirectly becoming
interested in any contract or business in which it is his official duty to intervene, "(I)t is not
enough to be a public official to be subject to this crime; it is necessary that by reason of his
office, he has to intervene in said contracts or transactions; and, hence, the official who
intervenes in contracts or transactions which have no relation to his office cannot commit this
crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C.
Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue
advantage in its business operations by reason of respondent's financial involvement in it, or
that the corporation benefited in one way or another in any case filed by or against it in court.
It is undisputed that there was no case filed in the different branches of the Court of First
Instance of Leyte in which the corporation was either party plaintiff or defendant except Civil
Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et
al.," wherein the complainant herein sought to recover Lot 1184-E from the aforesaid
corporation. It must be noted, however, that Civil Case No. 4234 was filed only on November
9 or 11, 1968 and decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when
respondent Judge was no longer connected with the corporation, having disposed of his
interest therein on January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no
provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an existing
law expressly prohibiting members of the Judiciary from engaging or having interest in any
lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary
Act of 1948, does not contain any prohibition to that effect. As a matter of fact, under Section
77 of said law, municipal judges may engage in teaching or other vocation not involving the
practice of law after office hours but with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in
commerce is, as heretofore stated, deemed abrogated automatically upon the transfer of
sovereignty from Spain to America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the
purchase by judges of a property in litigation before the court within whose jurisdiction they
perform their duties, cannot apply to respondent Judge because the sale of the lot in
question to him took place after the finality of his decision in Civil Case No. 3010 as well as
his two orders approving the project of partition; hence, the property was no longer subject of
litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the
Civil Service Act of 1959 prohibits an officer or employee in the civil service from engaging in
any private business, vocation, or profession or be connected with any commercial, credit,
agricultural or industrial undertaking without a written permission from the head of
department, the same, however, may not fall within the purview of paragraph h, Section 3 of
the Anti-Graft and Corrupt Practices Act because the last portion of said paragraph speaks of
a prohibition by the Constitution or law on any public officer from having any interest in any
business and not by a mere administrative rule or regulation. Thus, a violation of the
aforesaid rule by any officer or employee in the civil service, that is, engaging in private
business without a written permission from the Department Head may not constitute graft
and corrupt practice as defined by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of
the Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the
Civil Service Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do not
apply to the members of the Judiciary. Under said Section 12: "No officer or employee shall
engage directly in any private business, vocation, or profession or be connected with any
commercial, credit, agricultural or industrial undertaking without a written permission from the
Head of Department ..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is
covered by Republic Act No. 296, as amended, otherwise known as the Judiciary Act of
1948 and by Section 7, Article X, 1973 Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the
President of the Philippines, not in the Commissioner of Civil Service, and only on two
grounds, namely, serious misconduct and inefficiency, and upon the recommendation of the
Supreme Court, which alone is authorized, upon its own motion, or upon information of the
Secretary (now Minister) of Justice to conduct the corresponding investigation. Clearly, the
aforesaid section defines the grounds and prescribes the special procedure for the discipline
of judges.

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court
can discipline judges of inferior courts as well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may,
for ... violation of the existing Civil Service Law and rules or of reasonable office regulations,
or in the interest of the service, remove any subordinate officer or employee from the service,
demote him in rank, suspend him for not more than one year without pay or fine him in an
amount not exceeding six months' salary." Thus, a violation of Section 12 of Rule XVIII is a
ground for disciplinary action against civil service officers and employees.

However, judges cannot be considered as subordinate civil service officers or employees

subject to the disciplinary authority of the Commissioner of Civil Service; for, certainly, the
Commissioner is not the head of the Judicial Department to which they belong. The Revised
Administrative Code (Section 89) and the Civil Service Law itself state that the Chief Justice
is the department head of the Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and under
the 1973 Constitution, the Judiciary is the only other or second branch of the government
(Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot be
considered as a ground for disciplinary action against judges because to recognize the same
as applicable to them, would be adding another ground for the discipline of judges and, as
aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their removal,
namely, serious misconduct and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil
Service who has original and exclusive jurisdiction "(T)o decide, within one hundred twenty
days, after submission to it, all administrative cases against permanent officers and
employees in the competitive service, and, except as provided by law, to have final authority
to pass upon their removal, separation, and suspension and upon all matters relating to the
conduct, discipline, and efficiency of such officers and employees; and prescribe standards,
guidelines and regulations governing the administration of discipline" (emphasis supplied).
There is no question that a judge belong to the non-competitive or unclassified service of the
government as a Presidential appointee and is therefore not covered by the aforesaid
provision. WE have already ruled that "... in interpreting Section 16(i) of Republic Act No.
2260, we emphasized that only permanent officers and employees who belong to the
classified service come under the exclusive jurisdiction of the Commissioner of Civil Service"
(Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the
Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is
not violative of the provissions of Article 14 of the Code of Commerce and Section 3(h) of the
Anti-Graft and Corrupt Practices Act as well as Section 12, Rule XVIII of the Civil Service
Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety of the same is
clearly unquestionable because Canon 25 of the Canons of Judicial Ethics expressly
declares that:

A judge should abstain from making personal investments in enterprises

which are apt to be involved in litigation in his court; and, after his accession
to the bench, he should not retain such investments previously made, longer
than a period sufficient to enable him to dispose of them without serious loss.
It is desirable that he should, so far as reasonably possible, refrain from all
relations which would normally tend to arouse the suspicion that such
relations warp or bias his judgment, or prevent his impartial attitude of mind
in the administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had
withdrawn on January 31, 1967 from the aforesaid corporation and sold their respective
shares to third parties, and it appears also that the aforesaid corporation did not in anyway
benefit in any case filed by or against it in court as there was no case filed in the different
branches of the Court of First Instance of Leyte from the time of the drafting of the Articles of
Incorporation of the corporation on March 12, 1966, up to its incorporation on January 9,
1967, and the eventual withdrawal of respondent on January 31, 1967 from said corporation.
Such disposal or sale by respondent and his wife of their shares in the corporation only 22
days after the incorporation of the corporation, indicates that respondent realized that early
that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge
and his wife therefore deserve the commendation for their immediate withdrawal from the
firm after its incorporation and before it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged that respondent
was guilty of coddling an impostor and acted in disregard of judicial decorum, and that there
was culpable defiance of the law and utter disregard for ethics. WE agree, however, with the
recommendation of the Investigating Justice that respondent Judge be exonerated because
the aforesaid causes of action are groundless, and WE quote the pertinent portion of her
report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent
associated and closely fraternized with Dominador Arigpa Tan who openly
and publicly advertised himself as a practising attorney (see Exhs. I, I-1 and
J) when in truth and in fact said Dominador Arigpa Tan does not appear in
the Roll of Attorneys and is not a member of the Philippine Bar as certified to
in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an

"impostor" and claims that all the time he believed that the latter was a bona
fide member of the bar. I see no reason for disbelieving this assertion of
respondent. It has been shown by complainant that Dominador Arigpa Tan
represented himself publicly as an attorney-at-law to the extent of putting up
a signboard with his name and the words "Attorney-at Law" (Exh. I and 1- 1)
to indicate his office, and it was but natural for respondent and any person for
that matter to have accepted that statement on its face value. "Now with
respect to the allegation of complainant that respondent is guilty of
fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to
be a godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if
true did not render respondent guilty of violating any canon of judicial ethics
as long as his friendly relations with Dominador A. Tan and family did not
influence his official actuations as a judge where said persons were
concerned. There is no tangible convincing proof that herein respondent
gave any undue privileges in his court to Dominador Arigpa Tan or that the
latter benefitted in his practice of law from his personal relations with
respondent, or that he used his influence, if he had any, on the Judges of the
other branches of the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as

much as possible from maintaining close friendly relations with practising
attorneys and litigants in his court so as to avoid suspicion 'that his social or
business relations or friendship constitute an element in determining his
judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have
social relations, that in itself would not constitute a ground for disciplinary
action unless it be clearly shown that his social relations be clouded his
 official actuations with bias and partiality in favor of his friends (pp. 403-405,
rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of
Appeals, did not violate any law in acquiring by purchase a parcel of land which was in
litigation in his court and in engaging in business by joining a private corporation during his
incumbency as judge of the Court of First Instance of Leyte, he should be reminded to be
more discreet in his private and business activities, because his conduct as a member of the
Judiciary must not only be characterized with propriety but must always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS

IS HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS
ACTIVITIES.

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez,

JJ., concur.

Concepcion Jr., J., is on leave.

Fernando, C.J., Abad Santos and Esolin JJ., took no part.

DIGEST: In People vs. Perfector

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18463             October 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GREGORIO PERFECTOR, defendant-appellant.

Alfonso E. Mendoza and the appellant in behalf of the latter.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The important question is here squarely presented of whether article 256 of the Spanish
Penal Code, punishing "Any person who, by . . . writing, shall defame, abuse, or insult any
Minister of the Crown or other person in authority . . .," is still in force.
About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero,
discovered that certain documents which constituted the records of testimony given by
witnesses in the investigation of oil companies, had disappeared from his office. Shortly
thereafter, the Philippine Senate, having been called into special session by the Governor-
General, the Secretary for the Senate informed that body of the loss of the documents and of
the steps taken by him to discover the guilty party. The day following the convening of the
Senate, September 7, 1920, the newspaper La Nacion, edited by Mr. Gregorio Perfecto,
published an article reading as follows:

Half a month has elapsed since the discovery, for the first time, of the scandalous
robbery of records which were kept and preserved in the iron safe of the Senate, yet
up to this time there is not the slightest indication that the author or authors of the
crime will ever be discovered.

To find them, it would not, perhaps, be necessary to go out of the Sente itself, and
the persons in charge of the investigation of the case would not have to display great
skill in order to succeed in their undertaking, unless they should encounter the
insuperable obstacle of offical concealment.

In that case, every investigation to be made would be but a mere comedy and
nothing more.

After all, the perpetration of the robbery, especially under the circumstances that
have surrounded it, does not surprise us at all.

The execution of the crime was but the natural effect of the environment of the place
in which it was committed.

How many of the present Senators can say without remorse in their conscience and
with serenity of mind, that they do not owe their victory to electoral robbery? How
may?

The author or authors of the robbery of the records from the said iron safe of the
Senate have, perhaps, but followed the example of certain Senators who secured
their election through fraud and robbery.

The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing
its committee on elections and privileges to report as to the action which should be taken
with reference to the article published in La Nacion. On September 15, 1920, the Senate
adopted a resolution authorizing the President of the Senate to indorse to the Attorney-
General, for his study and corresponding action, all the papers referring to the case of the
newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a result, an information was
filed in the municipal court of the City of Manila by an assistant city fiscal, in which the
editorial in question was set out and in which it was alleged that the same constituted a
violation of article 256 of the Penal Code. The defendant Gregorio Perfecto was found guilty
in the municipal court and again in the Court of First Instance of Manila.

During the course of the trial in the Court of First Instance, after the prosecution had rested,
the defense moved for the dismissal of the case. On the subject of whether or not article 256
of the Penal Code, under which the information was presented, is in force, the trial judge, the
Honorable George R. Harvey, said:
 This antiquated provision was doubtless incorporated into the Penal Code of Spain
for the protection of the Ministers of the Crown and other representatives of the King
against free speech and action by Spanish subjects. A severe punishment was
prescribed because it was doubtless considered a much more serious offense to
insult the King's representative than to insult an ordinary individual. This provision,
with almost all the other articles of that Code, was extended to the Philippine Islands
when under the dominion of Spain because the King's subject in the Philippines
might defame, abuse or insult the Ministers of the Crown or other representatives of
His Majesty. We now have no Ministers of the Crown or other persons in authority in
the Philippines representing the King of Spain, and said provision, with other articles
of the Penal Code, had apparently passed into "innocuous desuetude," but the
Supreme Corut of the Philippine Islands has, by a majority decision, held that said
article 256 is the law of the land to-day. . . .

The Helbig case is a precedent which, by the rule of stare decisis, is binding upon
this court until otherwise determined by proper authority.

In the decision rendered by the same judge, he concluded with the following language:

In the United States such publications are usually not punishable as criminal offense,
and little importance is attached to them, because they are generally the result of
political controversy and are usually regarded as more or less colored or
exaggerated. Attacks of this character upon a legislative body are not punishable,
under the Libel Law. Although such publications are reprehensible, yet this court
feels some aversion to the application of the provision of law under which this case
was filed. Our Penal Code has come to us from the Spanish regime. Article 256 of
that Code prescribes punishment for persons who use insulting language about
Ministers of the Crown or other "authority." The King of Spain doubtless left the need
of such protection to his ministers and others in authority in the Philippines as well as
in Spain. Hence, the article referred to was made applicable here. Notwithstanding
the change of sovereignty, our Supreme Court, in a majority decision, has held that
this provision is still in force, and that one who made an insulting remark about the
President of the United States was punishable under it. (U.S. vs. Helbig, supra.) If it
applicable in that case, it would appear to be applicable in this case. Hence, said
article 256 must be enforced, without fear or favor, until it shall be repealed or
superseded by other legislation, or until the Supreme Court shall otherwise
determine.

In view of the foregoing considerations, the court finds the defendant guilty as
charged in the information and under article 256 of their Penal Code sentences him
to suffer two months and one day of arresto mayor and the accessory penalties
prescribed by law, and to pay the costs of both instances.

The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief,
and eloquent oral argument made in his own behalf and by his learned counsel, all reduce
themselves to the pertinent and decisive question which was announced in the beginning of
this decision.

It will be noted in the first place that the trial judge considered himself bound to follow the
rule announced in the case of United States vs. Helbig (R. G. No. 14705, 1 not published). In
that case, the accused was charged with having said, "To hell with the President and his
proclamations, or words to that effect," in violation of article 256 of the Penal Code. He was
found guilty in a judgment rendered by the Court of First Instance of Manila and again on
appeal to the Supreme Court, with the writer of the instant decision dissenting on two
principal grounds: (1) That the accused was deprived of the constitutional right of cross-
examination, and (2) that article 256 of the Spanish Penal Code is no longer in force.
Subsequently, on a motion of reconsideration, the court, being of the opinion that the Court
of First Instance had committed a prejudicial error in depriving the accused of his right to
cross-examine a principal witness, set aside the judgment affirming the judgment appealed
from and ordered the return of the record to the court of origin for the celebration of a new
trial. Whether such a trial was actually had, is not known, but at least, the record in the
Helbig case has never again been elevated to this court.

There may perchance exist some doubt as to the authority of the decision in the Helbig case,
in view of the circumstances above described. This much, however, is certain: The facts of
the Helbig case and the case before us, which we may term the Perfecto case, are different,
for in the first case there was an oral defamation, while in the second there is a written
defamation. Not only this, but a new point which, under the facts, could not have been
considered in the Helbig case, is, in the Perfecto case, urged upon the court. And, finally, as
is apparent to all, the appellate court is not restrained, as was the trial court, by strict
adherence to a former decision. We much prefer to resolve the question before us
unhindered by references to the Helbig decision.

This is one of those cases on which a variety of opinions all leading to the same result can
be had. A majority of the court are of the opinion that the Philippine Libel Law, Act No. 277,
has had the effect of repealing so much of article 256 of the Penal Code as relates to written
defamation, abuse, or insult, and that under the information and the facts, the defendant is
neither guilty of a violation of article 256 of the Penal Code, nor of the Libel Law. The view of
the Chief Justice is that the accused should be acquitted for the reason that the facts alleged
in the information do not constitute a violation of article 156 of the Penal Code. Three
members of the court believe that article 256 was abrogated completely by the change from
Spanish to American sovereignty over the Philippines and is inconsistent with democratic
principles of government.

Without prejudice to the right of any member of the court to explain his position, we will
discuss the two main points just mentioned.

1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal
Code. — The Libel Law, Act No. 277, was enacted by the Philippine Commission
shortly after organization of this legislative body. Section 1 defines libel as a
"malicious defamation, expressed either in writing, printing, or by signs or pictures, or
the like, or public theatrical exhibitions, tending to blacken the memory of one who is
dead or to impeach the honesty, virtue, or reputation, or publish the alleged or
natural deffects of one who is alive, and thereby expose him to public hatred,
contempt or ridicule." Section 13 provides that "All laws and parts of laws now in
force, so far as the same may be in conflict herewith, are hereby repealed. . . ."

That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith,
and that the Libel Law abrogated certain portion of the Spanish Penal Code, cannot be
gainsaid. Title X of Book II of the Penal Code, covering the subjects of calumny and insults,
must have been particularly affected by the Libel Law. Indeed, in the early case of Pardo de
Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the Supreme Court spoke of the Libel Law
as "reforming the preexisting Spanish law on the subject of calumnia and injuria." Recently,
specific attention was given to the effect of the Libel Law on the provisions of the Penal
Code, dealing with calumny and insults, and it was found that those provisions of the Penal
Code on the subject of calumny and insults in which the elements of writing an publicity
entered, were abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.)

