1|JUDICIAL DEPARTMENT CASES
truthful, and having steadfast adherence to moral and ethical
EN BANC
May 11, 2018
G.R. No. 237428
REPUBLIC of the PHILIPPINES, represented by SOLICITOR GENERAL JOSE
C. CALIDA, Petitioner
vs
MARIA LOURDES P.A. SERENO, Respondent
DECISION
TIJAM, J.:
Whoever walks in integrity and with moral character walks securely, but he
who takes a crooked way will be discovered and punished.
-The Holy Bible, Proverbs 10:9 (AMP)
Integrity has, at all times, been stressed to be one of the required
qualifications of a judge. It is not a new concept in the vocation of
administering and dispensing justice. In the early l 600's, Francis Bacon, a
philosopher, statesman, and jurist, in his "Essay L VI: Of Judicature" said -
"'[a]bove all things, integrity is the Judge's portion and proper virtue."
Neither is integrity a complex concept necessitating esoteric philosophical
disquisitions to be understood. Simply, it is a qualification of being honest,
principles. 1 Integrity connotes being consistent - doing the right thing in
accordance with the law and ethical standards everytime. Hence, every
judicial officer in any society is required to comply, not only with the laws
and legislations, but with codes and canons of conduct and ethical
standards as well, without derogation. As Thomas Jefferson remarked, "it
is of great importance to set a resolution, never not to be shaken, never to
tell an untruth. There is no vice so mean, so pitiful, so contemptible and he
who permits himself to tell a lie once, finds it much easier to do it a second
and third time, till at length it becomes habitual, he tells lies without
attending to it, and truths without the world's believing him. This
falsehood of the tongue leads to that of the heart and in time depraves all
its good dispositions." Mental dishonesty and moral mischief breed all that
integrity is not.
In our jurisdiction, one cannot be qualified to be a member of the
Judiciary, lacking such mandatory requirement of "proven integrity".
Inevitably, an appointee to the position of Chief Justice of the Supreme
Court must be the exemplar of honesty, probity and integrity. The purpose
of this requirement is self-evident as the Chief Justice heads the Judiciary
and adjudicates cases as a member of the Court that "has the last word on
what the law is."2 Together with other Justices, the Chief Justice also
disciplines members of the Bar for misconduct. The significance of probity
and integrity as a requirement for appointment to the Judiciary is
underscored by the fact that such qualifications are not explicitly required
of the President, the Vice-President or the Members of Congress under the
Constitution. The Constitution, thus, demands in no uncertain terms that
the Chief Justice be the embodiment of moral and ethical principles. He or
she must be of unquestionable character, possessed of moral authority to
demand obedience to the law and to impose a rule of conduct. Indeed,
one who exacts compliance with the law and ethical standards should be
their foremost adherent.
No one is above the law and the Constitution, not even a Chief Justice who
took an oath to protect and defend the Constitution and obey the laws of
the land. The Court in Francisco, Jr. v. The House of Representatives, 3 says
it tritely - "the Chief Justice is not above the law and neither is any other
member of this Court."4 All public officers whether in the Executive,
2|JUDICIAL DEPARTMENT CASES

Legislative or Judicial departments are bound to follow the law. If a public
officer violates the law, he or she shall suffer punishment, sanctions and
adverse consequences. The obligatory force of the law is necessary
because once we allow exceptions, concessions, waiver, suspension or
non-application to those who do not want to follow the law, nobody else
will obey the law.
therefrom on June 1, 2006.6 As a regular faculty member, respondent was
paid by the month by U.P. 7
Based on the records of the U.P. Human Resources Development Office
(U.P. HRD0),8 respondent was on official leave from the U.P. College of Law
for the following periods:

In this unprecedented case for quo warranto against the incumbent Chief

June 1, 2000 - May 31, 2001
Justice, the Republic entreats this Court to declare Maria Lourdes P.A.
Sereno (respondent) ineligible to hold the highest post in the Judiciary for June 1, 2001 - May 31, 2002
failing to. regularly disclose her assets, liabilities and net worth as a
member of the career service prior to her appointment as an Associate November 1, 2003 - May 31, 2004
Justice, and later as Chief Justice, of the Supreme Court, in violation of the June 1, 2004 - October 31, 2004
Constitution, the Anti-Graft Law, and the Code of Conduct and Ethical
Standards for Public Officials and Employees. The Republic accordingly November 1, 2004 - February 10, 2005
seeks the nullification of respondent's appointment, asserting that her
February 11, 2005 - October 31, 2005
failure to file the required disclosures and her failure to submit the same to
the Judicial and Bar Council show that she is not possessed of "proven November 15, 2005 - May 31, 2006
integrity" demanded of every aspirant to the Judiciary.
While being employed at the U.P. College of Law, or from October 2003 to
The Case
2006, respondent was concurrently employed as legal counsel of the
Republic in two international arbitrations: (a) PIATCO v. Republic of the
Invoking the Court's original jurisdiction under Section 5(1), Article VIII of Philippines and MIAA; and  (b) Fraport AG Frankfurt Airport Services
the Constitution in relation to the special civil action under Rule 66 of the Worldwide v. Republic of the Philippines (PIATCO cases).9
Rules of Court, the Republic of the Philippines (Republic), through the
Office of the Solicitor General (OSG) filed the present Petition 5 for the
The Personal Data Sheet (PDS) accomplished under oath by respondent
issuance of the extraordinary writ of quo warranto to declare as void
further details, among others, the following engagements/services
respondent's appointment as Chief Justice of the Supreme Court and to
rendered by her for various government agencies: 10
oust and altogether exclude respondent therefrom.

The Antecedents From To No. of Years Department/ Agency Nature of work Supervisor
1994 2008 14 yrs. Various agencies of Legal – various Executive
From November 1986 to June 1, 2006, or spanning a period of 20 years, government – Office of international trade Secretaries
respondent served as a member of the faculty of the University of the the President, Office of and investment law Alberto Romu
Philippines-College of Law (U.P. or U.P. College of Law), initially as a the Solicitor General, in WTO (Geneva), Eduardo Ermit
temporary faculty member (from November 1986 to December 31, 1991) Manila International ICSID (Washington, and Leandro
and thereafter, as a permanent faculty member until her resignation Airport Authority, DC). ICC-ICA Mendoza, Chi
 3|JUDICIAL DEPARTMENT CASES

Department of (Singapore, Paris) 2002,21 filed by respondent. On the other hand, the records of the Central
Presidential
Agriculture, and in bilateral LegalRecords
CounselDivision of the Office of the Ombudsman yields that there is no
Department of Trade dispute resolution SALN
Avelino Cruz filed
andby respondent for calendar years 1999 to 2009 except for the
and Industry, WTO- mechanisms SALN
Merceditas ending December 1998 which was subscribed only in August 2003
AFTA Commission, and
Gutierrez; transmitted by the U.P. HRDO to the Ombudsman only on December
22
Philippine Coconut 16,
Solicitor 2003.  Belatedly, in respondent's Ad Cautelam
Authority Manifestation/Submission, she
Generals Alfredo attached a copy of her SALN for
23
1989
Benipayo,  which she supposedly sourced from the "filing cabinets" 24 or
25
"drawers
Antonio Nachura of U.P."  Similarly, despite having been employed as legal
counsel
and Agnes of various government agencies from 2003 to 2009, there is
likewise
Devanadera, no showing that she filed her SALNs for these years, except for the
SALN
MIAA General ending December 31, 2009 which was unsubscribed and filed before
the Office
Manager Alfonso of the Clerk of Court only on June 22, 2012.
Cusi, Sen.
AfterAngara,
Edgardo having served as a professor at the U.P. College of Law until 2006,
and thereafter
Sec. Salvador as practitioner in various outfits including as legal counsel
for
Escudero,the Republic until 2009, the respondent submitted her application for
the position
Undersecretary of Associate Justice of the Supreme Court in July 2010.
Thomas Aquino,
Amb.InLilia
support of her application as Associate Justice, respondent submitted to
the Office of Recruitment Selection and Nomination (ORSN) of the Judicial
Bautista
and Bar Council (JBC) her SALN for the year 2006. 26 This SALN for 2006
puty       Commission on Human Legal and Acting
bears no stamp received by the U.P. HRDO and was signed on July 27,
mmissioner   Rights (UP Diliman, Administrative   Chairman&
2010.27 According to respondent, the JBC considered her nomination for
Commonwealth Ave., Comm.theAbelardo
position of Associate Justice as that of a private practitioner and not as
QC, TEL:928-7098)   Aportadera (TEL: employee.28 Only recently, in a letter29 to the ORSN dated
a government
687- February
7571) 2, 2018, likewise attached to her Ad Cautelam
Manifestation/Submission, respondent would explain that such SALN was
Incidentally, the U.P. HRDO certified that there was no record on really intended to be her SALN as of July 27, 2010. 30 Respondent further
respondent's 201 file of any permission to engage in limited practice of explained during the Oral Arguments that she merely downloaded the
profession. 11 Her engagement as legal counsel for the Republic continued SALN form and forgot to erase the year "2006" printed thereon and that
until 2009. 12 she was not required by the ORSN to submit a subscribed SALN. 31

Despite having been employed at the U.P. College of Law from November Thus, as the certifications executed by the U.P. HRDO, the Ombudsman
1986 to June 1, 2006, the record of the U.P. HRDO only contains the and the ORSN of the JBC stand, the only SALNs available on record and
Statement of Assets, Liabilities and Net Worth (SALN) for filed by respondent were those for the calendar years 1985, 1989, 1990,
1985, 13 1990, 14 1991, 15 1993, 16 1994,17 1995,18 1996, 19 1997,20 and 1991, 1993, 1994, 1995, 1996, 1997, 1998, and 2002 or eleven (11) SALNs
 4|JUDICIAL DEPARTMENT CASES

filed in her 20-year government service in U.P. No SALNs were filed from SALN ending December 31, 1997 SALN ending December 31, 1997
2003 to 2006 when she was employed as legal counsel for the Republic.
Neither was there a SALN filed when she resigned from U.P. College of Law SALN ending December 31, 1998 SALN ending December 31, 1998 (file
as of June 1, 2006 and when she supposedly re-entered government with the Ombudsman on December 1
service as of August 16, 2010. 2003)
SALN ending December 31, 1999 -no record-
In tabular form, respondent's inclusive years in government employment
vis-a-vis the SALNs filed by her and available on record are as follows: SALN ending December 31,2000 -no record-
SALN ending December 31,2001 -no record-
As faculty member of the U.P. College of Law:
SALN ending December 31,2002 SALN ending December 31,2002
Year SALN ought to be filed SALN actually filed by respondent
SALN ending December 3l,2003 -no record-
vember 1986 SALN as of November 1986 (entry SALN) SALN ending December 31, 1985
SALN ending December 31, 2004 -no record-
-no record of SALN as of November SALN ending December 3l,2005 -no record-
1986 (entry SALN
SALN as of June 1, 2006 (exit SALN) -no record of SALN as of June 1, 2006
87 SALN ending December 31, 1986 -no record- (exit SALN)-
88 SALN ending December 31, 1987 -no record-
Alleged break in government service from June 2, 2006 until August 15, 2009 but was engaged as legal counsel fo
89 SALN ending December 31, 1988 the Republic from June 2, 2006 to 2009.
-no record-
90 SALN ending December 31, 1989 SALN ending December 31, 1989 As Associate Justice of the Supreme Court:
(sourced by respondent from one of the
August 16,or2010 SALN as of August 16, 2010 (re-entry SALN ending December 31, 2009 but
"filing cabinets" "drawers" of U.P.)
SALN) filed with the Office of the Clerk of
91 SALN ending December 31, 1990 SALN ending December 31, 1990 Court En Banc only on June 22, 2012
and unsubscribed -no record of SALN
92 SALN ending December 31, 1991 SALN ending December 31, 1991 of August 16, 2010 (re-entry SALN)-
93 SALN ending December 31, 1992 -no record- SALN ending December 31, 2010 SALN ending December 31, 2010 but
94 SALN ending December 31, 1993 SALN ending December 31, 1993 unsubscribed

95 SALN ending December 31, 1994 SALN ending December 31, 1994 SALN ending December 31, 2011 SALN ending December 31, 2011