The Libel Law must have had the same result on other provisions of the Penal Code, as for
instance article 256.

The facts here are that the editor of a newspaper published an article, naturally in writing,
which may have had the tendency to impeach the honesty, virtue, or reputation of members
of the Philippine Senate, thereby possibly exposing them to public hatred, contempt, or
ridicule, which is exactly libel, as defined by the Libel Law. Sir J. F. Stephen is authority for
the statement that a libel is indictable when defaming a "body of persons definite and small
enough for individual members to be recognized as such, in or by means of anything
capable of being a libel." (Digest of Criminal Law, art. 267.) But in the United States, while it
may be proper to prosecute criminally the author of a libel charging a legislator with
corruption, criticisms, no matter how severe, on a legislature, are within the range of the
liberty of the press, unless the intention and effect be seditious. (3 Wharton's Criminal Law,
p. 2131.) With these facts and legal principles in mind, recall that article 256 begins: Any
person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or other
person in authority," etc.

The Libel Law is a complete and comprehensive law on the subject of libel. The well-known
rule of statutory construction is, that where the later statute clearly covers the old subject-
matter of antecedent acts, and it plainly appears to have been the purpose of the legislature
to give expression in it to the whole law on the subject, previous laws are held to be repealed
by necessary implication. (1 Lewis' Sutherland Statutory Construction, p. 465.) For identical
reasons, it is evident that Act No. 277 had the effect so much of this article as punishes
defamation, abuse, or insults by writing.

Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have
affected article 256, but as to this point, it is not necessary to make a pronouncement.

2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son
article 256 of the Spanish Penal Code. — Appellant's main proposition in the lower
court and again energetically pressed in the appellate court was that article 256 of
the Spanish Penal Code is not now in force because abrogated by the change from
Spanish to American sovereignty over the Philippines and because inconsistent with
democratic principles of government. This view was indirectly favored by the trial
judge, and, as before stated, is the opinion of three members of this court.

Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of
Book II punishes the crimes of treason, crimes that endanger the peace or independence of
the state, crimes against international law, and the crime of piracy. Title II of the same book
punishes the crimes of lese majeste, crimes against the Cortes and its members and against
the council of ministers, crimes against the form of government, and crimes committed on
the occasion of the exercise of rights guaranteed by the fundamental laws of the state,
including crime against religion and worship. Title III of the same Book, in which article 256 is
found, punishes the crimes of rebellion, sedition, assaults upon persons in authority, and
their agents, and contempts, insults, injurias, and threats against persons in authority, and
insults, injurias, and threats against their agents and other public officers, the last being the
title to Chapter V. The first two articles in Chapter V define and punish the offense of
contempt committed by any one who shall be word or deed defame, abuse, insult, or
threathen a minister of the crown, or any person in authority. The with an article condemning
challenges to fight duels intervening, comes article 256, now being weighed in the balance. It
reads as follows: "Any person who, by word, deed, or writing, shall defame, abuse, or
insult any Minister of the Crown or other person in authority, while engaged in the
performance of official duties, or by reason of such performance, provided that the offensive
minister or person, or the offensive writing be not addressed to him, shall suffer the penalty
of arresto mayor," — that is, the defamation, abuse, or insult of any Minister of the Crown of
the Monarchy of Spain (for there could not be a Minister of the Crown in the United States of
America), or other person in authority in the Monarchy of Spain.

It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do
with such subjects as treason, lese majeste, religion and worship, rebellion, sedition, and
contempts of ministers of the crown, are not longer in force. Our present task, therefore, is a
determination of whether article 256 has met the same fate, or, more specifically stated,
whether it is in the nature of a municipal law or political law, and is consistent with the
Constitution and laws of the United States and the characteristics and institutions of the
American Government.

It is a general principle of the public law that on acquisition of territory the previous political
relations of the ceded region are totally abrogated. "Political" is here used to denominate the
laws regulating the relations sustained by the inhabitants to the sovereign. (American
Insurance Co. vs. Canter [1828], 1 Pet., 511; Chicago, Rock Island and Pacific Railway
Co. vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of Customs [1912], 23 Phil., 315.)
Mr. Justice Field of the United States Supreme Court stated the obvious when in the course
of his opinion in the case of Chicago, Rock Island and Pacific Railway Co. vs. McGlinn,
supra, he said: "As a matter of course, all laws, ordinances and regulations in conflict with
the political character, institutions and Constitution of the new government are at once
displaced. Thus, upon a cession of political jurisdiction and legislative power — and the latter
is involved in the former — to the United States, the laws of the country in support of an
established religion or abridging the freedom of the press, or authorizing cruel and unusual
punishments, and he like, would at once cease to be of obligatory force without any
declaration to that effect." To quote again from the United States Supreme Court: "It cannot
be admitted that the King of Spain could, by treaty or otherwise, impart to the United States
any of his royal prerogatives; and much less can it be admitted that they have capacity to
receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise,
must hold it subject to the Constitution and laws of its own government, and not according to
those of the government ceding it." (Pollard vs. Hagan [1845], 3 Hos., 210.)

On American occupation of the Philippines, by instructions of the President to the Military

Commander dated May 28, 1898, and by proclamation of the latter, the municipal laws of the
conquered territory affecting private rights of person and property and providing for the
punishment of crime were nominally continued in force in so far as they were compatible with
the new order of things. But President McKinley, in his instructions to General Merritt, was
careful to say: "The first effect of the military occupation of the enemy's territory is the
severance of the former political relation of the inhabitants and the establishment of a new
political power." From that day to this, the ordinarily it has been taken for granted that the
provisions under consideration were still effective. To paraphrase the language of the United
States Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there was not
and could not be, except as precise questions were presented, a careful consideration of the
codal provisions and a determination of the extent to which they accorded with or were
repugnant to the "'great principles of liberty and law' which had been 'made the basis of our
governmental system.' " But when the question has been squarely raised, the appellate court
has been forced on occasion to hold certain portions of the Spanish codes repugnant t
democratic institutions and American constitutional principles. (U.S. vs. Sweet [1901], 1 Phil.,
18; U.S. vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533;
Weems vs. U.S., supra.)

The nature of the government which has been set up in the Philippines under American
sovereignty was outlined by President McKinley in that Magna Charta of Philippine liberty,
his instructions to the Commission, of April 7, 1900. In part, the President said:

In all the forms of government and administrative provisions which they are
authorized to prescribe, the Commission should bear in mind that he government
which they are establishing is designed not for our satisfaction or for the expression
of our theoretical views, but for the happiness, peace, and prosperity of the people of
the Philippine Islands, and the measures adopted should be made to conform to their
customs, their habits, and even their prejudices, to the fullest extent consistent with
the accomplishment of the indispensable requisites of just and effective government.
At the same time the Commission should bear in mind, and the people of the Islands
should be made plainly to understand, that there are certain great principles of
government which have been made the basis of our governmental system, which we
deem essential to the rule of law and the maintenance of individual freedom, and of
which they have, unfortunately, been denied the experience possessed by us; that
there are also certain practical rules of government which we have found to be
essential to the preservation of these great principles of liberty and law, and that
these principles and these rules of government must be established and maintained
in their islands for the sake of their liberty and happiness, however much they may
conflict with the customs or laws of procedure with which they are familiar. It is
evident that the most enligthened thought of the Philippine Islands fully appreciates
the importance of these principles and rules, and they will inevitably within a short
time command universal assent.

The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme
Court, in the case of United States vs. Bull ([1910], 15 Phil., 7), said: "The President and
Congress framed the government on the model with which American are familiar, and which
has proven best adapted for the advancement of the public interests and the protection of
individual rights and privileges."

Therefore, it has come with somewhat of a shock to hear the statement made that the
happiness, peace, and prosperity of the people of the Philippine Islands and their customs,
habits, and prejudices, to follow the language of President McKinley, demand obeisance to
authority, and royal protection for that authority.

According to our view, article 256 of the Spanish Penal Code was enacted by the
Government of Spain to protect Spanish officials who were the representatives of the King.
With the change of sovereignty, a new government, and a new theory of government, as set
up in the Philippines. It was in no sense a continuation of the old, although merely for
convenience certain of the existing institutions and laws were continued. The demands
which the new government made, and makes, on the individual citizen are likewise different.
No longer is there a Minister of the Crown or a person in authority of such exalted position
that the citizen must speak of him only with bated breath. "In the eye of our Constitution and
laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other
man. We have no rank or station, except that of respectability and intelligence as opposed to
indecency and ignorance, and the door to this rank stands open to every man to freely enter
and abide therein, if he is qualified, and whether he is qualified or not depends upon the life
and character and attainments and conduct of each person for himself. Every man may
lawfully do what he will, so long as it is not malum in se or malum prohibitum or does not
infringe upon the qually sacred rights of others." (State vs. Shepherd [1903], 177 Mo., 205;
99 A. S. R., 624.)

It is true that in England, from which so many of the laws and institutions of the United States
are derived, there were once statutes of scandalum magnatum, under which words which
would not be actionable if spoken of an ordinary subject were made actionable if spoken of a
peer of the realm or of any of the great officers of the Crown, without proof of any special
damage. The Crown of England, unfortunately, took a view less tolerant that that of other
sovereigns, as for instance, the Emperors Augustus, Caesar, and Tiberius. These English
statutes have, however, long since, become obsolete, while in the United States, the offense
of scandalum magnatum is not known. In the early days of the American Republic, a sedition
law was enacted, making it an offense to libel the Government, the Congress, or the
President of the United States, but the law met with so much popular disapproval, that it was
soon repealed. "In this country no distinction as to persons is recognized, and in practice a
person holding a high office is regarded as a target at whom any person may let fly his
poisonous words. High official position, instead of affording immunity from slanderous and
libelous charges, seems rather to be regarded as making his character free plunder for any
one who desires to create a senation by attacking it." (Newell, Slander and Libel, 3d ed., p.
245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)

Article 256 of the Penal Code is contrary to the genius and fundamental principles of the
American character and system of government. The gulf which separates this article from the
spirit which inspires all penal legislation of American origin, is as wide as that which
separates a monarchy from a democratic Republic like that of the United States. This article
was crowded out by implication as soon as the United States established its authority in the
Philippine Islands. Penalties out of all proportion to the gravity of the offense, grounded in a
distorted monarchical conception of the nature of political authority, as opposed to the
American conception of the protection of the interests of the public, have been obliterated by
the present system of government in the Islands.  1awph!l.net

From an entirely different point of view, it must be noted that this article punishes contempts
against executive officials, although its terms are broad enough to cover the entire official
class. Punishment for contempt of non-judicial officers has no place in a government based
upon American principles. Our official class is not, as in monarchies, an agent of some
authority greater than the people but it is an agent and servant of the people themselves.
These officials are only entitled to respect and obedience when they are acting within the
scope of their authority and jurisdiction. The American system of government is calculated to
enforce respect and obedience where such respect and obedience is due, but never does it
place around the individual who happens to occupy an official position by mandate of the
people any official halo, which calls for drastic punishment for contemptuous remarks.

The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of
Paris. Ministers of the Crown have no place under the American flag.

To summarize, the result is, that all the members of the court are of the opinion, although for
different reasons, that the judgment should be reversed and the defendant and appellant
acquitted, with costs de officio. So ordered.

Ostrand and Johns, JJ., concur.

Separate Opinions

ARAULLO, C.J., concurring:

I concur with the dispositive part of the foregoing decision, that is, with the acquittal of the
accused, for the sole reason that the facts alleged in the information do not constitute a
violation of article 256 of the Penal Code; for although that article is in force with respect to
calumny, injuria, or insult, by deed or word, against an authority in the performance of his
duties or by reason thereof, outside of his presence, it is repealed by the Libel Law in so far
as it refers to calumny, injuria, or insult committed against an authority by writing or printing,
as was that inserted in the said information.

ROMUALDEZ, J., concurring:

I concur with the result. I believe that the responsibility of the accused has not been shown
either under article 256 of the Penal Code or under the Libel Law.

I am of the opinion that article 256 of the Penal Code is still in force, except as it refers to
"Ministers of the Crown," whom we do not have in our Government, and to calumny, injuria,
or insult, by writing or printing, committed against an authority in the performance of his
duties or by reason thereof, which portion was repealed by the Libel Law.

Johnson, Street, Avanceña and Villamor, JJ., concur.

DIGEST: Legaspi vs. Minister of Finance:

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-58289 July 24, 1982

VALENTINO L. LEGASPI, petitioner,
vs.
THE HONORABLE MINISTER OF FINANCE and THE HONORABLE COMMISSIONER
and/or THE BUREAU OF INTERNAL REVENUE; respondents.

BARREDO, J.:

Petition filed by the Honorable Valentino L. Legaspi, incumbent member of

the interim Batasang Pambansa, praying that this Court declare Presidential Decree 1840
"granting tax amnesty and filing of statement of assets and liabilities and some other
purposes" unconstitutional.

The petition contains the following allegations:

5. That said decree was issued by the President under supposed legislative
powers granted him under Amendment No. 6 of the Constitution proclaimed
in full force and effect as of October 27, 1976 pursuant to Proclamation No.
1595 and which is quoted as follows:

Whenever in the Judgment of the President, 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 instruction, which
shall form part of the law of the land.

6. That said decree was promulgated despite the fact that under the
Constitution "(T)he legislative power shall be vested in a Batasang
Pambansa" (Sec. 1, Article VIII) and the President may grant amnesty only
with concurrence of the Batasang Pambansa (Sec. 11, Art. VII);

7. That Amendment No. 6 is not one of the powers granted the President by
the Constitution as amended in the plebiscite of April 7, 1981; that while
Section 16 of Art. VII of the Constitution provides:

All powers vested in the President of the Philippines under

the 1935 Constitution and the laws of the land which are not
herein provided for on conferred upon any official shall be
deemed and are hereby vested in the President unless the
Batasang Pambansa provides otherwise.

such re-confirmation of existing powers did not mean to include the

President's legislative powers under Amendment No. 6: by "the laws of the
land which are not herein provided for or conferred upon any official" only
those laws that have been passed by the existing and/or prior legislature are
intended;

8. That the Respondents are intending and in fact implementing the

provisions of the questioned decree and the same tends to affect all
taxpayers in the Philippines including herein Petitioner; that he is now in a
quandary on whether to take advantage of the benefits of said decree since
the same is of doubtful constitutionality leaving him no protection as
guaranteed by the decree and thus subject him to prosecution for violation of
which otherwise would have held him immune under said decree;

9. That as a member of the Batasang Pambansa he knows that the subject of

the questioned decree has not been brought to the attention of the Batasang
Pambansa requiring immediate attention, the fact being that the original tax
amnesty decree which the questioned decree amended or modified has long
 been effective and implemented by the Respondents while the Batasang
Pambansa was in session;

10. That Presidential Decree No. 1840 is patently null and void having been
passed without the concurrence of the Batasang Pambansa and it is likewise
of public interest and of the nation that the question of whether the President
retained his legislative power after lifting Martial Law and after the
Constitution was amended on April 7, 1981 be resolved;

11. That the questioned decree being the first dated after the lifting of Martial
Law and the April 7 amendments brings to test the validity of the exercise of
standby emergency powers invoked in Amendment No. 6. (Pp. 3-6, record.)

As the petitioner himself puts it in his memorandum, the issue is: Whether the 1973
Constitution as amended by Plebiscite-Referendum of 1976, retained the same
amendments, more particularly Amendment No. 6, after it was again amended in the
Plebiscite held on April 7, 1981?

On the issue thus formulated by petitioner, it is maintained that "Amendment No. 6 is

rendered inoperable, deleted and/or repealed by the amendments of April 7, 1981". Opening
his discussion of this proposition thus:

Amendment No. 6 as originally submitted to the people for ratification under

Pres. Dec. No. 1033, and thereafter approved reads as follows:

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 instruction,
which shall form part of the law of the land.

Whether the matter or that there was an exigency which required immediate
action let it be conceded that in the judgment of the President such facts do
exist. (Emphasis ours)

It is to be observed that the original text mentions President (Prime Minister).

This is so because under No. 3 of the same amendment,

... 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 1935 Constitution and the powers vested in the
President and the Prime Minister under this Constitution.
Parenthetically, the term "Incumbent President" employed in the transitory
provisions could only refer to President Ferdinand E. Marcos (Aquino vs.
Commission on Elections, 62 SCRA 275).

After the April 7 amendments there exists no longer "a President (Prime
Minister)" but "A President"and "A Prime Minister." They are now two
different offices which cannot be held by a single person — not a transitory
one but a regular one provided for and governed by the main provisions of
the newly amended Constitution. Subsequent events accept the reality that
we are no longer governed by the transitory provisions of the Constitution.
(Pp. 27-28, Record.)

petitioner rationalizes his affirmative position thereon this wise:

Is Amendment No. 6 of the 1973 Constitution as approved in 1976

reproduced or unaffected by the April 7, 1981 amendment? Or, is it
considered repealed by Omission?