96 SALN ending December 31, 1995 SALN ending December 31, 1995
A month after, or on August 13, 2010, respondent was appointed by then
97 SALN ending December 31, 1996 SALN ending December SALNPresident
ending Benigno C. Aquino III (President Aquino III) as Associate Justice,
December 31, 1996 31, 1996and on August 16, 2010, respondent took her oath of office as such.
5|JUDICIAL DEPARTMENT CASES
When the position of the Chief Justice was declared vacant in 2012, the JBC
announced32 the opening for application and recommendation of the
position of Chief Justice. During the 2012 deliberations for the position of
the Chief Justice, the members of the JBC En Banc were Associate Justice
Diosdado M. Peralta (Justice Peralta) as Acting ex officio Chairman;
Undersecretary Michael Frederick L. Musngi as ex officio member vice Leila
M. De Lima; Senator Francis Joseph G. Escudero and Representative Niel
Tupas as ex officio members representing the Congress; Justice Regino C.
Hermosisima Jr. as regular member representing the retired Supreme
Court Justices; Justice Aurora Santiago Lagman as regular member
representing the Private Sector; Atty. Maria Milagros N. Fernan-Cayosa as
regular member representing the Integrated Bar of the Philippines; and
Atty. Jose V. Mejia as regular member representing the academe. The JBC
Executive Committee (Execom) was composed of the JBC Regular Members
and assisted by the Office of the Executive Officer (OEO) headed by Atty.
Annaliza S. Ty-Capacite (Atty. Capacite).
The JBC announcement was preceded by an En Banc meeting held on June
4, 2012 wherein the JBC agreed to require the applicants for the Chief
Justice position to submit, instead of the usual submission of the SALNs for
the last two years of public service, all previous SALNs up to December 31,
2011 for those in government service.33 However, for the other judicial
vacancies, the JBC required the submission of only two
SALNs.34 Accordingly, in the Announcement35 published on June 5, 2012,
the JBC specifically directed the candidates for the Chief Justice post to
submit, in addition to the usual documentary requirements, the following:
(1) Sworn Statement of Assets, Liabilities, and Networth (SALN):
a. for those in the government: all previous SALNs (up to 31 December
2011)
b. for those from the private sector: SALN as of 31 December 2011
(2) Waiver in favor of the JBC of the confidentiality of local and foreign
bank accounts under the Bank Secrecy Law and Foreign Currency Deposits
Act. 36 (Emphasis ours)
The JBC announcement further provided that "applicants with incomplete
or out-of-date documentary requirements will not be interviewed or
considered for nomination."37
Nevertheless, the JBC En Banc subsequently agreed to extend the deadline
for the filing of applications or recommendations to July 2, 2012 and the
submission of the other documentary requirements to July 17, 2012. 38
On June 25, 2012, the JBC En Banc resolved not to require the incumbent
Supreme Court Justices who are candidates for the Chief Justice position to
submit other documentary requirements, particularly the required
clearances. Instead, the JBC En Banc required the incumbent Justices to
submit only the SALNs, bank waiver, medical certificate, laboratory results
and the PDS.
On July 2, 2012, respondent accepted several nominations from the legal
and the evangelical community for the position of Chief Justice and in
support of her nomination, respondent submitted to the ORSN her SALNs
for the years 2009,39 2010,40 and 2011. 41 Respondent also executed a
waiver of confidentiality42 of her local and foreign bank accounts. 43
On July 6, 2012, or even before the deadline of the submission of the
documentary requirements on July 17, 2012, the JBC En Banc came up with
a long list of the candidates totaling twenty-two (22), respondent included,
and scheduled the public interview of said candidates on July 24-27,
2012.44
On July 20, 2012, the JBC in its Special En Banc Meeting, 45 deliberated on
the candidates for the position of Chief Justice with incomplete
documentary requirements. In particular, the JBC examined the list of
candidates and their compliance with the required submission of SALNs.
The minutes of the JBC deliberation reveal as follows:
xxxx
6|JUDICIAL DEPARTMENT CASES
The Executive Officer asked for clarification, particularly with respect to
SALNs, whether five (5) SALNs would constitute a substantial compliance if
the candidate has been in the government service for twenty (20) years.
The Council examined the list with regard to the SALNs, particularly the
candidates coming from the government, and identified who among them
would be considered to have substantially complied:
1. Justice Arturo D. Brion - has substantially complied
2. Justice Antonio T. Carpio - has substantially complied
3. Secretary Leila M. De Lima- has substantially complied
4. Chairperson Teresita J. Herbosa- has complied
5. Solicitor General Francis H. Jardeleza - has complied
6. Justice Teresita J. Leonardo-De Castro - has sµbstantially complied
7. Dean Raul C. Pangalangan
The Executive Officer informed the Council that Dean Pangalangan lacks
five (5) SALNs. She was informed that he could not obtain them from the
U.P., but he is trying to get from the Civil Service Commission.
Justice Lagman moved that the SALNs of Dean Pangalangan be considered
as substantial compliance.
8. Congressman Rufus B. Rodriguez
Justice Peralta said that as per the report, Congressman Rodriguez did not
submit even one SALN. He commented that he may not be interested
although he accepted his nomination.
The Executive Officer informed the Council that he is abroad. He was
notified through email, as his secretary would not give his contact number.
9. Commissioner Rene V. Sarmiento-has lacking SALNs
10. Justice Maria Lourdes P.A. Sereno
The Executive Officer informed the Council that she had not submitted
her SALNs for a period of ten (10) years, that is, from 1986 to 2006.
Senator Escudero mentioned that Justice Sereno was his professor at U.P.
and that they were required to submit SALNs during those years
11. Judge Manuel DJ Siayngco - has complied
Atty. Cayosa mentioned that Judge Siayngco has to submit a certificate of
exemption because judges are also required to comply with that
requirement.
12. Dean Amado D. Valdez - has lacking requirements
13. Justice Presbitero J. Velasco, Jr. - has complied
14. Atty. Vicente R. Velasquez - has lacking requirements
15. Dean Cesar L. Villanueva - has lacking requirements
16. Atty. Ronaldo B. Zamora - has lacking SALNs and MCLE cert.
x x x x.46 (Emphasis ours)
Because there were several candidates with incomplete documentary
requirements, the JBC En Banc agreed to again extend the deadline for the
submission of the lacking requirements to July 23, 2012 and that the
determination of whether a candidate has substantially complied with the
requirements be delegated to the Execom. It also appears that the JBC En
7|JUDICIAL DEPARTMENT CASES
Banc further agreed that the candidates who fail to complete the
requirements on said date are to be excluded from the list of candidates to
be interviewed and considered for nomination, unless they would be
included if in the determination of the Execom he or she has substantially
complied.47
Thus, on July 20, 2012, the ORSN, through its then Chief Atty. Richard
Pascual (Atty. Pascual), inquired as to respondent's SALNs for the years
1995, 1996, 1997 and 1999. 48 During the Congressional hearings on
impeachment, Atty. Pascual would later on testify that he asked
respondent to submit her SALNs from 1996 to 2006, or spanning a period
of 10 years. 49 During the Oral Arguments, respondent would maintain that
Atty. Pascual only required her to submit her SALN s from 1995-1999 and
did not ask for her more recent SALN s. Either way, the years requested
from respondent are within the period (1986 to 2006) covered by her
employment with the U.P. College of Law.
In response, the respondent, in the afternoon of July 23, 2012, transmitted
a letter50 of even date to the JBC, which stated:
xxxx
As I had noted in my Personal Data Sheet, after my resignation from
government service in 2006, as a professor at the University of the
Philippines, I became a full-time private practitioner. Hence, when I was
nominated for the position of Associate Justice of the Supreme Court in
2010, my nomination was considered as that of a private practitioner, and
not as a government employee. Thus, the requirements imposed on me in
connection with the consideration of my name, were those imposed on
nominees from the private sector, and my earlier-terminated government
service, did not control nor dominate the kind of requirements imposed on
me.
Considering that most of my government records in the academe are more
than fifteen years old, it is reasonable to consider it infeasible to retrieve
all of those files.
In any case, the University of the Philippines has already cleared me of all
academic/administrative responsibilities, money and property
accountabilities and from administrative charges as of 01 June 2006. Since
it is the ministerial duty of the Head of the Office to ensure that the SALNs
of its personnel are properly filed and accomplished (CSC Resolution No.
060231 dated 01 February 2006 and CSC Memorandum Circular No. 10-
2006 dated 17 April 2006), this clearance can be taken as an assurance that
my previous government employer considered the SALN requirements to
have been met. A copy of the Clearance dated 19 September 2011 issued
by the University of the Philippine is hereby attached.
In the 05 June 2012 Announcement, the Judicial and Bar Council imposed
the requirement of submitting all previous SALNs for those in the
government. As I pointed out earlier, my service in government is not
continuous. The period of my private practice between my service in the
University of the Philippines ending in 2006 and my appointment to the
Supreme Court in 2010 presents a break in government service. Hence, in
compliance with the documentary requirements for my candidacy as Chief
Justice, I submitted only the SALN s from end of 2009 up to 31 December
2011, since I am considered to have been returned to public office and
rendered government service anew from the time of my appointment as
Associate Justice on 16 August 2010.
Considering that I have been previously cleared from all administrative
responsibilities and accountabilities from my entire earlier truncated
government service, may I kindly request that the requirements that I need
to comply with, be similarly viewed as that from a private sector, before
my appointment to the Government again m 2010 as Associate Justice of
the Supreme Court.
x x x x51
The letter dated July 23, 2012 was received by the Office of the
Administrative and Financial Services (OAFS) and copies thereof were
received by the offices of the JBC regular members, the ORSN and the
OE0. 52 The letter, however, was neither examined by the JBC regular
members nor was it deliberated upon either by the JBC En Banc or the
8|JUDICIAL DEPARTMENT CASES
Execom. 53 Although the determination of whether a candidate has
substantially complied with the documentary requirements was delegated
to the Execom, the latter could not produce any minutes of the meeting or
record that the members thereof deliberated on the July 23, 2012 letter of
respondent. 54
On the scheduled date of the interview on July 24, 2012, despite
respondent's submission of only 3 SALNs, Atty. Pascual prepared a
ReportRe: Documentary Requirements and SALN of candidates for the
Position of Chief Justice of the Philippines55 wherein respondent was listed
as applicant No. 14 with an opposite annotation that she had "COMPLETE
REQUIREMENTS" and a note stating "Letter 7/23/12 - considering that her
government records in the academe are more than 15 years old, it is
reasonable to consider it infeasible to retrieve all those files."
The JBC then proceeded to interview the candidates, including respondent
who was interviewed on July 27, 2012. On August 6, 2012, the ORSN
prepared a list of the 20 candidates, respondent included, vis-a-vis their
SALN submissions. Opposite respondent's name was an enumeration of
the SALNs she submitted, i.e., 2009, 2010 and 2011 and an excerpt from
her July 23, 2012 letter that "considering that [respondent's] government
records in the academe are more than 15 years old, it is reasonable to
consider it infeasible to retrieve all those files." On August 13, 2012, the
JBC voted on who would be included in the short list and on the same day,
transmitted to the President its nominations56 for the position of Chief
Justice, as follows:
1. Carpio, Antonio T.
2. Abad, Roberto A.
3. Brion, Arturo D.
4. Jardeleza, Francis H.
5. Sereno, Maria Lourdes P.A.
6. Zamora, Ronaldo B.
7. Leonardo-De Castro, Teresita J.
8. Villanueva, Cesar L
A month after respondent's acceptance of her nomination, or on August
24, 2012, respondent was appointed by then President Aquino III as Chief
Justice of the Supreme Court.
On August 30, 2017, or five years after respondent's appointment as Chief
Justice, an impeachment complaint was filed by Atty. Larry Gadon (Atty.
Gadon) against respondent with the Committee on Justice of the House of
Representatives (House Committee on Justice) for culpable violation of the
Constitution, corruption, high crimes, and betrayal of public trust. The
complaint also alleged that respondent failed to make truthful declarations
in her SALNs.
The impeachment complaint was endorsed by several members of the
House and, thereafter, was found to be sufficient in form and
substance.1âwphi1 The respondent filed her answer to the impeachment
complaint. After the filing of the reply and the rejoinder, the House
Committee on Justice conducted several hearings on the determination of
probable cause, the last of which was held on February 27, 2018. 57
During these hearings, it was revealed that respondent purportedly failed
to file her SALNs while she was a member of the faculty of the U.P. College
of Law and that she filed her SALN only for the years 1998, 2002 and 2006.
During the hearing on February 7, 2018 of the House Committee on
Justice, Justice Peralta, as a resource person being then the
acting ex- officio Chairman of the JBC, further claimed that during the JBC
deliberations in 2012, he was not made aware that respondent submitted
incomplete SALNs nor that respondent's letter dated July 23, 2012 to the
JBC was ever deliberated upon. 58 This was confirmed by Atty.
FernanCayosa;59 by Atty. Capacite, who emphasized that based on the
rubber stamp received, only the offices of the JBC regular members, the
9|JUDICIAL DEPARTMENT CASES
ORSN and the OEO were furnished copies of the letter; 60 and by Atty.
Pascual on the basis of the transmittal letter. 61
The foregoing sworn declarations made during the hearings before the
House Committee on Justice spawned two relevant incidents: one, the
proposal of the House Committee for this Court to investigate on the
proceedings of the JBC relative to the nomination of respondent as Chief
Justice which is now presently docketed as A.M. No. 17-11-12 and A.M. No.
17-11-17-SC; and two, the Letter62 dated February 21, 2018 of Atty. Eligio
Mallari to the OSG requesting that the latter, in representation of the
Republic, initiate a quo warranto proceeding against respondent.
Thus, the present petition.
The Case for the Republic
The Republic, through the OSG, claims that an action for quo warranto is
the proper remedy to question the validity of respondent's appointment. It
alleges that the instant petition is seasonably filed within the one-year
reglementary period under Section 11, Rule 66, 63 of the Rules of Court
since respondent's transgressions only came to light during the
proceedings of the House Committee on Justice on the allegations of the
impeachment complaint filed against her. Alternatively, the Republic
claims that it has an imprescriptible right to bring a quo warranto petition
under the maxim nullum tempus occurit regi.
In justifying resort to a petition for quo warranto, the Republic argues
that quo warranto is available as a remedy even as against impeachable
officers, like respondent. The Republic argues that a petition for quo
warranto is different from the impeachment proceedings because the writ
of quo warranto is being sought to question the validity of her
appointment, while the impeachment complaint accuses her of committing
culpable violation of the Constitution and betrayal of public trust while in
office. 64 Citing the 2010 Rules of the Presidential Electoral Tribunal (PET)
and the cases of Funa v. Chairman Villar65 and Nacionalista Party v. De
Vera, 66 the Republic argues that quo warranto may be resorted to even
against impeachable officers and that the respondent's assumption of the
position as Chief Justice under the color of an executive appointment is a
public wrong correctible by quo warranto.
The Republic seeks to oust respondent from her position as Chief Justice
on the ground that the latter failed to show that she is a person of proven
integrity which is an indispensable qualification for membership in the
Judiciary under Section 7(3),67 Article VIII of the Constitution. According to
the Republic, because respondent failed to fulfill the JBC requirement of
filing the complete SALNs, her integrity remains unproven. The Republic
posits that the JBC's ostensible nomination of respondent does not
extinguish the fact that the latter failed to comply with the SALN
requirement as the filing thereof remains to be a constitutional and
statutory reg uirement. 68
In sum, the Republic contends that respondent's failure to submit her SALN
s as required by the JBC disqualifies her, at the outset, from being a
candidate for the position of Chief Justice. Lacking her SALNs, respondent
has not proven her integrity which is a requirement under the
Constitution. The Republic thus concludes that since respondent is
ineligible for the position of Chief Justice for lack of proven integrity, she
has no right to hold office and may therefore be ousted via quo warranto.
The Case for the Respondent
Being circumspect in the examination of every pleading and document on
record, this Court observes that, initially, the Comment Ad Cautelam dated
March 16, 2018 filed before Us was neither signed by the respondent
herself nor verified to have been read by her and attested by her that the
allegations therein are true and correct of her personal knowledge or
based on authentic records. This Court is not unaware that under the Rules
of Court, specifically Section 4, Rule 7, not all pleadings need to be under
oath, verified, or accompanied by an affidavit. In fact, the rules on quo
warranto do not require the filing of such comment, but pursuant to the
dictates of the fundamental right of due process and also the desire of this
Court to dispose of this case judiciously, impartially, and objectively, this
Court gave the respondent the opportunity to be heard and oppose the
allegations in the petition by requiring her to file a comment thereto. Thus,
10 | J U D I C I A L D E P A R T M E N T C A S E S
this Court anticipated a response from the respondent to take such
opportunity to settle the uncertainty of her nomination and appointment
through her comment to the petition. What was received by this Court,
however, was an unverified Comment repudiating the Court's jurisdiction,
merely signed by counsel, who appeared to be representing the
respondent.
Wary of the legal implications of such unverified pleading, i.e. possible
refutation of the allegations stated therein and repudiation of the signing
counsel's authority to represent, this Court in its April 3, 2018
Resolution69 set as a condition for the conduct of Oral Arguments prayed
for by respondent, that the latter affirm and verify under oath the truth
and veracity of the allegations in the Comment Ad Cautelam filed by
counsel supposedly on her behalf.
In an Ad Cautelam Partial Compliance/Manifestatio dated April 5, 2018,
respondent affirmed and verified under oath the truth and veracity of the
allegations in the said Comment Ad Cautelam through a Verification dated
April 6, 2018 attached therein.
In the said Comment Ad Cautelam, respondent argues that, on the
strength of Section 2,70 Article XI of the 1987 Constitution and the cases
of Mayor Lecaroz v. Sandiganbayan,  71 Cuenca v. Hon. Fernan,  72 In Re:
First lndorsement from Hon. Gonzales,  73 and Re: Complaint-Affidavit for
Disbarment Against Senior Associate Justice Antonio T. Carpio, 74 the Chief
Justice may be ousted from office only by impeachment. Respondent
contends that the use of the phrase "may be removed from office" in
Section 2, Article XI of the Constitution does not signify that Members of
the Supreme Court may be removed through modes other than
impeachment. According to respondent, the clear intention of the framers
of the Constitution was to create an exclusive category of public officers
who can be removed only by impeachment and not otherwise.
It is likewise the argument of respondent that since a petition for quo
warranto may be filed before the RTC, such would result to a conundrum
because a judge of lower court would have effectively exercised
disciplinary power and administrative supervision over an official of the
Judiciary much higher in rank and is contrary to Sections 6 and 11, Article
VIII of the Constitution which vests upon the Supreme Court disciplinary
and administrative power over all courts and the personnel thereof. She
theorizes that if a Member of the Supreme Court can be ousted
through quo warranto initiated by the OSG, the Congress' "check" on the
Supreme Court through impeachment would be rendered inutile.
Respondent argues that the present petition is time-barred as Section 11,
Rule 66 provides that a petition for quo warranto must be filed within one (
1) year from the "cause of ouster" and not from the "discovery" of the
disqualification. Respondent contends that the supposed "failure" to file
the required SALNs allegedly took place for several years from 1986 to
2006, thus, the "cause of ouster" existed even before the respondent was
appointed as Chief Justice on August 24, 2012. Therefore, as early as her
appointment, the Republic, through the OSG, already had a cause of action
to seek her ouster. Even assuming that the one-year prescriptive period
may be counted from the Republic's "discovery" of the disqualification, the
petition would still be time-barred since the Republic would have made
such a "discovery" through U.P., considering that the U.P. HRDO is required
to submit a list of employees who failed to file their SALNs.
Respondent avers that the Court cannot presume that she failed to file her
SALNs because as a public officer, she enjoys the presumption that her
appointment to office was regular. According to respondent, the Republic
failed to overcome this presumption as the documents relied upon by
it, i.e., certifications from the U.P. HRDO and the Ombudsman, do not
categorically state that respondent failed to file her SALNs. On the
contrary, respondent points out that the U.P. HRDO had certified that she
had been cleared of all administrative responsibilities and charges as of
June 1, 2006 and that there was no pending administrative charge against
her.
It is likewise the contention of respondent that public officers without pay
or those who do not receive compensation are not required to file a SALN.
Thus, respondent argues that for the periods that she was on official leave
without pay, she was actually not required to file any SALN for the inclusive
years. She adds that to require the submission of SALNs as an absolute
11 | J U D I C I A L D E P A R T M E N T C A S E S
requirement is to expand the qualifications provided for under the
Constitution.
Nonetheless, respondent represents that she continues to recover and
retrieve her missing SALNs and will present them before the Senate sitting
as the Impeachment Tribunal and not to this Court considering her
objections to the latter's exercise of jurisdiction.
Respondent also stresses that the failure to file SALNs or to submit the
same to the JBC has no bearing on one's integrity. The submission of SALNs
was simply among the additional documents which the JBC had required of
the applicants for the position of Chief Justice. It is respondent's position
that the non-filing of SALN is not a ground for disqualification unless the
same was already the subject of a pending criminal or administrative case
or if the applicant had already been finally convicted for a criminal offense
involving said failure to file SALNs. In this case, respondent points out that
the JBC was made aware as early as July 20, 2012 that respondent had not
submitted to the JBC her SALNs as a U.P. professor and yet none of them
invoked Section 2, Rule 10 of JBC-009 or the "integrity rule."
Respondent likewise contends that the issue of whether an applicant for
the position of Chief Justice is a person of "proven integrity" is a question
"constitutionally committed to the JBC" and is therefore a political
question which only the JBC could answer, and it did so in the affirmative
when it included respondent's name in the shortlist of nominees for the
position of Chief Justice.
The Republic's Reply
In refuting respondent's arguments, the Republic justifies its resort to the
unconventional method of quo warranto. The Republic cites the cases
of Estrada v. Desierto75 and Lawyers League for a Better Philippines and/or
Oliver Lozano v. President Corazon Aquino et al. 76 where this Court tool
cognizance of a petition for quo warranto to oust an impeachable official.
It reiterates its argument that it seeks respondent's ouster, not on account
of commission of impeachable offenses, but because of her ineligibility to
assume the position of Chief Justice.
The Republic maintains that the phrase "may be removed from office" in
Section 2, Article XI of the Constitution means that Members of the
Supreme Court may be removed through modes other than impeachment
and disagrees with respondent's interpretation that the word "may"
qualifies only the penalty imposable after the impeachment trial, i.e.,
removal from office. The Republic claims that respondent's interpretation
would lead to an absurd situation in the event that the Senate imposes a
lesser penalty, like suspension of the President, which would result in a
vacancy in the position not intended by the Constitution. This is because
vacancy in the Office of the President occurs only in case of death,
permanent disability, removal from office, or resignation, in which event
the Vice-President shall become the President to serve the unexpired term.
Invoking the verba legis principle in statutory construction, the Republic
claims that Section 2, Article XI of the Constitution does not expressly
prohibit resort to other means to remove impeachable officers in position.
Contrary to respondent's claim that this Court has no disciplinary authority
over its incumbent members, the Republic cites Section 13 of A.M. No. 10-
4-20-SC which created a permanent Committee on Ethics and Ethical
Standards, tasked to investigate complaints involving graft and corruption
and ethical violations against members of the Supreme Court. The Republic
points out that such Ethics Committee conducted the investigation in A.M.
No. 10-7-17-SC77 and A.M. No. 09-2-19-SC. 78
Meanwhile, in support of its claim that the petition is not time-barred, the
Republic explains that the State has a continuous interest in ensuring that
those who partake of its sovereign powers are qualified. It argues that the
one-year period provided under Section 11 of Rule 66 merely applies to
individuals who are claiming rights to a public office, and not to the State.
To consider the instant petition as time-barred, the Republic argues, is to
force the State to spend its resources in favor of an unqualified person.
Further, the Republic claims that even if it be assumed that the one-year
period applies against the State, it cannot be deemed to have been
notified of respondent's failure to file her SALNs. It argues that it has no
statutory obligation to monitor compliance of government employees
12 | J U D I C I A L D E P A R T M E N T C A S E S
other than its own. It alleges that SALNs are not published, hence it has no
feasible way of taking cognizance of respondent's failure to file SALN.
In any case, the Republic claims that the unique circumstances of the
instant case behoove this Court to be liberal in interpreting the one-year
reglementary period.
As to the question on jurisdiction, the Republic contends that the Supreme
Court is clothed with the authority to determine respondent's
qualifications and eligibility to hold the position of the Chief Justice. It
argues that the determination of this issue is not a political question
because such issue may be resolved through the interpretation of the
pertinent prov1s1ons of the Constitution, laws, JBC rules, and Canons of
Judicial Ethics.
Going to the fundamental issue of respondent's eligibility to hold the
position of Chief Justice, the Republic reiterates that respondent failed to
comply with the requirement of submitting SALNs and thus has failed to
prove her integrity. Further, the Republic cites respondent's gross
misrepresentation in stating that her reason for non-submission of SALNs
was because she could no longer retrieve all of such SALN s. According to
the Republic, respondent's allegation seems to imply that she did file her
SALNs when the Certifications from the U.P. and the Ombudsman state
otherwise.
The Republic posits that respondent's lack of integrity is further bolstered
by her failure to disclose to the JBC that she failed to file her SALN 11 times
during her tenure as U .P. Law Professor.
Integrity, the Republic claims, is simply faithful adherence to the law, and
the filing of SALN is a qualification implied from the. requirement of
integrity. The filing of SALN is not an additional requirement unduly
imposed on applicants to positions in the Judiciary. When respondent
failed to file her SALN, she did not comply with the Constitution, laws and
appropriate codes of conduct. There is no need to allege or prove graft and
corruption in order to prove an aspiring magistrate's lack of integrity.
Finally, the Republic contends that the presumption of regularity cannot be
applied in respondent's favor. The Republic claims that such presumption
attaches only to official acts and not to all acts of officials. The
presumption, according to the Republic, applies only to official acts
specified by law as an official duty or to a function attached to a public
position. In this case, the filing of SALN is neither an official duty nor a
function attached to a position of a U.P. College of Law Professor. In any
case, the Republic claims that it has successfully disputed such
presumption through the Certifications it presented from U.P. and the
Ombudsman.
The Republic's Memorandum
In addition to the arguments put forth by the Republic in the Petition and
the Reply, the Republic further justified its non-inclusion of the JBC in the
instant petition. It contends that since the petition only disputes the
respondent's eligibility to become the Chief Justice, the Solicitor General
correctly instituted the quo warranto petition only against respondent.
Insisting on respondent's lack of integrity, the Republic argues that
respondent had the legal obligation to disclose to the JBC that she failed to
file her SALNs at least 11 times, citing the case of OCA v. Judge Estacion
Jr. 79
The Republic also argues that respondent's claim of good faith is not a
defense. Republic Act (R.A.) No. 301980 and R.A. No. 671381 are special laws
and are thus governed by the concept of malum prohibitum, wherein
malice or criminal intent is completely immaterial. Thus, her act of blaming
the Review and Compliance Committee of U.P. for its failure to inform her
that she had no SALNs on file does not exonerate her. The Republic further
notes that respondent resorted to the fallacy of tu quoque - a diversionary
tactic by using the fault of others to justify one's own fault.
Believing in the strength of its case, the Republic underscores its
contention that the respondent was not able to dispute the evidence put
forth by the Republic that she failed to religiously file her SALNs
throughout her entire stint in the government. The Republic claims that it
13 | J U D I C I A L D E P A R T M E N T C A S E S
is futile for respondent to merely allege during the Oral Arguments that
she filed her SALNs and wi11 produce them before the Senate.
Respondent's admissions during the Oral Arguments, together with the
U.P. HRDO's certification, prove that she did not religiously file her SALNs
as required by law.
As to the applicability of this Court's ruling in Concerned Taxpayer v.
Doblada, Jr., 82 the Republic argues that the case is not on all fours with the
instant petition. The Doblada ruling, according to the OSG, did not involve
issues on qualifications to public office unlike the present petition. Second,
unlike in Doblada, respondent in this case failed to offer any countervailing
evidence to disprove the Certifications by the U.P. HRDO and the
Ombudsman. Lastly, the statement in Doblada relied upon by the
respondent is a mere dictum. The issue therein is centered
on Doblada's unexplained wealth. Furthermore, Doblada was decided only
in 2005 or after respondent violated the legal requirement on the filing of
SALNs.
The Respondent's Memorandum
Respondent insists that she can be removed from office only through
impeachment. In addition to the arguments raised in her Comment Ad
Cautelam, respondent asserts that impeachment was chosen as the
method of removing certain high-ranking government officers to shield
them from harassment suits that will prevent them from performing their
functions which are vital to the continued operations of government. Such
purpose, according to respondent, would be defeated if Section 2, Article
XI of the Constitution would not be construed as providing an exclusive
means for the removal of impeachable officers. Respondent argues that it
would be absurd for the framers of the Constitution to provide a very
cumbersome process for removing said officers only to allow a less difficult
means to achieve the same purpose.
Respondent contends that the Republic, in citing the 2010 PET Rules and
the cases of Estrada v. Desierto83 and Lawyers League for a Better
Philippines and/or Oliver Lozano v. President Corazon Aquino et
al., 84 erroneously lumps together the Chief Justice, the President and the
Vice-President, simply because they are all impeachable officers.
Respondent argues that there are substantial distinctions between the
President and VicePresident on the one hand, and Members of the
Supreme Court on the other: first, unlike Section 4, Article VII of the 1987
Constitution vesting in the Court the power to be the "sole judge" of all
contests relating to the qualifications of the President and the Vice-
President, there is no similar provision with respect to the other
impeachable officials, i.e., the Members of this Court, the Members of the
Constitutional Commission or the Ombudsman; and second, the President
and Vice-President are elected officials while the other impeachable
officers are appointive officials.
Respondent also argues that there is not a single pronouncement in Funa
v. Chairman Villar85 and Nacionalista Party v. De Vera86 (by way of a ruling
or obiter dictum) to the effect that an impeachable officer may be ousted
through a writ of quo warranto, and that both cases were not even for quo
warranto.
Respondent maintains that whether respondent was a person of ''proven
integrity" when she applied for the position of Chief Justice is a political
question outside the jurisdiction of this Honorable Court, which only the
JBC and the President as the appointing authority could determine. She
avers that the application of the political question doctrine is not confined
to the President or Congress, as the Republic supposedly argues, but
extends to other government departments or officers exercising
discretionary powers, such as the JBC which uses its wisdom and discretion
in determining whether an applicant to the Judiciary is a person of
"proven" integrity.
Respondent also contends that absent any challenge to her nomination
and appointment on the ground of grave abuse of discretion on the part of
the JBC and the President, her appointment can no longer be questioned.
Respondent reiterates that the instant petition is time-barred. She argues
that the Republic cannot rely on Agcaoili v. Suguitan87 because it
mentioned the principle nullum temus occurit regi or "no time runs against
the king" only in passing, as the "general rule concerning limitation of
14 | J U D I C I A L D E P A R T M E N T C A S E S
action in quo warranto proceedings." She avers that Agcaoili is in fact
authority for the principle that prescription will definitely run against the
State if the rule or statute clearly so provides.
Respondent avers that she complied with the SALN laws as Professor of
the U.P. College of Law and that the law presumes regularity in the filing of
SALNs. According to respondent, that at least 11 of her SALNs have been
found tends to prove a pattern of filing, rather than non-filing.
Respondent argues that the burden of proof in quo warranto proceedings
falls on the party who brings the action and that based on Doblada, the
Republic failed to discharge this burden. Respondent claims that the
records of the U.P. HRDO are incomplete and unreliable and there was no
categorical statement in its Certification that she failed to file her SALNs for
the years 1986, 1987, 1988, 1989, 1992, 1999, 2000, 2001, 2003, 2004,
2005, and 2006. Further, she avers that the records of the Office of the
Ombudsman are even more incomplete and unreliable, thus, any
certification from said office would likewise be insufficient to prove that
she failed to file 11 of her SALNs while she was a U.P. Professor.
Respondent contends that she has actually presented preponderant
evidence that she filed her SALNs. She avers that she has recovered 11 of
her U.P. SALNs and she has direct proof that she executed at least 12
SALNs as a U.P. Professor. She stresses that the U.P. HRDO has thrice
"cleared" her of all administrative responsibilities and administrative
charges.
Respondent also claims that she was not even required to file a SALN from
1986 to 1991 because her status and appointment then was merely
temporary. According to her, the fact that she served as counsel for the
Republic for the PIATCO cases in 2004, 2005 and 2006 does not negate her
defense that under the law, she was not required to file her SALNs for the
years when she was on leave and ·was not receiving compensation arising
from public office (i.e., 2001, 2004, 2005 and 2006).
Respondent's Memorandum also sought to address certain matters raised
during the Oral Arguments.
As to where her SALNs are, respondent avers that some of her SALNs were
in fact found in the records of the U.P. HRDO, and she was able to retrieve
copies of some of her SALNs from the U.P. Law Center. Without prejudice
to her jurisdictional objections, she attached them to the Memorandum.
She argues that the fact that the SALN s for certain years are missing
cannot give rise to the inference that they were not filed. She points out
that U.P. was only required to keep the SALNs for a period of ten (10) years
after receipt of the statement, after which the SALN may be destroyed.
In explaining her statement before the JBC that her SALNs were
irretrievable, respondent avers that she honestly could not retrieve copies
from U.P. over the course of a weekend given to her to complete her
missing documentary requirements. She declares that she did not keep
copies of her SALN s and she was not required to do so by law.
Respondent asserts that her 2009 SALN was not belatedly filed. She
explains that her 2009 SALN is an entry SALN which she originally filed on
September 16, 2010 within thirty (30) days after her assumption of office
as an Associate Justice of the Supreme Court. According to her, the revised
2009 SALN which has the annotation "revised as of 22 June 2012," is a
revised version executed in June 2012 to more accurately reflect the
acquisition cost of certain assets declared in 2010.
With respect to the purported 2006 SALN, respondent avers that it was not
the SALN required by RA 6713, but a mere statement of her assets which
the JBC requested as a tool to determine her assets for comparison with
her income tax returns. She explains that she merely happened to use a
downloadable SALN form which she filled up and dated as of the time of its
writing, i.e., July 27, 2010. She claims that she never misrepresented the
same to be her 2006 exit SALN from U.P. According to her, she in fact
considers her 2006 SALN as one of the missing SALNs she is still trying to
locate.
Respondent claims that she could not recall all the circumstances why her
1998 SALN was executed only in 2003 which, according to her, was
reasonable since it happened l 5 years ago. She claims that there is no law
prohibiting her from submitting the same, and the fact that the SALN was
15 | J U D I C I A L D E P A R T M E N T C A S E S
filed serves the purpose of the law and negates any intention to hide
unexplained wealth.
It is also respondent's position that the omission of her husband's
signature on her 2011 SALN was inadvertent and was not an offense.
According to her, it could not adversely impact on her integrity absent any
allegation or finding that she acquired ill-gotten wealth. She argues that
the Civil Service Commission's Guidelines which require the signature of
the spouse who is not a public officer, was promulgated only in January
2013.
With regard to the jewelry she acquired from 1986 to 1991 which were
supposedly declared in her 1991 SALN but were undeclared in her 1990
SALN, respondent avers that these assets were actually declared in her
1985 and 1989 SALNs, and they were consistently declared in all her
subsequent SALNs beginning 1991. According to respondent, she should
not be faulted for her inadvertent omission to declare such assets in her
1990 SALN as her declaration of the same thereafter is consistent with
good faith and cured whatever error there may have been in her 1990
SALN. She argues that said assets were not manifestly disproportionate to
her lawful income and even as a U.P. Professor, she could have afforded to
purchase jewelry worth Php15,000.00 over a span of six (6) years.
Finally, respondent argues that it is an "unreasonable and oppressive"
interpretation of the law to reckon her entry SALN as Associate Justice of
the Court from the date of her appointment (August 16, 2010) and not
from December 31, 2009 when it was actually filed. Respondent contends
that R.A. No. 6713 only requires that the SALN be filed "within thirty days
after assumption of office" - a directive she supposedly complied with. She
argues that while the Implementing Rules and Regulations of R.A. No. 6713
state that the SALN should be reckoned from the first day of service, the
law provides for a review and compliance procedure which requires that a
reporting individual first be informed and provided an opportunity to take
necessary corrective action should there be any error in her SALN.
Respondent avers that she did not receive any notice or compliance order
informing her that her entry SALN was erroneous, and she was not
directed to take the necessary corrective action.
The Respondent's Reply/Supplement to Memorandum
At the close of the Oral Argument, granted upon respondent's Ad
Cautelam motion, the Court specifically required the parties to submit
their respective memoranda within a non-extendible period of ten (10)
days, after which, the petition shall be submitted for decision.
Notwithstanding such clear directive from the Court, and even without
being required to, respondent moves (again Ad Cautelam) for the inclusion
of her Reply/Supplement to her memorandum filed beyond the period
granted by the Court to the parties. The belated filing of said
Reply/Supplement in disregard of the Court's directive merits its non-
admission. Nevertheless, as the Court remains circumspect of the
pleadings submitted by the parties and in accordance with the dictates of
due process and fair play, respondent's Reply/Supplement to her
Memorandum, albeit filed Ad Cautelam, is admitted.
Respondent raises two points in her Reply/Supplement: first, the new
matter of tax fraud allegedly committed by her; and second, the forum-
shopping allegedly committed by the Republic.
Respondent sought to address the inclusion of the charge of tax fraud
allegedly committed by her relative to the fees she received in the PIATCO
cases which respondent argues to have been raised by the Republic only in
its memorandum. Respondent denies having concealed or under declared
her income in the PIATCO cases. She further points out that the Summary
and the Powerpoint presentation prepared by BIR Deputy Commissioner
Gtiballa and which were attached to the Republic's memorandum were
incomplete, inaccurate and merely preliminary. In any case, respondent
avers that BIR Deputy Commissioner Guballa himself found that
respondent had "substantially declared all income (legal fees) from the
PIATCO case in her ITRs from years 2004 to 2009 BUT there were certain
discrepancies."88
Respondent also accuses the Republic of having committed deliberate
forum-shopping in filing the action for quo warranto even when the
impeachment proceeding was already pending before the. House of
Representatives. Contending that all the elements of forum-shopping are
16 | J U D I C I A L D E P A R T M E N T C A S E S
present, respondent points to the (1) identity of parties between the quo
warranto action and the impeachment case inasmuch as the House
Committee on Justice is also part of the Government; (2) identity of causes
of action considering that the quo warranto case is based on respondent's
alleged lack of proven integrity for failure to file all her SALNs when she
was teaching at the U.P. College of Law and for concealing her true income
and evasion of taxes which were the same attacks on her eligibility and
qualifications as enumerated in the Articles of Impeachment; and (3)
identity in the relief sought as both the quo warranto and the
impeachment sought her removal from the Office of the Chief Justice.
The Motions for Intervention
Through a Joint Motion for Leave to Intervene and Admit Attached
Comment-In-Intervention, movant-intervenors composed of (1) former
CEO of PAG-IBIG Fund, Zorayda Amelia Capistrano Alonzo, (2) peace &
human rights advocate Remedios Mapa Suplido, (3) urban poor advocate
Alicia Gentolia Murphy, ( 4) Chairperson of Pambansang Kilusan ng mga
Samahang Magsasaka (PAKISAMA) Noland Merida Penas, (5) Fr. Roberto
Reyes, and (6) poet, feminist & youth advocate Reyanne Joy P. Librado
(Capistrano, et al.,) seek to intervene in the present petition as citizens and
taxpayers.
The comment-in-intervention is a virtual echo of the arguments raised in
respondent's comment that quo warranto is an improper remedy against
impeachable officials who may be removed only by impeachment and that
the application of the PET rules are limited only to the President and Vice-
President who are elective, and not appointive, officials. Movant-
intervenors similarly argue that the petition is already time-barred as the
cause of action arose upon respondent's appointment as Chief Justice on
August 24, 2012 or almost six (6) years ago.
Capistrano et al. argue that it is not incumbent upon respondent to prove
to the JBC that she possessed the integrity required by the Constitution for
members of the Judiciary; rather, the onus of determining whether or not
she qualified for the post fell upon the JBC. They also posit that nowhere in
the Constitution is the submission of all prior SALNs required; instead,
what is required is that all aspiring justices of the Court must have the
imprimatur of the JBC, the best proof of which is a person's inclusion in the
shortlist.
Capistrano et al. persuade that respondent's explanation that her
government records in the academe for 15 years are irretrievable is
reasonable and that respondent did not mislead the JBC. On the contrary,
they claim that the JBC accepted her explanation when it deemed
respondent as qualified. In doing so, they conclude, that the JBC
determined that she possessed the integrity as required by the
Constitution.
A few hours after the filing of the Capistrano et. al., 's Comment-
inIntervention, another set of intervenors composed of: (1) BAYAN MUNA
Representative (Rep.) Carlos Isagani Zarate; (2) ACT Teachers Partylist Rep.
Antonio Tinio & Francisca Castro; (3) GABRIELA Women's Party Rep.
Emerenciana De Jesus & Arlene Brosas; (3) ANAKPAWIS Partylist Rep. Ariel
Casilao; (5) KABATAAN Partylist Rep. Sarah Jane Elago; (6) Convenors and
members of Movement Against Tyranny (MAT), namely: Francisco A.
Alcuaz, Bonifacio P. Ilagan, & Col. George A. Rabusa (Ret. ); (7) Former
Senator Rene A.V. Saguisag; (8) Bishop Broderick S. Pabillo, D.D.; (9)
Secretary Gen. of Bagong Alyansang Makabayan (BAYAN) Renato M. Reyes,
Jr.; (10) Member of MDD Youth (an Affiliate of Aksyon Demokratiko) Kaye
Ann Legaspi; and (11) Secretary General of National Union of People's
Lawyers Atty. Ephraim B. Cortez (Zarate, et al.,) filed a Motion for Leave to
File Motion to Intervene and Opposition-in-Intervention, pursuant to Rule
19 of the Rules of Court. They claim that as citizens and taxpayers, they
have a legal interest in the matter of respondent's ouster or removal.
Zarate et al. raise the similar argument that the Chief Justice of the
Supreme Court may only be removed from office on impeachment for, and
conviction of, culpable violation of the constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust and that it is
only the Congress who has the power to remove the Chief Justice through
the exclusive mode of impeachment.
17 | J U D I C I A L D E P A R T M E N T C A S E S
They further argue that the issue of respondent's non-submission of
complete SALNs, without more, does not have the effect of putting to
question her integrity as she did not conceal her SALNs. They argue that
the qualification of having a "proven integrity" is a standard subject to the
discretion of, first, the JBC who submits the list of qualified candidates; and
second, of the President, who will select among the shortlist whom to
appoint as Chief Justice.
Movant-Intervenor Rene A.V. Saguisag subsequently filed a Supplement to
Motion for Leave to File Motion to Intervene and Opposition-in-
Intervention Cum Petition to Recuse seeking the inhibition of unnamed
Members of this Court who "may have prematurely thrown their weight
on the other side, actually or perceptually" on the ground that respondent
is entitled to an impartial arbiter.
As well, the Integrated Bar of the Philippines (IBP) filed its Motion for
Leave to File and to Admit Attached Opposition-in-Intervention as an
organization of all Philippine lawyers, having the fundamental duty to
uphold the Constitution and an interest in ensuring the validity of the
appointments to the Judiciary. The IBP's arguments reflect the arguments
of the respondent and the other movant-intervenors that the quo
warranto  petition is time-barred and is unavailable against an impeachable
officer. The IBP further argues that the determination of whether
respondent is of "proven integrity" belongs to the JBC and which question
the Court cannot inquire into without violating the separation of powers. It
is likewise the contention of the IBP that the petition is fatally flawed since
the JBC never required the submission of respondent's SALNs from 2001 to
2006.
Also seeking to intervene in the instant petition, Senators Leila M. De Lima
(Senator De Lima) and Antonio F. Trillanes IV (Senator Trillanes) as citizens,
taxpayers, and senators of the Republic, filed a Motion to Intervene and
Admit Attached Opposition-In-Intervention (Ad Cautelam) on April 4, 2018.
In the said Motion, Senators De Lima and Trillanes assert that they possess
a clear legal interest, both personal and official, in the subject matter of
the Republic's petition to oust the Chief justice on the ground that she
does not possess the constitutional requirement of integrity. According to
Senators De Lima and Trillanes, they have the right and duty to uphold the
Constitution and to oppose government actions that are clearly and
patently unconstitutional. It is also Senators De Lima and Trillanes' theory
that the instant quo warranto case is aimed to deprive the Senate of its
jurisdiction as the impeachment tribunal. They argue that their mandated
duty as judges in the possible impeachment trial of the Chief Justice will be
pre-empted and negated if the quo warranto petition will be granted. Their
claimed legal interest in their intervention in and opposition to the petition
for quo warranto is mainly anchored upon their duty and prerogatives as
Senators-judges in an impeachment trial and to protect the institution of
impeachment as a mode of enforcing accountability.
Senators De Lima and Trillanes' Opposition-In-Intervention is a mere
reiteration of the respondent's argument that this Court has no jurisdiction
over a petition for quo warranto against an impeachable officer. They
argue that the Chief Justice of the Supreme Court is, by express provision
of the Consitution, removable from office exclusively by impeachment.
They also aver that the ground raised in the petition for quo warranto -
lack of integrity for failing to submit one's SALN - is part of the allegations
in the impeachment case being heard in the House of Representatives.
Thus, they argue that the use of an identical ground in a quo
warranto proceeding directly undermines the jurisdiction of the Senate to
hear and decide impeachment cases and the prerogative of the senators to
try the same.
Senators De Lima and Trillanes also advance the argument that the
Constitution identifies and enumerates only three qualifications for
appointment to the Supreme Court: (1) natural born citizenship; (2) age,
i.e., at least forty years; and (3) an experience of at least 15 years either as
judge of a lower court or in the practice of law in the Philippines. They
assert that the filing of a SALN, taking of psychological or physical
examination, and similar requirements, are merely discretionary
administrative requirements for consideration of the JBC, not
Constitutional requirements, hence, can be waived, removed entirely, or
adjusted by the JBC in the exercise of its discretion. According to the said
movant-intervenors, Section 7(3), Article VIII of the 1987 Constitution,
which states that,"[ a] Member of the Judiciary must be a person of proven
18 | J U D I C I A L D E P A R T M E N T C A S E S
competence, integrity, probity, and independence", does not speak of
objective constitutional qualifications, but only of subjective characteristics
of a judge. They, therefore, contend that "qualifications" such as
citizenship, age, and experience are enforceable while "characteristics"
such as competence, integrity, probity, and independence are mere
subjective considerations.
Corollarily, Senators De Lima and Trillanes argue that the subjective
considerations are not susceptible to analysis with tools of legal doctrine.
Hence, questions on this matter are for the consideration of political
institutions under the Constitution, i.e., the JBC and the President (prior to
appointment) and the House of Representatives and the Senate (after
appointment).
The Motions for Inhibition
By way of separately filed motions, respondent seeks affirmative relief, in
the form of the inhibition of five (5) Justices of the Court, the jurisdiction of
which she questions and assails. Respondent prays for the inhibition of
Associate Justices Lucas P. Bersamin, Diosdado M. Peralta, Francis H.
Jardeleza, Noel Gimenez Tijam, and Teresita J. Leonardo-De Castro from
hearing and deciding the present petition
In common, respondent imputes actual bias on said Justices for having
testified before the House Committee on Justice on the impeachment
complaint. In particular, respondent considered Justice Bersamin's allusion
to respondent as a "dictator" and his personal resentment about the
supposed withdrawal of the privilege previously enjoyed by the members
of the Court to recommend nominees to vacant positions in the Judiciary,
as evidence of actual bias.
Justice Peralta's inhibition, on the other hand, is being sought because as
then Acting ex officio Chairperson of the JBC when respondent was
nominated for appointment as Chief Justice, he would have personal
knowledge of disputed evidentiary facts concerning the proceedings and
for having served as a material witness in the matter in controversy.
Justice Jardeleza's inhibition is sought on the ground that his testimony
before the House Committee on Justice reveals that he harbors ill feelings
towards respondent on account of the latter's challenge to his integrity
during the nomination process for the Associate Justice position vice
Justice Roberto A. Abad which he characterized as "inhumane".
Respondent seeks the inhibition of Justice Tijam based on the latter's
statement as quoted in a Manila Times article to the effect that if
respondent continues to ignore and to refuse to participate in the
impeachment process, she is clearly liable for culpable violation of the
Constitution.
Respondent likewise made mention that Justice Tijam and Justice Bersamin
wore a touch of red during the "Red Monday" protest on March 12, 2018
wherein judges and court employees reportedly called on respondent to
make the supreme sacrifice and resign.
Respondent also calls for the inhibition of Justice De Castro for having
allegedly prejudged the issue as regards the validity of respondent's
nomination and appointment in 2012 when Justice De Castro testified
under oath during the House Committee on Justice hearings that
respondent should have been disqualified from the shortlist on account of
the SALNs she allegedly failed to submit.
At the last minute, respondent also seeks to disqualify Justice Samuel R.
Martires for his purported insinuations during the Oral Arguments
questioning her "mental" or "psychological" fitness on the basis of her
belief that God is "the source of everything in (her) life." 89
Respondent also prays that the Ad Cautelam Respectful Motions for
Inhibitions of Associate Justices Peralta, Leonardo-De Castro, Jardeleza,
Tijam, Bersamin and Martires be resolved by the Court En Banc, without
the participation of the Justices she seeks to disqualify.·
The Issues
19 | J U D I C I A L D E P A R T M E N T C A S E S
From the arguments raised by the parties and the issues as delineated in
the Advisory governing the special Oral Arguments by way of
accommodation to respondent, the paramount issues to be resolved by
the Court are:
1. Whether the Court can assume jurisdiction and give due course
to the instant petition for quo warranto against respondent who is
an impeachable officer and against whom an impeachment
complaint has already been filed with the House of
Representatives;
2. Whether the petition is outrightly dismissible on the ground of
prescription;
3. Whether respondent is eligible for the position of Chief Justice:
a. Whether the determination of a candidate's eligibility
for nomination is the sole and exclusive function of the
JBC and whether such determination. partakes of the
character of a political question outside the Court's
supervisory and review powers;
b. Whether respondent failed to file her SALN s as
mandated by the Constitution and required by the law
and its implementing rules and regulations; and if so,
whether the failure to file SALNs voids the nomination
and appointment of respondent as Chief Justice;
c. Whether respondent failed to comply with the
submission of SALNs as required by the JBC; and if so,
whether the failure to submit SALNs to the JBC voids the
nomination and appointment of respondent as Chief
Justice;
d. In case of a finding that respondent is ineligible to hold
the position of Chief Justice, whether the subsequent
nomination by the JBC and the appointment by the
President cured such ineligibility.
4. Whether respondent is a de Jure or de facto officer.
The Ruling of the Court
Preliminary Issues
Intervention is an ancillary remedy
restricted in purpose and in time
Intervention is a remedy by which a third party, not originally impleaded in
the proceedings, becomes a litigant therein for a certain purpose: to
enable the third party to protect or preserve a right or interest that may be
affected by those proceedings.90
Nevertheless, the remedy of intervention is not a matter of right but rests
on the sound discretion of the court upon compliance with the first
requirement on legal interest and the second requirement that no delay
and prejudice should result as spelled out under Section 1, Rule 19 of the
Rules of Court, as follows:
Sec. 1. Who may intervene. - A person who has a legal interest in the
matter in litigation, or in the success of either of the parties, or an interest
against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The
court shall consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties, and whether
or not the intervenor's rights may be fully protected in a separate
proceeding.
Each of the movant-intervenors in this case seek to intervene as citizens
and taxpayers, whose claimed interest to justify their intervention is their
"sense of patriotism and their common desire to protect and uphold the
Philippine Constitution". The movant-intervenors further assert a "public
20 | J U D I C I A L D E P A R T M E N T C A S E S
right" to intervene in the instant case by virtue of its "transcendental
importance for the Filipino people as a whole". Apart from such naked
allegations, movant-intervenors failed to establish to the Court's
satisfaction the required legal interest. Our jurisprudence is well-settled on
the matter:
Intervention is not a matter of absolute right but may be permitted by the
court when the applicant shows facts which satisfy the requirements of
the statute authorizing intervention. Under our Rules of Court, what
qualifies a person to intervene is his possession of a legal interest in the
matter in litigation or in the success of either of the parties, or an interest
against both; or when he is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or
an officer thereof. As regards the legal interest as qualifying factor, this
Court has ruled that such interest must be of a direct and immediate
character so that the intervenor will either gain or lose by the direct legal
operation of the judgment. The interest must be actual and material, a
concern which is more than mere curiosity, or academic or sentimental
desire; it must not be indirect and contingent, indirect and remote,
conjectural, consequential or collateral.x x x. 91 (Emphasis ours)
Clearly, herein movant-intervenors' sentiments, no matter how noble, do
not, in any way, come within the purview of the concept of "legal interest"
contemplated under the Rules to justify the allowance of intervention.
Movant-intervenors failed to show any legal interest of such nature that
they will "either gain or lose by the direct legal operation of the judgment".
Even the IBP's assertion of their "fundamental duty to uphold the
Constitution, advocate for the rule of law, and safeguard the
administration of justice", being the official organization of all Philippine
lawyers, will not suffice. Admittedly, their interest is merely out of
"sentimental desire" to uphold the rule of law. Meanwhile, Senators De
Lima and Trillanes' claimed legal interest is mainly grounded upon their
would-be participation in the impeachment trial as Senators-judges if the
articles of impeachment will be filed before the Senate as the
impeachment court. Nevertheless, the fact remains that as of the moment,
such interest is still contingent on the filing of the articles of impeachment
before the Senate. It bears stressing that the interest contemplated by law
must be actual, substantial, material, direct and immediate, and not simply
contingent or expectant. 92
Indeed, if every person, not parties to the action but assert their desire to
uphold the rule of law and the Constitution, were allowed to intervene,
proceedings would become unnecessarily complicated, expensive, and
interminable.93
Emphatically, a quo warranto proceeding 1s an action by the government
against individuals unlawfully holding an office. Section 1, Rule 66 provides:
Section 1. Action by Government against individuals. - An action for the
usurpation of a public office, position or franchise may be commenced by a
verified petition brought in the name of the Republic of the Philippines
against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a
public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of
law, constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines
without being legally incorporated or without lawful authority so to act.
The remedy of quo warranto is vested in the people, and not in any private
individual or group, because disputes over title to public office are viewed
as a public question of governmental legitimacy and not merely a private
quarrel among rival claimants.94
Newman v. United States ex Rel. Frizzell, 95 historically traced the nature
of quo warranto proceedings as a crime which could only be prosecuted in
the name of the King by his duly authorized law officers. In .time, the
criminal features of quo warranto proceedings were modified and as such,
the writ came to be used as a means to determine which of two claimants
was entitled to an office and to order the ouster and the payment of a fine
against the usurper. This quasi-criminal nature of quo
21 | J U D I C I A L D E P A R T M E N T C A S E S
warranto proceedings was adopted in some American states. Nonetheless,
Newman explains that the Code of the District of Colombia, which was the
venue of the case, continues to treat usurpation of office as a public wrong
which can be corrected only by proceeding in the name of the government
itself. Thus:
In a sense - in a very important sense - every citizen and every taxpayer is
interested in the enforcement of law, in the administration of law, and in
having only qualified officers execute the law. But that general interest is
not a private, but a public interest. Being such, it is to be represented by
the Attorney General or the District Attorney, who are expected by
themselves or those they authorize to institute quo warranto proceedings
against usurpers in the same way that they are expected to institute
proceedings against any other violator of the law. That general public
interest is not sufficient to authorize a private citizen to institute such
proceedings, for, if it was, then every citizen and every taxpayer would
have the same interest and the same right to institute such proceedings,
and a public officer might, from the beginning to the end of his term, be
harassed with proceedings to try his title.
The only time that an individual, in his own name, may bring an action
for quo warranto is when such individual has a claim over the position in
question. Section 5 of Rule 66 of the Rules of Court provides:
Section 5. When an individual may commence such an action. -A person
claiming to be entitled to a public office or position usurped or unlawfully
held or exercised by another may bring an action therefor in his own name.
In this case, the movants-intervenors are neither individuals claiming to be
entitled to the questioned position nor are they the ones charged with the
usurpation thereof.
Furthermore, it should be emphasized that the movants-intervenors, in
their respective Motions, presented nothing more than a mere reiteration
of respondent's allegations and arguments in her Comment.
For these reasons, the Court, in its Resolution 96 dated April 3, 2018,
resolved to deny the motions for intervention respectively filed by
Capistrano et al., and Zarate et al., and to note the IBP's intervention. For
similar reasons, the Court resolves to deny the motion for intervention of
Senators De Lima and Trillanes.
No basis for the Associate Justices
of the Supreme Court to inhibit in
the case
The instant petit10n comes at the heels of the recently-concluded hearings
on the determination of probable cause in the impeachment complaint
against respondent before the House Committee on Justice. Several
Members of the Court, both incumbent and retired, were invited, under
pain of contempt, to serve as resource persons. Those Members who were
present at the Committee hearings were armed with the requisite
imprimatur of the Court En Banc, given that the Members are to testify
only on matters within their personal knowledge and insofar as material
and relevant to the issues being heard. For lack of particularity, the Court
supposes that the attendance of some of its Members in the House
Committee hearings is the basis of movant-intervenor Saguisag's motion to
recuse.
On the other hand, respondent was more emphatic when she sought
affirmative relief, in the form of the inhibition of six ( 6) Justices, of the
Court, whose jurisdiction she questions and assails. Specifically,
respondent prays for· the inhibition of Associate Justices Lucas P.
Bersamin, Diosdado M. Peralta, Francis H. Jardeleza, Noel Gimenez Tijam,
Teresita J. LeonardoDe Castro and Samuel R. Martires fundamentally on
the ground of actual bias for having commonly testified before the House
Committee on Justice on the impeachment case.
As for Justice Samuel R. Martires, respondent concludes Justice Martires'
manifested actual bias based on his statements during the Oral Arguments
which purportedly tended to question respondent's mental and
psychological fitness.
22 | J U D I C I A L D E P A R T M E N T C A S E S
In particular, respondent seeks the inhibition of Justice Tijam based on the
latter's statement as quoted in a Manila Times article to the effect that if
respondent continues to ignore and to refuse to participate in the
impeachment process, she is clearly liable for culpable violation of the
Constitution.
Respondent cites the article entitled, "Appear in Congress or violate
Constitution," dated December 4, 2017, where Justice Tijam was
purportedly quoted to have said:
Impeachment is a constitutional process and a mandate enshrined in the
Constitution. Justices took an oath to defend, preserve, protect the
Constitution. If Chief Justice Sereno continues to ignore and continues to
refuse to participate in the impeachment process, ergo, she is clearly
liable for culpable violation of the Constitution. (emphasis supplied)
Respondent claims that the aforesaid statements of Justice Tijam are
indicative of his stance that there may be a ground to impeach and remove
respondent from office, which is also the objective of the quo
warranto petition against her.
Ultimately, the cause for inhibition simmers to the question of whether, in
so appearing and testifying before the House Committee on Justice, the
Members of the Court are precluded from hearing and deciding the instant
petition for quo warranto. To this, the Court answers in the negative.
Jurisprudence recognizes the right of litigants to seek disqualification of
judges. Indeed, elementary due process requires a hearing before an
impartial and disinterested tribunal. "A judge has both the duty of
rendering a just decision and the duty of doing it in a manner completely
free from suspicion as to its fairness and as to his integrity." 97
However, the right of a party to seek the inhibition or disqualification of a
judge who does not appear to be wholly free, disinterested, impartial and
independent in handling the case must be balanced with the latter's sacred
duty to decide cases without fear of repression. The movant must
therefore prove the ground of bias and prejudice by clear and convincing
evidence to disqualify a judge from participating in a particular trial.
"[W]hile it is settled principle that opinions formed in the course of judicial
proceedings, based on the evidence presented and conduct observed by
the judge, do not prove personal bias or prejudice on the part of the
judge."98
A circumspect reading of Justice Tijam's statements in the Manila Times
article reveals that the manifest intent of the statements was only to prod
respondent to observe and respect the constitutional process of
impeachment, and to exemplify the ideals of public accountability, thus:
He added that he wanted to encourage Sereno to show up at the
Congress hearings "to respect and participate in the impeachment
(process), and to defend herself and protect the institution."
Sereno, he said, should be a role model when it comes to respecting the
Constitution.
"Impeachment is not an invention of politicians. It was drafted by the
framers of the Constitution. Media, which propagates the myth that
impeachment is a numbers game, hence, is political and arbitrary, fails to
emphasize the fact that the rule of the majority is the essence of
democracy," the magistrate stressed.
Tijam believes that the impeachment process against Sereno is not an
attack on the high court or the Judiciary because the Supreme Court does
not consist of the chief justice alone.
"Impeachment is [neither] an assault on the Judiciary nor an infringement
on the independence of the Judiciary, because it is enshrined in the
Constitution. Parenthetically, when the SC strikes down acts of Congress
and acts of the President and the Executive Department for being unlawful
and unconstitutional, the SC is not assaulting the independence of
Congress and the Executive Department because the expanded power of
judicial review is enshrined in the Constitution," Tijam pointed out.
23 | J U D I C I A L D E P A R T M E N T C A S E S
Sereno, he said, should be a role model when it comes to respecting the
Constitution.99 (Emphasis ours)
Notably, respondent conveniently and casually invoked only a portion of
the article which suited her objective of imputing bias against Justice Tijam.
As· to the act of wearing a red tie which purportedly establishes Justices
Tijam and Bersamin's prejudice against her, the argument is baseless and
unfair.1âwphi1 There is no basis, whether in logic or in law, to establish a
connection between a piece of clothing and a magistrate's performance of
adjudicatory functions. Absent compelling proof to the contrary, the red
piece of clothing was merely coincidental and should not be deemed a
sufficient ground to disqualify them.
In Philippine Commercial International Bank v. Sps. Dy Hong Pi, et
al.,  100 this Court explained that:
[T]he second paragraph of Rule 13 7, Section 1, 101 does not give judges
unfettered discretion to decide whether to desist from hearing a case. The
inhibition must be for just and valid causes, and in this regard, We have
noted that the mere imputation of bias or partiality is not enough ground
for inhibition, especially when the charge is without basis. This Court has to
be shown acts or conduct clearly indicative of arbitrariness or prejudice
before it can brand them with the stigma of bias or partiality. Moreover,
extrinsic evidence is required to establish bias, bad faith, malice or corrupt
purpose, in addition to palpable error which may be inferred from the
decision or order itself. The only exception to the rule is when the error is
so gross and patent as to produce an ineluctable inference of bad faith or
malice. 102 (Citations omitted)
In this case, it does not appear that there are grounds for compulsory
inhibition. As to voluntary inhibition, the mere fact that some of the
Associate Justices participated in the hearings of the Committee on Justice
determining probable cause for the impeachment of respondent does not
make them disqualified to hear the instant petition. Their appearance
thereat was in deference to the House of Representatives whose
constitutional duty to investigate the impeachment complaint filed against
respondent could not be doubted. Their appearance was with the prior
consent of the Supreme Court En Banc and they faithfully observed the
parameters that the Court set for the purpose. Their statements in the
hearing, should be carefully viewed within this context, and should not be
hastily interpreted as an adverse attack against respondent.
In fact, Justice Tijam, in his Sworn Statement103 submitted to the House
Committee on Justice, clearly identified the purpose of his attendance
thereat:
2. In reply, I sent a letter to Representative Umali on November 24, 2017,
informing him that inasmuch as the issue involved actions of the Supreme
Court En Banc, I deemed it proper to first secure its approval before
participating in the House Committee hearing.
3. On November 28, 2017, the Supreme Court En Banc gave clearance for
Justices who have been invited by the House Committee on Justice to
testify in connection with the impeachment complaint, to give testimony
on administrative matters if they so wish. The Court's Resolution in this
regard states that the authority was granted "only because the
proceedings before the Committee on Justice of the House of
Representatives constitute part of the impeachment process under
Section 3, Article XI of the 1987 Constitution."
A copy of the Court's Resolution is hereto attached as Annex "A."
4. I am submitting this Sworn Statement to the House Committee on
Justice as my testimony in relation to A.M. No. 17-06-02- SC, based on my
best recollection of events relating to said matter and available records. I
shall, however, be willing to give further testimony should the House
Committee find it appropriate to propound questions thereon at the
December 11, 2017 Committee hearing, subject to applicable limitations
under law and relevant rules.
5. I will appear and give testimony before the House Committee on
Justice not as a witness for the complainant, but to honor the
Committee's invitation to shed light on A.M. No. 17-06-02- SC and to
24 | J U D I C I A L D E P A R T M E N T C A S E S
accord due respect to the Constitutionally established process of
impeachment. (Emphasis ours)
Likewise, the Justices, including Justice Tijam, who appeared during the
House Committee on Justice hearings, refused to form any conclusion or to
answer the uniform query as to whether respondent's acts constitute
impeachable offenses, as it was not theirs to decide but a function properly
belonging to the Senate, sitting as an impeachment court. 104 Evidently, no
bias and prejudice on the part of the Justices could be inferred therein.
A judge may decide, "in the exercise of his sound discretion," to recuse
himself from a case for just or valid reasons.  The phrase just or valid
reasons, as the second requisite for voluntary inhibition, must be taken to
mean-
x x x causes which, though not strictly falling within those enumerated in
the first paragraph, are akin or analogous thereto. In determining what
causes are just, judges must keep in mind that next to importance to the
duty of rendering a righteous judgment is that of doing it in such a manner
as will beget no suspicion of the fairness and integrity of the judge. For it is
an accepted axiom that every litigant, including the state, in criminal cases,
is entitled to nothing less than the cold neutrality of an impartial judge,
and the law intends that no judge shall preside in any case in which he is
not wholly free, disinterested, impartial, and independent. 105
Respondent's call for inhibition has been based on speculations, or on
distortions of the language, context and meaning of the answers the
Justices may have given as sworn witnesses in the proceedings of the
House Committee on Justice.
Justice Bersamin 's statement that "Ang Supreme Court ay hindi po
maaring mag function kung isa ay diktador, " is clearly a hypothetical
statement, an observation on what would the Court be if any of its
Members were to act dictatorially.
Likewise, the Court cannot ascribe bias in Justice Bersamin's remark that
he was offended by respondent's attitude in ignoring the collegiality of the
Supreme Court when she withdrew the Justices' "privilege" to recommend
nominees to fill vacancies in the Supreme Court. It would be presumptuous
to equate this statement to a personal resentment as respondent regards
it. There has always been a high degree of professionalism among the
Members of the Court in both their personal and official dealings with each
other. It cannot also be denied that the statement reflected a natural
sentiment towards a decision reached and imposed by a member of a
collegial body without consultation or consensus.
Meanwhile, respondent's allegation of actual bias and partiality against
Justice Peralta is negated by his testimony during the January 15, 2018
hearing of the House Committee on Justice, where he stated that he has
been very supportive of the Judiciary reforms introduced by respondent as
the Chief Justice, even if she suspects that he is one of those behind her
impeachment.
Justice Peralta's testimony before the House Committee on Justice also
contradicts respondent's allegation that Justice Peralta's apparent bias
arose from his belief that respondent caused the exclusion of his wife,
Court of Appeals (CA) Associate Justice Fernanda Lampas Peralta, from the
list of applications for the position of CA Presiding Justice. Justice Peralta
has made it clear during the February 12, 2018 Congressional hearing that
he has already moved on from said issue and that the purpose of his
testimony was merely to protect prospective applicants to the Judiciary.
Justice Peralta's testimony during the Congressional hearing that "had (he)
been informed of (the) letter dated July 23, 2012 and a certificate of
clearance, (he) could have immediately objected to the selection of the
Chief Justice for voting because this is a very clear deviation from existing
rules that if a member of the Judiciary would like ... or. .. a candidate would
like to apply for Chief Justice, then she or he is mandated to submit the
SALNs," is clearly a' hypothetical statement, which will not necessarily
result in the disqualification of respondent from nomination. It was also
expressed in line with his functions as then Acting Chairperson of the JBC,
tasked with determining the constitutional and statutory eligibility of
applicants for the position of Chief Justice. It bears stressing, too, that at
the time said statement was made, the petition for quo warranto has not
25 | J U D I C I A L D E P A R T M E N T C A S E S
been filed; thus, such statement cannot amount to a prejudgment of the
case.
Furthermore, according to Justice Peralta, while he was then the Acting Ex
Officio Chairperson of the JBC at the time of respondent's application for
the position of Chief Justice, he had no personal knowledge of the disputed
facts concerning the proceedings, specifically the matters considered by
the members of the JBC in preparing the shortlist of nominees. He
explained that it was the ORSN of the JBC which was tasked to determine
completeness of the applicants' documentary requirements, including the
SALNs.
As for Justice Martires' statements during the Oral Arguments, this Court
does not view them as indication of actual bias or prejudice against
respondent. Our review of the record reveals that Justice Martires' did not
refer to respondent as the object of his statements, as follows:
JUSTICE MARTIRES :
Solicitor Calida, would you agree with me na lahat ng taong may dibdib ay
may kaba sa dibdib? At lahat ng taong may ulo ay may katok sa ulo.
SOLICITOR GENERAL CALIDA:
Yes, Your Honor, I agree.
JUSTICE MARTIRES:
Now would you consider it a mental illness (sic) when a person always
invokes God as the source of his strength? The source of his inspiration?
The source of happiness? The source of everything in life? Is that a mental
illness.
SOLICITOR GENERAL CALIDA:
Not necessarily, Your Honor
JUSTICE MARTIRES:
So, I'm just making a follow-up to the question that Justice Velasco earlier
asked. So, would you agree with me that the psychiatrist made a wrong
evaluation with respect to the psychiatric report of the Chief Justice? 106
Neither are We prepared to conclude that Justice Martires' statements
were based on an extraneous source, other than what what he has learned
or encountered over the course of the instant proceedings. There is
nothing in the interpellation, nor in Justice Martires' statements that he
has read the psychiatric report, nor has read newspaper accounts tackling
the same. He merely asked the OSG if he has read the same, and his
opinion regarding it.
Contrary to respondent's contentions, Justice Martires has not suggested
that she suffers from some mental or psychological illness. At most, his
questions and statements were merely hypothetical in nature, which do
not even constitute as an opinion against respondent. Certainly, to impute
actual bias based on such a brief discourse with respect to hypothetical
matters is conjectural and highly speculative. "Allegations and perceptions
of bias from the mere tenor and language of a judge is insufficient to show
prejudgment." 107
In the same vein, insinuations that the Justices of the Supreme Court are
towing the line of President Rodrigo Roa Duterte in entertaining the quo
warranto petition must be struck for being unfounded and for sowing
seeds of mistrust and discordance between the Court and the public. The
Members of the Court are beholden to no one, except to the sovereign
Filipino people who ordained and promulgated the Constitution. It is thus
inappropriate to misrepresent that the Solicitor General who has
supposedly met consistent litigation success before the Supreme Court
shall likewise automatically and positively be received in the present quo
warranto action. That the Court spares the Solicitor General the rod is
easily dispelled by the Court's firm orders in G.R. Nos. 234359 and 234484
concerning alleged extra legal killings - a case directly concerning the
actuations of the executive department - to provide the Court with
documents relative to the Oplan Tokhang operations and by a uninamous
26 | J U D I C I A L D E P A R T M E N T C A S E S
vote, rebuked the Solicitor General's plea for reconsideration. Suffice to
say that the Court decides based on the merits of a case and not on the
actors or the supposed benefactors involved.
Absent strong and compelling evidence establishing actual bias and
partiality on the part of the Justices whose recusal was sought,
respondent's motions for inhibition must perforce fail. Mere conjectures
and speculations cannot justify the inhibition of a Judge or Justice from a
judicial matter. The presumption that the judge will undertake his noble
role of dispensing justice in accordance with law and evidence, and
without fear or favor,. should not be abandoned without clear and
convincing evidence to the contrary.
In Dimo Realty & Development, Inc. v. Dimaculangan, 108 We held:
"[B]ias and prejudice, to be considered valid reasons for the voluntary
inhibition of judges, must be proved with clear and convincing evidence.
Bare allegations of partiality and prejudgment will not suffice. These
cannot be presumed, especially if weighed against the sacred obligation of
judges whose oaths of office require them to administer justice without
respect to person and to do equal right to the poor and the
rich." 109 (Citation omitted)
The Court has pointedly observed in Pimentel v. Hon. Salanga:'' 110
Efforts to attain fair, just and impartial trial and decision, have a natural
and alluring appeal. But, we are not licensed to indulge in unjustified
assumptions, or make a speculative approach to this ideal. It ill behooves
this Court to tar and feather a judge as biased or prejudiced, simply
because counsel for a party litigant happens to complain against him. As
applied here, respondent judge has not as yet crossed the line that
divides partiality and impartiality. He has not thus far stepped to one side
of the fulcrum. No act or conduct of his would show arbitrariness or
prejudice. Therefore, we are not to assume what respondent judge, not
otherwise legally disqualified, will do in a case before him. We have had
occasion to rule in a criminal case that a charge made before trial that a
party "will not be given a fair, impartial and just hearing" is "premature."
Prejudice is not to be presumed. Especially if weighed against a judge's
legal obligation under his oath to administer justice "without respect to
person and do equal right to the poor and the rich." To disqualify or not
to disqualify himself then, as far as respondent judge is concerned, is a
matter of conscience. 111 (Citations omitted and emphasis ours)
The Court has consequently counseled that no Judge or Justice who is not
legally disqualified should evade the duty and responsibility to sit in the
adjudication of any controversy without committing a dereliction of duty
for which he or she may be held accountable. Towards that end, the Court
has aptly reminded:
To take or not to take cognizance of a case, does not depend upon the
discretion of a judge not legally disqualified to sit in a given case. It is his
duty not to sit in its trial and decision if legally disqualified; but if the judge
is not disqualified, it is a matter of official duty for him to proceed with the
trial and decision of the case. He cannot shirk the responsibility without
the risk of being called upon to account for his dereliction. 112
It is timely to be reminded, too, that the Supreme Court is a collegial
judicial body whose every Member has solemnly and individually sworn to
dispense and administer justice to every litigant. As a collegial body, the
Supreme Court adjudicates without fear or favor. The only things that the
Supreme Court collectively focuses its attention to in every case are the
merits thereof, and the arguments of the parties on the issues submitted
for consideration and deliberation. Only thereby may the solemn individual
oath of the Members to do justice be obeyed.
In line with the foregoing, We deem it baseless, not to mention
problematic, the respondent's prayer that the matter of inhibition of the
six Associate Justices be decided by the remaining members of the
Court En Banc. The respondent herself was cognizant that the prevailing
rule allows challenged Justices to participate in the deliberations on the
matter of their disqualification. Moreover, exclusion from the deliberations
due to delicadeza or sense of decency, partakes of a ground apt for a
voluntary inhibition. It bears to be reminded that voluntary inhibition,
leaves to the sound discretion of the judges concerned whether to sit in a
27 | J U D I C I A L D E P A R T M E N T C A S E S
case for other just and valid reasons, with only their conscience as
guide. 113 Indeed, the best person to determine the propriety of sitting in a
case rests with the magistrate sought to be disqualified. Moreover, to
compel the remaining members to decide on the challenged member's
fitness to resolve the case is to give them authority to review the propriety
of acts of their colleagues, a scenario which can undermine the
independence of each of the members of the High Court.
In the En Banc case of Jurado & Co. v. Hongkong Bank, 114 the Court
elucidated that a challenge to the competency of a judge may admit two
constructions: first, the magistrate decides for himself the question of his
competency and when he does so, his decision therein is conclusive and
the other Members of the Court have no voice in it; and second, the
challenged magistrate sits with the Court and decides the challenge as a
collegial body. It was in Jurado that the Court adopted the second view as
the proper approach when a challenge is poised on the competency of a
sitting magistrate, that is, the Court, together with the challenged
magistrate, decides. Jurado further expressly excluded a possible third
construction wherein the Court decides the challenge but without the
participation of the challenged member on the ground that such
construction would place power on a party to halt the proceedings by the
simple expedient of challenging a majority of the Justices. The Court sees
no reason to deviate from its standing practice of resolving competency
challenges as a collegial body without excluding the challenged Member
from participating therein.
Accordingly, the Court resolves to DENY respondent's motion to exclude
Associate Justices Peralta, Leonardo-De Castro, Jardeleza, Tijam, Bersamin,
and Martires in the resolution of the separate motions· for inhibition
against the said Associate Justices. Likewise, the Court resolves to DENY
the said separate motions for inhibition.
Substantive Issues
I.
The Court has Jurisdiction over the instant
Petition for Quo Warranto
The petition challenges respondent's right and title to the position of Chief
Justice. The Republic avers that respondent unlawfully holds her office
because in failing to regularly declare her assets, liabilities and net worth
as a member of the career service prior to her appointment as an
Associate Justice, and later as Chief Justice, of the Court, she cannot be
said to possess the requirement of proven integrity demanded of every
aspiring member of the Judiciary. The Republic thus prays that
respondent's appointment as Chief Justice be declared void. Respondent
counters that, as an impeachable officer, she may only be removed
through impeachment by the Senate sitting as an impeachment court
Supreme Court has original
jurisdiction over an action for quo
warranto
Section 5, Article VIII of the Constitution, in part, provides that the
Supreme Court shall exercise original jurisdiction over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus. This Court, the Court of Appeals and the Regional Trial Courts have
concurrent jurisdiction to issue the extraordinary writs, including quo
warranto.
Relatedly, Section 7, Rule 66 of the Rules of Court provides that the venue
of an action for quo warranto, when commenced by the Solicitor General,
is either the Regional Trial Court in the City of Manila, in the Court of
Appeals, or in the Supreme Court.
While the hierarchy of courts serves as a general determinant of the
appropriate forum for petitions for the extraordinary writs, a direct
invocation of the Supreme Court's original jurisdiction to issue such writs is
allowed when there are special and important reasons therefor, clearly
and specifically set out in the petition. 115 In the instant case, direct resort
to the Court is justified considering that the action for quo warranto
questions the qualification of no less than a Member of the Court. The
28 | J U D I C I A L D E P A R T M E N T C A S E S

issue of whether a person usurps, intrudes into, or unlawfully holds or
exercises a public office is a matter of public concern over which the
government takes special interest as it obviously cannot allow an intruder
or impostor to occupy a public position. 116
The instant petition is a case of
transcendental importance
While traditionally, the principle of transcendental importance applies as
an exception to the rule requiring locus standi before the Courts can
exercise its judicial power of review, the same principle nevertheless, finds
application in this case as it is without doubt that the State maintains an
interest on the issue of the legality of the Chief Justice's appointment.
Further, it is apparent that the instant petition is one of first impression
and of paramount importance to the public in the sense that the
qualification, eligibility and appointment of an incumbent Chief Justice, the
highest official of the Judiciary, are being scrutinized through an action
for quo warranto. The Court's action on the present petition has far-
reaching implications, and it is paramount that the Court make definitive
pronouncements on the issues herein presented for the guidance of the
bench, bar, and the public in future analogous cases. Thus, the questions
herein presented merit serious consideration from the Court and should
not be trifled on.
been strict compliance with the legal and procedural requirements in the
appointment of its Members.
Respondent, however, pounds on the fact that as a member of the
Supreme Court, she is an impeachable officer. As such, respondent argues
that a quo warranto proceeding, which may result in her ouster, cannot be
lodged against her, especially when there is an impending impeachment
case against her.
This argument is misplaced.
The origin, nature and purpose of
impeachment and quo warranto
are materially different
While both impeachment and quo warranto may result in the ouster of the
public official, the two proceedings materially differ. At its most basic,
impeachment proceedings are political in nature, while an action for quo
warranto is judicial or a proceeding traditionally lodged in the courts.
To lend proper context, We briefly recount the origin and nature of
impeachment proceedings and a quo warranto petition:
Impeachment

Policy and ethical considerations likewise behoove this Court to rule on the
Historians trace the origin of impeachment as far as the 5th century in
issues put forth by the parties. This Court has always been a vigilant
ancient Greece in a process called eisangelia. 117 The grounds for
advocate in ensuring that its members and employees continuously
impeachment include treason, conspiracy against the democracy, betrayal
possess the highest ideals of integrity, honesty, and uprightness. More
of strategic posts or expeditionary forces and corruption and deception. 118
than professional competence, this Court is cognizant of the reality that
the strength of Our institution depends on the confidence reposed on Us
Its, modern form, however, appears to be inspired by the British
by the public. As can be gleaned from Our recent decisions, this Court has
parliamentary system of impeachment. Though both public and private
not hesitated from disciplining its members whether they be judges,
officials can be the subject of the process, the British system of
Justices or regular court employees. This case should not therefore be
impeachment is largely similar to the current procedure in that it is
treated merely with kid gloves because it involves the highest official of the
undertaken in both Houses of the Parliament. The House of Commons
judicial branch of the government. On the contrary, this is an opportune
determines when an impeachment should be instituted. If the grounds,
time for this Court to exact accountability by examining whether there has
normally for treason and other high crimes and misdemeanor, are deemed
29 | J U D I C I A L D E P A R T M E N T C A S E S
sufficient, the House of Commons prosecutes the individual before the
House of Lords. 119
While impeachment was availed for "high crimes and misdemeanors", it
would appear that the phrase was applied to a variety of acts which can
arguably amount to a breach of the public's confidence, such as advising
the King to grant liberties and privileges to certain persons to the
hindrance of the due execution of the laws, procuring offices for persons
who were unfit, and unworthy of them and squandering away the public
treasure, browbeating witnesses and commenting on their credibility,
cursing and drinking to excess, thereby bringing the highest scandal on the
public justice of the kingdom, and failure to conduct himself on the most
distinguished principles of good faith, equity, moderation, and mildness. 120
While heavily influenced by the British concept of impeachment, the
United States of America made significant modifications from its British
counterpart. Fundamentally, the framers of the United States visualized
the process as a means to hold accountable its public officials, as can be
gleaned from their basic law:
The President, Vice-President, and all civil Officers of the United States,
shall be removed from Office on Impeachment for, and Conviction of,
treason, Bribery, or other High Crimes and Misdemeanors. 121
Other noted differences from the British process of impeachment include
limiting and specifying the grounds to "treason, Bribery, or other High
Crimes and Misdemeanors", and punishing the offender with removal and
disqualification to hold public office instead of death, forfeiture of property
and corruption of blood. 122
In the Philippines, the earliest record of impeachment in our laws is from
the 1935 Constitution. 123 Compared to the US Constitution, it would
appear that the drafters of the 1935 Constitution further modified the
process by making impeachment applicable only to the highest officials of
the country; providing "culpable violation of the Constitution" as an
additional ground, and requiring a two-thirds vote of the House of
Representatives to impeach and three-fourths vote of the Senate to
convict.
As currently worded, our 1987 Constitution, in addition to those stated in
the 1935 basic law, provided another additional ground to impeach high-
ranking public officials: "betrayal of public trust". Commissioner Rustico De
los Reyes of the 1986 Constitutional Commission explained this ground as a
"catch-all phrase to include all acts which are not punishable by statutes as
penal offenses but, nonetheless, render the officer unfit to continue in
office. It includes betrayal of public interest, inexcusable negligence of
duty, tyrannical abuse of power, breach of official duty by malfeasance or
misfeasance, cronyism, favoritism, etc. to the prejudice of public interest
and which tend to bring the office into disrepute." 124
From the foregoing, it is apparent that although the concept of
impeachment has undergone various modifications to suit different
jurisdictions and government forms, the consensus seems to be that it is
essentially a political process meant to vindicate the violation of the
public's trust. Buckner Melton, in his book The First Impeachment: The
Constitution’s Framers and the Case of Senator William Blount, succinctly
opined:
Practically all who have written on the subject agree that impeachment
involves a protection of a public interest, incorporating a public law
element, much like a criminal proceeding .... [I]mpeachment is a process
instigated by the government, or some branch thereof, against a person
who has somehow harmed the government or the community. The
process, moreover, is adversarial in nature and resembles, to that extent, a
judicial trial. 125
Quo warranto
The oft-cited origin of quo warranto was the reign of King Edward I of
England who questioned the local barons and lords who held lands or title
under questionable authority. After his return from his crusade in
Palestine, he discovered that England had fallen because of ineffective
central administration by his predecessor, King Henry 111. 126 The
30 | J U D I C I A L D E P A R T M E N T C A S E S
inevitable result was that the barons, whose relations with the King were
governed on paper by Magna Carta, assumed to themselves whatever
power the King's officers had neglected. Thus, King Edward I deemed it
wise to inquire as to what right the barons exercised any power that
deviated in the slightest from a normal type of feudalism that the King had
in mind. The theory is that certain rights are regalia and can be exercised
only upon showing of actual grants from the King or his predecessor.
Verily, King Edward's purpose was to catalogue the rights, properties and
possessions of the kingdom in his efforts to restore the same.
In the Philippines, the remedies against usurpers of public office appeared
in the 1900s, through Act No. 190. 127 Section 197 of the Act provides for a
provision comparable to Section 1, Rule 66 of the Rules of Court:
Sec. 197. Usurpation of an Office or Franchise- A civil action may be
brought in the name of the Government of the Philippine Islands:
1. Against a person who usurps, intrudes into, or unlawfully holds or
exercises a public civil office or a franchise within the Philippine Islands, or
an office in a corporation created by the authority of the Government of
the Philippine Islands;
2. Against a public civil officer who does or suffers an act which, by the
provisions of law, works a forfeiture of his office;
3. Against an association of persons who act as a corporation within the
Philippine Islands, without being legally incorporated or without lawful
authority so to act.
Based from the foregoing, it appears that impeachment is a proceeding
exercised by the legislative, as representatives of the sovereign, to
vindicate the breach of the trust reposed by the people in the hands of the
public officer by determining the public officer's fitness to stay in the office.
Meanwhile, an action for quo warranto, involves a judicial determination
of the eligibility or validity of the election or appointment of a public
official based on predetermined rules.
Quo warranto and impeachment can
proceed independently and
simultaneously
Aside from the difference in their origin and nature, quo warranto and
impeachment may proceed independently of each other as these remedies
are distinct as to (1) jurisdiction (2) grounds, (3) applicable rules pertaining
to initiation, filing and dismissal, and (4) limitations.
The term "quo warranto" is Latin for "by what authority." 128 Therefore, as
the name suggests, quo warranto is a writ of inquiry. 129 It determines
whether an individual has the legal right to hold the public office he or she
occupies. 130
In review, Section 1, Rule 66 of the Rules of Court provides:
Action by Government against individuals. - An action for the usurpation of
a public office, position or franchise may be commenced by a verified
petition brought in the name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a
public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of
law, constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines
without being legally incorporated or without lawful authority so to act.
Thus, a quo warranto proceeding is the proper legal remedy to determine
the right or title to the contested public office or to oust the holder from its
enjoyment. In quo warranto proceedings referring to offices filled by
election, what is to be determined is the eligibility of the candidates
elected, while in quo warranto proceedings referring to offices filled by
appointment, what is determined is the legality of the appointment.
31 | J U D I C I A L D E P A R T M E N T C A S E S