The Constitutional provisions of the Presidency do not restate the provisions

of Amendment No. 6 which grants the President (Prime Minister) limited
powers to legislate. This is tantamount to a withdrawal or deletion of such
grant.

There is no way by which the incumbent President be referred to anymore as

the "incumbent President" in the amendment of 1976. While it is true that
Amendment No. 6 fails to distinguish between "incumbent" and "regular" all
provisions with reference to the powers of the Presidency is deemed
foreclosed by Article VII of the newly amended Constitution. Article VII
enumerates presidential powers. To construe that the 1976 Amendments are
still applicable, other than that referring to the Interim Batasang Pambansa
would be an incompatibility to the application of the present constitutional
provisions.

Generally taken, the 1976 amendments are amendments to the transitory

provisions of the Constitution. Insofar as the office of the President or the
Prime Minister is concerned they have ceased to be governed by the
transitory provisions but under the newly amended Constitution.

Batas Pambansa Blg. 125 called for the election of a President under the
newly amended Constitution. President Marcos ran as candidate and was
proclaimed the duly elected President of the Philippines by resolution no. 2 of
the Batasang Pambansa dated June 21, 1981. He took his oath of office as
the duly elected President. The Prime Minister, the Members of the Cabinet
and the Executive Committee took their oaths after having been appointed
and are now exercising their functions pursuant to the new provisions. We
even consider ourselves the Fourth Republic because of a new system of
government. What particular part of the newly amended Constitution would
Amendment No. 6 fit in?

President Ferdinand E. Marcos ceased to be the incumbent resident referred

to in the transitory provisions or in the 1976 amendments. The Solicitor
General argued that Amendment No. 6 provided for the contingency that the
 office would be separated consisting of a ceremonial President and a Prime
Minister who will be he executive. Yet, without express constitutional grant
the President now assumes a power intended to be that of the Prime
Minister. The intent of the 1981 amendments could not be interpreted any
other way except that after the amendment it would no longer be proper to
exercise those reposed upon the Prime Minister. Powers previously reposed
upon the Prime Minister were expressly removed from him and given to the
President. Amendment No. 6 is not one of those.

The proposed amendments under Batasan . No. 104 became Question No. 1
in the ballot of April 7, 1981 plebiscite to which the voter was asked (B.P. Blg.
122):

Do you vote for the approval of an amendment to the

Constitution and to Amendment No. 2, as proposed by the
Batasang Pambansa in Resolution No. 2, which, in
substance, calls for the establishment of a modified
parliamentary system, amending for this purpose Articles VII,
VIII and IX of the Constitution, with the following principal
features: ...

Nowhere in feature (1) was it submitted that the President would enjoy
conditional or qualified legislative powers as modified parliamentary system.

The original intent to set out the original act or section as amended is most
commonly indicated by a statement in the amendatory act that the original
law is amended to "read as follows." The new statute is a substitute for the
original act or section. Only those provisions of the original act or section
repeated in the amendment are retained (Paras vs. Land Registration
Commission, July 26, 1960, L-16011).

That "The Legislative power shall be vested in the Batasang Pambansa" is

an old provision which has been retained. This in essence was Question No.
1 in the April 7 Plebiscite as to who exercise legislative powers and who are
to execute. Nowhere in the approved Amendment can it be hinted that the
hybrid-type of government also includes a one-man legislature. The intent to
repose legislation only upon the Batasan is very apparent. The adoption of
the new Constitution repeals and supersedes all the provisions of the older
one not continued in force by the new instrument (16 C.J.S. 88). (Pp. 30-33,
Record.)

After mature study and deliberation and considering the peculiar circumstances that dictated
the formulation of Amendment No. 6, the Court's conclusion is, that Assemblyman-
Petitioners posture lacks, to say the least, sufficient merit.

Constitutional law is not simply the literal application of the words of the Charter. The ancient
and familiar rule of constitutional construction that has consistently maintained its intrinsic
and transcendental worth is that the meaning and understanding conveyed by the language,
albeit plain, of any of its provisions do not only portray the influence of current events and
developments but likewise the inescapable imperative considerations rooted in the historical
background and environment at the time of its adoption and thereby caused their being
written as part and parcel thereof. As long as this Court adheres closest to this perspective in
viewing any attack against any part of the Constitution, to the end of determining what it
actually encompasses and how it should be understood, no one can say We have misguided
Ourselves. None can reasonably contend We are treading the wrong way.

True enough Article VIII, Sec. 1 of the Philippine Constitution as amended in 1981 explicitly
ordains that "(T)he legislative power shall be vested in a Batasang Pambansa". Section 2,
however, readily reveals that the Batasang Pambansa contemplated in that Section 1 is the
regular assembly (formerly referred to as National Assembly, now as Batasang Pambansa
— evidently to indigenize the nomenclature, which, incidentally should have been done also
with the Pangulo and Pangunang Ministro), to be elected in May 1984, per Sec. 5(1) of the
same Article. Thus, to begin with, in the instant case, We must keep in mind that at least for
the present and until 1984, what can be properly discussed here are only the legislative
powers of the interim Batasang Pambansa as such.

Without intending any reflection on any of those responsible for the Idea, it may be that it is
for non-essential reasons that the current legislative assembly is being referred to generally
simply as the Batasang Pambansa. For in legal truth and in actual fact, and as expressly
admitted by petitioner, it is inherently no more no less than the same interim. Batasang
Pambansa created by Amendment No. 2 by virtue of the Referendum-Plebiscite of October
16-17, 1976. And, in this connection, it may be observed that indubitably, and as a
necessary and logical consequence, the amendment of Amendment No. 2 in 1981 carried
with it the corresponding appropriate adjustments literal and otherwise of Amendment Nos. 3
and 4, although these latter two were not specifically mentioned in the proposal pursuant to
BP-CA Resolution No. 4 of the Batasan, acting as a constituent body nor in the Plebiscite
Referendum Act itself, much less in the ballots presented to and used by the voters. This is
because it cannot be denied that Amendments 3 and 4 are by their very nature inseparable
parts of amendment No. 2.

But examining closely how the 1981 amendments altered Amendment No. 2, it will be readily
seen that the only change consisted of the non-inclusion of the "incumbent President" as
member of the assembly in pursuance of the fundamental objective to separate the
Presidency from the regular legislative body and thereby establish in our country a modified
form of parliamentary government more appropriate for and suitable to the peculiar
conditions of our political development and the idiosyncrasies of our people, and at the same
time introduce into it features that would strengthen its structure so as to enable the
government to cope with emergencies or abnormal situations, not only like those that
presently exist but even those that might arise in the future. Thus, it is characterized with a
presidency more powerful than the idea of a strong President desired by President Quezon
and actually embodied in the 1935 Constitution.

It is, therefore, evident that the reference to Amendment No. 2 in the amendments of 1981
was not intended at all to convert or upgrade the present existing assembly into the regular
Batasang Pambansa. To repeat, what we have now is still the interim Batasang Pambansa
created in 1976. Importantly, it must be said that had the present Batasan, acting as a
constituent body, ever thought of making itself the regular National Assembly, the very
odious spectacle that the people rejected when in the referendum of January 10-15, 1973
they repulsed and repudiated the interim National Assembly provided for in Sections 1 and 2
of Article XVII (Transitory Provisions) of the 1973 Constitution whereby the members of the
old Congress of the Philippines made themselves automatically members of
the interim assembly would have resuscitated, and we can readily imagine how the reaction
of our people would have been exactly the same as in 1973 and for sure the 1981 proposed
constitutional amendment affecting the Batasang would again have been denied sanction by
our people.

Having arrived at the ineludible that the present Batasan is still interim, it also ineluctably
follows that its legislative authority cannot be more exclusive now after 1981 amendments
than when it was originally created in 1976. Thus even as the interim Batasan which came
into being "in lieu of the Interim National Assembly" by virtue of Amendment No. 2
consequently acquired "the same powers and its Members — the same functions,
responsibilities, rights and privileges, and disqualifications as the regular National Assembly
and the members thereof", there can be no question that coeval with the creation of
the interim Batasan, Amendment No. 6 came into force and effect. And Amendment No. 6
mandates in unequivocal and unambiguous terms the grant of concurrent legislative
authority to an official (the President [Prime Minister]) who is not in the Batasan itself.

In brief, the inexorable logic of the events that brought forth the present Batasan leads to no
other conclusion than that the legislative authority vested in it by Amendment No. 2, read
together with Section 1, Article XVII and Section 1, of Article VIII of the 1973 Constitution, is
subject to the external concurrent legislative prerogative that Amendment No. 6 vests on the
"President (Prime Minister)."

Actually, the insistence of petitioner that Amendment No. 6 has been repealed by the 1981
amendments springs from another point of view. It is fundamentally based on analysis and
ratiocination related to the language and tenor thereof. Petitioner maintains that said
amendments vested extraordinary legislative powers on "the President (Prime Minister)" and
on nobody else, and since there is no one who is President (Prime Minister) under our
present governmental set-up pursuant to 1981 amendments, no one in the existing
government can exercise said powers.

The persuasive force of such theory is more apparent than real. As We have said earlier, the
Constitution is not merely a literal document to be always read according to the plain and
ordinary signification of its words. Beneath and beyond the literal terms of the Charter, like a
mine of incalculably immense treasures, are elements and factors radiating from political and
economic developments of the situation prevailing at the time of the inclusion of any
particular provision thereof or amendment thereto. It is only from the light of the implications
of such elements and factors that the real essence and significance of the words of the
constitutional provision under scrutiny can be properly and adequately seen and
comprehended.

With reference to Amendment No. 6, it is of decisive importance that anyone who would try
to decipher its true import should be acquainted with its ration d'tre, i.e., the whys and the
wherefores thereof. Contrary to the imputations of petitioner, this amendment is not rooted in
the authoritarian, much less dictatorial tendencies or inclinations of anyone. Any tinge or tint
of authoritarianism in it is not there for the sake of the Ideology of dictatorship or
authoritarian itself. Such hue of a one-man authoritarianism it somehow connotes is there
only because it is so dictated by paramount considerations that are needed in order to
safeguard the very existence and integrity of the nation and all that it stands for. Perhaps the
truism—almost a dogma—well recognized by constitutionalists and political scientists of all
persuasions as a convenient pragmatic rule for survival of nations, namely, that in an
emergency, the best form of government is a dictatorship, might have been in the mind of
those who formulated it, but it is quite obvious, as will be explained anon, that other
fundamental factors must have been taken into account in order precisely to minimize the
rigors and generally feared oppressiveness of a dictatorship in an unrestricted martial
regime, its being dubbed as martial law "Philippine style" notwithstanding.

At this juncture, it must be emphatically made clear that explicitly the power that Amendment
No. 6 vests upon the "President (Prime Minister)" are to be exercised only on two specified
occasions, namely, (1) "when in (his judgment) a grave emergency exists or there is a threat
or imminence thereof" and (2) "whenever the interim Batasang Pambansa or the regular
National Assembly (now regular Batasang Pambansa) fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action." The power is to
"issue necessary decrees, orders, or letters of instruction which shall form part of the law of
the land." As the tenor of the amendment readily imparts, such power may be exercised
even when the Batasan is in session. Obviously, therefore, it is a power that is in the nature
of the other Powers which the Constitution directly confers upon the President or allows to be
delegated to him by the Batasan in times of crises and emergencies.

Indeed, it is but fitting and proper that in framing the fundamental law of the land which sets
up a form of government and defines and delimits the powers thereof and its officers,
reserving as they must plenary sovereignty to themselves, the people should prudently
provide what powers may and should be exercised by the government and/or its officials in
times of crises and emergencies that could jeopardize the very life and/or territorial integrity
of the country. Even as individual rights and liberties are valued and enshrined as inviolable,
the people, as they write their Charter thru a convention or other legitimate means, cannot
ignore that in the event of war, insurrection, rebellion or invasion, including any other critical
situation, any one of which cannot but affect the regular course of normal constitutional
processes and institutions as well as the prerogatives and freedoms of individual citizens of
and inhabitants within the country, appropriate protective, defensive and rehabilitative
measures must be provided therein and may be made to function or operate.

Accordingly, both in the 1935 Constitution of the Philippines and in that of 1973, the following
provisions were precisely intended to operate during such perilous situations:

1. In times of war or other national emergency, the Batasang Pambansa may by law
authorize the President for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the Batasang Pambansa, such powers shall cease
upon its next adjournment. The 1935 version of this provision differs from it in that what was
granted to the President was not the broad authority "to exercise such powers necessary
and proper" but only to issue rules and regulations purported to accomplish the same
objective.

2. Section 10(2) of Article VII of the 1935 Constitution provided thus:

... (2) The President shall be commander-in-chief of all armed forces of the
Philippines and, whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion, insurrection,
or rebellion. In case of invasion, insurrection or rebellion or imminent danger
thereof, when the public safety requires it, he may suspend the privileges of
the writ of habeas corpus, or place the Philippines or any part thereof under
the martial law...

Under Section 12 of Article IX of the 1973 Constitution, exactly the same powers were
conferred on the Prime Minister.
However, what is now Section 9 of Article VIII under the 1981 amendments transferred all
said powers to the President.

As can be seen, as authorized by the Commander-in-Chief clause of all our Constitutions,

there have been as there still are three other measures that may be resorted to during an
emergency, namely:

(1) Call out such armed forces to prevent or suppress lawless violence,
invasion, insurrection or rebellion or imminent danger thereof, when public
safety requires it;

(2) Suspend the privilege of the writ of habeas corpus, and

(3) Place the Philippines or any part thereof under martial law.

It appears, therefore, that within the four corners of the Constitution itself, whether that of
1935 or that of 1973, there were four constitutionally designed ways of coping with abnormal
situations in the country, namely: (1) the so-called emergency powers delegated by the
assembly to the President; (2) the calling of the armed forces; (3) the suspension of the
privilege of the writ of habeas corpus and (4) the placing of the country or any part thereof
under martial law. Understandably, it is to be supposed that these measures are to be
resorted to one after the other according to the degree of gravity of the situation.

A backward glance at our past experiences since the implantation of American sovereignty in
our country at the turn of the century should remind us that at one time or another all of
these four measures have been resorted to, albeit martial law proclamations in the long past
were limited in area and duration because of the localized nature of the disturbances they
were meant to remedy.

Bearing all the foregoing considerations in mind, the question that naturally arises at this
juncture is what need is there for the power contemplated in Amendment No. 6? Why does
the country have to have a one-man legislating authority concurrent with the Batasang
Pambansa? Are the above-discussed safeguards not enough?

At this point, it must be noted that Amendment No. 6 does not refer only to
the interim Batasang Pambansa but also to the regular "National Assembly" (now Batasang
Pambansa), a consideration which lends force to the conclusion that the 1981 amendments
could not have been intended nor understood to do away with it. What, indeed, is the
fundamental ration d'tre of Amendment No. 6?

It is to be recalled that the said amendment was formulated in October 1976, more than fully
four years after the whole Philippines was first placed under martial law pursuant to
Proclamation 1081 dated September 21, 1972. True, without loss of time, President Marcos
made it clear that there was no military take-over of the government, and that much less was
there being established a revolutionary government, even as he declared that said martial
law was of a double-barrelled typed, unfamiliar to traditional constitutionalists and political
scientists — for two basic and transcendental objectives were intended by it: (1) the quelling
of nationwide subversive activities characteristic not only of a rebellion but of a state of war
fanned by a foreign power of a different Ideology from ours, and not excluding the stopping
effectively of a brewing, if not a strong separatist movement in Mindanao, and (2) the
establishment of a New Society by the institution of disciplinary measures designed to
eradicate the deep-rooted causes of the rebellion and elevate the standards of living
education and culture of our people, and most of an the social amelioration of the poor and
underprivileged in the farms and in the barrios, to the end that hopefully insurgency may not
rear its head in this country again.

The immediate reaction of some sectors of the nation was of astonishment and dismay, for
even if everyone knew that the gravity of the disorder, lawlessness, social injustice, youth
and student activism and other disturbing movements had reached a point of peril, they felt
that martial law over the whole country was not yet warranted. Worse, political motivations
were ascribed to be behind the proclamation, what with the then constitutionally unextendible
term of President Marcos about to expire, and this suspicion became more credible when
opposition leaders and outspoken anti-administration media people who did not hesitate to
resort even to libel were immediately placed under indefinite detention in military camps and
other unusual restrictions were imposed on travel, communication, freedom of speech and of
the press, etc. In a word, the martial law regime was anathema to no small portion of the
populace. Criticisms or objections thereto were, of course, mostly covert, but there were
even instances of open resistance.

Truth to tell, martial law is generally unwelcome anywhere in the world. And when it is
prolonged without anyone knowing when it would be lifted, the feeling of discontent grows
and spreads. Indeed, it is difficult to describe fully in an opinion like this all that many
consider obnoxious in martial law. Suffice it to say that the New Society that came out of it
did have its laudatory features appreciated by large segments of the people, but with many
cases of abuses of the military marring such receptive attitude, the clamor for the early lifting
of martial law became more and more audible.

We can definitely say that no one more than President Marcos was aware of those feelings
and sentiments and, in fact, even of the undercurrents of resistance. And as We visualize the
situation he found himself in, he was faced with no less than a dilemma. He was convinced
of the advantages, not personally to him, but to general welfare of martial law, but at the
same time he was also conscious that martial law, in any form — call it Philippine style,
smiling, benign or with any other euphemistic adjective — was growing to be more and more
distasteful. Even the New Society it was supposed to bring about was slowly losing its
splendor. Backsliding was creeping in some ways, discipline was loosening. But over and
above all such adverse developments, the perils to national security and public order still
remained, if in a slightly lesser degree.

It was in the light of the above circumstances and as a means of solving the dilemma
aforementioned that the concept embodied in Amendment No. 6 was born. In brief, the
central Idea that emerged was that martial law may be earlier lifted, but to safeguard our
country and people against any abrupt dangerous situation which would warrant the exercise
of some authoritarian powers, the latter must be constitutionally allowed, thereby to obviate
the need to proclaim martial law and its concomitants, principally the assertion by the military
of prerogatives that made them appear superior to the civilian authorities below the
President. In other words, the problem was what may be needed for national survival or the
restoration of normalcy in the face of a crisis or an emergency should be reconciled with the
popular mentality and attitude of the people against martial law.

We have said earlier that the Constitution has four built-in measures to cope with crises and
emergencies. To reiterate, they are: (a) emergency powers expressly delegated by the
Batasan; (b) call of the armed forces, who otherwise are supposed to be in the barracks; (c)
suspension of the privilege of the writ of habeas corpus; and (d) martial law. Of these four,
the people dislike martial law most and would, if possible, do away with it in the Constitution.
And the President who first conceived of what is now Amendment No. 6 knew this. Thus, Our
understanding of the development of events and attitudes that led to the adoption of
Amendment No. 6 is that in addition to the four measures authorized in the body of the
charter, this amendment is supposed to be a fifth one purportedly designed to make it
practically unnecessary to proclaim martial law, except in instances of actual surface warfare
or rebellious activities or very sophisticated subversive actions that cannot be adequately
met without martial law itself. Very evidently, the purpose of Amendment No. 6 is that the
Philippines be henceforth spared of martial law unless manifest extreme situations should
ever demand it.

To recapitulate, the amendments of October 1976 were deliberately designed against martial
law. The creation thereby of the interim Batasang Pambansa in lieu of the interim National
Assembly which never came into being because of vehement and justified popular
repudiation thereof was definitely an indispensable step towards the lifting of martial law.
Everyone can understand that martial law could not be lifted without a legislative body to
make the laws. The legislative authority could not be left in the hands of the President (Prime
Minister). It would have been anachronistic to lift martial law and still leave the law-making
authority with the President (Prime Minister) alone.

Relatedly but more importantly, the vesting of the legislative authority to

the interim Batasang Pambansa, without more or exclusively, would have maintained the
safeguards of national security only to the four traditional constitutional measures repeatedly
discussed above, including martial law. The framers of the amendment realized only too well
they had to look for a remedy thereto, the dislike of the people, justified or not, of martial law.
And so, to make the proclamation of martial law remotest, but nevertheless enable the
government to meet emergencies effectively, they conceived the Idea of granting to the
President (Prime Minister) the power endowed to him by Amendment No. 6.

Skeptics and hardcore critics of the administration there must be who would sarcastically
allude to Amendment No. 6 as martial law just the same but only like a dog with merely
another collar. A word of explanation is thus called for of the vital differences between one
and the other.

The attitude of those who are opposed to Amendment No. 6 must be due to lack of sufficient
acquaintance with the real essence of the various constitutionally authorized emergency
measures imperatively needed to safeguard the national security and integrity already
discussed above. The delegation of legislative power thru the issuance of rules and
regulations to carry out a national policy declared by the Batasan has its own virtues as a
restrained way of conferring law-making authority to the Executive during an emergency. It is
limited, restricted, subject to conditions and temporary. It is obviously the simplest remedy to
cope with an abnormal situation resulting in the least violence to revered democratic
republican processes constitutionally established.

But being purely a political and legislative remedy, it cannot be adequate when lawless
violence becomes generalized and public safety is in jeopardy, hence the need to call out the
armed forces. And when such situation still aggravates to the point of requiring the
preventive incarceration or detention of certain leaders or over active elements, it becomes
inevitable to suspend the privilege of the writ of habeas corpus.

Should matters really go out of hand even after the putting into effect of the measures
aforementioned, under the constitution. without Amendment No. 6, the only recourse would
be to proclaim martial law. But inasmuch as martial law is an extreme measure that carries
with it repressive and restrictive elements unpopular to liberty loving and democratically
minded sectors of the country, it is but natural to think of it only as a very last resort.

Well, it is to avoid the necessity of resorting to the proclamation of martial law that
Amendment No. 6 was conceived. Paraphrasing President Marcos himself, martial law is the
law of the gun, that implies coercion and an active and direct role in the government by the
military. Thus, the virtue of Amendment No. 6 is that such undesirable features of martial law
do not have to accompany the exercise of the power thereby conferred on the Executive. To
be sure, the calling out of the armed forces and the suspension of the privilege of the writ of
habeas corpus, which are concomitants of martial law, may be left out or need not be
resorted to when the President acts by virtue of such power. It is, therefore, evident that it is
grossly erroneous to say that Amendment No. 6 is in reality no less than disguised martial
law.

Apparently conceding, at least in gratia argumenti, the truth and the logic of all the foregoing
discussion and conclusions, petitioner raises the question of how can Amendment No. 6 fit
into the new set up under the 1981 amendments, which abolished the dual position of
President Marcos of President-Prime Minister mandated by the 1976 Amendment No. 3.
According to petitioner, President Marcos is President now (no longer President-Prime
Minister) pursuant to the 1981 amendments and by virtue of his election as such as
proclaimed by the Batasan on June 21, 1981. Not without a bit of sarcasm, petitioner even
refers to the reference to the status of our government after the inauguration of President
Marcos as the Fourth Republic. How then, petitioner asks, can the President of the Fourth
Philippine Republic exercise powers granted to the President-Prime Minister of the
provisional government established by the Transitory Provisions and conferred upon him
only by Amendment No. 6 of October 1976?

If We go solely by the rules of literature, a considerable degree of plausibility, as We have

intimated earlier in this opinion, may be conceded to the pose of petitioner. It indeed seems
that since the positions of President and Prime Minister have been separated by the 1981
amendments and the same do not state to whom the power under Amendment No. 6 would
appertain, neither the present President nor the present Prime Minister can exercise such
power. But again, We hold that petitioner is laboring under a misconception of facts and of
the principles of constitutional construction.

Earlier hereinabove, We discoursed on the inevitability of the conclusion that the current
Batasan, being merely interim "in lieu of the interim National Assembly" established under
Section 1 of the Transitory Provisions, it is subject to the provisions of Amendment No. 6
which was approved and ratified together with the creation of the Batasan. We have also
made a rather extensive exposition of the whys and wherefores behind Amendment No. 6.
As may be noted, the ultimate thrust of Our discussion is to establish as a legal proposition
that behind and beneath the words of the amendment, the literal reference to "the President
(Prime Minister)" in Amendment No. 6 was the intention to make such reference descriptive
of the person on whom is vested the totality of the executive power under the system of
government established thereby. For as a matter of general principle in constitutional law,
belonging as he does to the political department of the government, it is only with such
official that, the high prerogative of policy determination can be shared. And in this
connection, it is very important to note that the amendment does not speak of the "incumbent
President" only, as in the other amendments, like Nos. 1, 3 and 5, but of the President,
meaning to include all future presidents. More, Amendment No. 6 makes mention not only of
the interim Batasan but also of the regular one. All these unmistakably imply that the power
conferred upon the President thereby was not for President Marcos alone but for whoever
might be President of the Philippines in the future.

As to the parenthetical mention therein of the Prime Minister, We are of the considered view
that it was necessary to do so because under the governmental system then, which was
markedly Prime Ministerial, the substantive executive powers were vested in the Prime
Minister, the President being merely the symbolical and ceremonial head of state, and the
two positions were being held by one and the same person. In other words, the power was
contemplated to be conferred upon whomsoever was vested the executive power, and that is
as it should be, for, to reiterate, from the very nature of the power itself, the authority to
legislate should be allowed, if at all, to be shared only with one in the political department,
directly deriving power from the vote of the people.

Withal, as the Solicitor General aptly posits, it is neither sound nor in consonance with well
and long settled principles of constitutional construction to recognize amendments or repeals
of constitutional provisions by implications, specially in regard to a transcendental matter as
that herein under discussion. Indeed, the fact that Amendment No. 6 was not in any way or
sense mentioned in the amendments submitted to the people for ratification in 1981 and
there being nothing in the latter intrinsically inconsistent with the former, it is safe to conclude
that it would be deceiving the people themselves and depriving them of something they had
decided in 1976 to be part of the fundamental law of the land to now eliminate the power
conferred by them upon the Executive of sharing legislative authority with the Batasan on
appropriate occasions of emergency and urgency.

Anent petitioner's claim that the President may not constitutionally grant the amnesty
provided for in P.D. 1840, to Our mind, the following well taken brief answer of the Solicitor
General, with whom We fully agree, is more than sufficient to dispose of the same adversely
to petitioner's stance:

Petitioner argues that Presidential Decree 1840 is likewise invalid for it did
not enjoy the concurrence of the Batasan. He relies on Article VII, Section 11
of the Constitution which provides that —

The President may, except in cases of impeachment, grant

reprieves, commutations and pardons, remit fines and
forfeitures and with the concurrence of the Batasang
Pambansa, grant amnesty.

Again, we beg to disagree. Article VII, sec. 11, applies only when the
President is exercising his power of executive clemency. In the case at bar,
Presidential Decree 1840 was issued pursuant to his power to legislate under
Amendment No. 6. It ought to be indubitable that when the President acts as
legislator as in the case at bar, he does not need the concurrence of the
Batasan. Rather, he exercises concurrent authority vested by the
Constitution.

We cannot close this opinion without underscoring the patent tendency and unrelenting effort
of the leadership of the country to make our government and our way of life indigenously
Filipino as much as it is possible to make them so. It has, of course, tried its utmost to see
what is good in other lands, but it has chosen generally to bring out what is best in our own
traditions, usages, customs and systems that have proven efficacious and beneficial during
the times of our forebears. The sanggunians and barangays, which have inherited from the
Filipinos of the past and that have been institutionalized in Constitutional Amendment No. 7
of 1976 have, as everyone can see, proven to be unshakable bedrocks for the foundation of
duly constituted governmental authority with firm nationwide mass base. Our present
government, if in some ways similar to any foreign one, is in truth a product of our own
genius in political science and matters of government. Nowhere else in the world but in the
Philippines are martial law decrees and acts subject to the judicial scrutiny of the Supreme
Court. Amendment No. 6 is of the same strain. It is our native and indigenous way of coping
with crucial situations.

We are Filipinos, so much so that the writer of this opinion has purposely avoided reference
to, much less lifted quotations from alien jurisprudence and authorities. If only in this
particular case, it is but appropriate to use language and style of our own.

All the above premises taken into account. Our considered conclusion and judgment is that
Amendment No. 6 of October 1976 of the Constitution of 1973 has not been in anyway
altered or modified, much less repealed by the constitutional amendments of 1981.

WHEREFORE, the petition is dismissed. No costs.

Makasiar, Concepcion, Jr. Guerrero, Plana, Escolin, Vasquez and Relova, JJ., concur.

Melencio-Herrera, J., concur in the result.

Teehankee, I., reserves his vote.

Gutierrez, Jr. J., is on leave.

Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003

(https://lawphil.net/judjuris/juri2003/nov2003/gr_160261_2003.html)

Civil Liberties Union v. Executive Secretary, 194 SCRA 317

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 83896             February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815             February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as
Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture
and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural
Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as
Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment;
LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of
National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as
Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of
Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry;
JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as
Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and
Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and
SOLITA MONSOD, as Head of the National Economic Development
Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in
83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both seek a
declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The
pertinent provisions of the assailed Executive Order are:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member
of the Cabinet, undersecretary or assistant secretary or other appointive officials of
the Executive Department may, in addition to his primary position, hold not more than
two positions in the government and government corporations and receive the
corresponding compensation therefor; Provided, that this limitation shall not apply to
ad hoc bodies or committees, or to boards, councils or bodies of which the President
is the Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other

appointive official of the Executive Department holds more positions than what is
allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of
the subordinate official who is next in rank, but in no case shall any official hold more
than two positions other than his primary position.

Sec. 3. In order to fully protect the interest of the government in government-owned

or controlled corporations, at least one-third (1/3) of the members of the boards of
such corporation should either be a secretary, or undersecretary, or assistant
secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the
Cabinet, their undersecretaries and assistant secretaries to hold other government offices or
positions in addition to their primary positions, albeit subject to the limitation therein imposed,
runs counter to Section 13, Article VII of the 1987 Constitution,  which provides as follows:
2

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution, hold
any other office or employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession, participate in any business,
or be financially interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their office.

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as
members of the Cabinet, along with the other public officials enumerated in the list attached
to the petitions as Annex "C" in G.R. No.
83815  and as Annex "B" in G.R. No. 83896  from holding any other office or employment
3 4

during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive

Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No.
83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a
temporary restraining order directing public respondents therein to cease and desist from
holding, in addition to their primary positions, dual or multiple positions other than those
authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems
and other forms of privileges and the like appurtenant to their questioned positions, and
compelling public respondents to return, reimburse or refund any and all amounts or benefits
that they may have received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the
aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary
of Justice Sedfrey Ordoñez, construing Section 13, Article VII in relation to Section 7, par.
(2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987,  declaring that
5

Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of government corporations: (a) when
directly provided for in the Constitution as in the case of the Secretary of Justice who is
made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1,
Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their
respective positions; and that on the basis of this Opinion, the President of the Philippines,
on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated
Executive Order No. 284. 6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and
Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the
general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage"
between the two provisions, each addressed to a distinct and separate group of public
officers –– one, the President and her official family, and the other, public servants in general
–– allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional
rank assigned to the prohibition against multiple jobs for the President, the Vice-President,
the members of the Cabinet, and their deputies and subalterns, who are the leaders of
government expected to lead by example."  Article IX-B, Section 7, par. (2)  provides:
7 8

Sec. 7. . . . . .
 Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the government or any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of
1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 1987  and DOJ
9

Opinion No. 155, series of 1988,  being the first official construction and interpretation by the
10

Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the
Constitution, involving the same subject of appointments or designations of an appointive
executive official to positions other than his primary position, is "reasonably valid and
constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ
Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ
Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the
limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to positions
which, although not so designated as ex-officio are allowed by the primary functions of the
public official, but only to the holding of multiple positions which are not related to or
necessarily included in the position of the public official concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on
the principal submission that it adds exceptions to Section 13, Article VII other than those
provided in the Constitution. According to petitioners, by virtue of the phrase "unless
otherwise provided in this Constitution," the only exceptions against holding any other office
or employment in Government are those provided in the Constitution, namely: (1) The Vice-
President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII
thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-
XB on the Civil Service Commission applies to officers and employees of the Civil Service in
general and that said exceptions do not apply and cannot be extended to Section 13, Article
VII which applies specifically to the President, Vice-President, Members of the Cabinet and
their deputies or assistants.

There is no dispute that the prohibition against the President, Vice-President, the members
of the Cabinet and their deputies or assistants from holding dual or multiple positions in the
Government admits of certain exceptions. The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception. Petitioners insist that because
of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article
VII, the exception must be expressly provided in the Constitution, as in the case of the Vice-
President being allowed to become a Member of the Cabinet under the second paragraph of
Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of
the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other
hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section 13,
Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive
officials mentioned therein are concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of
the broad exceptions made for appointive officials in general under Section 7, par. (2), Article
I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by
the primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporation or their subsidiaries."

We rule in the negative.

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.
11

The practice of designating members of the Cabinet, their deputies and assistants as
members of the governing bodies or boards of various government agencies and
instrumentalities, including government-owned and controlled corporations, became
prevalent during the time legislative powers in this country were exercised by former
President Ferdinand E. Marcos pursuant to his martial law authority. There was a
proliferation of newly-created agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were designated to head or
sit as members of the board with the corresponding salaries, emoluments, per diems,
allowances and other perquisites of office. Most of these instrumentalities have remained up
to the present time.

This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-
enrichment. In fact, the holding of multiple offices in government was strongly denounced on
the floor of the Batasang Pambansa.  This condemnation came in reaction to the published
12

report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on:
Government-Owned and Controlled Corporations, Self-Governing Boards and Commissions"
which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31, 1983."