The title to a public office may not be contested collaterally but only
directly, by quo warranto proceedings. In the past, the Court held that title
to public office cannot be assailed even through mandamus or a motion to
annul or set aside order. 131 That quo warranto is the proper legal vehicle to
directly attack title to public office likewise precludes the filing of a petition
for prohibition for purposes of inquiring into the validity of the
appointment of a public officer. Thus, in Nacionalista Party v. De
Vera, 132 the Court held:
"[T]he writ of prohibition, even when directed against persons acting as
judges or other judicial officers, cannot be treated as a substitute for quo
warranto or be rightfully called upon to perform any of the functions of the
writ. If there is a court, judge or officer de facto, the title to the office and
the right to act cannot be questioned by prohibition. If an intruder takes
possession of a judicial office, the person dispossessed cannot obtain relief
through a writ of prohibition commanding the alleged intruder to cease
from performing judicial acts, since in its very nature prohibition is an
improper remedy by which to determine the title to an office." 133
actions for quo warranto, circumscribed only by the national interest and
the government policy on the matter at hand. 136
The instance when an individual is allowed to commence an, action
for quo warranto in his own name is when such person is claiming to be
entitled to a public office or position usurped or unlawfully held or
exercised by another. 137 Feliciano v. Villasin 138 reiterates the basic
principle enunciated in Acosta v. Flor 139 that for a quo warranto petition to
be successful, the private person suing must show no less than a clear right
to the contested office.
In case of usurpation of a public office, when the respondent is found guilty
of usurping, intruding into, or unlawfully holding or exercising a public
office, position or franchise, the judgment shall include the following:
(a) the respondent shall be ousted and excluded from the office;
(b) the petitioner or relator, as the case may be, shall recover his costs; and

As earlier discussed, an action for quo warranto may be commenced by the

(c) such further judgment determining the respective rights in and to the
Solicitor General or a public prosecutor, or by any person claiming to be
public office, position or franchise of all the parties to the action as justice
entitled to the public office or position usurped or unlawfully held or
requires. 140
exercised by another. 134
The remedies available in a quo warranto judgment do not include
That usurpation of a public office is treated as a public wrong and carries
correction or reversal of acts taken under the ostensible authority of an
with it public interest in our jurisdiction is clear when Section 1, Rule 66
office or franchise. Judgment is limited to ouster or forfeiture and may not
provides that where the action is for the usurpation of a public office,
be imposed retroactively upon prior exercise of official or corporate
position or franchise, it shall be commenced by a verified petition brought
duties. 141
in the name of the Republic of the Philippines through the Solicitor General
or a public prosecutor. 135
Quo warranto and impeachment are, thus, not mutually exclusive
remedies and may even proceed simultaneously. The existence of other
Nonetheless, the Solicitor General, in the exercise of sound discretion, may
remedies against the usurper does not prevent the State from
suspend or turn down the institution of an action for quo warranto where
commencing a quo warranto proceeding. 142
there are just and valid reasons. Upon receipt of a case certified to him,
the Solicitor General may start the prosecution of the case by filing the
Respondent's Reply/Supplement to the Memorandum Ad
appropriate action in court or he may choose not to file the case at all. The
Cautelam specifically tackled the objection to the petition on the ground of
Solicitor General is given permissible latitude within his legal authority in
forum shopping,. Essentially, respondent points out that the inclusion of
32 | J U D I C I A L D E P A R T M E N T C A S E S
the matter on tax fraud, which will further be discussed below, is already
covered by Article I of the Articles of Impeachment. Hence, respondent
argues, among others, that the petition should be dismissed on the ground
of forum shopping.
Forum shopping is the act of a litigant who repetitively availed of several
judicial remedies in different courts, simultaneously or successively, all
substantially founded on the same transactions and the same essential
facts and circumstances, and all raising substantially the same issues,
either pending in or already resolved adversely by some other court, to
increase his chances of obtaining a favorable decision if not in one court,
then in another. 143 Forum shopping originated as a concept in private
international law, where non-resident litigants are given the option to
choose the forum or place wherein to bring their suit for various reasons or
excuses, including to secure procedural advantages, to annoy and harass
the defendant, to avoid overcrowded dockets, or to select a more friendly
venue. 144 At present, our jurisdiction has recognized several ways to
commit forum shopping, to wit: ( 1) filing multiple cases based on the same
cause of action and with the same prayer, the previous case not having
been resolved yet (where the ground for dismissal is litis pendentia); (2)
filing multiple cases based on the same cause of action and the same
prayer, the previous case having been finally resolved (where the ground
for dismissal is res judicata); and (3) filing multiple cases based on the
same cause of action but with different prayers (splitting of causes of
action, where the ground for dismissal is also either litis pendentia or res
judicata). 145
We have already settled that the test for determining existence of forum
shopping is as follows:
To determine whether a party violated the rule against forum shopping,
the most important factor to ask is whether the elements of litis
peridentia are present, or whether a final judgment in one case will
amount to res judicata in another; otherwise stated, the test for
determining forum shopping is whether in the two (or more) cases
pending, there is identity of parties, rights or causes of action, and reliefs
sought. 146 (Emphasis ours)
Litis pendentia is a Latin term, which literally means "a pending suit" and is
variously referred to in some decisions as lis pendens and auter
action pendant. As a ground for the dismissal of a civil action, it refers to
the situation where two actions are pending between the same parties for
the same cause of action, so that one of them becomes unnecessary and
vexatious. It is based on the policy against multiplicity of suits. Litis
pendentia requires the concurrence of the following requisites: ( 1)
identity of parties, or at least such parties as those representing the same
interests in both actions; (2) identity of rights asserted and reliefs prayed
for, the reliefs being founded on the same facts; and (3) identity with
respect to the two preceding particulars in the two cases, such that any
judgment that may be rendered in the pending case, regardless of which
party is successful, would amount to res judicata in the other case. 147
On the other hand, res judicata or prior judgment bars a subsequent case
when the following requisites are satisfied: (1) the former judgment is
final; (2) it is rendered by a court having jurisdiction over the subject
matter and the parties; (3) it is a judgment or an order on the merits; ( 4)
there is - between the first and the second actions - identity of parties, of
subject matter, and of causes of action. 148
Ultimately, what is critical is the vexation brought upon the courts and the
litigants by a party who asks different courts to rule on the same or related
causes and grant the same or substantially the same reliefs and in the
process creates the possibility of conflicting decisions being rendered by
the different fora upon the same issues. 149
Guided by the foregoing, there can be no forum shopping in this case
despite the pendency of the impeachment proceedings before the House
of Representatives, contrary to respondent's position.
The causes of action in the two proceedings are unequivocally different.
In quo warranto, the cause of action lies on the usurping, intruding, or
unlawfully holding or exercising of a public office, while in impeachment, it
is the commission of an impeachable offense. Stated in a different manner,
the crux of the controversy in this quo warranto proceedings is the
determination of whether or not respondent legally holds the Chief Justice
33 | J U D I C I A L D E P A R T M E N T C A S E S
position to be considered as an impeachable officer in the first place. On
the other hand, impeachment is for respondent's prosecution for certain
impeachable offenses. To be sure, respondent is not being prosecuted
herein for such impeachable offenses enumerated in the Articles of
Impeachment. Instead, the resolution of this case shall be based on
established facts and related laws. Simply put, while respondent's title to
hold a public office is the issue in quo warranto proceedings, impeachment
necessarily presupposes that respondent legally holds the public office and
thus, is an impeachable officer, the only issue being whether or not she
committed impeachable offenses to warrant her removal from office.
Likewise, the reliefs sought in the two proceedings are different. Under the
Rules on quo warranto, "when the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a public office, x x x,
judgment shall be rendered that such respondent be ousted and altogether
excluded therefrom, x x x. "150 In short, respondent in a quo
warranto proceeding shall be adjudged to cease from holding a public
office, which he/she is ineligible to hold. On the other hand, in
impeachment, a conviction for the charges of impeachable offenses shall
result to the removal of the respondent from the public office that he/she
is legally holding. 151 It is not legally possible to impeach or remove a
person from an office that he/she, in the first place, does not and cannot
legally hold or occupy.
In the said Reply/Supplement to the Memorandum Ad Cautelam,
respondent advanced the argument that the "impeachment proceeding" is
different from the "impeachment case", the former refers to the filing of
the complaint before the Committee on Justice while the latter refers to
the proceedings before the Senate. Citing Francisco v. House of
Representatives, respondent posits that the "impeachment proceeding"
against her is already pending upon the filing of the verified complaint
before the House Committee on Justice albeit the "impeachment case" has
not yet started as the Articles of Impeachment has not yet been filed with
the Senate. Hence, in view of such proceeding before the Committee on
Justice, the filing of the instant petition constitutes forum shopping.
The difference between the "impeachment proceeding" and the
"impeachment case" correctly cited by the respondent, bolsters the
conclusion that there can be no forum shopping. Indeed, the
"impeachment proceeding" before the House Committee on Justice is not
the "impeachment case" proper. The impeachment case is yet to be
initiated by the filing of the Articles of Impeachment before the Senate.
Thus, at the moment, there is no pending impeachment case against the
respondent.
The House Committee on Justice's determination of probable cause on
whether the impeachment against the respondent should go on trial
before the Senate is akin to the prosecutor's determination of probable
cause during the preliminary investigation in a criminal case. In a
preliminary investigation, the prosecutor does not determine the guilt or
innocence of the accused; he does not exercise adjudication nor rule-
making functions. The process is merely inquisitorial and is merely a means
of discovering if a person may be reasonably charged with a crime. It is not
a trial of the case on the merits and has no purpose except that of
determining whether a crime has been committed and whether there is
probable cause to believe that the accused is guilty thereof. 152 As such,
during the preliminary investigation before the prosecutor, there is no
pending case to speak of yet. In fact, jurisprudence states that the
preliminary investigation stage is not part of the trial. 153
Thus, at the time of the filing of this petition, there is no pending
impeachment case that would bar the quo warrranto petition on the
ground of forum shopping.
In fine, forum shopping and litis pendentia are not present and a final
decision in one will not strictly constitute as res judicata to the other. A
judgment in a quo warranto case determines the respondent's
constitutional or legal authority to perform any act in, or exercise any
function of the office to which he lays claim; 154 meanwhile a judgment in
an impeachment proceeding pertain to a respondent's "fitness for public
office." 155
34 | J U D I C I A L D E P A R T M E N T C A S E S
Considering the legal basis and nature of an action for quo waranto, this
Court cannot shirk from resolving the instant controversy in view of the
fact that· respondent is an impeachable officer and/or in view of the
possibility of an impeachment trial against respondent.
Impeachment is not an exclusive
remedy by which an invalidly
appointed or invalidly elected
impeachable official may be removed
from office
Respondent anchors her position that she can be removed from office only
by impeachment on the Court's ruling in Lecaroz v.
Sandiganbayan,  156 Cuenca v. Fernan, 157 In Re Gonzales, 158 Jarque v.
Desierto159 and Marcoleta v. Borra. 160 It should be stressed, however, that
none of these cases concerned the validity of an impeachable officer's
appointment. Lecaroz involved a criminal charge against a mayor before
the Sandiganbayan, while the rest were disbarment cases filed against
impeachable officers principally for acts done during their tenure in public
office. Whether the impeachable officer unlawfully held his office or
whether his appointment was void was not an issue raised before the
Court. The principle laid down in said cases is to the effect that during their
incumbency, impeachable officers cannot be criminally prosecuted for an
offense that carries with it the penalty of removal, and if they are required
to be members of the Philippine Bar to qualify for their positions, they
cannot be charged with disbarment. The proscription does not extend to
actions assailing the public officer's title or right to the office he or she
occupies. The ruling therefore cannot serve as authority to hold that a quo
warranto action can never be filed against an impeachable officer. In
issuing such pronouncement, the Court is presumed to have been aware of
its power to issue writs of quo warranto under Rule 66 of the Rules of
Court.
Even the PET Rules expressly provide for the remedy of either an election
protest or a petition for quo warranto to question the eligibility of the
President and the Vice-President, both of whom are impeachable officers.
Following respondent's theory that an impeachable officer can be removed
only through impeachment means that a President or Vice-President
against whom an election protest has been filed can demand for the
dismissal of the protest on the ground that it can potentially cause his/her
removal from office through a mode other than by impeachment. To
sustain respondent's position is to render election protests under the PET
Rules nugatory. The Constitution could not have intended such absurdity
since fraud and irregularities in elections cannot be countenanced, and the
will of the people as reflected in their votes must be determined and
respected. The Court could not, therefore, have unwittingly curtailed its
own judicial power by prohibiting quo warranto proceedings against
impeachable officers.
Further, the PET Rules provide that a petition for quo warranto, contesting
the election of the President or Vice-President on the ground of ineligibility
or disloyalty to the Republic of the Philippines, may be filed by any
registered voter who has voted in the election concerned within ten (10)
days after the proclamation of the winner. 161 Despite disloyalty to the
Republic being a crime against public order 162 defined and penalized under
the penal code, and thus may likewise be treated as "other high
crimes," 163 constituting an impeachable offense, quo warranto as a
remedy to remove the erring President or Vice-President is nevertheless
made expressly available.
In fact, this would not be the first time the Court shall take cognizance of
a quo warranto petition against an impeachable officer. In the consolidated
cases of Estrada v. Desierto, et al. and  Estrada v. Macapagal-Arroyo, 164 the
Court took cognizance and assumed jurisdiction over the quo
warranto petition filed against respondent therein who, at the time of the
filing of the petition, had taken an oath and assumed the Office of the
President. Petitioner therein prayed for judgment confirming him to be the
lawful and incumbent President of the Republic temporarily unable to
discharge the duties of his office, and declaring respondent to have taken
her oath and to be holding the Office of the President, only in an acting
capacity. In fact, in the said cases, there was not even a claim that
respondent therein was disqualified from holding office and accordingly
challenged respondent's status as de jure 14th President of the Republic.
By entertaining the quo warranto petition, the Court in fact determined
35 | J U D I C I A L D E P A R T M E N T C A S E S
whether then President Estrada has put an end to his official status by his
alleged act of resignation.
Furthermore, the language of Section 2, Article XI of the Constitution does
not foreclose a quo warranto action against impeachable officers. The
provision reads:
Section 2. The President, the Vice-President, the Members of the Supreme
Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed from office on impeachment for, and
conviction of, culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust. All other
public officers and employees may be removed from office as provided by
law, but not by impeachment. (Emphasis ours)
It is a settled rule of legal hermeneutics that if the language under
consideration is plain, it is neither necessary nor permissible to resort to
extrinsic aids, like the records of the constitutional convention, for its
interpretation. 165
The provision uses the permissive term "may" which, in statutory
construction, denotes discretion and cannot be construed as having a
mandatory effect. 166 We have consistently held that the term "may" is
indicative of a mere possibility, an opportunity or an option. The grantee of
that opportunity is vested with a right or faculty which he has the option to
exercise. 167 An option to remove by impeachment admits of an alternative
mode of effecting the removal.
On this score, Burke Shartel in his work Federal Judges: Appointment,
Supervision, and Removal: Some Possibilities under the
Constitution, 168 makes an interesting and valid observation on a parallel
provision on impeachment under the U.S. Constitution from which ours
was heavily patterned:
x x x it is not reasonable to spell out of the express provision for
impeachment, an intention or purpose of the framers to create an
exclusive remedy. The common canon for interpreting legislation,
- expresio unius excusio est alterius - has no proper application to an
express provision for one of several common-law remedies. The express
provision for removal by impeachment ought not to be taken as a tacit
prohibition of removal by other methods when there are other adequate
reasons to account for this express provision. The main purpose of the
framers of the Constitution in providing for impeachment was to supply a
legislative check on the other departments of our government, and
particularly on the chief executive. Without an express provision,
impeachment would have been impliedly prohibited by the doctrine of
separation of powers. If this legislative check was desired, a reservation in
express words was essential. Another reason for the express provisions on
this subject was that the framers of the Constitution did not wish to make
the executive and judicial officers of our government completely
dependent on Congress. They wanted to confer only a limited power of
removal, and the desired limitations on the power to impeach had to be
explicitly stated. These two reasons explain the presence in the
Constitution of the express provisions for impeachment; it is not necessary
to resort to any supposed intent to establish an exclusive method of
removal in order to account for them. On the contrary, logic and sound
policy demand that the Congressional power be construed to be a
concurrent, not an exclusive, power of removal.
We hold, therefore, that by its tenor, Section 2, Article XI of the
Constitution allows the institution of a quo warranto action against an
impeachable officer. After all, a quo warranto petition is predicated on
grounds distinct from those of impeachment. The former questions the
validity of a public officer's appointment while the latter indicts him for the
so-called impeachable offenses without questioning his title to the office
he holds.
Further, that the enumeration of "impeachable offenses" is made absolute,
that is, only those enumerated offenses are treated as grounds for
impeachment, is not equivalent to saying that the enumeration likewise
purport to be a complete statement of the causes of removal from
office. Shartel, above cited, eloquently incites as follows:
36 | J U D I C I A L D E P A R T M E N T C A S E S
x x x. There is no indication in the debates of the Convention that the
framers of the Constitution intended at this point to make a complete
statement of causes of removal from office. The emphasis was on the
causes for which Congress might remove executive and judicial officers,
not on causes of removal as such. x x x How then can the causes of
removal by impeachment be construed as a recital of the causes for which
judges may be removed? It is especially hard to see why the express
provision for impeachment - a limited legislative method of removing all
civil officers ·for serious misconduct - should be construed to forbid
removal of judges by judicial action on account of disability or any
reasonable cause not a proper ground for action by the Houses of
Congress.
Neither can the Court accept respondent's argument that the term "may"
in Section 2, Article XI qualifies only the penalty imposable at the
conclusion of the impeachment trial, such that conviction may result in
lesser penalties like censure or reprimand. Section 3(7), Article XI of the
Constitution specifies the penalty of "removal from office" and
"disqualification to hold any office under the Republic of the Philippines" in
impeachment cases. 169 There is nothing in the said provision that
deliberately vests authority on the impeachment court to impose penalties
lower than those expressly mentioned. Also, respondent has not shown
that such was authority was intended by the framers of the 1987
Constitution. The ultimate penalty of removal is imposed owing to the
serious nature of the impeachable offenses. This Court had occasion to
rule:
The task of the Court is rendered lighter by the existence of relatively clear
provisions in the Constitution. In cases like this, we follow what the Court,
speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated
in Gold Creek Mining Corp. v. Rodriguez, that:
The fundamental principle of constitutional construction is to give effect to
the intent of the framers of the organic law and of the people adopting
it. The intention to which force is to be given is that which is embodied
and expressed in the constitutional provisions themselves. 170 (Emphasis
supplied)
To subscribe to the view that appointments or election of impeachable
officers are outside judicial review is to cleanse their appointments or
election of any possible defect pertaining to the Constitutionally-
prescribed qualifications which cannot otherwise be raised in an
impeachment proceeding.
The courts should be able to inquire into the validity of appointments even
of impeachable officers. To hold otherwise is to allow an absurd situation
where the appointment of an impeachable officer cannot be questioned
even when, for instance, he or she has been determined to be of foreign
nationality or, in offices where Bar membership is a qualification, when he
or she fraudulently represented to be a member of the Bar. Unless such an
officer commits any of the grounds for impeachment and is actually
impeached, he can continue discharging the functions of his office even
when he is clearly disqualified from holding it. Such would result in
permitting unqualified and ineligible public officials to continue occupying
key positions, exercising sensitive sovereign functions until they are
successfully removed from office through impeachment. This could not
have been the intent of the framers of the Constitution.
We must always put in mind that public office is a public trust. 171 Thus, the
people have the right to have only qualified individuals appointed to
public· office. To construe Section 2, Article XI of the Constitution as
proscribing a quo warranto petition is to deprive the State of a remedy to
correct a "public wrong" arising from defective or void appointments.
Equity will not suffer a wrong to be without remedy. Ubi jus ibi
remedium. Where there is a right, there must be a remedy. 172
As respondent herself previously opined in one case: "Reason is the
foundation of all legal interpretation, including that of constitutional
interpretation. And the most powerful tool of reason is reflecting on the
essence of things." 173
The essence of quo warranto is to protect the body politic from the
usurpation of public office and to ensure that government authority is
entrusted only to qualified individuals. Reason therefore dictates that quo
warranto should be an available remedy to question the legality of
37 | J U D I C I A L D E P A R T M E N T C A S E S
appointments especially of impeachable officers considering that they
occupy some of the highest-ranking offices in the land and are capable of
wielding vast power and influence on matters of law and policy.
At this juncture, it would be apt to dissuade and allay the fear that a ruling
on the availability of quo warranto would allow the Solicitor General to
"wield a sword over our collective heads, over all our individual heads, and
on that basis, impair the integrity of the Court as a court." 174
Such view, while not improbable, betrays a fallacious and cynical view of
the competence and professionalism of the Solicitor General and the
members of this Court. It presupposes that members of this Court are law
offenders. It also proceeds from the premise that the Solicitor General is
the Executive's pawn in its perceived quest for a "more friendly" Court.
Verily, fear, particularly if unfounded, should not override settled
presumptions of good faith and regularity in the performance of official
duties. This Court, absent a compelling proof to the contrary, has no basis
to doubt the independence and autonomy of the Solicitor General. 175 It is
worthwhile to note that while the Solicitor General has a prerogative in the
institution of an action for quo warranto, its exercise of such discretion is
nevertheless subject to the Court's review. In Topacio v. Ong, 176 this Court
explained:
In the exercise of sound discretion, the Solicitor General may suspend or
turn down the institution of an action for quo warranto where there are
just and valid reasons. Thus, in Gonzales v. Chavez, the Court ruled:
Like the Attorney-General of the United States who has absolute discretion
in choosing whether to prosecute or not to prosecute or to abandon a
prosecution already started, our own Solicitor General may even dismiss,
abandon, discontinue or compromise suits either with or without
stipulation with the other party. Abandonment of a case, however, does
not mean that the Solicitor General may just drop it without any legal
and valid reasons, for the discretion given him is not unlimited. Its
exercise must be, not only within the parameters set by law but with the
best interest of the State as the ultimate goal.
Upon receipt of a case certified to him, the Solicitor General exercises his
discretion in the management of the case. He may start the prosecution of
the case by filing the appropriate action in court or he may opt not to file
the case at all. He may do everything within his legal authority but always
conformably with the national interest and the policy of the government
on the matter at hand. (Emphasis ours)
Neither should it be forgotten that the Solicitor General is an officer of the
Court, tasked "to share in the task and responsibility of dispensing justice
and resolving disputes;" therefore, he may be enjoined in the same
manner that a special prosecutor was sought enjoined by this Court from
committing any act which may tend to "obstruct, pervert or impede and
degrade the administration of justice." 177 Either way, in the event that quo
warranto cases against members of the Judiciary inundate the courts'
dockets, it does not follow that the courts are powerless to shield its
members against suits which are obviously lacking in merit, or those
merely intended to harass the respondent.
The Supreme Court's exercise of its
jurisdiction over a quo warranto
petition is not violative of the
doctrine of separation of powers
Section 3(1) and 3(6), Article XI, of the Constitution respectively provides
that the House of Representatives shall have the exclusive power to
initiate all cases of impeachment while the Senate shall have the sole
power to try and decide all cases of impeachment. Thus, there is no
argument that the constitutionally-defined instrumentality which is given
the power to try impeachment cases is the Senate.
Nevertheless, the Court's assumption of jurisdiction over an action for quo
warranto involving a person who would otherwise be an impeachable
official had it not been for a disqualification, is not violative of the core
constitutional provision that impeachment cases shall be exclusively tried
and decided by the Senate.
38 | J U D I C I A L D E P A R T M E N T C A S E S
Again, an action for quo warranto tests the right of a person to occupy a
public position. It is a direct proceeding assailing the title to a public
office. 178 The issue to be resolved by the Court is whether or not the
defendant is legally occupying a public position which goes into the
questions of whether defendant was legally appointed, was legally
qualified and has complete legal title to the office. If defendant is found to
be not qualified and without any authority, the relief that the Court grants
is the ouster and exclusion of the defendant from office. 179 In other words,
while impeachment concerns actions that make the officer unfit to
continue exercising his or her office, quo warranto involves matters that
render him or her ineligible to hold the position to begin with.
Given the nature and effect of an action for quo warranto, such remedy is
unavailing to determine whether or not an official has committed
misconduct in office nor is it the proper legal vehicle to evaluate the
person's performance in the office. Apropos, an action for quo
warranto does not try a person's culpability of an impeachment offense,
neither does a writ of quo warranto conclusively pronounce such
culpability.
In Divinagracia v. Consolidated Broadcasting System, Inc.,  180 the Court
further explained the court's authority to issue a writ of quo warranto, as
complementary to, and not violative of, the doctrine of separation of
powers, as follows:
And the role of the courts, through quo warranto proceedings, neatly
complements the traditional separation of powers that come to bear in
our analysis. The courts are entrusted with the adjudication of the legal
status of persons, the final arbiter of their rights and obligations under
law. The question of whether a franchisee is in breach of the franchise
specially enacted for it by Congress is one inherently suited to a court of
law, and not for an administrative agency, much less one to which no
such function has been delegated by Congress. In the same way that
availability of judicial review over laws does not preclude Congress from
undertaking its own remedial measures by appropriately amending
laws, the viability of quo warranto in the instant cases does not preclude
Congress from enforcing its own prerogative by abrogating the legislative
franchises of respondents should it be distressed enough by the
franchisees' violation of the franchises extended to them. (Emphasis ours)
Applying the ratio in Divinagracia, the Court's exercise of its jurisdiction
over quo warranto proceedings does not preclude Congress from enforcing
its own prerogative of determining probable cause for impeachment, to
craft and transmit the Articles of Impeachment, nor will it preclude Senate
from exercising its constitutionally committed power of impeachment.
Indeed, respondent's case is peculiar in that her omission to file her SALN
also formed part of the allegations against her in the Verified Complaint for
Impeachment. Verily, the filing of the SALN is a Constituional requirement,
and the transgression of which may, in the wisdom of the impeachment
court, be interpreted as constituting culpable violation ·of the Constitution.
But then, respondent, unlike the President, the Vice-President, Members
of the Constitutional Commissions, and the Ombudsman, apart from
having to comply with the Constitutional SALN requirement, also answers
to the unique Constitutional qualification of having to be a person of
proven competence, integrity, probity, and independence - qualifications
not expressly required by the fundamental law for the other impeachable
officers. 181 And as will be extensively demonstrated hereunder,
respondent's failure to file her SALNs and to submit the same to the JBC go
into the very qualification of integrity. In other words, when a Member of
the Supreme Court transgresses the SALN requirement prior to his or her
appointment as such, he or she commits a violation of the Constitution and
belies his or her qualification to hold the office. It is not therefore accurate
to place Members of the Supreme Court, such as · respondent, on
absolutely equal plane as that of the other impeachable officers, when
more stringent and burdensome requirements for qualification and
holding of office are expressly placed upon them.
In the same vein, the fact that the violation of the SALN requirement
formed part of the impeachment complaint does not justify shifting
responsibility to the Congress, no matter how noble the respondent and
the intervenors portray such act to be. The fact remains that the Republic
raised an issue as to respondent's eligibility to occupy the position of Chief
Justice, an obviously legal question, which can be resolved through review
39 | J U D I C I A L D E P A R T M E N T C A S E S
of jurisprudence and pertinent laws. Logic, common sense, reason,
practicality and even principles of plain arithmetic bear out the conclusion
that an unqualified public official should be removed from the position
immediately if indeed Constitutional and legal requirements were not met
or breached. To abdicate from resolving a legal controversy simply because
of perceived availability of another remedy, in this case impeachment,
would be to sanction the initiation of a process specifically intended to be
long and arduous and compel the entire membership of the Legislative
branch to momentarily abandon their legislative duties to focus on
impeachment proceedings for the possible removal of a public official, who
at the outset, may clearly be unqualified under existing laws and case law.
Evidently, this scenario would involve waste of time, not to mention
unnecessary disbursement of public funds.
Further, as an impeachment court, the Senate is a tribunal composed of
politicians who are indubitably versed in pragmatic decision making and
cognizant of political repercussions of acts purported to have been
committed by impeachable officials. 182 As representatives of the Filipino
people, they determine whether the purported acts of highest ranking
officials of the country constitute as an offense to the citizenry. Following
this premise, the impeachment tribunal cannot be expected to rule on the
validity or constitutionality of the Chief Justice's appointment, nor can
their ruling be of jurisprudential binding effect to this Court. To authorize
Congress. to rule on public officials' eligibility would disturb the system of
checks and balances as it would dilute the judicial power of courts, upon
which jurisdiction is exclusively vested to rule on actions for quo warranto.
Nevertheless, for the guidance of the bench and the bar, and to obliviate
confusion in the· future as to when quo warranto as a remedy to oust an
ineligible public official may be availed of, and in keeping with the Court's
function of harmonizing the laws and the rules with the Constitution, the
Court herein demarcates that an act or omission committed prior to or at
the time of appointment or election relating to an official's qualifications to
hold office as to render such appointment or election invalid is properly
the subject of a quo warranto petition, provided that the requisites for the
commencement thereof are present. Contrariwise, acts or omissions, even
if it relates to the qualification of integrity, being a continuing requirement
but nonetheless committed during the incumbency of a validly appointed
and/or validly elected official, cannot be the subject of a quo
warranto proceeding, but of something else, which may either be
impeachment if the public official concerned is impeachable and the act or
omission constitutes an impeachable offense, or disciplinary,
administrative or criminal action, if otherwise.
Judicial power versus Judicial
restraint and fear of a
constitutional crisis
Judicial power is vested in one Supreme Court and in such lower courts as
may be established by law. Judicial power includes the duty of the courts
of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government. 183
In the presence of all the requisites 184 for the Court's exercise of judicial
review, there can be no doubt that the exercise thereof is not discretionary
upon the Court, nor dependent upon the whims and caprices of any of its
Members nor any of the parties. Even in cases rendered moot and
academic by supervening events, the Court nevertheless exercised its
power of review on the basis of certain recognized exceptions. 185 Neither
is its exercise circumscribed by fear of displeasing a co-equal branch of the
government. Instead, the Constitution makes it crystal clear that the
exercise of judicial power is a duty of the Court.
As such, the exercise of judicial power could never be made dependent
upon the action or inaction of another branch of the government. The
exercise of judicial restraint on the ground that the Senate, sitting as an
impeachment court, has the sole power to try and decide all cases of
impeachment, is thus misplaced.
For one, at the time of the filing of, and even during the pendency of the
resolution of the instant petition, no impeachment trial has been
commenced by the Senate. In fact, it will be purely
skeptical, nay lackadaisical, on the part of the Court to assume, at the time
40 | J U D I C I A L D E P A R T M E N T C A S E S
the petition was filed, that the House of Representatives will affirm a
favorable resolution with the Articles of Impeachment and that trial will
eventually carry on.
For another, and as extensively discussed, the question of whether or not
respondent usurped a public office is undoubtedly justiciable.
Recall Francisco, Jr., v. House of Representatives: 186
The exercise of judicial restraint over justiciable issues is not an option
before this Court. Adjudication may not be declined, because this Court is
not legally disqualified. Nor can jurisdiction be renounced as there is no
other tribunal to which the controversy may be referred. Otherwise, this
Court would be shirking from its duty vested under Art. VIII, Sec. 1 (2) of
the Constitution. More than being clothed with authority thus, this Court is
duty-bound to take cognizance of the instant petitions. In the august words
of amicus curiae Father Bernas, jurisdiction is not just a power; it is a
solemn duty which may not be renounced. To renounce it, even if it is
vexatious, would be a dereliction of duty.
Thus, to exercise restraint in reviewing an impeachable officer's
appointment is a clear renunciation of a judicial duty. We have held that:
While an appointment is an essentially discretionary executive power, it is
subject to the limitation that the appointee should possess none of the
disqualifications but all the qualifications required by law. Where the law
prescribes certain qualifications for a given office or position, courts may
determine whether the appointee has the requisite qualifications, absent
which, his right or title thereto may be declared void. 187 (Emphasis ours)
Clearly, an outright dismissal of the petition based on speculation that
respondent will eventually be tried on impeachment is a clear abdication
of the Court's duty to settle actual controversy squarely presented before
it. Indeed, the easiest way to lose power is to abdicate it.
Neither does the possibility of the occurrence of a constitutional crisis a
reason for the Court to abandon its positive constitutional duty to take
cognizance of a case over which it enjoys jurisdiction and is not otherwise
legally disqualified. A constitutional crisis may arise from a conflict over the
determination by the independent branches of government of the nature,
scope and extent of their respective constitutional powers. Thus, there can
be no constitutional crisis where the Constitution itself provides the means
and bases for the resolution of the "conflict." To reiterate, the Court's
exercise of jurisdiction over an action for quo warranto  falls within the
ambit of its judicial power to settle justiciable issues or actual controversies
involving rights which are legally demandable and enforceable. In so doing,
the Court is not arrogating upon itself the Congress' power to determine
whether an impeachable officer may be removed by impeachment or not,
which is a political, rather than a judicial, exercise. 188
In fine, it is settled that jurisdiction is conferred by law. It cannot be waived
by stipulation, by abdication or by estoppel. Quo warranto proceedings are
essentially judicial in character - it calls for the exercise of the Supreme
Court's constitutional duty and power to decide cases and settle actual
controversies. This constitutional duty cannot be abdicated or transferred
in favor of, or in deference to, any other branch of the government
including the Congress, even as it acts as an impeachment court through
the Senate. As an impeachment court, the Senate's jurisdiction and the
effect of its pronouncement is as limited under the Constitution - it cannot
rule on the constitutionality of an appointment of a Member of the
Supreme Court with .jurisprudential binding effect because rulings of the
impeachment court, being a political rather than a judicial body, do not
form part of the laws of the land. Any attempt to derogate or usurp judicial
power in the determination of whether the respondent's appointment is
constitutional or not will, in point of fact, amount to culpable violation of
the Constitution.
In the same breath, the Supreme Court cannot renege on its avowed
constitutional duty and abdicate its judicial power. To do so would similarly
amount to culpable violation of the Constitution. Instead, this Court asserts
its judicial independence and equanimity to decide cases without fear or
favor; without regard as to a party's power or weakness; without regard to
personalities; all to the ultimate end that Our sacrosanct oaths as
magistrates of this Court, which We voluntarily imposed upon ourselves
without any mental reservation or purpose of evasion, to support and
41 | J U D I C I A L D E P A R T M E N T C A S E S
defend the Constitution and to obey the laws of the land, are strongly and
faithfully realized.
Seeking affirmative relief from the
Court is tantamount to voluntary
appearance
In repudiating the Court's jurisdiction over her person and over the subject
matter, respondent harps on the fact that as Chief Justice, she is an
impeachable officer who may be removed only by impeachment by the
Senate constituted as an impeachment court. As extensively discussed, the
Court maintains jurisdiction over the present quo warranto proceedings
despite respondent's occupation of an impeachable office, as it is the
legality or illegality of such occupation that is the subject matter of the
instant petition. Further, respondent cannot now be heard to deny the
Court's jurisdiction over her person even as she claims to be an
impeachable official because respondent in fact invoked and sought
affirmative relief from the Court by praying for the inhibition of several
Members of this Court and by moving that the case be heard on Oral
Arguments, albeit ad cautelam.
While mindful of Our ruling in La Naval Drug Corporation v. Court of
Appeals, 189 which pronounced that a party may file a Motion to Dismiss on
the ground of lack of jurisdiction over its person, and at the same time
raise affirmative defenses and pray for affirmative relief without waiving its
objection to the acquisition of jurisdiction over its person, as well as
Section 20, 190 Rule 15, this Court, in several cases, ruled that seeking
affirmative relief in a court is tantamount to voluntary appearance
therein. 191
Thus, in Philippine Commercial International Bank v. Dy Hong Pi, 192 cited
in NM Rotchschild & Sons (Australia) Limited v. Lepanto Consolidated
Mining Company, 193 wherein defendants filed a Motion for Inhibition
without submitting themselves to the jurisdiction of this Court, We held:
Besides, any lingering doubts on the issue of voluntary appearance
dissipate when the respondents' motion for inhibition is considered. This
motion seeks a sole relief: inhibition of Judge Napoleon Inoturan from
further hearing the case. Evidently, by seeking affirmative relief other
than dismissal of the case, respondents manifested their voluntary
submission to the court's jurisdiction. It is well-settled that the active
participation of a party in the proceedings is tantamount to an invocation
of the court's jurisdiction and a willingness to abide by the resolution of
the case, and will bar said party from later on impugning the court's
jurisdiction. (Emphasis in the original)
Accordingly, We rule that respondent, by seeking affirmative relief, is
deemed to have voluntarily submitted to the jurisdiction of the Court.
Following settled principles, respondent cannot invoke the Court's
jurisdiction on one hand to secure affirmative relief, and then repudiate
that same jurisdiction after obtaining or failing to obtain such relief.
II.
The Petition is Not Dismissible
on the Ground of Prescription
Prescription does not lie against the State
The rules on quo warranto, specifically Section 11, Rule 66, provides:
Limitations. - Nothing contained in this Rule shall be construed to authorize
an action against a public officer or employee for his ouster from
office unless the same be commenced within one (1) year after the cause
of such ouster, or the right of the petitioner to hold such office or
position, arose; nor to authorize an action for damages in accordance with
the provisions of the next preceding section unless the same be
commenced within one (1) year after the entry of the judgment
establishing the petitioner's right to the office in question. (Emphasis
supplied)
Since the 1960's the Court had explained in ample jurisprudence the
application of the one-year prescriptive period for filing an action for quo
warranto.
42 | J U D I C I A L D E P A R T M E N T C A S E S
In Bumanlag v. Fernandez and Sec. of Justice, 194 the Court held that the
one-year period fixed in then Section 16, Rule 68 of the Rules of Court is a
condition precedent to the existence of the cause of action for quo
warranto and that the inaction of an officer for one year could be validly
considered a waiver of his right to file the same.
In Madrid v. Auditor General and Republic,  195 We held that a person
claiming to a position in the civil service must institute the proper
proceedings to assert his right within the one-year period, otherwise, not
only will he be considered to have waived his right to bring action therefor
but worse, he will be considered to have acquiesced or consented to the
very matter that he is questioning.
The Court explained in Madrid that the reason for setting a prescriptive
period is the urgency of the matter to be resolved. The government must
be immediately informed or advised if any person claims to be entitled to
an office or position in the civil service, as against another actually holding
it, so that the government may not be faced with the predicament of
having to pay two salaries, one for the person actually holding the office
although illegally, and another for one not actually rendering service
although entitled to do so. 196
In Torres v. Quintas, 197 the Court further explained that public interest
requires that the rights of public office should be determined as speedily as
practicable. We have also explained in Cristobal v. Melchor and
Arcala198 that there are weighty reasons of public policy and convenience
that demand the adoption of such limitation as there must be stability in
the service so that public business may not be unduly retarded. 199
Distinctively, the petitioners in these cited cases were private individuals
asserting their right of office, unlike the instant case where no private
individual claims title to the Office of the Chief Justice. Instead, it is the
government itself which commenced the present petition for quo
warranto and puts in issue the qualification of the person holding the
highest position in the Judiciary.
Thµs, the question is whether the one-year limitation is equally applicable
when the petitioner is not a mere private individual pursuing a private
interest, but the government itself seeking relief for a public wrong and
suing for public interest? The answer is no.
Reference must necessarily be had to Section 2, Rule 66 which makes
it compulsory for the Solicitor General to commence a quo
warranto action:
SEC. 2. When Solicitor General or public prosecutor must commence
action. - The Solicitor General or a public prosecutor, when directed by the
President of the Philippines, or when upon complaint or otherwise he has
good reason to believe that any case specified in the preceding section can
be established by proof must commence such action. (Emphasis supplied)
In other words, when the Solicitor General himself commences the quo
warranto  action either (1) upon the President's directive, (2) upon
complaint or (3) when the Solicitor General has good reason to believe that
there is proof that (a) a person usurps, intrudes into, or unlawfully holds or
exercises· a public office, position or franchise; (b) a public officer does or
suffers an act which is a ground for the forfeiture of his office; or (c) an
association acts as a corporation without being legally incorporated or
without lawful authority so to act, he does so in the discharge of his task
and mandate to see to it that the best interest of the public and the
government are upheld. In these three instances, the Solicitor General is
mandated under the Rules to commence the necessary quo
warranto petition.
That the present Rule 66 on quo warranto takes root from Act No. 160,
which is a legislative act, does not give the one-year rule on prescription
absolute application. Agcaoili v. Suguitan, 200 squarely addressed this non-
absolute character of the one-year prescriptive period as follows:
x x x in re prescription or limitation of the action, it may be said that
originally there was no limitation or prescription of action in an action for
quo warranto, neither could there be, for the reason that it was an action
by the Government and prescription could not be plead as a defense to an
43 | J U D I C I A L D E P A R T M E N T C A S E S
action by the Government. The ancient writ of quo warranto was a high
prerogative writ in the nature of a writ of right by the King against any one
who usurped or claimed any office, franchise or liberty of the crown, to
inquire by what authority the usurper supported his claim, in order to
determine the right. Even at the present time in many of the civilized
countries of the world the action is still regarded as a prerogative writ and
no limitation or prescription is permitted to bar the action. As a general
principle it may be stated that ordinary statutes of limitation, civil or
penal, have no application to quo warranto proceeding brought to
enforce a public right.
xxxx
In our opinion, even granting that section 216 is applicable to the
appellant, the period of prescription had not begun to run at the time of
the commencement of the present action. He was justified in delaying the
commencement of his action until an answer to his protest had been
made. He had a right to await the answer to his protest, in the confident
belief that it would be resolved in his favor and that action would be
unnecessary. 201 (Citations omitted and emphasis ours)
Continuing, Agcaoili cites People ex rel. Moloney v. Pullmans Palace Car
Co., 202 to emphasize that the State is not bound by statute of limitations
nor by the laches, acquiescence or unreasonable delay on the part of its
officers:
It is conceded, the state, acting in its character as a sovereign, is not bound
by any statute of limitations or technical estoppel. It is urged, however,
that in quo warranto, under the common-law rule, the courts, in the
exercise of their discretion to grant the writ or not, or upon final hearing,
refused aid when the conditions complained of had existed for a number
of years with knowledge on the part of the sovereign, and that the
provisions of § 1 of chapter 112 of the Revised Statutes, entitled Quo
Warranto, that leave to file the information shall be given if the court or
judge to whom the petition is presented shall be satisfied there is probable
cause for the proceeding, leave the court still possessed of power to
consider upon the hearing, and then apply the same doctrine of waiver and
acquiescence. It is the general rule that laches, acquiescence, or
unreasonable delay in the performance of duty on the part of the officers
of the state, is not imputable to the state when acting in its character as a
sovereign. There are exceptions to this general rule, but we are unable to
see that the allegations of the plea bring the case within the principles of
any such exceptions.
Jurisprudence across the United States likewise richly reflect that when the
Solicitor General files a quo warranto petition in behalf of the people and
where the interests of the public is involved, the lapse of time presents no
effective bar:
An information in the nature of a quo warranto cannot be filed by a private
individual without leave, which the court may, at its discretion, either grant
or ·refuse. To regulate their discretion as affected by the lapse of time, the
English courts adopted the rule which we have stated. But the Attorney
General, representing the Crown in England and the State in this
country, may file an information in the nature of a quo warranto, without
leave, according to his own discretion; and we find no English law which
holds that an information, so filed, can be barred by the lapse of six years
independently of any statute to that effect. x x x
The Attorney General being a public officer, may be presumed to be
capable of a salutary and reasonable discretion, as well as the court, and
when, acting in behalf of the State, he deems it his duty to prosecute for a
forfeiture, it is not for the court, in the absence of any statutory limitation,
to say he is too late. Indeed this court has itself decided that, after the
information has once been filed, its discretion ceases, and it has then
nothing to do but administer the law the same as in any other
case. 203 (Citations omitted)
In People v. Bailey:204
Appellant claims that the action is barred by the provisions of the statute
of limitations, x x x x We are of the opinion that the established rule of law,
as to the statute of limitations and its bearing upon cases of this character,
is correctly stated in the quotations above made and "that the attorney
44 | J U D I C I A L D E P A R T M E N T C A S E S
general may file the information on behalf of the people at any time, and
that lapse of time constitutes no bar to the proceeding." The law, in thus
permitting the attorney-general, either upon his own information or upon
the information of a private party, to file an information at any time
against one who has unlawfully intruded into and is holding a public office,
does not place the courts or private parties in much danger of having to
deal with stale claims. The action can only be brought with the consent
and permission of the attorney-general of the state, and, it is to be
assumed, he will not permit the institution of such a suit, if by reason of a
great lapse of time the claim has become stale, or for any other reason
the state has ceased to have a present interest in it. (Citations omitted)
People v. Bailey quotes McPhail v. People ex rel. Lambert, 205 as follows:
We do not consider this quo warranto proceeding, prosecuted by the
state's attorney, for the purpose of ousting one charged with wrongfully
and without authority of law exercising the office, jurisdiction and powers
of a police magistrate, as simply a civil remedy, for the protection of
private rights only. Police magistrates are public officers, that are provided
for in the constitution of the state; and by that instrument the judicial
powers of the state are, in part, vested in them. The office of police
magistrate is one in which the state and the general public have a deep
interest, and the jurisdiction attached to it is uniform with that belonging
to the office of justice of the peace. It is a matter of public concern to the
people of the state, and against their peace and dignity, that any one
should unlawfully, and without authority of right, exercise the jurisdiction,
powers and functions of such office, and also a matter of interest to the
state and to the general public that more persons than the law authorizes
are acting as police magistrates. In this country the rule is that the
attorney general or state's attorney may file the information in behalf of
the people, where the interests of the general public are involved, at any
time, and that, in conformity with the maxim, 'Nullum tempus occurrit
regi,' lapse of time constitutes no bar to the proceeding. (Citations
omitted)
Aptly, in State ex rel Stovall v. Meneley, 206 it was held that a quo
warranto action is a governmental function and not a propriety function,
and therefore the doctrine of laches does not apply:
Governmental functions are those performed for the general public with
respect to the common welfare for which no compensation or particular
benefit is received. x x x Quo warranto proceedings seeking ouster of a
public official are a governmental function. (Citations and annotations
omitted) No statute of limitations is, therefore, applicable. The district
court did not err in denying Meneley's motion to dismiss based on the
statute of limitations. x x x x
The doctrine of laches, furthermore, does not apply when a cause of action
is brought by the State seeking to protect the public. (Citations and
annotations omitted) x x x Having already noted that the quo warranto
action is a governmental function and not a propriety function, we hold the
district court did not err in denying Meneley's motion to dismiss on the
basis of laches.
In fact, liberal interpretation to quo warranto provisions is sanctioned
given that its primary purpose is to ascertain whether one is
constitutionally authorized to hold office. State ex rel Anaya v.
McBride207 elucidates:
Since the Constitution provides for separate and equal branches of
government in New Mexico, any legislative measure which affects
pleading, practice or procedure in relation to a power expressly vested by
the Constitution in the judiciary, such as quo warranto, cannot be deemed
binding. We cannot render inoperative a clause in the Constitution on so
slender a reed. One of the primary purposes of quo warranto is to
ascertain whether one is constitutionally authorized to hold the office he
claims, whether by election or appointment, and we must liberally
interpret the quo warranto statutes to effectuate that purpose.
Indeed, when the government is the real party in interest, and is
proceeding mainly to assert its rights, there can be no defense on the
ground of laches or prescription.208 Indubitably, the basic principle that
45 | J U D I C I A L D E P A R T M E N T C A S E S
"prescription does not lie against the State" which finds textual basis under
Article 1108 (4)209 of the Civil Code, applies in this case.
Circumstances obtaining in this
case preclude the application of the
prescriptive period
That prescription does not lie in this case can also be deduced from the
very purpose of an action for quo warranto. People v. City
Whittier, 210 explains that the remedy of quo warranto is intended to
prevent a continuing exercise of an authority unlawfully asserted. Indeed,
on point is People v. Bailey,211 when it ruled that because quo
warranto serves to end a continuous usurpation, no statute of limitations
applies to the action. Needless to say, no prudent and just court would
allow an unqualified person to hold public office, much more the highest
position in the Judiciary.
In fact, in Cristobal, the Court considered certain exceptional
circumstances which took the case out of the statute of limitations, to wit:
( 1) there was no acquiescence to or inaction on the part of the petitioner,
amounting to the abandonment of his right to the position; (2) it was an
act of the government through its responsible officials which contributed
to the delay in the filing of the action; and (3) the petition was grounded
upon the assertion that petitioner's removal from the questioned position
was contrary to law.
In this case, the Republic cannot be faulted for questioning respondent's
qualification· for office only upon discovery of the cause of ouster.
As will be demonstrated hereunder, respondent was never forthright as to
whether or not she filed her SALNs covering the period of her employment
in U.P. Recall that during her application for the Chief Justice position, the
JBC required the submission of her previous SALNs. In response to the JBC,
respondent never categorically stated that she filed the required SALNs.
Instead, she cleverly hid the fact of non-filing by stating that she should not
be required to submit the said documents as she was considered to be
coming from private practice; that it was not feasible to retrieve most of
her records in the academe considering that the same are more than
fifteen years old; and that U.P. already cleared her of "all
academic/administrative responsibilities, money and property
accountabilities and from administrative charges as of June 1, 2006" 212 in a
Clearance213 dated September 19, 2011.
Even up to the present, respondent has not been candid on whether she
filed the required SALN s or not. While respondent stated in her Comment
that she filed the required SALNs when she was still connected with the
U.P. College of Law, 214 she again offered as support the U.P. Clearance
above-cited; that she was considered as coming from private practice
when she was nominated as Associate Justice of the Supreme Court,
hence, should not be required to submit those SALNs; and that it was not
feasible for her to retrieve said SALNs from U.P. as her records therein are
more than 15 years old. Notably, these are mere reiterations of her
representations before the JBC.
Hence, until recently when respondent's qualification for office was
questioned during the hearings conducted by the House Committee on
Justice on the impeachment complaint against the respondent, there was
no indication that would have prompted the Republic to assail
respondent's appointment, much less question the wisdom or reason
behind the said recommending and appointing authorities' actions. The
defect on respondent's appointment was therefore not discernible, but
was, on the contrary, deliberately rendered obscure.
Given the foregoing, there can be no acquiescence or inaction, in this case,
on the part of the Republic as would amount to an abandonment of its
right to seek redress against a public wrong and vindicate public interest.
Neither can delay be attributed to the Republic in commencing the action
since respondent deliberately concealed the fact of her disqualification to
the position. Prescription, therefore, cannot be pleaded against the
Republic.
Neither can respondent successfully invoke Act No. 3326 215 as mentioned
in her Table of Authorities.216 Respondent refers to Section 1 217 thereof
which provides for the prescriptive periods for violations penalized by
46 | J U D I C I A L D E P A R T M E N T C A S E S

special acts and municipal ordinances. Plainly, Act No. 3326 is inapplicable A.
to the instant petition as respondent is not being sought to be penalized
for violation of the laws relating to the non-filing or incomplete, irregular The Court Exercises Supervisory Authority Over the JBC
or untruthful filing of SALNs. At any rate, even the theorized applicability of
Act No. 3326 will not work to respondent's advantage given that Section The Court's supervisory authority
2218 thereof provides that the prescriptive period shall be reckoned either over the JBC includes ensuring
from the day of the commission of the violation of the law, or if such be that the JBC complies with its own
not known at the time, from the discovery thereof and the institution of rules
the judicial proceeding for its investigation and punishment.
Section 8(1), Article VIII of the Constitution provides:
Finally, it bears to stress that this Court finds it more important to rule on
the merits of the novel issues imbued with public interest presented
A Judicial and Bar Council is hereby created under the supervision of the
before Us than to dismiss the case outright merely on technicality. The
Supreme Court, composed of the Chief Justice as ex officio Chairman, the
Court cannot compromise on the importance of settling the controversy
Secretary of Justice, and a representative of the Congress as ex officio
surrounding the highest position in the Judiciary only to yield to the
Members, a representative of the Integrated Bar, a professor of law" a
unacceptable plea of technicality. It is but more prudent to afford the
retired Member of the Supreme Court, and a representative of the private
Republic, as well as the respondent, ample opportunities to present their
sector. (Emphasis ours)
cases for a proper and just disposition of the case instead of dismissing the
petition outright on the ground of prescription. Inasmuch as the ultimate
Ambil, Jr. v. Sandiganbayan, et al. , 219 elucidates on the power of
consideration in providing for a one-year prescriptive period was public
supervision in general:
interest, so is it the same consideration which prompts this Court not to
act nonchalantly and idly watch title to the public office in question be
continuously subjected to uncertainty. Indeed, dismissal of cases on On the other hand, the power of supervision means "overseeing or the
technicality is frowned upon especially where public interest is at the other authority of an officer to see to it that the subordinate officers perform
end of the spectrum. their duties." If the subordinate officers fail or neglect to fulfill their duties,
the official may take such action or step as prescribed by law to make them
perform their duties. Essentially, the power of supervision means no more
III.
than the power of ensuring that laws are faithfully executed, or that
subordinate officers act within the law. The supervisor or superintendent
Respondent is Ineligible as a Candidate and
merely sees to it that the rules are followed, but he does not lay down the
Nominee for the Position of Chief Justice
rules, nor does he have discretion to modify or replace them. 220

To arrive at a judicious appreciation of the parties' respective contentions

Reflective of the above and similar pronouncements, 221 the seminal case
as to respondent's qualification for the position of Chief Justice, the Court
of Jardeleza v. Chief Justice Ma. Lourdes P A. Sereno, et al., 222 explains that
first reviews the supervisory authority exercised by it over the JBC, and
the power of supervision being a power of oversight does not authorize
visits the JBC's rules and procedure relating to the acceptance and
the holder of the supervisory power to lay down the rules nor to modify or
nomination of respondent as Chief Justice.
replace the rules of its subordinate. If the rules are, however, not or
47 | J U D I C I A L D E P A R T M E N T C A S E S
improperly observed, then the supervising authority may order the work
be done or redone, but only for the purpose of conforming to such rules.
Thus, in interpreting the power of the Court vis-a-vis the power of the JBC,
it is consistently held that the Court's supervisory power consists of seeing
to it that the JBC complies with its own rules and procedures. As when the
policies of the JBC are being attacked, the Court, through its supervisory
authority over the JBC, has the duty to inquire about the matter and
ensure that the JBC is compliant with its own rules.223
The JBC occupies a unique position in the body of government. While the
JBC is created by the Constitution, the Constitution itself prescribes that it
exists as an office subordinate to the Supreme Court. Thus, under the
Constitution, the JBC is chaired by the Chief Justice of the Supreme Court
and it is the Supreme Court that determines the emoluments of the regular
JBC members and provides for the appropriations of the JBC in its annual
budget. 224
The Constitution also vests upon the JBC the principal function of
recommending appointees to the Judiciary and such other functions and
duties as the Supreme Court may assign to it.225 On this, Justice Arturo
Brion, in his Concurring and Dissenting Opinion in De Castro v. Judicial and
Bar Council, et al., 226 offers a succinct point:
Under this definition, the Court cannot dictate on the JBC the results of its
assigned task, i.e., who to recommend or what standards to use to
determine who to recommend. It cannot even direct the JBC on how and
when to do its duty, but it can, under its power of supervision, direct the
JBC to "take such action or step as prescribed by law to make them
perform their duties," if the duties are not being performed because of
JBC's fault or inaction, or because of extraneous factors affecting
performance. Note in this regard that, constitutionally, the Court can also
assign the JBC other functions and duties - a power that suggests
authority beyond what is purely supervisory. 227 (Emphasis ours)
JBC's absolute autonomy from the Court as to place its non-action or
improper· actions beyond the latter's reach is therefore not what the
Constitution contemplates.
What is more, the JBC's duty to recommend or nominate, although calling
for the exercise of discretion, is neither absolute nor unlimited.
In Villanueva v. Judicial and Bar Council, 228 this Court explained that while
a certain leeway must be given to the JBC in screening aspiring
magistrates, the same does not give it an unbridled discretion to ignore
Constitutional and legal requirements:
The functions of searching, screening, and selecting are necessary and
incidental to the JBC's principal function of choosing and recommending
nominees for vacancies in the Judiciary for appointment by the President.
However, the Constitution did not lay down in precise terms the process
that the JBC shall follow in determining applicants' qualifications. In
carrying out its main function, the JBC has the authority to set the
standards/criteria in choosing its nominees for every vacancy in the
Judiciary, subject only to the minimum qualifications required by the
Constitution and law for every position. The search for these long held
qualities necessarily requires a degree of flexibility in order to determine
who is most fit among the applicants. Thus, the JBC has sufficient but not
unbridled license to act in performing its duties.
JBC's ultimate goal is to recommend nominees and not simply to fill up
judicial vacancies in order to promote an effective and efficient
administration of justice.229 (Emphasis ours)
So too, the JBC's exercise of discretion is not automatically equivalent to an
exercise of policy decision as to place, in wholesale, the JBC process
beyond the scope of the Court's supervisory and corrective powers. The
primary limitation to the JBC's exercise of discretion is that the nominee
must possess the minimum qualifications required by the Constitution and
the laws relative to the position. While the resolution of who to nominate
as between .two candidates of equal qualification cannot be dictated by
this Court upon the JBC, such surrender of choice presupposes that
48 | J U D I C I A L D E P A R T M E N T C A S E S
whosoever is nominated is not otherwise disqualified. The question of
whether or not a nominee possesses the requisite qualifications is
determined based on facts and therefore does not depend on, nor call for,
the exercise of discretion on the part of the nominating body.
Thus, along this line, the nomination by the JBC is not accurately an
exercise of policy or wisdom as to place the JBC's actions in the same
category as political questions that the Court is barred from resolving.
Questions of policy or wisdom refer "to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity,
or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of government." 230
Baker v. Carr231 gives the classic definition of a political question:
x x x [p ]rominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by
various departments on the one question.
Obviously, the exercise of the JBC's discretion in the nomination process is
not full as it is limited by the requirements prescribed by the Constitution
and the laws for every position. It does not involve a question of policy but
simply a determination, based on facts, of whether a candidate possesses
the requisite qualifications or not. The JBC neither assumes an existence
separate from the Judiciary as it is not intended to be an independent
Constitutional body but merely a Constitutional office created and
expressly subjected to the Court's supervision. Judicial encroachment upon
the .exercise of wisdom of a co-equal branch of the government, which is
the very basis of the political question doctrine, is therefore not attendant
when the Court supervises and reviews the action of the JBC which is
neither an executive nor a legislative branch enjoying independent political
prerogatives.
In fine, the Court has authority, as an incident of its power of supervision
over the JBC, to .insure that the JBC faithfully executes its duties as the
Constitution requires of it. Wearing its hat of supervision, the Court is thus
empowered to inquire into the processes leading to respondent's
nomination for the position of Chief Justice on the face of the Republic's
contention that respondent was ineligible to be a candidate to the position
to begin with.
Qualifications under the Constitution
cannot be waived or bargained
away by the JBC
As emphasized, the JBC's exercise of discretion is limited by the
Constitution itself when it prescribed the qualifications absolutely required
of a person to be eligible for appointment as a Member of the Court.
The qualifications of an aspiring Member of the Supreme Court are
enshrined in Section 7, Article VIII of the Constitution:
SECTION 7. (1) No person shall be appointed Member of the Supreme
Court or any lower collegiate court unless he is a natural-horn citizen of the
Philippines. A Member of the Supreme Court must be at least forty years
of age, and must have been for fifteen years or more a judge of a lower
court or engaged in the practice of law in the Philippines.
(2) The Congress shall prescribe the qualifications of judges of lower
courts, but no person may be appointed judge thereof unless he is a citizen
of the Philippines and a member of the Philippine Bar.
(3) A Member of the Judiciary must be a person
of proven competence, integrity, probity, and independence. (Emphasis
ours)
49 | J U D I C I A L D E P A R T M E N T C A S E S
Evidently, more than age, citizenship and professional qualifications, Our
fundamental law is clear that a member of the Judiciary must be a person
of proven competence, integrity, probity and independence. The inclusion
of subsection 3 is explained in this wise:
xxxx
MR. NOLLEDO. Thank you, Mr. Presiding Officer.
My amendment is to add a new subsection (3) on Section 4 which
reads: A MEMBER OF THE Judiciary MUST BE A PERSON OF PROVEN
COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE.
Before the Committee decides on whether or not to accept the
amendment, I would like to explain it first.
Mr. Presiding Officer, this is a moral prov1s10n lifted with modifications
from the "Canons of Judicial Ethics." The reputation of our justices and
judges has been unsavory. I hate to say this, but it seems that it has
become the general rule that the members of the Judiciary are corrupt and
the few honest ones are the exceptions. We hear of justices and judges
who would issue injunctive relief to the highest bidder and would decide
cases based on hundreds of thousands, and even millions, mercenary
reasons.
The members of the deposed Supreme Court, with a few exceptions,
catered to the political likings and personal convenience of Mr. Marcos by
despicably surrendering their judicial independence. Why should we resist
incorporating worthy moral principles in our fundamental law? Why should
we canalize our conservative thoughts within the narrow confines of pure
legalism?
I plead to the members of the Committee and to my colleagues in this
Constitutional Commission to support my amendment in order to
strengthen the moral fiber of our Judiciary. Let not our Constitution be
merely a legal or political document. Let it be a moral document as well.
x x x x232
Requirement of these traits stems from the need to ensure the strength
and sustainability of the third branch of the government. Caperton v. A. T.
Massey Coal Co., Inc., 233 sufficiently explains the state interest involved in
safeguarding judicial integrity:
Courts, in our system, elaborate principles of law in the course of resolving
disputes. The power and the prerogative of a court to perform this
function rest, in the end, upon the respect accorded to its judgments. The
citizen's respect for judgments depends in turn upon the issuing court's
absolute probity. Judicial integrity is, in consequence, a state interest of
the highest order.
An approximation of what defines the term "integrity" was made by the
Court in Jardeleza, as follows:
In the performance of this sacred duty, the JBC itself admits, as stated in
the "whereas clauses" of JBC-009, that qualifications such as "competence,
integrity, probity and independence are not easily determinable as they
are developed and nurtured through the years." Additionally, "it is not
possible or advisable to lay down iron-clad rules to determine the fitness of
those who aspire to become a Justice, Judge, Ombudsman or Deputy
Ombudsman." Given this realistic situation, there is a need "to promote
stability and uniformity in JBC's guiding precepts and principles." A set of
uniform criteria had to be established in the ascertainment of "whether
one meets the minimum constitutional qualifications 'and possesses
qualities of mind and heart expected of him" and his office. Likewise for
the sake of transparency of its proceedings, the JBC had put these criteria
in writing, now in the form of JBC-009. True enough, guidelines have been
set in the determination of competence," "probity and independence,"
"soundness of physical and mental condition, and "integrity."
As disclosed by the guidelines and lists of recognized evidence of
qualification laid down in JBC-009, "integrity" is closely related to, or if
not, approximately equated to an applicant's good reputation for
honesty, incorruptibility, irreproachable conduct, and fidelity to sound
50 | J U D I C I A L D E P A R T M E N T C A S E S

moral and ethical standards. That is why proof of an applicant's reputation
may be shown in certifications or testimonials from reputable government
officials and non-governmental organizations and clearances from the
courts, National Bureau of Investigation, and the police, among others. In
fact, the JBC may even conduct a discreet background check and receive
feedback from the public on the integrity, reputation and character of the
applicant, the merits of which shall be verified and checked. As a
qualification, the term is taken to refer to a virtue, such that, "integrity is
the quality of person's character."234 (Emphasis ours)
The case of Jardeleza, however, is not the first time this Court interpreted
the requirement of integrity. In Samson v. Judge Caballero, 235 this Court
dismissed a judge for "obvious lack of integrity" in making a false
statement in his Personal Data Sheet (PDS). Meanwhile, in Re: Judge Jaime
V Quitain,236 this Court declared Judge Quitain to be dishonest and lacking
in integrity when he failed to disclose in his PDS that he was imposed a
penalty of dismissal from service in an administrative case filed against
him.
Emphatically, integrity is not only a prerequisite for an aspirmg Member of
the Court but is likewise a continuing requirement common to judges and
lawyers alike. Canon 2 of the New Code of Judicial Conduct 237 provides:
SEC. 3. Judges should take or initiate appropriate disciplinary measures
against lawyers or court personnel for unprofessional conduct of which the
judge may have become aware.
The Code of Professional Responsibility, equally applicable to respondent
being first and foremost a lawyer, mince no words in requiring that a
lawyer shall perform his profession in a manner compatible with the
integrity of the profession, thus:
CANON 2 - A LA WYER SHALL MAKE HIS LEGAL SERVICES AVAILABLE IN AN
EFFICIENT AND CONVENIENT MANNER COMPATIBLE WITH THE
INDEPENDENCE, INTEGRITY AND EFFECTIVENESS OF THE PROFESSION.
Rule 2.01 - A lawyer shall not reject, except for valid reasons, the cause of
the defenseless or the oppressed.
Rule 2.02 - In such cases, even if the lawyer does not accept a case, he shall
not refuse to render legal advice to the person concerned if only to the
extent necessary to safeguard the latter's rights.
Rule 2.03 - A lawyer shall not do or permit to be done any act designed
primarily to solicit legal business.