Particularly odious and revolting to the people's sense of propriety and morality in
government service were the data contained therein that Roberto V. Ongpin was a member
of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and
corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22);
Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen
each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve
(12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11)
each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with
the Marcos regime. It was therefore quite inevitable and in consonance with the
overwhelming sentiment of the people that the 1986 Constitutional Commission, convened
as it was after the people successfully unseated former President Marcos, should draft into
its proposed Constitution the provisions under consideration which are envisioned to
remedy, if not correct, the evils that flow from the holding of multiple governmental offices
and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the
deliberations in these cases, one of the strongest selling points of the 1987 Constitution
during the campaign for its ratification was the assurance given by its proponents that the
scandalous practice of Cabinet members holding multiple positions in the government and
collecting unconscionably excessive compensation therefrom would be discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB already contains
a blanket prohibition against the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Constitutional Commission
should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from
holding any other office or employment during their tenure, unless otherwise provided in the
Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional
provisions in question, the intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far as holding other offices or
employment in the government or elsewhere is concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other
provisions of the Constitution on the disqualifications of certain public officials or employees
from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or
Member of the House of Representatives may hold any other office or employment in the
Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a civilian position in the
Government, including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless
otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or employment in the government and
government-owned or controlled corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that "(T)he President, Vice-President, the
Members of the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during their tenure." In the
latter provision, the disqualification is absolute, not being qualified by the phrase "in the
Government." The prohibition imposed on the President and his official family is therefore all-
embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not,
during said tenure, directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the President and his official family, which
prohibitions are not similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and members of the armed
forces, are proof of the intent of the 1987 Constitution to treat the President and his official
family as a class by itself and to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his
official family was also succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor deliberations and debate that
there was no symmetry between the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive Department. Commissioner Foz
Commented, "We actually have to be stricter with the President and the members of the
Cabinet because they exercise more powers and, therefore, more cheeks and restraints on
them are called for because there is more possibility of abuse in their case." 14

Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself. In other words, Section
7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice- President, Members of the Cabinet, their deputies
and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in
Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section
7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents
would have us do, would render nugatory and meaningless the manifest intent and purpose
of the framers of the Constitution to impose a stricter prohibition on the President, Vice-
President, Members of the Cabinet, their deputies and assistants with respect to holding
other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par.
(2) of Article IX-B would obliterate the distinction so carefully set by the framers of the
Constitution as to when the high-ranking officials of the Executive Branch from the President
to Assistant Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any other office
or position in the government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain parts of
the Constitution inoperative. This observation applies particularly to the Vice-President who,
under Section 13 of Article VII is allowed to hold other office or employment when so
authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of
Article I-XB is absolutely ineligible "for appointment or designation in any capacity to any
public office or position during his tenure." Surely, to say that the phrase "unless otherwise
provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par.
(1) of Article I-XB would render meaningless the specific provisions of the Constitution
authorizing the Vice-President to become a member of the Cabinet,  and to act as President
15

without relinquishing the Vice-Presidency where the President shall not nave been chosen or
fails to qualify.  Such absurd consequence can be avoided only by interpreting the two
16

provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the
general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In
the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13,
Article VII.

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
17

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
18

reasonable construction, the two can be made to stand together. 19

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. 20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face,
the language of Section 13, Article VII is prohibitory so that it must be understood as
intended to be a positive and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and unequivocal
negation.  The phrase "unless otherwise provided in this Constitution" must be given a literal
21

interpretation to refer only to those particular instances cited in the Constitution itself, to wit:
the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2),
Article VII; or acting as President in those instances provided under Section 7, pars. (2) and
(3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the Constitution must not, however, be construed as applying to posts occupied
by the Executive officials specified therein without additional compensation in an ex-
officio capacity as provided by law and as required  by the primary functions of said officials'
22

office. The reason is that these posts do no comprise "any other office" within the
contemplation of the constitutional prohibition but are properly an imposition of additional
duties and functions on said officials.  To characterize these posts otherwise would lead to
23

absurd consequences, among which are: The President of the Philippines cannot chair the
National Security Council reorganized under Executive Order No. 115 (December 24, 1986).
Neither can the Vice-President, the Executive Secretary, and the Secretaries of National
Defense, Justice, Labor and Employment and Local Government sit in this Council, which
would then have no reason to exist for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National
Manpower and Youth Council (NMYC) or the Philippine Overseas Employment
Administration (POEA), both of which are attached to his department for policy coordination
and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these
agencies.

The Secretaries of Finance and Budget cannot sit in the Monetary Board.  Neither can their
24

respective undersecretaries and assistant secretaries. The Central Bank Governor would
then be assisted by lower ranking employees in providing policy direction in the areas of
money, banking and credit. 25

Indeed, the framers of our Constitution could not have intended such absurd consequences.
A Constitution, viewed as a continuously operative charter of government, is not to be
interpreted as demanding the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-officio capacities as provided by law
and as required by the primary functions of the concerned official's office. The term ex-
officio means "from office; by virtue of office." It refers to an "authority derived from official
character merely, not expressly conferred upon the individual character, but rather annexed
to the official position." Ex-officio likewise denotes an "act done in an official character, or as
a consequence of office, and without any other appointment or authority than that conferred
by the office."  An ex-officio member of a board is one who is a member by virtue of his title
27

to a certain office, and without further warrant or appointment.  To illustrate, by express
28

provision of law, the Secretary of Transportation and Communications is the ex-

officio Chairman of the Board of the Philippine Ports Authority,  and the Light Rail Transit
29

Authority.30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs.
Embroidery and Apparel Control and Inspection Board,  thus: "An examination of section 2
31

of the questioned statute (R.A. 3137) reveals that for the chairman and members of the
Board to qualify they need only be designated by the respective department heads. With the
exception of the representative from the private sector, they sit ex-officio. In order to be
designated they must already be holding positions in the offices mentioned in the law. Thus,
for instance, one who does not hold a previous appointment in the Bureau of Customs,
cannot, under the act, be designated a representative from that office. The same is true with
respect to the representatives from the other offices. No new appointments are necessary.
This is as it should be, because the representatives so designated merely perform duties in
the Board in addition to those already performed under their original appointments." 32

The term "primary" used to describe "functions" refers to the order of importance and thus
means chief or principal function. The term is not restricted to the singular but may refer to
the plural.  The additional duties must not only be closely related to, but must be required by
33

the official's primary functions. Examples of designations to positions by virtue of one's

primary functions are the Secretaries of Finance and Budget sitting as members of the
Monetary Board, and the Secretary of Transportation and Communications acting as
Chairman of the Maritime Industry Authority  and the Civil Aeronautics Board.
34

If the functions required to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional
functions would fall under the purview of "any other office" prohibited by the Constitution. An
example would be the Press Undersecretary sitting as a member of the Board of the
Philippine Amusement and Gaming Corporation. The same rule applies to such positions
which confer on the cabinet official management functions and/or monetary compensation,
such as but not limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet

Members, their deputies or assistants which are not inconsistent with those already
prescribed by their offices or appointments by virtue of their special knowledge, expertise
and skill in their respective executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity
and coordination among the different offices in the Executive Branch in the discharge of its
multifarious tasks of executing and implementing laws affecting national interest and general
welfare and delivering basic services to the people. It is consistent with the power vested on
the President and his alter egos, the Cabinet members, to have control of all the executive
departments, bureaus and offices and to ensure that the laws are faithfully
executed.  Without these additional duties and functions being assigned to the President and
35

his official family to sit in the governing bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by law and as required by their primary
functions, they would be supervision, thereby deprived of the means for control and resulting
in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not
transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such
additional duties or functions must be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio capacity as provided by law, without
receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office. It should be obvious that if, say,
the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member
thereof, he is actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come under the
jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any
extra compensation, whether it be in the form of a per them or an honorarium or an
allowance, or some other such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner
Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of
the General Provisions, the exception "unless required by the functions of his
position,"  express reference to certain high-ranking appointive public officials like members
36

of the Cabinet were made.  Responding to a query of Commissioner Blas Ople,

37

Commissioner Monsod pointed out that there are instances when although not required by
current law, membership of certain high-ranking executive officials in other offices and
corporations is necessary by reason of said officials' primary functions. The example given
by Commissioner Monsod was the Minister of Trade and Industry. 38

While this exchange between Commissioners Monsod and Ople may be used as authority
for saying that additional functions and duties flowing from the primary functions of the official
may be imposed upon him without offending the constitutional prohibition under
consideration, it cannot, however, be taken as authority for saying that this exception is by
virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners
took place in the plenary session of September 27, 1986. Under consideration then was
Section 3 of Committee Resolution No. 531 which was the proposed article on General
Provisions.  At that time, the article on the Civil Service Commission had been approved on
39

third reading on July 22, 1986,  while the article on the Executive Department, containing the
40

more specific prohibition in Section 13, had also been earlier approved on third reading on
August 26, 1986.  It was only after the draft Constitution had undergone reformatting and
41

"styling" by the Committee on Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the
primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as
constitutional guidelines in the absence of specific constitutional provisions on the matter.
What was primarily at issue and approved on that occasion was the adoption of the qualified
and delimited phrase "primary functions" as the basis of an exception to the general rule
covering all appointive public officials. Had the Constitutional Commission intended to dilute
the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section
13 to conform to the wider exceptions provided in then Section 3 of the proposed general
Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service
Commission.

That this exception would in the final analysis apply also to the President and his official
family is by reason of the legal principles governing additional functions and duties of public
officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it
clear that only the additional functions and duties "required," as opposed to "allowed," by the
primary functions may be considered as not constituting "any other office."

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
42

powerless to vary the terms of the Constitution when the meaning is clear.  Debates in the
1âwphi1

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
43

more on how it was understood by the people adopting it than in the framers's understanding
thereof.44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks
to prohibit the President, Vice-President, members of the Cabinet, their deputies or
assistants from holding during their tenure multiple offices or employment in the government,
except in those cases specified in the Constitution itself and as above clarified with respect
to posts held without additional compensation in an ex-officio capacity as provided by law
and as required by the primary functions of their office, the citation of Cabinet members (then
called Ministers) as examples during the debate and deliberation on the general rule laid
down for all appointive officials should be considered as mere personal opinions which
cannot override the constitution's manifest intent and the people' understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant secretaries may hold in addition to their primary position to not
more than two (2) positions in the government and government corporations, Executive
Order No. 284 actually allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the 1987 Constitution
prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a
strict application of the prohibition mandated under Section 13, Article VII on the operations
of the Government, considering that Cabinet members would be stripped of their offices held
in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As
earlier clarified in this decision, ex-officio posts held by the executive official concerned
without additional compensation as provided by law and as required by the primary functions
of his office do not fall under the definition of "any other office" within the contemplation of
the constitutional prohibition. With respect to other offices or employment held by virtue of
legislation, including chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared impractical consequences
are more apparent than real. Being head of an executive department is no mean job. It is
more than a full-time job, requiring full attention, specialized knowledge, skills and expertise.
If maximum benefits are to be derived from a department head's ability and expertise, he
should be allowed to attend to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from dissipating his efforts,
attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this concentration
of attention, knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr.,
Secretary of Local Government  Luis Santos, Secretary of National Defense Fidel V. Ramos,
45

Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to
immediately relinquish their other offices or employment, as herein defined, in the
government, including government-owned or controlled corporations and their subsidiaries.
With respect to the other named respondents, the petitions have become moot and
academic as they are no longer occupying the positions complained of.

During their tenure in the questioned positions, respondents may be considered de

facto officers and as such entitled to emoluments for actual services rendered.  It has been
46

held that "in cases where there is no de jure, officer, a de facto officer, who, in good faith has
had possession of the office and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an appropriate action recover the salary,
fees and other compensations attached to the office. This doctrine is, undoubtedly,
supported on equitable grounds since it seems unjust that the public should benefit by the
services of an officer de facto and then be freed from all liability to pay any one for such
services.  Any per diem, allowances or other emoluments received by the respondents by
47

virtue of actual services rendered in the questioned positions may therefore be retained by
them.

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED.

Executive Order No. 284 is hereby declared null and void and is accordingly set aside.

SO ORDERED.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento and Griño-Aquino, JJ., took no part

Manila Prince Hotel v. GSIS, G.R. No. 122156, February 03, 1997

https://lawphil.net/judjuris/juri1997/feb1997/gr_122156_1997.html
 Pamatong v. Comelec, G.R. No. 161872, April 13, 2004

EN BANC

G.R. No. 161872             April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on

December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due
course to petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated January 17,
2004. The decision, however, was not unanimous since Commissioners Luzviminda G.
Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties
or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No.

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

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were
allegedly rendered in violation of his right to "equal access to opportunities for public service"
under Section 26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who can afford to
wage a nationwide campaign and/or are nominated by political parties. In so doing, petitioner
argues that the COMELEC indirectly amended the constitutional provisions on the electoral
process and limited the power of the sovereign people to choose their leaders. The
COMELEC supposedly erred in disqualifying him since he is the most qualified among all the
presidential candidates, i.e., he possesses all the constitutional and legal qualifications for
the office of the president, he is capable of waging a national campaign since he has
numerous national organizations under his leadership, he also has the capacity to wage an
international campaign since he has practiced law in other countries, and he has a platform
of government. Petitioner likewise attacks the validity of the form for the Certificate of
Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear
and reasonable guidelines for determining the qualifications of candidates since it does not
ask for the candidate’s bio-data and his program of government.
First, the constitutional and legal dimensions involved.

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

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled
"Declaration of Principles and State Policies." The provisions under the Article are generally
considered not self-executing, 2 and there is no plausible reason for according a different
treatment to the "equal access" provision. Like the rest of the policies enumerated in Article
II, the provision does not contain any judicially enforceable constitutional right but merely
specifies a guideline for legislative or executive action. 3 The disregard of the provision does
not give rise to any cause of action before the courts.4

An inquiry into the intent of the framers5 produces the same determination that the provision
is not self-executory. The original wording of the present Section 26, Article II had read, "The
State shall broaden opportunities to public office and prohibit public
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth
an amendment that changed the word "broaden" to the phrase "ensure equal access," and
the substitution of the word "office" to "service." He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is
important would be equal access to the opportunity. If you broaden, it would
necessarily mean that the government would be mandated to create as many
offices as are possible to accommodate as many people as are also possible.
That is the meaning of broadening opportunities to public service. So, in order that
we should not mandate the State to make the government the number one
employer and to limit offices only to what may be necessary and expedient yet
offering equal opportunities to access to it, I change the word
"broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that
would accommodate as many people as possible into public office. The approval of the
"Davide amendment" indicates the design of the framers to cast the provision as simply
enunciatory of a desired policy objective and not reflective of the imposition of a clear State
burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the

source of positive rights. It is difficult to interpret the clause as operative in the absence of
legislation since its effective means and reach are not properly defined. Broadly written, the
myriad of claims that can be subsumed under this rubric appear to be entirely open-
ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are
susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it
was not the intention of the framers to inflict on the people an operative but amorphous
foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office may be
subjected to limitations. Some valid limitations specifically on the privilege to seek elective
office are found in the provisions9 of the Omnibus Election Code on "Nuisance Candidates"
and COMELEC Resolution No. 6452 10 dated December 10, 2002 outlining the instances
wherein the COMELEC may motu proprio refuse to give due course to or cancel
a Certificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the
equal access clause is not violated. Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any one who is minded to file a
certificate of candidacy. In the case at bar, there is no showing that any person is exempt
from the limitations or the burdens which they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the
Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003.
Thus, their presumed validity stands and has to be accorded due weight.

Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of
the Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention to run for office is easy to divine. The
State has a compelling interest to ensure that its electoral exercises are rational, objective,
and orderly. Towards this end, the State takes into account the practical considerations in
conducting elections. Inevitably, the greater the number of candidates, the greater the
opportunities for logistical confusion, not to mention the increased allocation of time and
resources in preparation for the election. These practical difficulties should, of course, never
exempt the State from the conduct of a mandated electoral exercise. At the same time,
remedial actions should be available to alleviate these logistical hardships, whenever
necessary and proper. Ultimately, a disorderly election is not merely a textbook example of
inefficiency, but a rot that erodes faith in our democratic institutions. As the United States
Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of

a significant modicum of support before printing the name of a political organization
and its candidates on the ballot – the interest, if no other, in avoiding confusion,
deception and even frustration of the democratic [process].11

The COMELEC itself recognized these practical considerations when it

promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of
its Law Department dated 11 January 2004. As observed in the COMELEC’s Comment:

There is a need to limit the number of candidates especially in the case of candidates
for national positions because the election process becomes a mockery even if those
who cannot clearly wage a national campaign are allowed to run. Their names would
have to be printed in the Certified List of Candidates, Voters Information Sheet and
the Official Ballots. These would entail additional costs to the government. For the
official ballots in automated counting and canvassing of votes, an additional page
would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS
(₱450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they

cannot wage a decent campaign enough to project the prospect of winning, no
matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws provide various entitlements for
candidates for public office, such as watchers in every polling place, 13 watchers in the board
of canvassers,14 or even the receipt of electoral contributions.15 Moreover, there are election
rules and regulations the formulations of which are dependent on the number of candidates
in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even
more galling. The organization of an election with bona fide candidates standing is onerous
enough. To add into the mix candidates with no serious intentions or capabilities to run a
viable campaign would actually impair the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body
would be bogged by irrelevant minutiae covering every step of the electoral process, most
probably posed at the instance of these nuisance candidates. It would be a senseless
sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could
exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the
moon on gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the
compelling State interest to ensure orderly and credible elections by excising impediments
thereto, such as nuisance candidacies that distract and detract from the larger purpose. The
COMELEC is mandated by the Constitution with the administration of elections 16 and
endowed with considerable latitude in adopting means and methods that will ensure the
promotion of free, orderly and honest elections.17 Moreover, the Constitution guarantees that
only bona fide candidates for public office shall be free from any form of harassment and
discrimination.18 The determination of bona fide candidates is governed by the statutes, and
the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in
the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is
now before it. The assailed resolutions of the COMELEC do not direct the Court to the
evidence which it considered in determining that petitioner was a nuisance candidate. This
precludes the Court from reviewing at this instance whether the COMELEC committed grave
abuse of discretion in disqualifying petitioner, since such a review would necessarily take into
account the matters which the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly
evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being
a trier of facts, can not properly pass upon the reproductions as evidence at this level.
Neither the COMELEC nor the Solicitor General appended any document to their
respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual.
The basis of the factual determination is not before this Court. Thus, the remand of this case
for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in
the government. It deserves not a cursory treatment but a hearing which conforms to the
requirements of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it
to say that the form strictly complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of candidacy should contain, with the
required information tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the Constitution and other election
laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby
remanded to the COMELEC for the reception of further evidence, to determine the question
on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in
Section 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its
findings to this Court with deliberate dispatch.

SO ORDERED.

Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,

Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Footnotes

* On Official Leave.

1
 Sec. 26. The State shall guarantee equal access to opportunities for public service,
and prohibit political dynasties as may be defined by law.

2
 See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68;
Kilosbayan, Inc. v. Morato, G.R. No. 118910, 246 SCRA 540, 564. "A provision which
lays down a general principle, such as those found in Art. II of the 1987 Constitution,
is usually not self-executing." Manila Prince Hotel v. GSIS, G.R. No. 122156, 3
February 1997, 267 SCRA 408, 431. "Accordingly, [the Court has] held that the
provisions in Article II of our Constitution entitled "Declaration of Principles and State
Policies" should generally be construed as mere statements of principles of the
State." Justice Puno, dissenting, Manila Prince Hotel v. GSIS, Id. at 474.

3
 See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November 1995, 250 SCRA
130, 138. Manila Prince Hotel v. GSIS, supra note 2 at 436.

4
 Kilosbayan, Inc. v. Morato, supra note 2.

5
 "A searching inquiry should be made to find out if the provision is intended as a
present enactment, complete in itself as a definitive law, or if it needs future
legislation for completion and enforcement. The inquiry demands a micro-analysis
and the context of the provision in question." J. Puno, dissenting, Manila Prince Hotel
v. GSIS, supra note 2.

6
 J. Bernas, The Intent of the 1986 Constitution Writers (1995), p. 148.

7
 IV Records of Proceedings and Debates, 1986 Constitutional Commission 945.

8
 See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No. 101083, 30 July
1993, 224 SCRA 792, 815.

9
 Section 69. Nuisance Candidates. — The Commission may, motu proprio or upon a
verified petition of an interested party, refuse to give due course or cancel a
certificate of candidacy if it is shown that said certificate has been filed to put the
election process in mockery or disrepute or to cause confusion among the voters by
the similarity of the names of the registered candidates or by other circumstances or
acts which clearly demonstrate that the candidate has no bona fide intention to run
for the office for which the certificate of candidacy has been filed and thus prevent a
faithful determination of the true will of the electorate.

 SEC. 6. Motu Proprio Cases. — The Commission may, at any time before the
10

election, motu proprio refuse to give due course to or cancel a certificate of

candidacy of any candidate for the positions of President, Vice-President, Senator
and Party-list:

I. The grounds:

a. Candidates who, on the face of their certificate of candidacy, do

not possess the constitutional and legal qualifications of the office to
which they aspire to be elected;

b. Candidate who, on the face of said certificate, filed their certificate

of candidacy to put the election process in mockery or disrepute;

c. Candidates whose certificate of candidacy could cause confusion

among the voters by the similarity of names and surnames with other
candidates; and

d. Candidates who have no bona fide intention to run for the office for
which the certificate of candidacy had been filed or acts that clearly
demonstrate the lack of such bona fide intention, such as:

d.1 Candidates who do not belong to or are not nominated by

any registered political party of national constituency;

d.2 Presidential, Vice-Presidential [candi-dates] who do not

present running mates for vice-president, respectively, nor
senatorial candidates;

d.3 Candidates who do not have a platform of government

and are not capable of waging a nationwide campaign.
Approval of Bell Trade Act
Vera vs. Avelino (https://lawphil.net/judjuris/juri1946/aug1946/gr_l-
543_1946.html)

Parity Rights Agreement, which gave rise to the case of Mabanag vs. Lopez Vito
(1947). (https://lawphil.net/judjuris/juri1947/mar1947/gr_l-1123_1947.html)

Validity of ratification of 1935 Consti-

Javellana vs. Executive Secretary, 50 SCRA 30 (1973)
https://lawphil.net/judjuris/juri1973/mar1973/gr_36142_1973.html

questioned the aquino government

League vs. Aquino-

Republic of the Philippines

SUPREME COURT
Manila

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes

the first paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the
proposed 1986 Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the
February 7, 1986 election is, for purposes of synchronization of elections, hereby extended
to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall
be held on the second Monday of May, 1992.
Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to
declare and answer the question of the construction and definiteness as to who, among the
present incumbent President Corazon Aquino and Vice-President Salvador Laurel and the
elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being
referred to under the said Section 7 (sic) of ARTICLE XVIII of the TRANSITORY
PROVISIONS of the proposed 1986 Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs.
Macapagal, 43 SCRA 677), it is elementary that this Court assumes no jurisdiction over
petitions for declaratory relief. More importantly, the petition amounts in effect to a suit
against the incumbent President of the Republic, President Corazon C. Aquino, and it is
equally elementary that incumbent Presidents are immune from suit or from being brought to
court during the period of their incumbency and tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or

vagueness of the aforequoted provision is manifestly gratuitous, it being a matter of public
record and common public knowledge that the Constitutional Commission refers therein to
incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no
other persons, and provides for the extension of their term to noon of June 30, 1992 for
purposes of synchronization of elections. Hence, the second paragraph of the cited section
provides for the holding on the second Monday of May, 1992 of the first regular elections for
the President and Vice-President under said 1986 Constitution. In previous cases, the
legitimacy of the government of President Corazon C. Aquino was likewise sought to be
questioned with the claim that it was not established pursuant to the 1973 Constitution. The
said cases were dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause of action. For the
legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made
the judgment; they have accepted the government of President Corazon C. Aquino which is
in effective control of the entire country so that it is not merely a de facto government but in
fact and law a de jure government. Moreover, the community of nations has recognized the
legitimacy of tlie present government. All the eleven members of this Court, as reorganized,
have sworn to uphold the fundamental law of the Republic under her government. (Joint
Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc.
vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy
of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton
U. Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis
mutandis, there can be no question that President Corazon C. Aquino and Vice-President
Salvador H. Laurel are the incumbent and legitimate President and Vice-President of the
Republic of the Philippines.or the above-quoted reasons, which are fully applicable to the
petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.

MELENCIO-HERRERA, J., concurring:
GUTIERREZ, Jr., J., concurring:

FELICIANO, JJ., concurring.

The petitioner asks the Court to declare who are "the incumbent President and Vice
President elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of
the Draft Constitution adopted by the Constitutional Commission of 1986.

We agree that the petition deserves outright dismissal as this Court has no original
jurisdiction over petitions for declaratory relief.

As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected
President and Vice President in the February 7, 1986 elections should be addressed not to
this Court but to other departments of government constitutionally burdened with the task of
making that declaration.

The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution
uniformly provide 'that boards of canvassers in each province and city shall certified who
were elected President and Vice President in their respective areas. The certified returns are
transmitted to the legislature which proclaims, through the designated Presiding Head, who
were duty elected.

Copies of the certified returns from the provincial and city boards of canvassers have not
been furnished this Court nor is there any need to do so. In the absence of a legislature, we
cannot assume the function of stating, and neither do we have any factual or legal capacity
to officially declare, who were elected President and Vice President in the February 7, 1986
elections.

As to who are the incumbent President and Vice President referred to in the 1986 Draft
Constitution, we agree that there is no doubt the 1986 Constitutional Commission referred to
President Corazon C. Aquino and Vice President Salvador H. Laurel.

Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition.

CRUZ, J., concurring:

I vote to dismiss this petition on the ground that the Constitution we are asked to interpret
has not yet been ratified and is therefore not yet effective. I see here no actual conflict of
legal rights susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs.
Haworth, 300 U.S. 227; PACU vs. Secretary of Education, 97 Phil. 806.)

In Re: Saturnino Bermudez

 Republic of the Philippines
SUPREME COURT
Manila

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes

the first paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the
proposed 1986 Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the
February 7, 1986 election is, for purposes of synchronization of elections, hereby extended
to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall
be held on the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to
declare and answer the question of the construction and definiteness as to who, among the
present incumbent President Corazon Aquino and Vice-President Salvador Laurel and the
elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being
referred to under the said Section 7 (sic) of ARTICLE XVIII of the TRANSITORY
PROVISIONS of the proposed 1986 Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs.
Macapagal, 43 SCRA 677), it is elementary that this Court assumes no jurisdiction over
petitions for declaratory relief. More importantly, the petition amounts in effect to a suit
against the incumbent President of the Republic, President Corazon C. Aquino, and it is
equally elementary that incumbent Presidents are immune from suit or from being brought to
court during the period of their incumbency and tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or

vagueness of the aforequoted provision is manifestly gratuitous, it being a matter of public
record and common public knowledge that the Constitutional Commission refers therein to
incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no
other persons, and provides for the extension of their term to noon of June 30, 1992 for
purposes of synchronization of elections. Hence, the second paragraph of the cited section
provides for the holding on the second Monday of May, 1992 of the first regular elections for
the President and Vice-President under said 1986 Constitution. In previous cases, the
legitimacy of the government of President Corazon C. Aquino was likewise sought to be
questioned with the claim that it was not established pursuant to the 1973 Constitution. The
said cases were dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause of action. For the
legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made
the judgment; they have accepted the government of President Corazon C. Aquino which is
in effective control of the entire country so that it is not merely a de facto government but in
fact and law a de jure government. Moreover, the community of nations has recognized the
legitimacy of tlie present government. All the eleven members of this Court, as reorganized,
have sworn to uphold the fundamental law of the Republic under her government. (Joint
Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc.
vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy
of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton
U. Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis
mutandis, there can be no question that President Corazon C. Aquino and Vice-President
Salvador H. Laurel are the incumbent and legitimate President and Vice-President of the
Republic of the Philippines.or the above-quoted reasons, which are fully applicable to the
petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.

MELENCIO-HERRERA, J., concurring:

GUTIERREZ, Jr., J., concurring:

FELICIANO, JJ., concurring.

The petitioner asks the Court to declare who are "the incumbent President and Vice
President elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of
the Draft Constitution adopted by the Constitutional Commission of 1986.

We agree that the petition deserves outright dismissal as this Court has no original
jurisdiction over petitions for declaratory relief.

As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected
President and Vice President in the February 7, 1986 elections should be addressed not to
this Court but to other departments of government constitutionally burdened with the task of
making that declaration.

The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution
uniformly provide 'that boards of canvassers in each province and city shall certified who
were elected President and Vice President in their respective areas. The certified returns are
transmitted to the legislature which proclaims, through the designated Presiding Head, who
were duty elected.
Copies of the certified returns from the provincial and city boards of canvassers have not
been furnished this Court nor is there any need to do so. In the absence of a legislature, we
cannot assume the function of stating, and neither do we have any factual or legal capacity
to officially declare, who were elected President and Vice President in the February 7, 1986
elections.

As to who are the incumbent President and Vice President referred to in the 1986 Draft
Constitution, we agree that there is no doubt the 1986 Constitutional Commission referred to
President Corazon C. Aquino and Vice President Salvador H. Laurel.

Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition.

CRUZ, J., concurring:

I vote to dismiss this petition on the ground that the Constitution we are asked to interpret
has not yet been ratified and is therefore not yet effective. I see here no actual conflict of
legal rights susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs.
Haworth, 300 U.S. 227; PACU vs. Secretary of Education, 97 Phil. 806.)

De Leon vs. Esguerra- Intent of framers as to the effectivity of the constitution

(https://lawphil.net/judjuris/juri1987/aug1987/gr_78059_1987.html)

Judicial Review

Angara vs. Electoral Commission (https://www.lawphil.net/judjuris/juri1936/jul1936/gr_l-

45081_1936.html)

Ynot v. Intermediate Appellate Court, 148 SCRA 659

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

P
r
e
s
i
d
e
n
t
 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 its presumed validity. 2

The petitioner appealed the decision to the Intermediate Appellate Court, *   which upheld the trial 3

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 President under Amendment No. 6 of the 1973 Constitution.  4

While also involving the same executive order, the case of Pesigan v. Angeles   is not 5

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.   We have 6

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.   This 7

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,"   to recall Justice Laurel's trenchant warning. Stated otherwise,
8

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,   and so heal the wound or 9

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 proceedings as procedural due process is not necessarily judicial only.   In the
20

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,   Executive Order No. 626-A is penal in nature, the violation
21

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.

Commissioner of Internal Revenue v. Court of Tax Appeals, 195 SCRA 444

G.R. No. 117982 February 6, 1997

COMMISSIONER OF INTERNAL REVENUE, petitioner,

vs.
COURT OF APPEALS, COURT OF TAX APPEALS and ALHAMBRA INDUSTRIES,
INC., respondents.

BELLOSILLO, J.:

ALHAMBRA INDUSTRIES, INC., is a domestic corporation engaged in the manufacture and

sale of cigar and cigarette products. On 7 May 1991 private respondent received a letter
dated 26 April 1991 from the Commissioner of Internal Revenue assessing it deficiency Ad
Valorem Tax (AVT) in the total amount of Four Hundred Eighty-Eight Thousand Three
Hundred Ninety-Six Pesos and Sixty-Two Centavos (P488,396.62), inclusive of increments,
on the removals of cigarette products from their place of production during the period 2
November 1990 to 22 January 1991.  Petitioner computes the deficiency thus —
1

Total AVT due per manufacturer's declaration P 4,279,042.33

Less: AVT paid under BIR Ruling No. 473-88 3,905,348.85
——————
Deficiency AVT 373,693.48

Add: Penalties:

25% Surcharge (Sec. 248[c][3] NIRC) 93,423.37

20% Interest (P467,116.85 x 82/360 days) 21,279.27
——————
Total Amount Due P 488,396.62

In a letter dated 22 May 1991 received by petitioner on even date, private respondent thru
counsel filed a protest against the proposed assessment with a request that the same be
withdrawn and cancelled. On 31 May 1991 private respondent received petitioner's reply
dated 27 May 1991 denying its protest and request for cancellation stating that the decision
was final, and at the same time requesting payment of the revised amount of Five Hundred
Twenty Thousand Eight Hundred Thirty-Five Pesos and Twenty-Nine Centavos
(P520,835.29), with interest updated, within ten (10) days from receipt thereof. In a letter
dated 10 June 1991 which petitioner received on the same day, private respondent
requested for the reconsideration of petitioner's denial of its protest. Without waiting for
petitioner's reply to its request for reconsideration, private respondent filed on 19 June 1991
a petition for review with the Court of Tax Appeals. On 25 June 1991 private respondent
received from petitioner a letter dated 21 June 1991 denying its request for reconsideration
declaring again that its decision was final. On 8 July 1991 private respondent paid under
protest the disputed ad valorem tax in the sum of P520,835.29. 2

In its Decision  of 1 December 1993 the Court of Tax Appeals ordered petitioner to refund to
3

private respondent the amount of Five Hundred Twenty Thousand Eight Hundred Thirty-Five
Pesos and Twenty-Nine Centavos (P520,835.29) representing erroneously paid ad valorem
tax for the period 2 November 1990 to 22 January 1991.