CANON 2
Rule 2.04 - A lawyer shall not charge rates lower than those customarily
prescribed unless the circumstances so warrant.
INTEGRITY
xxxx
Integrity is essential not only to the proper discharge of the judicial office
but also to the personal demeanor of judges.
CANON 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND
DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE
SECTION 1. Judges shall ensure that not only is their conduct above INTEGRATED BAR
reproach, but that it is perceived to be so in the view of a reasonable
observer.
Rule 7.01 - A lawyer shall be answerable for knowingly making a false
statement or suppressing a material fact in connection with his application
SEC. 2. The behavior and conduct of judges must reaffirm the people's faith for admission to the bar.
in the integrity of the Judiciary. Justice must not merely be done but must
also be seen to be done.
51 | J U D I C I A L D E P A R T M E N T C A S E S
Rule 7.02 - A lawyer shall not support the application for admission to the
bar of any person known by him to be unqualified in respect to character,
education, or other relevant attribute.
Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor shall he whether in public or private life,
behave in a scandalous manner to the discredit of the legal profession.
It is also important to note that the Court has always viewed integrity with
a goal of preserving the confidence of the litigants in the Judiciary.
In Edano v. Judge Asdala,238 this Court stated that:
The New Code of Judicial Conduct for the Philippine Judiciary mandates
that judges must not only maintain their independence, integrity and
impartiality; but they must also avoid any appearance of impropriety or
partiality, which may erode the peoples faith in the Judiciary. Integrity and
impartiality, as well as the appearance thereof, are deemed essential not
just in the proper discharge of judicial office, but also to the personal
demeanor of judges. This standard applies not only to the decision itself,
but also to the process by which the decision is made. Section 1, Canon 2,
specifically mandates judges to ensure that not only is their conduct above
reproach, but that it is perceived to be so in the view of reasonable
observers. Clearly, it is of vital importance not only that independence,
integrity and impartiality have been observed by judges and reflected in
their decisions, but that these must also appear to have been so
observed in the eyes of the people, so as to avoid any erosion of faith in
the justice system. Thus, judges must be circumspect in their actions in
order to avoid doubt and suspicion in the dispensation of
justice.239 (Emphasis ours)
To make sure that applicants to judicial positions possess these
constitutionally-prescribed character requirement, the JBC was
created. Jardeleza captures the purpose of the JBC which it finds to be
rooted in the categorical constitutional declaration that "[a] member of the
Judiciary must be a person of proven competence, integrity, probity, and
independence. "To ensure the fulfillment of these standards in every
member of the Judiciary, the JBC has been tasked to screen aspiring judges
and justices, among others, making certain that the nominees submitted to
the President are all qualified and suitably best for
appointment. Jardeleza continues that, in this manner, the appointing
process itself is shielded from the possibility of extending judicial
appointment to the undeserving and mediocre and, more importantly, to
the ineligible or disqualified.
Thus, in compliance with their mandate, the JBC provided for Rule 4 on
Integrity in JBC-009 Rules,240 as follows:
RULE 4
INTEGRITY
Section 1. Evidence of Integrity - The council shall take every possible step
to verify the applicants records and of reputation for honesty, integrity,
incorruptibility, irreproachable conduct and fidelity to sound moral and
ethical standards. For this purpose, the applicant shall submit to the
council certifications or testimonials thereof from reputable government
officials and non-governmental organizations, and clearances from the
court National Bureau of Investigation, police, and from such other
agencies as the council may require.
Section 2. Background Check - The Council may order a discrete [sic]
background check on the integrity, reputation and character of the
applicant, and receive feedback thereon from the public, which it shall
check or verify to validate the means thereof.
Section 3. Testimonies of Parties - The Council may receive written
opposition to an applicant on ground of his moral fitness and its discretion,
the Council may receive the testimony of the oppositor at a hearing
conducted for the purpose, with due notice to the applicant who shall be
allowed to be [sic] cross-examine the opposite and to offer countervailing
evidence.
Section 4. Anonymous Complaints - Anonymous complaints against an
applicant shall not be given due course, unless there appears on its face
52 | J U D I C I A L D E P A R T M E N T C A S E S
probable cause sufficient to engender belief that the allegations may be
true. In the latter case the Council may either direct a discrete [sic]
investigation or require the applicant to comment thereon in writing or
during the interview.
Section 5. Disqualification - The following are disqualified from being
nominated for appointment to any judicial post or as Ombudsman or
Deputy Ombudsman:
1. Those with pending criminal or regular administrative cases;
2. Those with pending criminal cases in foreign courts or tribunals; and
3. Those who have been convicted in any criminal case; or in
administrative case, where the penalty imposed is at least a fine or more
than P10,000, unless has been granted judicial clemency.
Section 6. Other instances of disqualification - Incumbent judges, officials
or personnel of the Judiciary who are facing administrative complaints
under informal preliminary investigation (IPI) by the Office of the Court of
Administrator may likewise be disqualified from being nominated if, in the
determination of the Council, the charges are serious or grave as to affect
the fitness of the applicant for nomination.
For purpose of this Section and of the preceding Section 5 in so far as
pending regular administrative cases are concerned, the Secretary of the
Council shall, from time to time, furnish the Office of the Court of
Administrator the name of an applicant upon receipt of the
application/recommendation and completion of the required papers; and
within ten days from the receipt thereof the Court Administrator shall
report in writing to the Council whether or not the applicant is facing a
regular administrative case or an IPI case and the status thereof. In regard
to the IPI case, the Court Administrator shall attach to his report copies of
the complaint and the comment of the respondent.
B.
Compliance with the Constitutional and
statutory requirement of filing of SALN
intimately relates to a person's integrity.
Respondent postulates that the filing of SALNs bear no relation to the
Constitutional qualification of integrity. In so arguing, respondent loses
sight of the fact that the SALN requirement is imposed no less than by the
Constitution and made more emphatic by its accompanying laws and its
implementing rules and regulations. In other words, one who fails to file
his or her SALN violates the Constitution and the laws; and one who
violates the Constitution and the laws cannot rightfully claim to be a
person of integrity as such equation is theoretically and practically
antithetical.
We elaborate:
The filing of SALN is a
Constitutional and statutory
requirement
The filing a SALN is an essential requirement to one's assumption of a
public post. It has Constitutional, legal and jurisprudential bases.
Of paramount significance, Section 1 7, Article XI of the Constitution on the
Accountability of Public Officers states:
Section 17. A public officer or employee shall, upon assumption of office
and as often .thereafter as may be required by law, submit a declaration
under oath of his assets, liabilities, and net worth. In the case of the
President, the Vice-President, the Members of the Cabinet, the Congress,
the Supreme Court, the Constitutional Commissions and other
constitutional offices, and officers of the armed forces with general or flag
rank, the declaration shall be disclosed to the public in the manner
provided by law. (Emphasis ours)
53 | J U D I C I A L D E P A R T M E N T C A S E S
However, even prior to the 1987 Constitution, and as early as 1960, our
laws through R.A. No. 3019, required from every public officer a detailed
and sworn statement of their assets and liabilities, thus:
SECTION 7. Statement of assets and liabilities. - Every public officer, within
thirty days after assuming office, thereafter, on or before the fifteenth day
of April following the close of every calendar year, as well as upon the
expiration of his term of office, or upon his resignation or separation from
office, shall prepare and file with the office of the corresponding
Department Head, or in the case of a Head of department or Chief of an
independent office, with the Office of the President, a true, detailed sworn
statement of assets and liabilities, including a statement of the amounts
and sources of his income, the amounts of his personal and family
expenses and the amount of income taxes paid for the next preceding
calendar year: Provided, That public officers assuming office less than two
months before the end of the calendar year, may file their first statement
on or before the fifteenth day of April following the close of the said
calendar year.
SECTION 8. Prima facie evidence of and dismissal due to unexplained
wealth. If in accordance with the provisions of Republic Act Numbered One
thousand three hundred seventy-nine, a public official has been found to
have acquired during his incumbency, whether in his name or in the name
of other persons, an amount of property and/or money manifestly out of
proportion to his salary and to his other lawful income, that fact shall be a
ground for dismissal or removal. Properties in the name of the spouse and
dependents of such public official may be taken into consideration, when
their acquisition through legitimate means cannot be satisfactorily shown.
Bank deposits in the name of or manifestly excessive expenditures
incurred by the public official, his spouse or any of their dependents
including but not limited to activities in any club or association or any
ostentatious display of wealth including frequent travel abroad of a non-
official character by any public official when such activities entail expenses
evidently out of proportion to legitimate income, shall likewise be taken
into consideration in the enforcement of this section, notwithstanding any
provision of law to the contrary. The circumstances hereinabove
mentioned shall constitute valid ground for the administrative suspension
of the public official concerned for an indefinite period until the
investigation of the unexplained wealth is completed.
Respondent herself, in her Dissenting Opinion in Phil. Savings Bank v.
Senate Impeachment Court241 interprets that "failure to comply" with the
law is "prima facie evidence of unexplained wealth, which may result in the
dismissal from service of the public officer."
In 1961, R.A. No. 3019 was amended by R.A. No. 3047 242 by specifying the
period within which a public official should make the disclosure and
enumerating certain public officials who are exempt from the requirement.
Even during the martial law years, under then President Marcos, the
obligation imposed upon public officers and employees to declare their
assets and liabilities was maintained under Presidential Decree (P.D.) No. 3
79243 but with the curious addition that the filing and submission of SALN
are now to be required from all citizens, subject to few exceptions. P.D. No.
379 was later on amended by P.D. No. 417244 which amended the contents
of the statement and the manner of providing the acquisition cost of the
properties. Yet still, P.D. No. 379 was further amended by P.D. No.
555, 245 which prescribed stiffer penalties for violation thereof.
Two years after the birth of the 1987 Constitution, R.A. No. 6713 or the
Code of Conduct and Ethical Standards for Public Officials and
Employees246 was enacted and thereby expanded the obligation to disclose
by enumerating the information required to be disclosed as regards the
assets, liabilities, business interests and financial connections; requiring the
identification and disclosure of relatives in government; making the
statements and disclosures available and accessible to the public; and
prohibiting certain acts.
In particular, Sections 8 and 11 of R.A. No. 6713 provide:
Section 8. Statements and Disclosure. - Public officials and employees have
an obligation to accomplish and submit declarations under oath of, and the
public has the right to know, their assets, liabilities, net worth and financial
54 | J U D I C I A L D E P A R T M E N T C A S E S
and business interests including those of their spouses and of unmarried
children under eighteen (18) years of age living in their households.
(A) Statements of Assets and Liabilities and Financial
Disclosure. - All public officials and employees, except
those who serve in an honorary capacity, laborers and
casual or temporary workers, shall file under oath their
Statement of Assets, Liabilities and Net Worth and a
Disclosure of Business Interests and Financial
Connections and those of their spouses and unmarried
children under eighteen (18) years of age living in their
households.
The two documents shall contain information on the
following:
(a) real property, its improvements, acquisition
costs, assessed value and current fair market
value;
(b) personal property and acquisition cost;
(c) all other assets such as investments, cash on
hand or in banks, stocks, bonds, and the like;
(d) liabilities, and; ( e) all business interests and
financial connections.
The documents must be filed:
(a) within thirty (30) days after assumption of
office;
(b) on or before April 30, of every year
thereafter; and
(c) within thirty (30) days after separation from
the service.
All public officials and employees required under this
section to file the aforestated documents shall also
execute, within thirty (30) days from the date of their
assumption of office, the necessary authority in favor of
the Ombudsman to obtain from all appropriate
government agencies, including the Bureau of Internal
Revenue, such documents as may show their assets,
liabilities, net worth, and also their business interests and
financial connections in previous years, including, if
possible, the year when they first assumed any office in
the Government.
Husband and wife who are both public officials or
employees may file the required statements jointly or
separately.
The Statements of Assets, Liabilities and Net Worth and
the Disclosure of Business Interests and Financial
Connections shall be filed by:
(1) Constitutional and national elective officials,
with the national office of the Ombudsman;
(2) Senators and Congressmen, with the
Secretaries of the Senate and the House of
Representatives, respectively; Justices, with the
Clerk of Court of the Supreme Court; Judges,
with the Court Administrator; and all national
executive officials with the Office of the
President.
(3) Regional and local officials and employees,
with the Deputy Ombudsman in their respective
regions;
55 | J U D I C I A L D E P A R T M E N T C A S E S
(4) Officers of the armed forces from the rank of
colonel or naval captain, with the Office of the
President, and those below said ranks, with the
Deputy Ombudsman in their respective regions;
and
(5) All other public officials and employees,
defined in Republic Act No. 3019, as amended,
with the Civil Service Commission.
(B) Identification and disclosure of relatives. - It shall be
the duty of every public official or employee to identify
and disclose, to the best of his knowledge and
information, his relatives in the Government in the form,
manner and frequency prescribed by the Civil Service
Commission.
(C) Accessibility of documents. - (1) Any and all
statements filed under this Act, shall be made available
for inspection at reasonable hours.
(2) Such.statements shall be made available for
copying or reproduction after ten (10) working
days from the time they are filed as required by
law.
(3) Any person requesting a copy of a statement
shall be required to • pay a reasonable fee to
cover the cost of reproduction and mailing of
such statement, as well as the cost of
certification.
(4) Any statement filed under this Act shall be
available to the public for a period of ten (10)
years after receipt of the statement. After such
period, the statement may be destroyed unless
needed in an ongoing investigation.
(D) Prohibited acts. - It shall be unlawful for any person
to obtain or use any statement filed under this Act for:
(a) any purpose contrary to morals or public
policy; or
(b) any commercial purpose other than by news
and communications media for dissemination to
the general public.
xxxx
Section 11. Penalties. - (a) Any public official or employee, regardless of
whether or not he holds office or employment in a casual, temporary,
holdover, permanent or regular capacity, committing any violation of this
Act shall be punished with a fine not exceeding the equivalent of six (6)
months' salary or suspension not exceeding one (1) year, or removal
depending on the gravity of the offense after due notice and hearing by
the appropriate body or agency. If the violation is punishable by a heavier
penalty under another law, he shall be prosecuted under the latter statute.
Violations of Sections 7, 8 or 9 of this Act shall be punishable with
imprisonment not exceeding five (5) years, or a fine not exceeding five
thousand pesos (P5,000), or both, and, in the discretion of the court of
competent jurisdiction, disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall
be sufficient cause for removal or dismissal of a public official or employee,
even if no criminal prosecution is instituted against him.
xxxx
The filing of the SALN is so important for purposes of transparency and
accountability that failure to comply with such requirement may result not
only in dismissal from the public service but also in criminal liability.
Section 9 of R.A. No. 3019, as amended provides:
Section 9. Penalties for violations. - x x x x
56 | J U D I C I A L D E P A R T M E N T C A S E S
(b) Any public officer violating any of the provisions of Section 7 of this Act
shall be punished by a fine of not less than one thousand pesos nor more
than five thousand pesos, or by imprisonment not exceeding one year and
six months, or by both such fine and imprisonment, at the discretion of the
Court.
The violation of said section proven in a proper administrative proceeding
shall be sufficient cause for removal or dismissal of a public officer, even if
no criminal prosecution is instituted against him.
Both Section 8 of R.A. No. 6713 and Section 7 of R.A. No. 3019 require the
accomplishment and submission of a true, detailed and sworn statement
of assets and liabilities. 247 Further, under Section 11 of R.A. No. 6713, non-
compliance with this requirement is not only punishable by imprisonment
and/or a fine, it may also result in disqualification to hold public office. As
the Court explained in Hon. Casimiro, et al. v. Rigor:  248
x x x The requirement of filing a SALN is enshrined in the Constitution to
promote transparency in the civil service and serves as a deterrent against
government officials bent on enriching themselves through unlawful
means. By mandate of law, every government official or employee must
make a complete disclosure of his assets, liabilities and net worth in order
to avoid any issue regarding questionable accumulation of wealth. The
importance of requiring the submission of a complete, truthful, and sworn
SALN as a measure to defeat corruption in the bureaucracy cannot be
gainsaid. Full disclosure of wealth in the SALN is necessary to particularly
minimize, if not altogether eradicate, the opportunities for official
corruption, and maintain a standard of honesty in the public service.
Through the SALN, the public can monitor movement in the fortune of a
public official; it serves as a valid check and balance mechanism to verify
undisclosed properties and wealth. The failure to file a truthful SALN
reasonably puts in doubts the integrity of the officer and normally amounts
b dishonesty. 249
As respondent acutely relates m her dissent m Philippine Savings Bank:250
In the present case, because of the fact that the Chief Justice is a public
officer, he is constitutionally and statutorily mandated to perform a
positive duty to disclose all of his assets and liabilities. This already
operates as the consent required by law.
The Offices of the Chief Justice and of the 14 Associate Justices of the
Supreme Court are an express creation of the Constitution, which vests
them with explicit powers necessary for the proper functioning of a
democratic government.
Foremost is the principle that public office is by virtue of the peoples
mandate to exercise a sovereign function of the government. Hence, a
public office is a public trust or agency. Appended to the constitutional
principle that public office is a public trust is the tenet that public officers
occupy very delicate positions that exact certain standards generally not
demanded from or required of ordinary citizens.
Those who accept a public office do so cum onere, or with a burden, and
are considered as accepting its burdens and obligations, together with its
benefits. They thereby subject themselves to all constitutional and
legislative provisions relating thereto, and undertake to perform all the
duties of their office. The public has the right to demand the performance
of those duties.
One of these burdens or duties is explicitly articulated in Sec. 17 of Art. XI
of the 1987 Constitution, viz:
xxxx
This provision requires all public officers and employees, regardless of
rank, to declare their assets and liabilities upon their assumption of office,
as may be required by law. However, it likewise imposes a positive
duty and a heavier onus on the President; the Vice-President; and
members of the Cabinet, Congress, the Supreme Court, Constitutional
Commissions and other Constitutional offices and officers of the Armed
Forces with general or flag ranks to publicly disclose their assets and
liabilities.251 (Citations omitted and emphasis in the original)
57 | J U D I C I A L D E P A R T M E N T C A S E S

Faithful compliance with the requirement of the filing of SALN is rendered
even more exacting when the public official concerned is a member of the
Judiciary. In Office of the Court Administrator v. Judge Usman, 252 the Court
emphasized:
From the foregoing, it is imperative that every public official or
government employee must make and submit a complete disclosure of his
assets, liabilities and net worth in order to suppress any questionable
accumulation of wealth. This serves as the basis of the government and the
people in monitoring the income and lifestyle of public officials and
employees in compliance with the constitutional policy to eradicate
corruption, to promote transparency in government, and to ensure that all
government employees and officials lead just and modest lives, with the
end in view of curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honesty in the public service.
RULE 5.02 - A judge shall refrain from financial and business dealing that
tend to reflect adversely on the court's impartiality, interfere with the
proper performance of judicial activities or increase involvement with
lawyers or persons likely to come before the court. A judge should so
manage investments and other financial interests as to minimize the
number of cases giving grounds for disqualifications.
xxxx
FINANCIAL DISCLOSURE
RULE 5.08 - A judge shall make full financial disclosure as required by
law. (Emphasis ours)
xxxx

In the present case, respondent clearly violated the above-quoted laws

Compliance with the SALN
when he failed to file his SALN for the years 2004-2008. He gave no
requirement indubitably reflects on
explanation either why he failed to file his SALN for five (5) consecutive
a person 's integrity
years. While every office in the government service is a public trust, no
position exacts a greater demand on moral righteousness and
To recapitulate, Section 7, Article VIII of the Constitution requires that a
uprightness of an individual than a seat in the Judiciary. Hence, judges
member of the Judiciary must be of proven integrity. To be of proven
are strictly mandated to abide with the law, the Code of Judicial Conduct
integrity means that the applicant must have established a steadfast
and with existing administrative policies in order to maintain the faith of
adherence to moral and ethical principles. 255
our people in the administration of justice.253 (Emphasis ours)

The necessity of having integrity among the members of the judiciary is

The above holds necessarily true considering that the obligation of
members of the Judiciary to file their respective SALNs is not only a
statutory requirement but forms part of the mandatory conduct expected
of a judge so that an "honorable competent and independent Judiciary
exists to administer justice and thus promote the unity of the country, the
stability of government, and the well-being of the people." 254
The Code of Judicial Conduct, in no uncertain terms, provide:
FINANCIAL ACTIVITIES
clearly discussed in the Commentary on the Bangalore Principles of Judicial
Conduct: 256
Integrity is the attribute of rectitude and righteousness. The components
of integrity are honesty and judicial morality. A judge should always, not
only in the discharge of official duties, act honourably and in a manner
befitting the judicial office; be free from fraud, deceit and falsehood; and
be good and virtuous in behaviour and in character. There are no degrees
of integrity as so defined. Integrity is absolute. In the judiciary, integrity is
more than a virtue; it is a necessity.
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Failure to file the SALN is clearly a violation of the law. The offense is penal
in character and is a clear breach of the ethical standards set for public
officials and employees. It disregards the requirement of transparency as a
deterrent to graft and corruption. For these reasons, a public official who
has failed to comply with the requirement of filing the SALN cannot be said
to be of proven integrity and the Court may consider him/her disqualified
from holding public office. In De Castro v. Field Investigation Office, Office
of the Ombudsman, 257 We held:
Public service demands the highest level of honesty and transparency from
its officers and employees. The Constitution requires that all public officers
and employees be, at all times, accountable to the people; serve with
utmost responsibility, integrity, loyalty and efficiency; act with patriotism
and justice; and lead modest lives. Public office is a public trust; it must be
treated as a privilege rather than a right, and rest firmly upon one's sense
of service rather than entitlement. In this light, the Court deems it
necessary to reiterate, as a final note, its pronouncement in Casimiro v.
Rigor:
The constitutionalization of public accountability shows the kind of
standards of public officers that are woven into the fabric of our legal
system. To reiterate, public office is a public trust, which embodies a set of
standards such as responsibility, integrity and efficiency. Unfortunately,
reality may sometimes depart from these standards, but our society has
consciously embedded them in our laws so that they may be demanded
and enforced as legal principles, and the Court is mandated to apply these
principles to bridge actual reality to the norms envisioned for our public
service.
The requirement to file a SALN is not a trivial or a formal requirement.
Neither is it something over which public officials can exercise discretion. It
is mandated by Our Constitution and laws. It is meant to forge
transparency and accountability in the government and as a measure
meant to curb corruption. This is clear from the policy of R.A. No. 6713:
Section 2. Declaration of Policies. - It is the policy of the State to promote a
high standard of ethics in public service. Public officials and employees
shall at all times be accountable to the people and shall discharge their
duties with utmost responsibility, integrity, competence, and loyalty, act
with patriotism and justice, lead modest lives, and uphold public interest
over personal interest.
Respondent nevertheless argues that the filing of SALN has no relation to
an applicant's integrity, moral fitness or character. She cites the cases
of Office of the Ombudsman v. Racho, 258 Daplas v. Department of Finance
9nd the Office of the Ombudsman, 259 Atty. Navarro v. Office of the
Ombudsman and Department of Finance-Revenue Integrity Protection
Services, 260 to support her argument that in order to establish lack of
integrity, there is an additional requirement that there must be a showing
that there is an intent to commit a wrong. 261
It is inaccurate to use the aforesaid cases to support respondent's
conclusion that her integrity is not affected by her failure to file SALNs.
In Office of the Ombudsman v. Racho, 262 the Court upheld the
Ombudsman's finding that Racho is guilty of dishonesty for unexplained
wealth. The Court, in that case, noted that Racho's SALN did not reflect the
aggregate amount of his bank deposits.
In Daplas v. Department of Finance and the Office of the
Ombudsman, 263 this Court merely held therein petitioner Daplas guilty of
simple negligence instead of dishonesty and grave misconduct for her
failure to declare several real and personal properties in her SALN. The
Court found that "petitioner's failure to declare the Galant sedan in her
SALNs from 1997 to 2003 stemmed from the fact that the same was
registered in her husband's name, and purportedly purchased out of his
personal money".
Meanwhile, in Navarro v. Office of the Ombudsman and Department of
Finance-Revenue Integrity Protection Service,  264 this Court exonerated
Atty. Navarro of dishonesty, grave misconduct and violation of R.A. No.
6713. The Court ruled, in that case, that the properties not reflected in
therein petitioner's SALN were rightfully excluded as they do not actually
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belong to him. This Court even noted therein that the SALN before 2011
merely required a general statement of one's assets and liabilities.
It is apparent from the foregoing that the above mentioned cases are
factually different from the instant petition. The aforesaid jurisprudence,
aside from determining the administrative liability of therein public
employees, dealt with misdeclaration of assets or properties. Meanwhile,
the instant petition questions respondent's qualifications and as an
incident thereto, the validity of the process leading to her appointment.
Further, the fundamental issue in the case at bar is not merely inaccurate
entries, but the glaring absence of respondent's SALN for various years
prior to her resignation from the U.P. College of Law.
Respondent posits that a person's failure to file SALN, without more, would
not automatically negate "integrity." 265 It is respondent's theory that the
failure to file SALN without any allegation or evidence that one committed
graft and corruption by acquiring unexplained wealth has no bearing on
integrity. Respondent's argument, however, does not persuade.
The SALN laws contemplate both the (1) physical act of filing her and her
family's statement of assets, liabilities and net worth and (2) filing of a
true, genuine and accurate SALN. RA 6713 and RA 3019, being special laws
that punish offenses, are malum prohibitum and not malum in se. Thus, it
is the omission or commission of that act as defined by the law, and not
the character or effect thereof, that determines whether or not the
provision has been violated. An act which is declared malum
prohibitum renders malice or criminal intent completely
immaterial.266 Thus, whether or not respondent accumulated unexplained
wealth is not in issue at this point in time, but whether she, in the first
place, complied with the mandatory requirement of filing of SALNs. Worse,
to subscribe to respondent's view means that the Court would altogether
be deprived of the opportunity to ascertain whether or not she
accumulated unexplained wealth as the tools for doing so, that is, the filed
SALNs and the representations contained therein, are lacking.
Respondent chronically failed to
file her SALNs and thus violated
the Constitution, the law and the
Code of Judicial Conduct. A
member of the Judiciary who
commits such violations cannot be
deemed to be a person of proven
integrity
To recall, the record of the U.P. HRDO only contains respondent's SALNs
for the years 1985, 1990, 1991, 1993, 1994, 1995, 1996, 1997, and 2002.
Later, respondent produced a photocopy of her SALN for 1989 and
attached the same to her Ad Cautelam Manifestation/Submission. On the
other hand, the records of the Central Records Division of the Office of the
Ombudsman yields "no SALN filed by respondent except for the SALN
ending December 1998" which was subscribed only in August 2003 and
transmitted by the U.P. HRDO to the Ombudsman only on December 16,
2003. Further, despite having worked as legal counsel for the Republic
from 2003 to 2006 (up until 2009), there is no record that respondent filed
her SALNs for that period.
Respondent could have easily dispelled doubts as to the filing or non-filing
of the unaccounted SALNs by presenting them before the Court. Yet,
respondent opted to withhold such information or such evidence, if at all,
for no clear -reason. Respondent likewise manifests having been successful
in retrieving most of the "missing" SALNs and yet withheld presentation of
such before the Court, except for a photocopy of her 1989 SALN submitted
only in the morning of the Oral Argument and allegedly sourced from the
"drawers of U.P." Only in respondent's Memorandum Ad Cautelam did she
attach the SALNs she supposedly recovered. But the SALNs so attached,
except for the 1989 SALN, were the same SALNs priorly offered by the
Republic. Other than offering legal or technical justifications, respondent
has not endeavored to convince this Court of the existence of the still
unaccounted SALNs. As she herself stated in her July 23, 2012 letter to the
JBC, only some, but not all, of her SALNs are infeasible to retrieve. Thus,
this Court is puzzled as to why there has been no account of respondent's
more recent SALNs, particularly those from 2000, 2001, 2003, 2004, 2005
and 2006.
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Instead, respondent layers her defenses as follows:
1. Invoking the so-called "Doblada doctrine", respondent maintains
having filed all her SALNs.
Respondent firmly latches on to her allegation that she filed her SALN s,
only that she has no records of the same. It is, however, too shallow and
impetuous for this Court to accept such excuse and disregard the
overwhelming evidence to the contrary.
Respondent urges the Court to apply in her favor the case of Concerned
Taxpayer v. Doblada, Jr., 267 and deem as sufficient and acceptable her
statement that she "maintains that she consistently filed her SALNs."
Respondent argues that in Doblada, the Court gave no evidentiary value to
the Office of the Court Administrator's (OCA) report stating that a branch
Sheriff had failed to file his SALN for eighteen (18) years, based only on
contrary evidence presented by the respondent Sheriff that proves the
existence of only one (1) of his missing SALNs. According to respondent,
the Court's rationale in Doblada that one cannot readily conclude that
respondent failed to file his sworn SALN simply because these documents
are missing in the OCA's files should likewise be made applicable to her
case. Respondent thus concludes that the Republic must categorically
prove its allegation that respondent did not file her SALNs for all relevant
years, and not just show that the same are no longer on file with the
relevant offices.
A more cerebral reading of Doblada, however, poses checkered differences
to the case at bar.
To begin with, the Court imposed the ultimate penalty of dismissal, with
forfeiture of all benefits and with prejudice to re-employment in any
branch or service of the government including government-owned and
controlled corporation against Doblada for his failure to declare a true and
detailed statement of his assets and liabilities for the years 1974, 1976,
1989, 1991, 1993, 1995 and 1998. The pronouncement of the Court with
regard to the non-filing of his SALNs for several years was therefore not
the basis for the imposition of the appropriate penalty against Doblada.
The progenesis of Doblada's troubles was a letter-complaint filed by a
concerned taxpayer with the Ombudsman. The Ombudsman, in turn,
referred the complaint to the OCA. Upon report and recommendation of
the OCA, the Court directed the National Bureau of Investigation (NBI) to
conduct a discreet investigation of the case and thereafter, to submit a
report thereon. The NBI reported discrepancies in Doblada's SALNs and his
yearly salaries constituting prima facie evidence of unexplained wealth and
further stated that "[Doblada] also failed to submit his sworn statement of
assets and liabilities for the years 1975 to 1988, 1990, 1992, 1994 and 1997
as said documents were not submitted to the NBI by the Records Control
Division of the Supreme Court." Thereafter, the case was referred to the
OCA for evaluation, report and recommendation.
Initially, the OCA reported that Doblada's records disclose that he had not
been submitting his SALNs for the years 1975, 1977 to 1988, 1990, 1992,
1999 and 2000. When asked to explain, Doblada maintains having filed all
his SALNs and admits that he does not have copies of said SALNs as he
might have accidentally disposed of the same during the various times that
he transferred office. As proof, Doblada submitted a copy of a letter dated
May 7, 2001 sent by the Acting Branch Clerk of Court, stating therein that
attached to said letter are the sworn SAL[N] of the staff of RTC, Pasig City,
Branch 155, including that of respondent's, for the year 2000. Said letter
was established to have been sent to and duly received by the OCA, and
yet Doblada's SALN for 2000 was one of those missing in the OCA's files.
It was factually established then that Doblada submitted his SALNs to the
branch clerk of court, presumably as the chief or head of the office. The
head of the office then transmitted the original copy of the SALNs received
to the repository agency which, in Doblada's case, is the OCA. Thus, the
OCA's report that Doblada did not file his SALNs was rendered inaccurate
by proof that Doblada, through the head of the office, actually transmitted
the required original copy of the 2000 SALN to the OCA.
Considering the contrary proof presented by Doblada in the form of the
letter of the head of the personnel of Branch 155 that the SALN for
2000 exists and was duly transmitted and received by the OCA as the
repository agency, the Court therein inferred that Doblada filed his SALNs.
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In respondent's case, while the U.P. HRDO, as the concerned personnel
division, produced respondent's SALNs for 1985, 1989, 1990, 1991, 1993,
1994, 1995, 1996, 1997, and 2002, these very same SALNs are neither
proven to be in the records of nor was proven to have been sent to and
duly received by the Ombudsman as the repository agency. Even then, the
Court presently receives the certified copies of said SALNs as evidence of
the existence and the filing thereof.
Nevertheless, for the SALNs which the U.P. HRDO itself cannot
produce, i.e., 1986, 1987, 1988, 1992, 1999, 2000, 2001, 2003, 2004, 2005
and 2006, and not proven to be in the records of, nor proven to have been
sent to and duly received by the Ombudsman, are altogether a different
matter. The existence of these SALNs and the fact of filing thereof were
neither established by direct proof constituting substantial evidence nor by
mere inference.
The Court in Doblada also gave the latter the benefit of the doubt
considering the lack of the categorical statement from the OCA, as the
repository agency, that Doblada failed to file his SALN for the relevant
years. The Court observed that the report of the OCA simply stated that "it
does not have on its file the subject SAL[N] of [Doblada]." Hence, the Court
therein concluded that there was no substantial evidence to show that
Doblada failed to file his SALNs for the relevant years.
In stark contrast, the Certification of the Omdusman, as the repository
agency in respondent's case, made the categorical statement that "based
on records on file, there is no SALN filed by [respondent] for calendar years
1999 to 2009 except SALN ending December 1998 which was submitted to
this Office on December 16, 2003."
Respondent, through counsel, attempts to mislead the Court as to the
value of the Ombudsman's Certification by re-directing Our attention to a
"handwritten certification"268 affixed by the SALN custodian of the
Ombudsman. Upon closer examination, the "handwritten certification"
aside from having been "issued" only on April 6, 2018 appears to have
been made at the behest of respondent's counsel where the handwritten
words may have been tailor-fitted to suit respondent's theory. The
signatory of the "handwritten certification" is the same signatory as that of
the Certification earlier issued by the Ombudsman, and thus the former
could not have possibly negated or altered the tenor of the latter. In any
case, such "handwritten certification" cannot eclipse a Certification duly
and officially issued by the Ombudsman in response to a subpoena issued
by the Congress.
Thus, taking the undisputed pieces of evidence consisting of ( 1) the U.P.
HRDO certifications proving that respondent's SALNs for 1986, 1987, 1988,
1992, 1999, 2000, 2001, 2003, 2004, 2005 and 2006 are not in its
possession; and (2) the Ombudsman certification that based on its records,
there is no SALN filed by respondent except that for 1998; coupled with
respondent's inability to show proof that these SALNs actually exist and
that these were actually transmitted to and duly received by the
Ombudsman as the repository agency, conclusively establish that for the
years 1986, 1987, 1988, 1992, 1999, 2000, 2001, 2003, 2004, 2005 and
2006, respondent did not file her SALNs.
Otherwise stated, on the basis of the evidence on record and respondent's
unexplained failure to support her allegation of filing with substantial
proof, the Court reaches the inevitable conclusion that the only SALNs filed
by respondent were those for the calendar years 1985, 1989, 1990, 1991,
1993, 1994, 1995, 1996, 1997, 1998, and 2002, or only eleven (11) SALNs
out of her 20 years in U.P., or for even more if her engagement as legal
counsel by the Republic and as Deputy Commissioner of the Commission
on Human Rights as lauded in respondent's PDS, are treated as
government service.
It is for this reason that We hold that the Republic was able to discharge its
burden of proof, and thus it becomes incumbent upon respondent to
discharge her burden of evidence. Sps. De Leon, et al., v. Bank of the
Philippine I lands269 offers a distinction between burden of proof and
burden of evidence:
Section 1, Rule 131 of the Rules of Court defines "burden of proof' as "the
duty of a party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of evidence required by law.
62 | J U D I C I A L D E P A R T M E N T C A S E S
"In civil cases, the burden of proof rests upon the plaintiff, who is
required to establish his case by a preponderance of evidence. Once the
plaintiff has established his case, the burden of evidence shifts to the
defendant, who, in turn, has the burden to establish his
defense. 270 (Emphasis ours)
Further, the burden of proof in a quo warranto proceeding is different
when it is filed by the State. Floyd Mechem in his book, entitled A Treatise
on the Law of Public Offices and Officers, 271 explains that when the
respondent is called upon at the suit of the State to show by what warrant
he assumes to exercise the functions of a public office, the burden of
proving his title rests upon the respondent. When, however, the
respondent has made out a prima facie right to the office, it is only at that
time that the burden of evidence shifts to the State. 272
Montgomery H. Throop adopted the same view as Mechem. Throop, in his
book, entitled A Treatise on the Law relating to Public Officers and Sureties
in Official Bonds,273 states that upon the trial of an information in the
nature of a quo warranto, the prosecutor is not required, in the first
instance, to show want of title in the person, against whom the
information is exhibited. The burden is upon the respondent to establish a
good title; he must establish the continued existence of every qualification,
necessary to the continued holding of the office, if any such qualifications
exist. But where the respondent has shown a good prima facie title, the
burden of proof is shifted to the prosecutor. 274
In this jurisdiction, Vicente J. Francisco wrote in his book the Revised Rules
of Court in the Philippines, 275 that in a quo warranto proceeding, the
burden rests on the defendant or respondent, as against the State at least,
to show his right to the office from which it is sought to oust him.
Moreover, since the object of such proceedings is to test the actual right to
the office, and not merely a use color of right, it is incumbent upon the
respondent to show a good legal title, and not merely a colorable one, for
he must rely wholly on the strength of his own title. 276
With the submission of its evidence, including the Certifications from the
U.P. College of Law and the Ombudsman showing that respondent did not
file all her SALNs, the Republic has made out a prima facie case that
respondent failed to comply with the SALN law. The duty or burden of
evidence thus shifted to respondent to controvert the Republic's prima
facie case, otherwise, a verdict must be returned in favor of the
Republic. 277 However, what respondent merely offered in response to the
Republic's evidence is an unsubstantiated claim that she had filed all her
SALNs. Without admissible documentary and testimonial support, this bare
and uncorroborated assertion scarcely overcomes the Republic's case.
2. Being on leave without pay exempts respondent from filing her SALNs.
Aside from maintaining that she filed all her SALNs, respondent layers her
defenses by saying that her non-filing of SALN is nevertheless excused
because she was on leave from the U.P. College of Law during June 1, 1998
to October 16, 1998, June 1, 2000 to May 31, 2001, June 1, 2001 to May
31, 2002, November 1, 2003 to May 31, 2004, June 1, 2004 to October 31,
2004, February 11, 2005 to October 31, 2005 and November 15, 2005 to
May 31, 2006. However, per the Certification278 issued by the U.P. HRDO
dated December 8, 201 7, it appears that respondent filed her SALN for the
year ending December 31, 2002, a year she was purportedly on leave. To
this Court, respondent's own act of filing a SALN in 2002 negates her
argument that being on leave excuses her from filing her SALN. As likewise
pointed out during the Oral Arguments,279 respondent, as a regular faculty
member, receives monthly compensation and from at least January 2000
to May 2000 (when she was not on leave), she earned income and thus
should have filed her SALN covering said period.
Further, being on leave from government service is not synonymous with
separation from government service. Suffice to say that one does not cease
to become a government employee only because one takes an official
leave.
On the contrary, relevant laws provide that all public officials and
employees are required to file a SALN.
To review, Section 17, Article XI of the Constitution categorically requires
that "[a] public officer or employee shall, upon assumption of office and as
63 | J U D I C I A L D E P A R T M E N T C A S E S
often thereafter as may be required by law, submit a declaration under
oath of his assets, liabilities, and net worth. In the case of the President,
the Vice-President, the Members of the Cabinet, the Congress, the
Supreme Court, the Constitutional Commissions and other constitutional
offices, and officers of the armed forces with general or flag rank, the
declaration shall be disclosed to the public in the manner provided by law."
Section 8 of R.A. No. 6713 states that "[p]ublic officials and employees
have an obligation to accomplish and submit declarations under oath of,
and the public has the right to know, their assets, liabilities, net worth and
financial and business interests including those of their spouses and of
unmarried children under eighteen ( 18) years of age living in their
households." Further, "[t]he [SALN] and the [d]isclosure of [b]usiness
[i]nterests and [f]inancial [c]onnections shall be filed by: (1) Constitutional
and national elective officials, with the national office of the Ombudsman;
(2) Senators and Congressmen, with the Secretaries of the Senate and the
House of Representatives, respectively; Justices, with the Clerk of Court of
the Supreme Court; Judges, with the Court Administrator; and all national
executive officials with the Office of the President; (3) Regional and local
officials and employees, with the Deputy Ombudsman in their respective
regions; (4) Officers of the armed forces from the rank of colonel or naval
captain, with the Office of the President, and those below said ranks, with
the Deputy Ombudsman in their respective regions; and (5) All other public
officials and employees, defined in RA 3019, as amended, with the Civil
Service Commission."
Relatedly, Section 34, Chapter 9, Book 1 of the Administrative Code of
1987 also states that "[a] public officer or employee shall upon assumption
of office and as often thereafter as may be required by law, submit a
declaration under oath of his assets, liabilities, and net worth."
Section 8 of R.A. No. 6713, however, provides for certain exceptions to the
requirement: ( 1) those serving in honorary capacity - these are persons
who are working in the government without service credit and without
pay; (2) laborers - these are persons who perform ordinary manual labor;
and (3) casual or temporary workers. Respondent claims exception on the
argument that for the periods she was on official leave from U.P., she did
not receive any pay.
This statement, however, is inaccurate. The fact that respondent did not
receive any pay for the periods she was on leave does not make her a
government worker "serving in an honorary capacity" to be exempted
from the SALN laws. She did not receive pay not because she was serving
in an honorary capacity, but for the simple reason that she did not render
any service for said period. Fundamental is the rule that workers who were
not required to work are not, by law, entitled to any compensation.
3. Respondent is not required by law to keep a record of her SALNs.
Respondent invokes Section 8, paragraph C(4) of R.A. No. 6713 which
provides:
Section 8. Statements and Disclosure. x x x
xxxx
(C) Accessibility of documents. - (1) Any and all statements filed under this
Act, shall be made available for inspection at reasonable hours.
(2) Such statements shall be made available for copying or reproduction
after ten (10) working days from the time they are filed as required by law.
(3) Any person requesting a copy of a statement shall be required to pay a
reasonable fee to cover the cost of reproduction and mailing of such
statement, as well as the cost of certification.
(4) Any statement filed under this Act shall be available to the public for a
period of ten (10) years after receipt of the statement. After such period,
the statement may be destroyed unless needed in an ongoing
investigation.
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There is no argument that the filed SALNs need not be retained by the
receiving officer or the custodian after more than ten years from the filing
or receipt thereof as such documents may be destroyed unless needed in
an ongoing investigation. In this context, the filer is likewise under no
obligation to keep records of such SALNs after the ten-year period.
The fact, however, remains that even respondent's more recent SALNs
falling within the ten-year period for her application to the Chief Justice
position are not on record. Logically, a public officer under question should
obtain a certification from the repository agency to attest to the fact of
filing. In the event that the SALNs were actually filed but missing, such
certification should likewise attest to the fact that the SALNs filed could no
longer be located due to a valid reason (such as destruction by a natural
calamity, gutted by fire or destruction pursuant to the ten-year period
above-cited).
4. Respondent was never asked to comply with the SALN laws.
Respondent likewise banks on the supposed presumption that she filed the
SALNs considering that the U.P. HRDO never called her attention to the
non-filing thereof and instead, released a clearance and certification in her
favor. However, said circumstance, if true, does not detract from the fact
that the duty to properly accomplish the SALN belongs to the public official
and the corrective action that the concerned authority is expected to
undertake is limited only to typographical or mathematical rectifications
For the years that respondent rendered government service in U.P., the
relevant rules would be that provided under the Rules Implementing the
Code of Conduct and Ethical Standards for Public Officials and Employees
dated April 21, 1989. Rule VIII thereof provides:
Rule VIII
Review and Compliance Procedure
Section 1. The following shall have the authority to establish compliance
procedures for the review of statements to determine whether said
statements have been properly accomplished:
(a) In the case of Congress, the designated committees of
both Houses of Congress subject to approval by the
affirmative vote of the majority of the particular House
concerned;
(b) In the case of the Executive Department, the heads of
the departments, offices and agencies insofar as their
respective departments, offices and agencies are
concerned subject to approval of the Secretary of Justice
(c) In the case of the Judicial Department, the Chief
Justice of the Supreme Court; and
(d) In the case of the Constitutional Commissions and
other Constitutional Offices, the respective Chairman and
members thereof; in the case of the Office of the
Ombudsman, the Ombudsman.
The above official shall likewise have the authority to render any opinion
interpreting the provisions on the review and compliance procedures in
the filing of statements of assets, liabilities, net worth and disclosure of
information.
The individual to whom an opinion is rendered, and any other individual
involved in a similar factual situation, and who, after issuance of the
opinion acts in good faith in accordance with it shall not be subject to any
sanction provided in the Code.
The Rules implementing R.A. No. 6713 thus authorize only certain officials
of the Legislative, Executive and Judicial Departments, and the
Constitutional Commissions and Constitutional offices to establish
compliance procedures for the review of statements in the SALN to
determine whether said statements have been been properly
65 | J U D I C I A L D E P A R T M E N T C A S E S
accomplished. The said, officials are also authorized to render opinions
interpreting the provisions on the review and compliance procedures and
to determine whether or not a SALN is properly filed. If the SALN was not
properly filed, the authorized officials are required to inform the reporting
individual and direct him/her to take the necessary corrective action. The
records do not show that at the time respondent assumed her post as a
professor in U.P., or at any time thereafter until her resignation, that
concerned authorized official/s of the Office of the President or the
Ombudsman had established compliance procedures for the review of
SALNs filed by officials and employees of State Colleges and Universities,
like U.P.
The ministerial duty of the head of office to issue compliance order came
about only on April 16, 2006 when the Civil Service Commission (CSC)
issued Memorandum Circular No. 10, s. 2006 amending Rule VIII. This was
pursuant to CSC Resolution No. 06-0231 dated February 1, 2006 wherein
the CSC adopted the revised rules on review and compliance procedure. As
such, the U.P. HRDO could not have been expected to perform its
ministerial duty of issuing compliance orders to respondent when such rule
was not yet in existence at that time.
At any rate, Navarro v. Office of the Ombudsman280 clarifies on the limited
corrective action which the head of office can perform as regards the
review of SALNs:
xxxx
Lest it be misunderstood, the corrective action to be allowed should only
refer to typographical or mathematical rectifications and explanation of
disclosed entries. It does not pertain to hidden, undisclosed or
undeclared acquired assets which the official concerned intentionally
concealed by one way or another like, for instance, the use of
dummies. There is actually no hard and fast rule. If income has been
actually reported to the BIR in one's ITR, such fact can be considered a sign
of good faith.
xxxx
The Court is mindful of the duty of public officials and employees to
disclose their assets, liabilities and net worth accurately and truthfully. In
keeping up with the constantly changing and fervent society and for the
purpose of eliminating corruption in the government, the new SALN is
stricter, especially with regard to the details of real properties, to address
the pressing issue of transparency among those in the government service.
Although due regard is given to those charged with the duty of filtering
malicious elements in the government service, it must still be stressed that
such duty must be exercised with great caution as grave consequences
result therefrom. Thus, some leeway should be accorded the public
officials. They must be given the opportunity to explain any prima
facie appearance of discrepancy. To repeat, where his explanation is
adequate, convincing and verifiable, his assets cannot be considered
unexplained wealth or illegally obtained. 281 (Emphasis ours)
5. Respondent's inclusion in the matrix of candidates with complete
requirements and in the shortlist nominated by the JBC confirms or
ratifies her compliance with the SALN requirement.
Respondent, both in her pleadings and in the Oral Arguments, harps on the
purported failure of the JBC to exclude her from the list of shortlisted
applicants. She points to at least eleven times that the JBC could have
disqualified her due to her lack of SALNs but failed to do so. Hence, she
argues that she is deemed to have substantially complied with the legal
requirements at the time of her application.
Respondent's argument is specious. The invalidity of respondent's
appointment springs from her lack of qualifications. Her inclusion in the
shortlist of candidates for the position of Chief Justice does not negate, nor
supply her with the requisite proof of integrity. She should have been
disqualified at the outset. It must be underscored that the
JBC En Banc included respondent in the shortlist for the position of Chief
Justice without deliberating her July 23, 2012 Letter. Without prejudice to
this Court's ruling in A.M No. 17-11-12-SC and A.M. No. 17-11-17-SC, the
JBC En Banc cannot be deemed to have considered respondent eligible
because it does not appear that respondent's failure to submit her SALNs
was squarely addressed by the body. Her inclusion in the shortlist of
66 | J U D I C I A L D E P A R T M E N T C A S E S
nominees and subsequent appointment to the position do not estop the
Republic or this Court from looking into her qualifications. Verily, no
estoppel arises where the representation or conduct of the party sought to
be estopped is due to ignorance founded upon an innocent
mistake.282 Again, without prejudice to the outcome of the pending
administrative matter, it appears that respondent's inclusion was made
under the erroneous belief that she complied with all the legal
requirements concomitant to the position.
Respondent failed to properly and
promptly file her SALNs, again in
violation of the Constitutional and
statutory requirements
Further, the failure to file a truthful SALN not only puts in doubt the 2004
integrity of the officer, but such failure to file a truthful, complete and
2005
accurate SALN would likewise amount to dishonesty if the same is
attended by malicious intent to conceal the truth or to make false 2006
statements.283
2007
On its face, the SALNs filed by respondent covering her years of 2008
government service in U.P., appear to have been executed and filed under
suspicious circumstances: 2009
TOTAL
(a) Respondent's SALN as of December 31, 1996 was
accomplished and notarized only on June 29, 1998, or two years
late;
(b) Her SALN as of December 31, 1998 was filed only in 2003, or
five years late;
(c) Her SALNs for the years 1997, 1998, 1999 and 2002 were
notarized only on August 21, 2003; 284
285 286
(d) Both the 1996  and 1997  SALNs were subscribed and sworn
to by respondent before Zenaida P. Cruz (Administrative Officer
IV, Human Resource Development and Records Section, U.P. Law
Center) on June 29, 1998. However, under the Notarial Registry of
Eugenia A. Borras, four SALNs of respondent were acknowledged
before her on August 21, 2003 as cited in the next preceding
paragraph. It appears thus that there were two SALNs for 1997
executed by respondent;
(d) She failed to file her SALNs for 2004, 2005, and 2006 which
were the years when she received the bulk of her fees from the
PIATCO cases. As respondent divulged, she received from the
Republic, through the OSG, the following fees287 in relation to the
PIATCO cases:
Year Income
P7 ,055,513.56
P11,532,226.00
P2,636,006.64
P4,673,866.36
P4,070,810. 93
P301,552.00
P30,269,975.49
(e) Her SALN for 2006 was accomplished only on July 27, 2010 and
unsubscribed, only to be later on claimed by respondent to have
been really intended as SALN as of July 27, 2010;
The SALNs that she submitted in support of her application for
Chief Justice likewise bear badges of irregularities:
(f) Her SALN for 2009 was not accomplished under oath, was
likewise belatedly filed only on June 22, 2012 and indicates
therein that she was an Associate Justice of the Court when her
appointment came only on August 16, 201 O;
67 | J U D I C I A L D E P A R T M E N T C A S E S
(g) Her SALNs for 2006 and 2009 did not reflect the fees she
received as counsel for the Republic in the PIATCO cases.
The Bureau of Internal Revenue's (BIR) Report shows that
respondent received from the OSG the total gross amount of
P32,494,805.27 as fees from 2004 to 2009 for the PIATCO cases.
The BIR Report also shows that she paid the withholding taxes on
said fees in the total amount of Php4,599,504. 71. By
mathematical computation, respondent would have had
Php27,895,300.56 as her net disposable income. This net
disposable income was not reflected in respondent's SALN for
2006 (which she claims to really be her SALN as of July 27, 2010)
nor in her SALN as of 2009. Her SALN for 2009 revealed a net
worth of only Php17,936,353.00;
(h) The unaccounted income from the PIATCO cases could not
have been due to losses or liabilities considering that respondent
have had an increase in her net worth from 2002 to 2009. Her
SALN for 2002 shows a net worth of only Php3,804,000.00 while
her SALN for 2009 shows a net worth of Php17,936,353.00, her
net worth thus increased by Php14,132,353.00. While the BIR
Report shows that respondent received approximately Php27M in
disposable net income, her SALN only shows an increase of
approximately Phpl4M in net worth. The difference between the
two, in the amount of estimatedly Php13M, was conspicuously
missing in the SALNs filed by respondent;
(i) There is a glaring difference between the two 20 I 0 SALNs filed.
The total value of respondent's personal properties in the "SALN
as of July 27, 2010" is Php9,000,000.00, while the value of her
personal properties as declared in her "SALN as of December 31,
2010" increased to Php11,723,010. Respondent, therefore,
enjoyed an increase of approximately Php2,700,000.00 in
personal properties in just a span of five (5) months after having
been appointed as Associate Justice.
(j) It is contrary to human experience that the SALNs purportedly
recovered by respondent's husband were not stamped received
by the UP HRDO. It is unusual that respondent did not bother to
demand that her personal copy be duly stamped received with
particulars as to the date and initial, at least of the party who
received the same as proof that she timely filed her SALN.
(k) There is no indication from the stamped "Certified Photocopy"
and initialed by Rosemarie Pabiona on the SALNs that she is the
official custodian of the same, and whether the photocopies of
the original are on file, contrary to Section 24, Rule 1322 of the
Rules of Court.
The above circumstances betray respondent's intention to falsely state a
material fact and to practice deception in order to secure for herself the
appointment as Chief Justice. It is therefore clear as day that respondent
failed not only in complying with the physical act of filing, but also
committed dishonesty betraying her lack of integrity, honesty and
probity.288
Consistently, the Court does not hesitate to impose the supreme penalty of
dismissal against public officials whose SALNs were found to have
contained discrepancies, inconsistencies and non-disclosures. For instance,
in Rabe v. Flores, 289 the Court unanimously imposed the ultimate penalty
of dismissal from service upon a regional trial court interpreter with
forfeiture of all retirement benefits and accrued leaves and with prejudice
to re-employment for dishonesty and for failure to disclose her business
interest, which was a "stall in the market" for a continued period of four
years. The Court stressed that it is the obligation of an employee to submit
a sworn statement as the "public has a right to know" the employee's
assets, liabilities and net worth and financial and business interests.
The dockets of the Sandiganbayan itself show that several charges for
violations of R.A. No. 6713 for failure to file and for untruthful declarations
in the SALNs resulted to a plea of guilt from the accused, lest the latter run
the risk of being imprisoned.290 Interestingly, the Sandiganbayan concluded
a criminal case291 against a certain Rogelio Pureza, then a Senior
68 | J U D I C I A L D E P A R T M E N T C A S E S
Superintendent of the Philippine National Police, who was charged with 4
counts of violation of Section 8 in relation to Section 11 of R.A. No. 6713
for failure to file his annual SALN for the years 1990, 1991, 1992 and 1993.
In the course of the investigation by the Office of the Deputy Ombudsman
for the Military relative to an anonymous letter of a concerned resident of
Kalookan City on the alleged illegal activities and unexplained wealth of
several policemen, Pureza was found to have no record of his SALN from
1989 to 1993 on file with the PNP Records Center. In handing a guilty
verdict, the Sandiganbayan reasoned that the non-existence of the SALs
with the Records Center of the PNP proved that the accused did not file his
SAL for 1990 to 1993. The Sandiganbayan observed that even assuming
that the accused had indeed filed his SAL with the PNP and his records
were lost during the transfer of records, he could have easily and
conveniently obtained a copy of his SAL from either the CSC or the Office
of the Military Ombudsman.
It is thus plainly obvious that the courts do not take violations of the SALN
laws slightly even as against lowly public officials.
With more reason should such test of dishonesty and lack of integrity be
applied in the instant case when respondent failed to file her SALNs for
several years and for those years that she filed, the SALNs so filed prove to
be untruthful.
C.
Respondent failed to submit the required
SALNs as to qualify for nomination pursuant
to the JBC rules
The JBC required the submission
of at least ten SALNs from those
applicants who are incumbent
Associate Justices, absent which,
the applicant ought not to have
been interviewed, much less been
considered for nomination
Further compounding respondent's woes is the established and
undisputed fact that she failed to submit the required number of SALNs in
violation of the rules set by the JBC itself during the process of nomination.
To recall, the announcement for the opening of the application and
recommendation of the position of Chief Justice in 2012 was preceded by a
JBC En Banc meeting where the members thereof agreed that applicants
who were previously in the government service must submit all previous
SALNs. This agreement was reflected in the JBC's announcement published
on June 5, 2012, where it was made clear that applicants from the
government shall submit, in addition to the usual documentary
requirements, all previous SALNs, with a warning that those with
incomplete or out-of-date documentary requirements will not be
interviewed or considered for nomination.
As extensively quoted, the minutes292 of the JBC deliberation held on July
20, 2012 show that the JBC deliberated on the candidates who submitted
incomplete SALNs and then determined who among them are to be
considered as having "substantially complied." Senator Francis G.
Escudero, as then ex officio member, suggested that "at least an attempt
to comply with a particular requirement" can be used as a parameter for
determining substantial compliance.293
With this, the JBC proceeded to go over, one by one, the compliance of the
candidates with the lacking documentary requirements. For instance,
Justice Abad was considered as having substantially complied because he
submitted 4 SALNs in his 6 year-stint with the OSG and because the filing of
the SALN at the time Justice Abad joined the government was not yet
required. Dean Raul C. Pangalangan lacked 5 SALNs but that he was trying
to get them from the Civil Service Commission and so, regular member
Justice Aurora Santiago-Lagman moved that the SALNs he submitted be
considered as substantial compliance. Congressman Rufus B. Rodriguez did
not submit even one SALN which prompted Justice Peralta to remark that
Congressman Rodriguez may no longer be interested. Commissioner Rene
V. Sarmiento also submitted incomplete SALNs, but there was no mention
whether the SALNs he submitted were considered as substantial
compliance. Similarly, for respondent, the JBC determined that she did not
69 | J U D I C I A L D E P A R T M E N T C A S E S
submit her SALNs from 1986 to 2006 and that, as remarked by Senator
Escudero, the filing thereof during those years was already required. There
was no indication that the JBC deemed the three SALN s (for the years
2009, 2010 and 2011) submitted by respondent for her 20 years as a
professor in the U.P. College of Law and two years as Associate Justice, as
substantial compliance.
We revisit the pertinent portions of the aforesaid Minutes as follows:
III. Deliberation on Candidates with Incomplete Documentary
Requirements:
xxxx
Justice Peralta suggested that the Council examine the matrix per
candidate as follows:
Justice Roberto A. Abad
The Executive Officer reported that Justice Abad lacks the Statement of
Assets, Liabilities and Networth (SALN) for the years 1982-1983.
Justice Peralta mentioned that Justice Abad joined the government in the
late 70's and during that time there was no R.A. 6713 yet. He added that
Justice Abad might no longer locate them.
Senator Escudero said that SALNs were not yet required at that time.
The Executive Officer said that Justice Abad had been with the OSG from
1982 to 1986; but he submitted only his SALNs for the period 1981, 1984,
1985 and 1986. He was already asked to submit the lacking SALNs.
Justice Peralta asked whether there is a need for them to explain the
reason for failing to comply with the requirements considering the time
constraint.
Senator Escudero said that it would be more proper for the JBC to ask the
candidate for the reason; however, in the case of Justice Abad, he opined
that he substantially complied with the requirements of the JBC.
Justice Lagman agreed with the Senator.
There being no objection, the Council agreed that Justice Abad had
SUBSTANTIALLY COMPLIED with the requirements of the JBC
xxxx
The Executive Officer asked for clarification, particularly with respect to
SALNs, whether five (5) SALNs would constitute a substantial compliance if
the candidate has been in the government service for twenty (20) years.
The Council examined the list with regard to the SALNs, particularly the
candidates coming from the government, and identified who among them,
would be considered to have substantially complied:
1. Justice Arturo D. Brion- has substantially complied;
2. Justice Antonio T. Carpio- has substantially complied;
xxx
5. Solicitor General Francis H. Jardeleza-has complied;
6. Justice Teresita J. Leonardo-De Castro-has substantially complied;
xxxx
10. Justice Maria Lourdes P.A. Sereno
The Executive Officer informed the Council that she had not submitted
her SALNs for a period of ten (10) years, (sic) that is, from 1986 to 2006.
70 | J U D I C I A L D E P A R T M E N T C A S E S

Senator Escudero mentioned that Justice Sereno was his professor at U.P.
and that they were required to submit SALNs during those years.
xxxx
16. Atty. Ronaldo B. Zamora- has lacking SALNs and MCLE cert.
xxxx
30, 1978 which she filed during her employment in the Supreme Court
could no longer be located. She also disclosed that her personal files,
including her SALNs that she filed while employed at the Department of
Justice from December 1, 1978 to September 22, 1997, were among those
burned when the third floor of the DOJ was gutted by fire in late 1996 or
early 1997. In any case, upon inquiry from the CSC, she was told that her
SALNs filed as DOJ employee were already disposed of, as it was way
beyond the statutory ten (10) - year period.

(b) Jose Manuel Diokno submitted a sworn and verified statement 298 dated
From the foregoing discourse, it appears that respondent was specifically
July 17, 2012, stating therein that while he served as General Counsel of
singled out from the rest of the applicants for having failed to submit a
the Senate Blue Ribbon Committee and as Special Counsel to the Board of
single piece of SALN for her years of service in the U.P. College of Law. This
Directors of the Development [Bank] of the Philippines, his engagement
is in obvious contrast with the other shortlisted applicants who submitted
was only as a consultant on a contractual basis and as such, was not
SALNs, or whose years in government service correspond to the period
required to file a SALN.
prior to the effectivity of R.A. No. 6713.

(c) Justice Carpio submitted a letter299 dated July 23, 2012 stating that he
The minutes of the JBC En Banc meeting also show that Senator Escudero
resigned as Chief Presidential Legal Counsel effective January 31, 1996 and
moved that the determination of whether a candidate has substantially
as such, he did not submit a SALN for the year 1995 because the
complied with the requirements be delegated to the Executive
submission for that year was on April 30, 1996 when he was no longer
Committee. 294 In the end, it appears that the JBC En Banc decided to
employed with the government. Nevertheless, the clearance issued by the
require only the submission of the past ten (10) SALNs, or from 2001-2011,
Office of the President certifies that Justice Carpio has submitted his SALN
for applicants to the Chief Justice position. 295 This, as much, was confirmed
and that he has no pending criminal or administrative case.
by Atty. Pascual during the Congressional hearings. 296