The Court of Tax Appeals explained that the subject deficiency excise tax assessment
resulted from private respondent's use of the computation mandated by BIR Ruling 473-88
dated 4 October 1988 as basis for computing the fifteen percent (15%) ad valorem tax due
on its removals of cigarettes from 2 November 1990 to 22 January 1991. BIR Circular 473-88
was issued by Deputy Commissioner Eufracio D. Santos to Insular-Yebana Tobacco
Corporation allowing the latter to exclude the value-added tax (VAT) in the determination of
the gross selling price for purposes of computing the ad valorem tax of its cigar and cigarette
products in accordance with Sec. 127 of the Tax Code as amended by Executive Order No.
273 which provides as follows:

Sec. 127. Payment of excise taxes on domestic products. — . . . . (b)

Determination of gross selling price of goods subject to ad valorem tax. —
Unless otherwise provided, the price, excluding the value-added tax, at which
the goods are sold at wholesale in the place of production or through their
sales agents to the public shall constitute the gross selling price.
 The computation, pursuant to the ruling, is illustrated by way of example thus —

P 44.00x1/1 = P 4.00 VAT

P 44.00 - P 4.00 = P 40.00 price without VAT
P 40.00 x 15% = P 6.00 Ad Valorem Tax

For the period 2 November 1990 to 22 January 1991 private respondent paid
P3,905,348.85 ad valorem tax, applying Sec. 127 (b) of the NIRC as interpreted by
BIR Ruling 473-88 by excluding the VAT in the determination of the gross selling
price.

Thereafter, on 11 February 1991, petitioner issued BIR Ruling 017-91 to Insular-Yebana

Tobacco Corporation revoking BIR Ruling 473-88 for being violative of Sec. 142 of the Tax
Code. It included back the VAT to the gross selling price in determining the tax base for
computing the ad valorem tax on cigarettes. Cited as basis by petitioner is Sec. 142 of the
Tax Code, as amended by E.O. No. 273 —

Sec. 142. Cigar and cigarettes — . . . For purposes of this section,

manufacturer's or importer's registered. wholesale price shall include the ad
valorem tax imposed in paragraphs (a), (b), (c) or (d) hereof and the amount
intended to cover the value added tax imposed under Title IV of this Code.

Petitioner sought to apply the revocation retroactively to private respondent's removals of

cigarettes for the period starting 2 November 1990 to 22 January 1991 on the ground that
private respondent allegedly acted in bad faith which is an exception to the rule on non-
retroactivity of BIR Rulings. 
4

On appeal, the Court of Appeals affirmed the Court of Tax Appeals holding that the
retroactive application of BIR Ruling 017-91 cannot be allowed since private respondent did
not act in bad faith; private respondent's computation under BIR Ruling 473-88 was not
shown to be motivated by ill will or dishonesty partaking the nature of fraud; hence, this
petition.

Petitioner imputes error to the Court of Appeals: (1) in failing to consider that private
respondent's reliance on BIR Ruling 473-88 being contrary to Sec. 142 of the Tax Code does
not confer vested rights to private respondent in the computation of its ad valorem tax; (2) in
failing to consider that good faith and prejudice to the taxpayer in cases of reliance on a void
BIR Ruling is immaterial and irrelevant and does not place the government in estoppel in
collecting taxes legally due; (3) in holding that private respondent acted in good faith in
applying BIR Ruling 473-88; and, (4) in failing to consider that the assessment of petitioner is
presumed to be regular and the claim for tax refund must be strictly construed against private
respondent for being in derogation of sovereign authority.

Petitioner claims that the main issue before us is whether private respondent's reliance on a
void BIR ruling conferred upon the latter a vested right to apply the same in the computation
of its ad valorem tax and claim for tax refund. Sec. 142 (d) of the Tax Code, which provides
for the inclusion of the VAT in the tax base for purposes of computing the 15% ad valorem
tax, is the applicable law in the instant case as it specifically applies to the manufacturer's
wholesale price of cigar and cigarette products and not Sec. 127 (b) of the Tax Code which
applies in general to the wholesale of goods or domestic products. Sec. 142 being a specific
provision applicable to cigar and cigarettes must perforce prevail over Sec. 127 (b), a
general provision of law insofar as the imposition of the ad valorem tax on cigar and
cigarettes is concerned.  Consequently, the application of Sec. 127 (b) to the wholesale price
5

of cigar and cigarette products for purposes of computing the ad valorem tax is patently
erroneous. Accordingly, BIR Ruling 473-88 is void ab initio as it contravenes the express
provisions of Sec. 142 (d) of the Tax Code. 6

Petitioner contends that BIR Ruling 473-88 being an erroneous interpretation of Sec. 142 (b)
of the Tax Code does not confer any vested right to private respondent as to exempt it from
the retroactive application of BIR Ruling 017-91. Thus Art. 2254 of the New Civil Code is
explicit that "(n)o vested or acquired right can arise from acts or omissions which are against
the law . . . "  It is argued that the Court of Appeals erred in ruling that retroactive application
7

cannot be made since private respondent acted in good faith. The following circumstances
would show that private respondent's reliance on BIR Ruling 473-88 was induced by ill
will: first, private respondent despite knowledge that Sec. 142 of the Tax Code was the
specific provision applicable still shifted its accounting method pursuant to Sec. 127 (b) of the
Tax Code; and, second, the shift in accounting method was made without any prior
consultation with the BIR. 8

It is further contended by petitioner that claims for tax refund must be construed against
private respondent. A tax refund being in the nature of a tax exemption is regarded as in
derogation of the sovereign authority and is strictly construed against private respondent as
the same partakes the nature of a tax exemption. Tax exemptions cannot merely be implied
but must be categorically and unmistakably expressed. 9

We cannot sustain petitioner. The deficiency tax assessment issued by petitioner against
private respondent is without legal basis because of the prohibition against the retroactive
application of the revocation of BIR rulings in the absence of bad faith on the part of private
respondent.

The present dispute arose from the discrepancy in the taxable base on which the excise tax
is to apply on account of two incongruous BIR Rulings: (1) BIR Ruling 473-88 dated 4
October 1988 which excluded the VAT from the tax base in computing the fifteen percent
(15%) excise tax due; and, (2) BIR Ruling 017-91 dated 11 February 1991 which included
back the VAT in computing the tax base for purposes of the fifteen percent (15%) ad valorem
tax.

The question as to the correct computation of the excise tax on cigarettes in the case at bar
has been sufficiently addressed by BIR Ruling 017-91 dated 11 February 1991 which
revoked BIR Ruling 473-88 dated 4 October 1988 —

It is to be noted that Section 127 (b) of the Tax Code as amended applies in
general to domestic products and excludes the value-added tax in the
determination of the gross selling price, which is the tax base for purposes of
the imposition of ad valorem tax. On the other hand, the last paragraph of
Section 142 of the same Code which includes the value-added tax in the
computation of the ad valorem tax, refers specifically to cigar and cigarettes
only. It does not include/apply to any other articles or goods subject to the ad
valorem tax. Accordingly, Section 142 must perforce prevail over Section 127
(b) which is a general provision of law insofar as the imposition of the ad
valorem tax on cigar and cigarettes is concerned.

Moreover, the phrase unless otherwise provided in Section 127 (b) purports

of exceptions to the general rule contained therein, such as that of Section
 142, last paragraph thereof which explicitly provides that in the case of
cigarettes, the tax base for purposes of the ad valorem tax shall include,
among others, the value-added tax.

Private respondent did not question the correctness of the above BIR ruling. In fact, upon
knowledge of the effectivity of BIR Ruling No. 017-91, private respondent immediately
implemented the method of computation mandated therein by restoring the VAT in
computing the tax base for purposes of the 15% ad valorem tax.

However, well-entrenched is the rule that rulings and circulars, rules and regulations
promulgated by the Commissioner of Internal Revenue would have no retroactive application
if to so apply them would be prejudicial to the taxpayers.  10

The applicable law is Sec. 246 of the Tax Code which provides —

Sec. 246. Non-retroactivity of rulings. — Any revocation, modification, or

reversal of any rules and regulations promulgated in accordance with the
preceding section or any of the rulings or circulars promulgated by the
Commissioner of Internal Revenue shall not be given retroactive application if
the revocation, modification, or reversal will be prejudicial to the taxpayers
except in the following cases: a) where the taxpayer deliberately misstates or
omits material facts from his return or in any document required of him by the
Bureau of Internal Revenue; b) where the facts subsequently gathered by the
Bureau of Internal Revenue are materially different from the facts on which
the ruling is based; or c) where the taxpayer acted in bad faith.

Without doubt, private respondent would be prejudiced by the retroactive application of the
revocation as it would be assessed deficiency excise tax.

What is left to be resolved is petitioner's claim that private respondent falls under the third
exception in Sec. 246, i.e., that the taxpayer has acted in bad faith.

Bad faith imports a dishonest purpose or some moral obliquity and conscious doing of
wrong. It partakes of the nature of fraud; a breach of a known duty through some motive of
interest or ill will.   We find no convincing evidence that private respondent's implementation
11

of the computation mandated by BIR Ruling 473-88 was ill-motivated or attended with a
dishonest purpose. To the contrary, as a sign of good faith, private respondent immediately
reverted to the computation mandated by BIR Ruling 017-91 upon knowledge of its issuance
on 11 February 1991.

As regards petitioner's argument that private respondent should have made consultations
with it before private respondent used the computation mandated by BIR Ruling 473-88,
suffice it to state that the aforesaid BIR Ruling was clear and categorical thus leaving no
room for interpretation. The failure of private respondent to consult petitioner does not imply
bad faith on the part of the former.

Admittedly the government is not estopped from collecting taxes legally due because of
mistakes or errors of its agents. But like other principles of law, this admits of exceptions in
the interest of justice and fair play, as where injustice will result to the taxpayer. 
12
WHEREFORE, there being no reversible error committed by respondent Court of Appeals,
the petition is DENIED and petitioner COMMISSIONER OF INTERNAL REVENUE is
ordered to refund private respondent ALHAMBRA INDUSTRIES, INC., the amount of
P520,835.29 upon finality of this Decision.

SO ORDERED.

Ongsuco v. Malones, 604 SCRA 499 (2009)

G.R. No. 182065               October 27, 2009

EVELYN ONGSUCO and ANTONIA SALAYA, Petitioners,

vs.
HON. MARIANO M. MALONES, both in his private and official capacity as Mayor of the
Municipality of Maasin, Iloilo, Respondent.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
Decision1 dated 28 November 2006, rendered by the Court of Appeals in CA-G.R. SP No.
86182, which affirmed the Decision2 dated 15 July 2003, of the Regional Trial Court (RTC),
Branch 39, of Iloilo City, in Civil Case No. 25843, dismissing the special civil action for
Mandamus/Prohibition with Prayer for Issuance of a Temporary Restraining Order and/or
Writ of Preliminary Injunction, filed by petitioners Evelyn Ongsuco and Antonia Salaya
against respondent Mayor Mariano Malones of the Municipality of Maasin, Iloilo.

Petitioners are stall holders at the Maasin Public Market, which had just been newly
renovated. In a letter3 dated 6 August 1998, the Office of the Municipal Mayor informed
petitioners of a meeting scheduled on 11 August 1998 concerning the municipal public
market. Revenue measures were discussed during the said meeting, including the increase
in the rentals for the market stalls and the imposition of "goodwill fees" in the amount of
₱20,000.00,4 payable every month.

On 17 August 1998, the Sangguniang Bayan of Maasin approved Municipal Ordinance No.

98-01, entitled "The Municipal Revised Revenue Code." The Code contained a provision for
increased rentals for the stalls and the imposition of goodwill fees in the amount of
₱20,000.00 and ₱15,000.00 for stalls located on the first and second floors of the municipal
public market, respectively. The same Code authorized respondent to enter into lease
contracts over the said market stalls,5 and incorporated a standard contract of lease for the
stall holders at the municipal public market.

Only a month later, on 18 September 1998, the Sangguniang Bayan of Maasin approved

Resolution No. 68, series of 1998,6 moving to have the meeting dated 11 August 1998
declared inoperative as a public hearing, because majority of the persons affected by the
imposition of the goodwill fee failed to agree to the said measure. However, Resolution No.
68, series of 1998, of the Sangguniang Bayan of Maasin was vetoed by respondent on 30
September 1998.7
After Municipal Ordinance No. 98-01 was approved on 17 August 1998, another purported
public hearing was held on 22 January 1999. 8

On 9 June 1999, respondent wrote a letter to petitioners informing them that they were
occupying stalls in the newly renovated municipal public market without any lease contract,
as a consequence of which, the stalls were considered vacant and open for qualified and
interested applicants.9

This prompted petitioners, together with other similarly situated stall holders at the municipal
public market,10 to file before the RTC on 25 June 1999 a Petition for Prohibition/Mandamus,
with Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary
Injunction,11 against respondent. The Petition was docketed as Civil Case No. 25843.

Petitioners alleged that they were bona fide occupants of the stalls at the municipal public
market, who had been religiously paying the monthly rentals for the stalls they occupied.

Petitioners argued that public hearing was mandatory in the imposition of goodwill fees.
Section 186 of the Local Government Code of 1991 provides that an ordinance levying
taxes, fees, or charges shall not be enacted without any prior hearing conducted for the
purpose. Municipal Ordinance No. 98-01, imposing goodwill fees, is invalid on the ground
that the conferences held on 11 August 1998 and 22 January 1999 could not be considered
public hearings. According to Article 277(b)(3) of the Implementing Rules and Regulations of
the Local Government Code:

(3) The notice or notices shall specify the date or dates and venue of the public hearing or
hearings. The initial public hearing shall be held not earlier than ten (10) days from the
sending out of the notice or notices, or the last day of publication, or date of posting thereof,
whichever is later. (Emphasis ours.)

The letter from the Office of the Municipal Mayor was sent to stall holders on 6 August 1998,
informing the latter of the meeting to be held, as was in fact held, on 11 August 1998, only
five days after notice.12

Hence, petitioners prayed that respondent be enjoined from imposing the goodwill fees
pending the determination of the reasonableness thereof, and from barring petitioners from
occupying the stalls at the municipal public market and continuing with the operation of their
businesses.

Respondent, in answer, maintained that Municipal Ordinance No. 98-01 is valid. He

reasoned that Municipal Ordinance No. 98-01 imposed goodwill fees to raise income to pay
for the loan obtained by the Municipality of Maasin for the renovation of its public market.
Said ordinance is not per se a tax or revenue measure, but involves the operation and
management of an economic enterprise of the Municipality of Maasin as a local government
unit; thus, there was no mandatory requirement to hold a public hearing for the enactment
thereof. And, even granting that a public hearing was required, respondent insisted that
public hearings take place on 11 August 1998 and 22 January 1999.

Respondent further averred that petitioners were illegally occupying the market stalls, and
the only way petitioners could legitimize their occupancy of said market stalls would be to
execute lease contracts with the Municipality of Maasin. While respondent admitted that
petitioners had been paying rentals for their market stalls in the amount of ₱45.00 per month
prior to the renovation of the municipal public market, respondent asserted that no rentals
were paid or collected from petitioners ever since the renovation began.

Respondent sought from the RTC an award for moral damages in the amount of not less
than ₱500,000.00, for the social humiliation and hurt feelings he suffered by reason of the
unjustified filing by petitioners of Civil Case No. 25843; and an order for petitioners to vacate
the renovated market stalls and pay reasonable rentals from the date they began to occupy
said stalls until they vacate the same. 13

The RTC subsequently rendered a Decision 14 on 15 July 2003 dismissing the Petition in Civil
Case No. 25843.

The RTC found that petitioners could not avail themselves of the remedy of mandamus or
prohibition. It reasoned that mandamus would not lie in this case where petitioners failed to
show a clear legal right to the use of the market stalls without paying the goodwill fees
imposed by the municipal government. Prohibition likewise would not apply to the present
case where respondent’s acts, sought to be enjoined, did not involve the exercise of judicial
or quasi-judicial functions.

The RTC also dismissed the Petition in Civil Case No. 25843 on the ground of non-
exhaustion of administrative remedies. Petitioners’ failure to question the legality of Municipal
Ordinance No. 98-01 before the Secretary of Justice, as provided under Section 187 of the
Local Government Code,15 rendered the Petition raising the very same issue before the RTC
premature.

The dispositive part of the RTC Decision dated 15 July 2003 reads:

WHEREFORE, in view of all the foregoing, and finding the petition without merit, the same is,
as it is hereby ordered, dismissed. 16

On 12 August 2003, petitioners and their co-plaintiffs filed a Motion for

Reconsideration.17 The RTC denied petitioners’ Motion for Reconsideration in a Resolution
dated 18 June 2004.18

While Civil Case No. 25843 was pending, respondent filed before the 12th Municipal Circuit
Trial Court (MCTC) of Cabatuan-Maasin, Iloilo City a case in behalf of the Municipality of
Maasin against petitioner Evelyn Ongsuco, entitled Municipality of Maasin v. Ongsuco, a
Complaint for Unlawful Detainer with Damages, docketed as MCTC Civil Case No. 257. On
18 June 2002, the MCTC decided in favor of the Municipality of Maasin and ordered
petitioner Ongsuco to vacate the market stalls she occupied, Stall No. 1-03 and Stall No. 1-
04, and to pay monthly rentals in the amount of ₱350.00 for each stall from October 2001
until she vacates the said market stalls.19 On appeal, Branch 36 of the RTC of Maasin, Iloilo
City, promulgated a Decision, dated 29 April 2003, in a case docketed as Civil Case No. 02-
27229 affirming the decision of the MCTC. A Writ of Execution was issued by the MCTC on 8
December 2003.20

Petitioners, in their appeal before the Court of Appeals, docketed as CA-G.R. SP No. 86182,
challenged the dismissal of their Petition for Prohibition/Mandamus docketed as Civil Case
No. 25843 by the RTC. Petitioners explained that they did appeal the enactment of Municipal
Ordinance No. 98-01 before the Department of Justice, but their appeal was not acted upon
because of their failure to attach a copy of said municipal ordinance. Petitioners claimed that
one of their fellow stall holders, Ritchelle Mondejar, wrote a letter to the Officer-in-Charge
(OIC), Municipal Treasurer of Maasin, requesting a copy of Municipal Ordinance No. 98-01,
but received no reply.21

In its Decision dated 28 November 2006 in CA-G.R. SP No. 86182, the Court of Appeals
again ruled in respondent’s favor.

The Court of Appeals declared that the "goodwill fee" was a form of revenue measure, which
the Municipality of Maasin was empowered to impose under Section 186 of the Local
Government Code. Petitioners failed to establish any grave abuse of discretion committed by
respondent in enforcing goodwill fees.

The Court of Appeals additionally held that even if respondent acted in grave abuse of
discretion, petitioners’ resort to a petition for prohibition was improper, since respondent’s
acts in question herein did not involve the exercise of judicial, quasi-judicial, or ministerial
functions, as required under Section 2, Rule 65 of the Rules of Court. Also, the filing by
petitioners of the Petition for Prohibition/Mandamus before the RTC was premature, as they
failed to exhaust administrative remedies prior thereto. The appellate court did not give any
weight to petitioners’ assertion that they filed an appeal challenging the legality of Municipal
Ordinance No. 98-01 before the Secretary of Justice, as no proof was presented to support
the same.

In the end, the Court of Appeals decreed:

WHEREFORE, in view of the foregoing, this Court finds the instant appeal bereft of merit.
The assailed decision dated July 15, 2003 as well as the subsequent resolution dated 18
June 2004 are hereby AFFIRMED and the instant appeal is hereby DISMISSED. 22

Petitioners filed a Motion for Reconsideration23 of the foregoing Decision, but it was denied
by the Court of Appeals in a Resolution 24 dated 8 February 2008.

Hence, the present Petition, where petitioners raise the following issues:

WHETHER OR NOT THE PETITIONERS HAVE EXHAUSTED ADMINISTRATIVE

REMEDIES BEFORE FILING THE INSTANT CASE IN COURT;

II

WHETHER OR NOT EXHAUSTION OF ADMINISTRATIVE REMEDIES IS

APPLICABLE IN THIS CASE; AND

III

WHETHER OR NOT THE APPELLEE MARIANO MALONES WHO WAS THEN THE
MUNICIPAL MAYOR OF MAASIN, ILOILO HAS COMMITTED GRAVE ABUSE OF
DISCRETION.25

After a close scrutiny of the circumstances that gave rise to this case, the Court determines
that there is no need for petitioners to exhaust administrative remedies before resorting to
the courts.
The findings of both the RTC and the Court of Appeals that petitioners’ Petition for
Prohibition/Mandamus in Civil Case No. 25843 was premature is anchored on Section 187 of
the Local Government Code, which reads:

Section 187. Procedure for Approval and Effectivity of Tax Ordinances and Revenue
Measures; Mandatory Public Hearings.—The procedure for approval of local tax ordinances
and revenue measures shall be in accordance with the provisions of this Code: Provided,
That public hearings shall be conducted for the purpose prior to the enactment thereof:
Provided, further, That any question on the constitutionality or legality of tax ordinances or
revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof
to the Secretary of Justice who shall render a decision within sixty (60) days from the date of
receipt of the appeal: Provided, however, That such appeal shall not have the effect of
suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or
charge levied therein: Provided, finally, That within thirty (30) days after receipt of the
decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the
appeal, the aggrieved party may file appropriate proceedings with a court of competent
jurisdiction. (Emphasis ours.)

It is true that the general rule is that before a party is allowed to seek the intervention of the
court, he or she should have availed himself or herself of all the means of administrative
processes afforded him or her. Hence, if resort to a remedy within the administrative
machinery can still be made by giving the administrative officer concerned every opportunity
to decide on a matter that comes within his or her jurisdiction, then such remedy should be
exhausted first before the court’s judicial power can be sought. The premature invocation of
the intervention of the court is fatal to one’s cause of action. The doctrine of exhaustion of
administrative remedies is based on practical and legal reasons. The availment of
administrative remedy entails lesser expenses and provides for a speedier disposition of
controversies. Furthermore, the courts of justice, for reasons of comity and convenience, will
shy away from a dispute until the system of administrative redress has been completed and
complied with, so as to give the administrative agency concerned every opportunity to
correct its error and dispose of the case. However, there are several exceptions to this
rule. 26

The rule on the exhaustion of administrative remedies is intended to preclude a court from
arrogating unto itself the authority to resolve a controversy, the jurisdiction over which is
initially lodged with an administrative body of special competence. Thus, a case where the
issue raised is a purely legal question, well within the competence; and the jurisdiction of the
court and not the administrative agency, would clearly constitute an exception. 27 Resolving
questions of law, which involve the interpretation and application of laws, constitutes
essentially an exercise of judicial power that is exclusively allocated to the Supreme Court
and such lower courts the Legislature may establish. 28

In this case, the parties are not disputing any factual matter on which they still need to
present evidence. The sole issue petitioners raised before the RTC in Civil Case No. 25843
was whether Municipal Ordinance No. 98-01 was valid and enforceable despite the absence,
prior to its enactment, of a public hearing held in accordance with Article 276 of the
Implementing Rules and Regulations of the Local Government Code. This is undoubtedly a
pure question of law, within the competence and jurisdiction of the RTC to resolve.

Paragraph 2(a) of Section 5, Article VIII of the Constitution, expressly establishes the
appellate jurisdiction of this Court, and impliedly recognizes the original jurisdiction of lower
courts over cases involving the constitutionality or validity of an ordinance:
Section 5. The Supreme Court shall have the following powers:

xxxx

(2) Review, revise, reverse, modify or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question. (Emphases ours.)

In J.M. Tuason and Co., Inc. v. Court of Appeals,29 Ynot v. Intermediate Appellate

Court,30 and Commissioner of Internal Revenue v. Santos,31 the Court has affirmed the
jurisdiction of the RTC to resolve questions of constitutionality and validity of laws (deemed
to include local ordinances) in the first instance, without deciding questions which pertain to
legislative policy.

Although not raised in the Petition at bar, the Court is compelled to discuss another
procedural issue, specifically, the declaration by the RTC, and affirmed by the Court of
Appeals, that petitioners availed themselves of the wrong remedy in filing a Petition for
Prohibition/Mandamus before the RTC.

Sections 2 and 3, Rule 65 of the Rules of the Rules of Court lay down under what
circumstances petitions for prohibition and mandamus may be filed, to wit:

SEC. 2. Petition for prohibition. – When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent to desist from further proceedings in the
action or matter specified therein, or otherwise granting such incidental reliefs as law and
justice may require.

SEC. 3. Petition for mandamus. – When any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent, immediately or at some other time
to be specified by the court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts
of the respondent. (Emphases ours.)

In a petition for prohibition against any tribunal, corporation, board, or person -- whether
exercising judicial, quasi-judicial, or ministerial functions -- who has acted without or in
excess of jurisdiction or with grave abuse of discretion, the petitioner prays that judgment be
rendered, commanding the respondent to desist from further proceeding in the action or
matter specified in the petition. 32 On the other hand, the remedy of mandamus lies to
compel performance of a ministerial duty.33 The petitioner for such a writ should have a well-
defined, clear and certain legal right to the performance of the act, and it must be the clear
and imperative duty of respondent to do the act required to be done. 34

In this case, petitioners’ primary intention is to prevent respondent from implementing

Municipal Ordinance No. 98-01, i.e., by collecting the goodwill fees from petitioners and
barring them from occupying the stalls at the municipal public market. Obviously, the writ
petitioners seek is more in the nature of prohibition (commanding desistance), rather than
mandamus (compelling performance).

For a writ of prohibition, the requisites are: (1) the impugned act must be that of a "tribunal,
corporation, board, officer, or person, whether exercising judicial, quasi-judicial or ministerial
functions"; and (2) there is no plain, speedy, and adequate remedy in the ordinary course of
law."35

The exercise of judicial function consists of the power to determine what the law is and what
the legal rights of the parties are, and then to adjudicate upon the rights of the parties. The
term quasi-judicial function applies to the action and discretion of public administrative
officers or bodies that are required to investigate facts or ascertain the existence of facts,
hold hearings, and draw conclusions from them as a basis for their official action and to
exercise discretion of a judicial nature. In implementing Municipal Ordinance No. 98-01,
respondent is not called upon to adjudicate the rights of contending parties or to exercise, in
any manner, discretion of a judicial nature.

A ministerial function is one that an officer or tribunal performs in the context of a given set of
facts, in a prescribed manner and without regard for the exercise of his or its own judgment,
upon the propriety or impropriety of the act done.36

The Court holds that respondent herein is performing a ministerial function.

It bears to emphasize that Municipal Ordinance No. 98-01 enjoys the presumption of validity,
unless declared otherwise. Respondent has the duty to carry out the provisions of the
ordinance under Section 444 of the Local Government Code:

Section 444. The Chief Executive: Powers, Duties, Functions and Compensation. – (a) The
Municipal mayor, as the chief executive of the municipal government, shall exercise such
powers and perform such duties and functions as provided by this Code and other laws.

(b) For efficient, effective and economical governance the purpose of which is the general
welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the
Municipal mayor shall:

xxxx

(2) Enforce all laws and ordinances relative to the governance of the municipality and the
exercise of its corporate powers provided for under Section 22 of this Code, implement all
approved policies, programs, projects, services and activities of the municipality x x x.

xxxx

(3) Initiate and maximize the generation of resources and revenues, and apply the same to
the implementation of development plans, program objectives sand priorities as provided for
under Section 18 of this Code, particularly those resources and revenues programmed for
agro-industrial development and country-wide growth and progress, and relative thereto,
shall:

xxxx

(iii) Ensure that all taxes and other revenues of the municipality are collected, and that
municipal funds are applied in accordance with law or ordinance to the payment of expenses
and settlement of obligations of the municipality; x x x. (Emphasis ours.)

Municipal Ordinance No. 98-01 imposes increased rentals and goodwill fees on stall holders
at the renovated municipal public market, leaving respondent, or the municipal treasurer
acting as his alter ego, no discretion on whether or not to collect the said rentals and fees
from the stall holders, or whether or to collect the same in the amounts fixed by the
ordinance.

The Court further notes that respondent already deemed petitioners’ stalls at the municipal
public market vacated. Without such stalls, petitioners would be unable to conduct their
businesses, thus, depriving them of their means of livelihood. It is imperative on petitioners’
part to have the implementation of Municipal Ordinance No. 98-01 by respondent stopped
the soonest. As this Court has established in its previous discussion, there is no more need
for petitioners to exhaust administrative remedies, considering that the fundamental issue
between them and respondent is one of law, over which the courts have competence and
jurisdiction. There is no other plain, speedy, and adequate remedy for petitioners in the
ordinary course of law, except to seek from the courts the issuance of a writ of prohibition
commanding respondent to desist from continuing to implement what is allegedly an invalid
ordinance. 1 a vv p h i 1

This brings the Court to the substantive issue in this Petition on the validity of Municipal
Ordinance N. 98-01.

Respondent maintains that the imposition of goodwill fees upon stall holders at the municipal
public market is not a revenue measure that requires a prior public hearing. Rentals and
other consideration for occupancy of the stalls at the municipal public market are not matters
of taxation.

Respondent’s argument is specious.

Article 219 of the Local Government Code provides that a local government unit exercising
its power to impose taxes, fees and charges should comply with the requirements set in Rule
XXX, entitled "Local Government Taxation":

Article 219. Power to Create Sources of Revenue.—Consistent with the basic policy of local
autonomy, each LGU shall exercise its power to create its own sources of revenue and to
levy taxes, fees, or charges, subject to the provisions of this Rule. Such taxes, fees, or
charges shall accrue exclusively to the LGU. (Emphasis ours.)

Article 221(g) of the Local Government Code of 1991 defines "charges" as:

Article 221. Definition of Terms.

xxxx

(g) Charges refer to pecuniary liability, as rents or fees against persons or property.
(Emphasis ours.)

Evidently, the revenues of a local government unit do not consist of taxes alone, but also
other fees and charges. And rentals and goodwill fees, imposed by Municipal Ordinance No.
98-01 for the occupancy of the stalls at the municipal public market, fall under the definition
of charges.

For the valid enactment of ordinances imposing charges, certain legal requisites must be
met. Section 186 of the Local Government Code identifies such requisites as follows:

Section 186. Power to Levy Other Taxes, Fees or Charges.—Local government units may
exercise the power to levy taxes, fees or charges on any base or subject not otherwise
specifically enumerated herein or taxed under the provisions of the National Internal
Revenue Code, as amended, or other applicable laws: Provided, That the taxes, fees or
charges shall not be unjust, excessive, oppressive, confiscatory or contrary to declared
national policy: Provided, further, That the ordinance levying such taxes, fees or charges
shall not be enacted without any prior public hearing conducted for the purpose. (Emphasis
ours.)

Section 277 of the Implementing Rules and Regulations of the Local Government Code
establishes in detail the procedure for the enactment of such an ordinance, relevant
provisions of which are reproduced below:

Section 277. Publication of Tax Ordinance and Revenue Measures.—x x x.

xxxx

(b) The conduct of public hearings shall be governed by the following procedure:

xxxx

(2) In addition to the requirement for publication or posting, the sanggunian concerned shall
cause the sending of written notices of the proposed ordinance, enclosing a copy thereof, to
the interested or affected parties operating or doing business within the territorial jurisdiction
of the LGU concerned.

(3) The notice or notices shall specify the date or dates and venue of the public hearing or
hearings. The initial public hearing shall be held not earlier than ten (10) days from the
sending out of the notice or notices, or the last day of publication, or date of posting thereof,
whichever is later;

xxxx

(c) No tax ordinance or revenue measure shall be enacted or approved in the absence of a
public hearing duly conducted in the manner provided under this Article. (Emphases ours.)

It is categorical, therefore, that a public hearing be held prior to the enactment of an

ordinance levying taxes, fees, or charges; and that such public hearing be conducted as
provided under Section 277 of the Implementing Rules and Regulations of the Local
Government Code.

There is no dispute herein that the notices sent to petitioners and other stall holders at the
municipal public market were sent out on 6 August 1998, informing them of the supposed
"public hearing" to be held on 11 August 1998. Even assuming that petitioners received their
notice also on 6 August 1998, the "public hearing" was already scheduled, and actually
conducted, only five days later, on 11 August 1998. This contravenes Article 277(b)(3) of the
Implementing Rules and Regulations of the Local Government Code which requires that the
public hearing be held no less than ten days from the time the notices were sent out, posted,
or published.

When the Sangguniang Bayan of Maasin sought to correct this procedural defect through
Resolution No. 68, series of 1998, dated 18 September 1998, respondent vetoed the said
resolution. Although the Sangguniang Bayan may have had the power to override
respondent’s veto,37 it no longer did so.

The defect in the enactment of Municipal Ordinance No. 98 was not cured when another
public hearing was held on 22 January 1999, after the questioned ordinance was passed by
the Sangguniang Bayan and approved by respondent on 17 August 1998. Section 186 of the
Local Government Code prescribes that the public hearing be held prior to the enactment by
a local government unit of an ordinance levying taxes, fees, and charges.

Since no public hearing had been duly conducted prior to the enactment of Municipal
Ordinance No. 98-01, said ordinance is void and cannot be given any effect. Consequently,
a void and ineffective ordinance could not have conferred upon respondent the jurisdiction to
order petitioners’ stalls at the municipal public market vacant.

IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. The assailed Decision
dated 28 November 2006 of the Court of Appeals in CA-G.R. SP No. 86182 is REVERSED
and SET ASIDE. Municipal Ordinance No. 98-01 is DECLARED void and ineffective, and a
writ of prohibition is ISSUED commanding the Mayor of the Municipality of Maasin, Iloilo, to
permanently desist from enforcing the said ordinance. Petitioners are also DECLARED as
lawful occupants of the market stalls they occupied at the time they filed the Petition for
Mandamus/Prohibition docketed as Civil Case No. 25843. In the event that they were
deprived of possession of the said market stalls, petitioners are entitled to recover
possession of these stalls.

SO ORDERED.

Functions of Judicial Review

Salonga v. Pano, 134 SCRA 438 (moot and academic)
https://lawphil.net/judjuris/juri1985/feb1985/gr_l59524_1985.html