(d) Justice Abad submitted an attestation300 dated July 23, 2012 that he

From the foregoing, it is clear that the JBC En Banc did not do away with
does not have a copy of his SALNs for the years 1968 to 1974, 1976 to 1980
the requirement of submission of SALNs, only that substantial compliance
and 1982 to 1983.
therewith, i.e., the submission of the SALNs for the immediately preceding
10 years instead of all SALNs, was deemed sufficient.
(e) Dean Amado Valdez wrote a letter301 dated July 23, 2012 saying that he
could no longer find the SALNs covering the years 1985 to 1987, 2002 to
Conformably thereto, the following candidates submitted their respective
2003 and 2004 representing the years of his intermittent government
letters as regards the submission of the SALNs:
service. He said that in, any case, the assets reflected in the SALN which he
already filed were acquired after he left government service as shown by
(a) Justice De Castro submitted a letter297 dated July 17, 2012 with the his income tax returns for the periods from 2005 to 2011.
attached SALNs for 16 years covering the period 1997 to 2011, from the
time she became an Associate Justice of the Sandiganbayan on September
Notably, Jose Manuel Diokno and Dean Amado Valdez were not included in
23, 1997 until December 2011 as Associate Justice of the Supreme Court.
the short list.
She also disclosed that her SALN from February 19, 1973 until November
71 | J U D I C I A L D E P A R T M E N T C A S E S
That such was the standing requirement of the JBC from at least the
incumbent Associate Justices applying for the position of Chief Justice is
evident from the fact that five (5) out of six (6) applicants who were
incumbent Associate Justices, namely: (1) Justice Carpio; (2) Justice Brion;
(3) Justice Velasco; and (4) Justice De Castro were determined to have
completely complied with the SALN requirement; and (5) Justice Abad was
determined to have substantially complied. These Justices submitted the
following numbers of SALNs:302
Justice Carpio 14 SALNs
Justice Brion 12 SALNs
Justice Velasco 19 SALNs
Justice Leonardo-De Carpio 15 SALNs
Justice Abad 7 SALNs
This belies respondent's representation that the JBC maintained its
requirement that the candidates submit all previous SALNs. If such were
the case, only those candidates determined to have complied should have
been shortlisted, and the others, including respondent, should not have
qualified. In any case, the requirement of submitting SALNs within the ten-
year period instead of all previous SALNs is more in keeping with the law.
Recall that Section 8, paragraph C(4) of R.A. No. 6713 provides that the
filed SALNs need not be retained by the receiving officer or the custodian
after more than ten years from the filing or receipt thereof, and actually
allows such documents to be destroyed unless needed in an ongoing
investigation.
Be that as it may, records clearly show that the only remaining applicant-
incumbent Justice who was not determined by the JBC En Banc to have
substantially complied was respondent, who submitted only 3 SALNs, i.e.,
2009, 2010 and 2011, even after extensions of the deadline for the
submission to do so.
Instead of complying, respondent offered, by way of her letter dated July
23, 2012, justifications why she should no longer be required to file the
SALNs: that she resigned from U.P. in 2006 and then resumed government
service only in 2009, thus her government service is not continuous; that
her government records are more than 15 years old and thus infeasible to
retrieve; and that U.P. cleared her of all academic and administrative
responsibilities and charges.
These justifications, however, did not obliterate the simple fact that
respondent submitted only 3 SALNs in her 20-year service in U.P., and that
there was nary an attempt on respondent's part to comply.
Respondent sought to be excused from complying with the SALN
requirement because, allegedly, the SALNs requested from her (1995-1999
as respondent alleged) fro1 m U.P., are old and thus "infeasible to
retrieve." But the Republic, through the OSG, was able to present before
the Court copies of respondent's SALNs for 1985, 1990, 1991, 1993, 1994,
1995, 1996, 1997, and 2002 from the U.P. HRDO. These files, therefore, are
not "infeasible to retrieve." Also, in comparison with the other nominees,
the SALN s which the latter could no longer produce are much older in age
than the SALN s which respondent regarded as "infeasible to retrieve". For
instance, Justice Abad had no copy of his SALN from 1968-1974, 1976-
1980 and 1981-1983 while Justice Leonardo-De Castro had no copy of her
SALNs from 1973-1978.
Respondent likewise sought special treatment as having complied with the
submission of the SALN by submitting a Certificate of Clearance issued by
the U.P. HRDO. This clearance, however, hardly suffice as a substitute for
SALNs. The import of said clearance is limited only to clearing respondent
of her academic and administrative responsibilities, money and property
accountabilities and from administrative charges as of the date of her
resignation on June 1, 2006. But such could not, by any stretch of
imagination, be considered as compliance with the SALN requirement.
Obviously, an administrative officer, performing ministerial and
administrative duties, could not have certified respondent's compliance
with the filing of SALNs which is a statutory, and not merely an
administrative, requirement.
72 | J U D I C I A L D E P A R T M E N T C A S E S
In all these, respondent curiously failed to mention that she, in fact, did not
file several SALNs during the course of her employment in U.P. Such failure
to disclose a material fact and the concealment thereof from the JBC
betrays any claim of integrity especially from a Member of the Supreme
Court. On this score, the observations of the Court in the case of OCA v.
Judge Estacion, Jr. 303 ring special significance:
He concealed from the appointing authority, at the time he applied for the
judicial post until his appointment, information regarding the criminal
charges for homicide and attempted homicide filed against him. Such fact
would have totally eluded the Court had it not been complained of by one
Mrs. Ruth L.
Vda. de Sison who, incidentally, is the mother of one of the victims. x x x
xxxx
x x x Respondent did not honestly divulge all that the appointing authority
ought to know to correctly discern whether he is indeed fit for the judicial
post. He continuously suppressed vital information on his personal
circumstances under the false belief that he can mislead the Court and get
away with it for good. What respondent did, or omitted to do, was a
calculated deception committed not only against the Court but against the
public as well, clearly indicative of his lack of moral rectitude to sit as
magistrate, and sufficiently repulsive that it detracts from public
confidence in the integrity of the judiciary. Dismissal indeed is the
appropriate retribution for such kind of transgression.
Be it stressed that judges are held to higher standards of integrity and
ethical conduct than attorneys or other persons not invested with the
public trust. They should inspire trust and confidence, and should bring
honor to the judiciary. And because of their critical position in the judicial
bureaucracy, this Court as overseer is duty-bound to insure that the
integrity of the judicial system is preserved and maintained, by pursuing
that ever-vigilant search for the virtues of competence, integrity, probity
and independence mandated by no less than the Constitution
itself. 304 (Citations omitted)
Indubitably, respondent not only failed to substantially comply with the
submission of the SALNs but there was no compliance at all. The contents
of respondent's Letter dated July 23, 2012 itself betray an exercise of
dishonesty and disposition to deceive in an attempt to secure for herself
the appointment as Chief Justice. In Ombudsman v. Pelino,305 We held:
Under the laws governing civil service, dishonesty is classified as a grave
offense the penalty of which is dismissal from the service at the first
infraction. A person aspiring to public office must observe honesty, candor
and faithful compliance with the law. Nothing less is expected. This ideal
standard ensures that only those of known probity, competence and
integrity are called to the challenge of public service. It is understood to
imply a disposition to lie, cheat, deceive, or defraud; untrustworthiness;
lack of integrity; lack of honesty, probity or integrity in principle; lack of
fairness and straightforwardness; disposition to defraud, deceive or betray.
Dishonesty is a malevolent act that puts serious doubt upon one's ability to
perform his duties with the integrity and uprightness demanded of a public
officer or employee.306
For these reasons, the JBC should no longer have considered respondent
for interview as it already required the submission of, at least, the SALNs
corresponding to the immediately preceding 10 years up to December 31,
2011.
Parenthetically, the Court observes that the circumstances surrounding the
receipt of, and the action or non-action of the JBC, on respondent's Letter
dated July 23, 2012 likewise leave much to be desired. The Letter, while
ostensibly sent to and received by the JBC on the same date, does not
appear to have been brought to the attention of the JBC En Banc.
Excerpts307 from the Report of the House Committe on Justice on this point
is revealing:
Justice Peralta, who was acting Chief Justice and ex officio Chairman of the
JBC at the time, testified that he never learned about the non-submission
of the SALNs by then-applicant [respondent], and that he also never saw
the letter submitted by the [r]espondent explaining why she could not
submit her SALNs. He stated that had he known about these matters, he
73 | J U D I C I A L D E P A R T M E N T C A S E S
could have raised these issues during the en bane meeting of the JBC. Atty.
[Maria Milagros N. Fernan-]Cayosa likewise stated that she never saw the
letter-explanation, and that she merely relied on the matrix prepared by
the JBC Secretariat which stated that the Respondent Chief Justice Sereno
had already submitted her complete requirements. 308
Even the JBC's Execom to which the duty of ascertaining whether or not
the candidates have substantially complied with the documentary
requirements had been expressly delegated by the JBC En Banc, could not
produce any minutes of meeting or record to show that respondent was in
fact determined to have complied.
At any rate, the issue of whether or not there is administrative culpability
in the ranks of the JBC, the OEO or the ORSN relative to the nomination of
respondent in 2012 is not a concern in the instant petition and is a matter
best left to be decided in A.M. No. 17-11-12-SC and A.M. No. 1 7-11-17-SC,
now pending before the Court.
Respondent's failure to submit to
the JBC her SALNs for several
years means that her integrity was
not established at the time of her
application
Respondent argues that failure to submit the SALNs to the JBC is not cause
for disqualification because the SALN was not among the documents which
the JBC considered as evidence of integrity.
This Court, again, disagrees.
The requirement to submit SALNs is made more emphatic when the
applicant is eyeing the position of the Chief Justice. The minutes of the
JBC En Banc meeting309 enlightens as to the rationale behind the
requirement:
Senator Escudero moved that additional requirements be imposed by the
(JBC) for the position of Chief Justice, namely (1) all previous SALN s (up to
December 31, [2011]) for those in the government or SALN as of December
31, (2011) for those from the private sector; and (2) waiver in favor of the
JBC of the confidentiality of local and foreign currency bank accounts
under the Bank Secrecy Law and Foreign Currency Deposits Act. The
documents shall be treated with utmost confidentiality and only for the
use of the JBC. He proposed that these additional requirements be
included in the publication of the announcement opening the said
position. He explained that the basis of his motion was the fact that the
reason why Chief Justice Corona was removed from office was due to
inaccuracies in his SALN. The Members of the House of Representatives,
in the exercise of their wisdom, determined that non-inclusion of assets
in one's SALN is an impeachable offense. Likewise, majority of the Senate
voted to convict because of the inaccuracies in the bank accounts and
statements in his SALN. He said that the JBC would not want to
recommend a person who is susceptible to such kind of attack. He said
that the JBC should impose higher standards to aspirants for the position
of Chief Justice.
Congressman Tupas concurred with Senator Escudero's motion and
suggested that the waiver should not be limited to year-end balances only.
There being no objection, the motion was APPROVED. The (JBC) agreed to
PUBLISH the announcement opening the position of Chief Justice of the
Supreme Court of the Philippines together with the additional
requirements.
x x x x. (Emphasis ours)
The requirement to submit the SALNs along hand with the waiver of bank
deposits, is therefore not an empty requirement that may easily be
dispensed with, but was placed by the JBC itself for a reason - in order to
allow the JBC to carry on its mandate of recommending only applicants of
high standards and who would be unsusceptible to impeachment attacks
due to inaccuracies in SALNs.
Further, the failure to submit the required SALNs means that the JBC and
the public are divested of the opportunity to consider the applicant's
74 | J U D I C I A L D E P A R T M E N T C A S E S
fitness or propensity to commit corruption or dishonesty. In respondent's
case, for example, the waiver of the confidentiality of bank deposits would
be practically useless for the years that she failed to submit her SALN since
the JBC cannot verify whether the same matches the entries indicated in
the SALN. This is precisely the reason why the JBC required the submission
of the SALNs together with the waiver of bank deposits, thus:
Justice Lagman expressed that previously the Members had agreed that
they would only use the waiver when there is a complaint, doubt, or
suspicion on the SALN of any of the candidates.
Senator Escudero said that if the argument that the JBC would not use the
waiver unless there is a complaint, bank information could not be secured.
The complaint could have no basis. He commented that by the time the
JBC receives the information, the public interview is finished. In this case,
the least that the JBC could do is to give the candidate an opportunity to
explain his side. He explained that the theory and logic behind the
requirement of a waiver was precisely due to the fact that the former
Chief Justice was impeached because of inaccuracies in his SALN. Thus,
the JBC should ensure that all the nominees who would be nominated
would not be accused of the same. The JBC would just want to avoid a
situation where the next Chief Justice, nominated by the JBC and
appointed by the President, would again be subjected to impeachment.
Justice Peralta asked the Senator for clarification whether it is his
suggestion that if the JBC finds something wrong on the bank account of
any candidate, he or she would be asked in public.
Senator Escudero replied that it could be done; however, in the questions
that would be propounded by a Member, or in the response of the
candidates, the amounts need not be stated. The questions should only
tackle inconsistencies of bank deposits as against their SALNs.
Justice Lagman agreed with the Senator.
xxxx
Justice Hermosisima commented that the waiver is very easy to comply
with. The problem is that banks may not be able to respond given the very
short period of time. He said that the JBC requires a waiver so that in the
event that there is any question as to the accuracy of a candidate's
accounting in his or her SALN, then, the JBC would be able to look into the
bank accounts without violating the bank secrecy law. He said that the JBC
need not look into their accounts for now as no complaint has been filed
yet on any of the candidates.
Senator Escudero and Congressman Tupas commented that everybody
should comply.
x x x x. 310 (Emphasis ours)
Respondent is presumed to know of the importance of the filing of the
SALN together with the bank waiver. The waiver which respondent
executed under oath clearly provides:
This waiver is executed on the condition that the JBC or its duly authorized
representatives shall make use of it, as well as any and all information or
data obtained by virtue thereof, for the exclusive and sole purpose of
evaluating my qualifications for the position of Chief Justice of the
Supreme Court. (Emphasis ours)
Conclusively then, respondent's failure to submit her SALNs to the JBC
means that she was not able to prove her integrity at the time of her
application as Chief Justice.
D.
Respondent's disposition to commit deliberate
acts and omissions demonstrating dishonesty
and lack of forthrightness is discordant with
any claim of integrity
The Court cannot play blind against the manifest inconsistencies, lack of
forthrightness and dishonesty committed by respondent as a government
75 | J U D I C I A L D E P A R T M E N T C A S E S
official prior to and at the time of her application as Chief Justice. In
addition . to the suspicious and highly questionable circumstances
surrounding the execution of her SALNs, the following untruthful
statements and dishonest acts (as herein elsewhere discussed) ultimately
negate respondent's claim that she is a person of proven integrity:
(1) Respondent had no permit from U.P. to engage in private
practice while in government service but she did engage in private
practice as shown in her PDS and admitted in her Ad
Cautelam Comment;
(2) Respondent represented that after her resignation from U.P. in
2006, she was engaged, full time, in private practice. However, in
her PDS, it was stated that she was engaged as counsel by the
government in the PIATCO cases from 1994 up to 2009;
(3) Respondent claims that the clearance issued by U.P., clearing
her of academic/administrative responsibilities, money and
property accountabilities and from administrative charges as of
June 1, 2006 can be taken as an assurance that U.P. considered
the SALN requirements to have been met since it is the ministerial
duty of the Head of the Office to ensure that the SALNs of its
personnel are properly filed and accomplished. However, this
ministerial duty of U.P. HR.DO to call her attention as regards
compliance with the SALN requirements was imposed only in April
2006 (CSC Resolution No. Memorandum Circular No. 10-2006
dated April 17, 2006) as stated in her Letter. Hence, the U .P.
HRDO could not have been expected to perform its ministerial
duty of issuing compliance orders to respondent when such rule
was not yet in existence at that time;
(4) Her PDS shows that she was Deputy Commissioner of the
Commission on Human Rights only later to be disclaimed by her
during the Oral Argument stating that it was only a functional
title;
Quarterly Income From PIATCO Case
(Php)
(5) In her Letter dated July 23, 2012 to the JBC, respondent
represented that her SALNs were infeasible to retrieve when the
SALNs that she selectively filed were available all along in U.P. and
in fact the OSG was able to get copies of the same. Even
respondent herself was able to get a copy of her 1989 SALN from
U.P.;
(6) There is a marked incompatibility between the excuse
respondent proffered in her Letter dated July 23, 2012, and the
explanation she gave in the Oral Argument. In the Letter, the
respondent reasoned that it is "infeasible to retrieve" all her
SALNs because of the age of said documents, i.e., that they are
more than fifteen years old. However, during her Oral Arguments,
she explained that it was "infeasible" to retrieve them only
because of time constraints;
(7) She claims that the other candidates for the Chief Justice
position did not comply with the SALN requirement for the
application, when it was only she who did not comply. Out of the
six incumbent Justices who were candidates for the Chief Justice
positions, it was only respondent who did not comply with SALN
submission. There are competent proofs on record to show these
other candidates' compliance, contrary to respondent's
allegations.
(8) Respondent committed tax fraud when she failed to truthfully
declare her income in her income tax returns for the years 2007-
2009 and in her value-added tax (VAT) returns for the years 2005-
2009;
Per the BIR Report,311 respondent underdeclared her income in
her quarterly VAT Returns the following amounts in the taxable
years 2005-2009:
Declared Income per VAT Over (Under) (php)
Return (Php)
 76 | J U D I C I A L D E P A R T M E N T C A S E S

2005 which makes reference to new documents, totally alien to and

outside of the matters raised in the Republic's Petition, Reply, and
Q3 1, 398, 807.50 - -1,398,807.50 other previous submissions.
Q4 7,234,455.44 667,333.33 -6567122.11
There is no truth to the allegation that respondent was not
2006 afforded the opportunity to address this matter or that this
matter is "totally alien" to this proceedings. This matter was
Q1 - 469,375.00 469,375.00 actually brought up during the Oral Argument. In its
Q2 - 1,416,664.25 1,416,664.25 Memorandum, the Republic explained that during the Oral
Argument, some Members of the Court raised questions
Q3 1 ,539,546.28 - -1,539,546.28 regarding respondent's income as counsel in the PIATCO cases
and the payment of the corresponding taxes thereto, hence, the
Q4 1, 387,292.12 1,246,992.00 -140,300.12
inclusion of the same in its Memorandum. 312 In the same way,
2007 respondent could have addressed the same in her
Memorandum Ad Cautelam, instead she opted to do so in a
Q1 - 2,620,340.17 2,620,340.17 belatedly filed Reply/Supplement to the Memorandum Ad
Q2 - -   Cautelam.

Q3 4,379,198.29 2, 183,529.33 -2,195,668.96 At any rate, respondent's argument in the said Reply/Supplement,
Q4 633,670.58 - -633,670.58 implying that the allegations on the tax fraud are unfounded, and
that in including this matter, which is a mere reiteration of the
2008 discussion in Article I of the Articles of Impeachment, the OSG
usurped the sole power of the House of Representatives to
Q1 - 2,650,440.00 2,650,440.00 initiate and prosecute the Articles of Impeachment in blatant
Q2 - -   disregard of the Constitution,313 deserve scant consideration.

Q3 - 508,032.00 508,032.00 It bears stressing that respondent is not being prosecuted for tax
Q4 5, 184,435.85 1,045,262.67 -4,139,173.19 fraud in this case. The Court did not discuss the merits of the said
tax fraud nor did the Court made any conviction against the
2009 respondent as regards the said offense. Neither is this Court's
finding of respondent's lack of proven integrity during her
Q1 344,243.65 301,552.00 -42,691.65
application anchored upon this act. This matter is cited as a
Total Undeclared Income Subject to VAT -16,656,980.39 corroborative circumstance to respondent's non-filing of certain
SALNs, already established in this case. Notably, the Congress had
already determined that a probable cause exist that respondent
On this matter, respondent avers in her Reply/Supplement to the committed the said offense.
Memorandum Ad Cautelam that she was not given the chance to
be heard on this new matter in the Republic's Memorandum,
77 | J U D I C I A L D E P A R T M E N T C A S E S
Further, respondent's disposition and propensity to commit
dishonesty and lack of candidness are manifested through her
subsequent acts committed during her incumbency as Chief
Justice, which are now matters of public record and also
determined to be constituting probable cause for impeachment:
(9) Caused the procurement of a brand-new Toyota Land Cruiser
worth at least Php5,000,000.00;
(10) Caused the hiring of Ms. Helen Macasaet without the
requisite public bidding and who received excessive compensation
amounting to more than Php 11,000,000.00;
(11) Misused at least Php3,000,000.00 of government funds for
hotel accommodation at Shangri-La Boracay as the venue of the
3rd ASEAN Chief Justices meeting;
(12) Created the Judiciary Decentralized Office (JDO) in the guise
of reopening the Regional Court Administration Office (RCAO)
without being sanctioned by the Court En Banc;
(13) Issued a Temporary Restraining Order (TRO) in Coalition of
Associations of Senior Citizens in the Philippines v. COMELEC
contrary to the Supreme Court's internal rules and
misrepresented that the TRO was issued upon the
recommendation of the Member-in-charge;
(14) Manipulated the disposition of the DOJ request to transfer
the venue of the Maute cases outside of Mindanao;
(15) Ignored rulings of the Supreme Court with respect to the
grant of survivorship benefits which caused undue delay to the
release of survivorship benefits to spouses of deceased judges
and Justices;
(16) Appointed Geraldine Econg as Head of the JDO and Brenda
Jay Angeles-Mendoza as Chief of the Philippine Mediation Center
Office (PMCO) without the approval of the Court En Banc;
(17) Failed and refused to appoint qualified applicants to several
high-ranking positions in the Supreme Court;
(18) Ordered the dissemination of erroneous information on what
transpired during the Supreme Court En Banc deliberations in
A.M. No. 16-08-04-SC on the alleged involvement of four (4)
incumbent judges in illegal drugs and undermined the co-equal
power of the Executive Department by ordering the Executive
Secretary himself to file cases against the judges;
(19) Manipulated the processes of the JBC to exclude then
Solicitor General, now Associate Justice Francis Jardeleza, by using
highly confidential document involving national security against
the latter;
(20) Clustered the nominees for the six (6) vacant positions of
Associate Justice in the Sandiganbayan without legal basis and in
so doing, impaired the power of the President to appoint
members of the Judiciary;
(21) Misrepresented to the members of the Supreme Court En
Banc that there were Justices who requested to do away with the
voting of recommended applicants to the vacant positions in the
Supreme Court;
(22) Manipulated the processes .of the JBC to exclude Court of
Appeals Associate Justice Fernanda Lampas-Peralta from the
shortlist of nominees for the position of Presiding Justice of the
Court of Appeals;
(23) Interfered with the investigation conducted by the House of
Representatives on the alleged misuse of the tobacco funds in the
Province ofllocos Norte by unilaterally preparing a Joint
78 | J U D I C I A L D E P A R T M E N T C A S E S
Statement, asking the House of Representatives to reconsider its
show cause order against the Justices of the Court of Appeals, and
then pressuring then Presiding Justice of the Court of Appeals,
now Associate Justice Andres B. Reyes, Jr. to likewise sign the
same;
(24) Undermined and disrespected the impeachment proceedings
conducted by the House of Representatives against her.314
Again, while concedingly the foregoing acts as revealed during the
Congressional hearings on the impeachment are not proper subjects of the
instant quo warranto petition, these acts are nevertheless reflective and
confirmatory of respondent's lack of integrity at the time of her
nomination and appointment as Chief Justice and her inability to possess
such continuing requirement of integrity. Indeed, Rule 130, Section 34 of
the Rules on Evidence provide:
SEC. 34. Similar acts as evidence. -- Evidence that one did or did not do a
certain thing at one time is not admissible to prove that he did or did not
do the same or a similar thing at another time; but it may be received to
prove a specific inent or knowledge, identity, plan, system, scheme,
habit, custom or usage, and the like. (Emphasis ours)
E.
Respondent's ineligibility for lack of proven
integrity cannot be cured by her nomination
and subsequent appointment as Chief Justice
The Court is all too aware that the instant petition neither partakes of an
administrative or criminal proceeding meant to determine culpability for
failure to file SALNs. Respondent maintains that she filed all her SALNs,
only that she refuses to present proof of such SALNs before the Court. The
Court's pronouncement, however, should not be made dependent upon
the pieces of evidence which a party may possibly present in a different
forum. Rather, the Court is mandated to render judgment based on the
evidence presented before it, in compliance with the dictates of due
process. And the evidence, as it stands before Us, shows that respondent
failed to file nine SALN s in her 20-year service in U .P. College of Law and
submitted to the JBC only three out of the required ten SALNs at the time
of her application as Chief Justice.
Respondent split hairs in stating that failure to file is different from failure
to submit the SALNs to the JBC. That may be true. But it is likewise true
that despite ample opportunity to do so, respondent chose not to present
evidence as to preponderate the case in her favor. The Court cannot
therefore be faulted, at least for purposes of the instant quo
warranto proceedings, to conclude that respondent not only failed to
submit the SALNs to the JBC, but altogether failed to file the same.
Such failure to file and to submit the SALNs to the JBC, is a clear violation
not only of the JBC rules, but also of the law and the Constitution. The
discordance between respondent's non-filing and non-submission of the
SALNs and her claimed integrity as a person is too patent to ignore. For
lack of proven integrity, respondent ought to have been disqualified by the
JBC and ought to have been excluded from the list of nominees
transmitted to the President. As the qualification of proven integrity goes
into the barest standards set forth under the Constitution to qualify as a
Member of the Court, the subsequent nomination and appointment to the
position will not qualify an otherwise excluded candidate. In other words,
the inclusion of respondent in the shortlist of nominees submitted to the
President cannot override the minimum Constitutional qualifications.
Well-settled is the rule that qualifications for public office must be
possessed at the time of appointment and assumption of office and also
during the officer's entire tenure as a continuing requirement. 315 When the
law requires certain qualifications to be possessed or that certain
disqualifications be not possessed by persons desiring to serve as public
officials, those qualifications must be met before one even becomes a
candidate.316
The voidance of the JBC nomination as a necessary consequence of the
Court's finding that respondent is ineligible, in the first place, to be a
candidate for the position of Chief Justice and to be nominated for said
79 | J U D I C I A L D E P A R T M E N T C A S E S
position follows as a matter of course. The Court has ample jurisdiction to
do so without the necessity of impleading the JBC as the Court can take
judicial notice of the explanations from the JBC members and the OEO, as
regards the circumstances relative to the selection and nomination of
respondent submitted to this Court in A.M. No. 17-11-12 and A.M. No. 17-
11-17-SC. Relatedly, the Court, in a quo warranto proceeding, maintains
the power to issue such further judgment determining the respective rights
in and to the public office, position or franchise of all the parties to the
action as justice requires. 317
Neither will the President's act of appointment cause to qualify
respondent. Although the JBC is an office constitutionally created, the
participation of the President in the selection and nomination process is
evident from the composition of the JBC itself. The regular members of the
JBC are appointees of the President, including an ex-officio member, the
Secretary of Justice, who serves as the President's alter ego. As observed
during the deliberations of the 1986 Constitutional Commission:
xxxx
MR. CONCEPCION. The Judicial and Bar Council is no doubt an innovation.
But it is an innovation made in response to the public clamor in favor of
eliminating politics in the appointment of judges.
At present, there will be about 2,200 positions of judges, excluding those
of the Supreme Court, to be filled. We feel that neither the President alone
nor the Commission on Appointments would have the time and the means
necessary to study the background of every one of the candidates for
appointment to the various courts in the Philippines, specially considering
that we have accepted this morning the amendment to the effect that no
person shall be qualified unless he has a proven high sense of morality and
probity. These are matters that require time, which we are sure the
President does not have except, probably, he would have to endorse the
matter to the National Bureau of Investigation or to some intelligence
agency of the government. And we do not think that these agencies are
qualified to pass upon questions of morality, integrity and competence of
lawyers.
As regards the implication that we are, in effect, depriving the President of
the power of appointment, all we do consider is the fact that the members
of the Council are all appointees of the President. They are alter egos of
the President so, in effect, they are exercising the power by virtue of the
appointment by the President. So, the alleged negation or denial or
emasculation of the appointing power of the President does not really exist
since all members of the Council, except those who are ex officio members
who, by the way, are also appointees of the President, are all appointees of
the President.
In effect, the action of the JBC, particularly that of the Secretary of Justice
as ex-officio member, is reflective of the action of the President. Such as
when the JBC mistakenly or wrongfully accepted and nominated
respondent, the President, through his alter egos in the JBC, commits the
same mistake and the President's subsequent act of appointing
respondent cannot have any curative effect.
Besides in Luego v. Civil Service Commission, 318 We said:
Appointment is an essentially discretionary power and must be performed
by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on
the ground that there are others better qualified who should have been
preferred. This is a political question involving considerations of wisdom
which only the appointing authority can decide. (Emphasis ours)
As emphasized in Central Bank v. Civil Service Commission: 319
It is well-settled that when the appointee is qualified, as in this case, and
all the other legal requirements are satisfied, the Commission has no
alternative but to attest to the appointment in accordance with the Civil
Service Law. The Commission has no authority to revoke an appointment
on the ground that another person is more qualified for a particular
position. It also has no authority to direct the appointment of a substitute
of its choice. To do so would be an encroachment on the discretion vested
upon the appointing authority. An appointment is essentially within the
80 | J U D I C I A L D E P A R T M E N T C A S E S
discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required
by law. (Emphasis ours)
Thus, while the Court surrenders discretionary appointing power to the
President, the exercise of such discretion is subject to the non-negotiable
requirements that the appointee is qualified and all other legal
requirements are satisfied, in the absence of which, the appointment is
susceptible to attack.
Even as respondent took her "oath of office," she remains disqualified. An
oath of office is a qualifying requirement for a public office and a
prerequisite to the full investiture of the office. 320 The oath, couched in the
following tenor, states:
Ako ay taimtim na nanunumpa na tutuparin ko nang buong husay at
katapatan, sa abot ng aking kakayahan, ang mga tungkulin ng aking
kasalukuyang katungkulan at ng mga iba pang pagkaraan nito'y
gagampanan ko sa ilalim ng Republika ng Pilipinas, na aking itataguyod at
ipagtatanggol artg Saligang Batas ng Pilipinas; na tunay na mananalig at
tatalima ako rito; na susundin ko ang mga batas, mga kautusang legal, at
mga dekretong pinaiiral ng mga sadyang itinakdang may kapangyarihan
ng Republika ng Pilipinas; at kusa kong babalikatin ang pananagutang ito
nang walang ano mang pasubali o hangaring umiwas.
Kasihan nawa ako ng Diyos.
As respondent herself expressed through her dissent in Philippine Savings
Bank, "[w]hen a public officer affixes his signature on his Oath of Office, he
embraces all his constitutional and statutory duties as a public officer, one
of which is the positive duty to disclose all  of his assets and liabilities. Thus,
for all public officers, what is absolute is not the confidentiality privilege,
but the obligation of disclosure." 321
While respondent putatively took an oath to defend and support the
Constitution and to obey the laws of the land, she had not been forthright
with the circumstances surrounding the lacking SALNs. This makes her oath
untruthful and altogether false.
F.
Respondent is a de facto officer removable
through quo warranto
The effect of a finding that a person appointed to an office is ineligible
therefor is that his presumably valid appointment will give him color of
title that confers on him the status of a de facto officer.322
Tayko v. Capistrano,  323 through Justice Ostrand, instructs:
Briefly defined, a de facto judge is one who exercises the duties of a
judicial office under color of an appointment or election thereto x x x. He
differs, on the one hand, from a mere usurper who undertakes to act
officially without any color of right, and on the others hand, from a judge
de jure who is in all respects legally appointed and qualified and whose
term of office has not expired x x x. (Citations omitted)
For lack of a Constitutional qualification, respondent is ineligible to hold
the position of Chief Justice and is merely holding a colorable right or title
thereto. As such, respondent has never attained the status of an
impeachable official and her removal from the office, other than by
impeachment, is justified. The remedy, therefore, of a quo warranto at the
instance of the State is proper to oust respondent from the appointive
position of Chief Justice. Tayko continues:
The rightful authority of a judge, in the full exercise of his public judicial
functions, cannot be questioned by any merely private suitor, nor by any
other, excepting in the form especially provided by law. A judge de
facto assumes the exercise of a part of the prerogative of sovereignty, and
the legality of that assumption is open to the attack of the sovereign power
alone. Accordingly, it is a well established principle, dating from the
earliest period and repeatedly confirmed by an unbroken current of
decisions, that the official acts of a de facto judge are just as valid for all
81 | J U D I C I A L D E P A R T M E N T C A S E S

purposes as those of a de jure judge, so far as the public or third persons Upon a finding that respondent is in fact ineligible to hold the position of
who are interested therein are concerned. The rule is the same in civil and Chief Justice and is therefore unlawfully holding and exercising such public
criminal cases. The principle is one founded in policy and convenience, for office, the consequent judgment under Section 9, Rule 66 of the Rules of
the right of no one claiming a title or interest under or through the Court is the ouster and exclusion of respondent from holding and
proceedings of an officer having an apparent authority to act would be exercising the rights, functions and duties of the Office of the Chief Justice.
safe, if it were necessary in every case to examine the legality of the title of
such officer up to its original source, and the title or interest of such person IV.
were held to be invalidated by some accidental defect or flaw in the
appointment, election or qualification of such officer, or in the rights of Guidelines for the Bench, the Bar and the JBC
those from whom his appointment or election emanated; nor could the
supremacy of the laws be maintained, or their execution enforced, if the
The present is the exigent and opportune time for the Court to establish
acts of the judge having a colorable, but not a legal title, were to be
well-defined guidelines that would serve as guide posts for the bench, the
deemed invalid. As in the case of judges of courts of record, the acts of a
bar and the JBC, as well, in the discharge of its Constitutionally-mandated
justice de facto cannot be called in question in any suit to which he is not a
functions. In sum, this Court holds:
party. The official acts of a de facto justice cannot be attacked collaterally.
An exception to the general rule that the title of a person assuming to act
Quo warranto as a remedy to oust an ineligible public official may be
as judge cannot be questioned in a suit before him in generally recognized
availed of, provided that the requisites for the commencement thereof are
in the case of a special judge, and it is held that a party to an action before
present, when the subject act or omission was committed prior to or at the
a special judge may question his title to the office of judge on the
time of appointment or election relating to an official's qualifications to
proceedings before him, and that the judgment will be reversed on appeal,
hold office as to render such appointment or election invalid. Acts or
where proper exceptions are taken, if the person assuming to act as special
omissions, even if it relates to the qualification of integrity being a
judge is not a judge de jure. The title of a de facto officer cannot be
continuing requirement but nonetheless committed during the
indirectly questioned in a proceeding to obtain a writ of prohibition to
incumbency of a validly appointed and/or validly elected official cannot be
prevent him from doing an official act nor in a suit to enjoin the collection
the subject of a quo warranto proceeding, but of impeachment if the
of a judgment rendered by him. Having at least colorable right to the
public official concerned is impeachable and the act or omission
officer his title can be determined only in a quo warranto proceeding or
constitutes an impeachable offense, or to disciplinary, administrative or
information in the nature of quo warranto at suit of the sovereign.
criminal action, if otherwise.
(Citation omitted)

Members of the Judiciary are bound by the qualifications of honesty,

Although Tayko dealt with a challenge to the title of a judge, who is not an
probity, competence, and integrity. In ascertaining whether a candidate
impeachable official, the ruling therein finds suitable application since quo
possesses such qualifications, the JBC in the exercise of its Constitutional
warranto as a remedy is available against respondent who is a de
mandate, set certain requirements which should be complied with by the
facto Chief Justice, having a mere colorable right thereto. This must
candidates to be able to qualify. These requirements are announced and
necessarily be so since the Constitution, in providing that impeachable
published to notify not only the applicants but the public as well. Changes
officials can only be removed by impeachment, presumes that such
to such set of requirements, as agreed upon by the JBC En Banc through a
impeachable official is one having de Jure title to the office.
proper deliberation, such as in this case when the JBC decided to allow
substantial compliance with the SALN submission requirement, should also
82 | J U D I C I A L D E P A R T M E N T C A S E S
be announced and published for the same purpose of apprising the
candidates and the public of such changes. At any rate, if a candidate is
appointed despite being unable to comply with the requirements of the
JBC and despite the lack of the aforementioned qualifications at the time
of application, the appointment may be the subject of a quo
warranto provided it is filed within one year from the appointment or
discovery of the defect. Only the Solicitor General may institute the quo
warranto petition.
The willful non-filing of a SALN is an indication of dishonesty, lack of
probity and lack of integrity. Moreso if the non-filing is repeated in
complete disregard of the mandatory requirements of the Constitution and
the law.
Consistent with the SALN laws, however, SALNs filed need not be retained
after more than ten years by the receiving office or custodian or repository
unless these are the subject of investigation pursuant to the law. Thus, to
be in keeping with the spirit of the law requiring public officers to file
SALNs - to manifest transparency and accountability in public office - if
public officers cannot produce their SALNs from their personal files, they
must obtain a certification from the office where they filed and/or the
custodian or repository thereof to attest to the fact of filing. In the event
that said offices certify that the SALN was indeed filed but could not be
located, said offices must certify the valid and legal reason of their non-
availability, such as by reason of destruction by natural calamity due to fire
or earthquake, or by reason of the allowed destruction after ten years
under Section 8 of R.A. No. 6713.
V.
Blatant Disregard and Open Defiance
to the Sub Judice Rule
Perhaps owing to novelty, the instant case has opened a pandora's box of
unsolicited opinions, streaming in abundance from those professed legal
and non-legal experts alike. This flurry of opinions, demonstrations, public
and media appearances made by the parties themselves or at their behest,
or by their lawyers and spokespersons, had demonstrably shifted the plane
from what should otherwise be a purely legal, calm and sober approach to
the present controversy into a detestable feast of pros and cons, and of a
mediocre and haphazard approximation of a perceived good versus evil.
This veritable feast had become too delectable to escape the waiting
predators' keen sense of attack, especially at a time when the prey appears
to be at its most vulnerable. This Court is an institution designed and
dedicated to a specific purpose and thus refuses to fall prey and invite
claws to dig into its walls. Because of the various extraneous redirections
from the merits which the instant case has received, there is a need to
emphasize that this case involves a purely legal and justiciable matter
which the Court intends, and had resolved, through the application of the
Constitution, the law and relevant jurisprudence, unswayed by
personalities or sentiments.
As. such, the Court had lent extreme tolerance to the parties and
nonparties equally, as the Court shall ultimately speak through its decision.
Be that as it may, the Court, in jealous regard of judicial independence,
cannot simply overlook the open and blatant defiance of the sub
Judice rule suffered by the present action.
The sub Judice rule restricts comments and disclosures pertaining to the
judicial proceedings in order to avoid prejudging the issue, influencing the
court, or obstructing the administration of justice.324 The rationale for this
rule is for the courts, in the decision of issues of fact and law, to be
immune from every extraneous influence; for the case to be decided upon
evidence produced in court; and for the determination of such facts be
uninfluenced by bias, prejudice or symphathies. In fine, what is sought to
be protected is the primary duty of the courts to administer justice in the
resolution of cases before them. 325
Thus, it is generally inappropriate to discuss the merits of and make
comment's on cases sub Judice and such acts may even result to contempt
of court. In U.S. v. Sullen326 it was stated:
In a clear case where it is necessary in order to dispose of judicial business
unhampered by publications which reasonably tend to impair the
83 | J U D I C I A L D E P A R T M E N T C A S E S
impartiality of verdicts; or otherwise obstruct the administration of justice,
this Court will not hesitate to exercise its undoubted power to punish for
contempt. This Court must be permitted to proceed with the disposition of
its business in an orderly manner free from outside interference
obstructive of its constitutional functions. This right will be insisted upon as
vital to an impartial court, and, as a last resort, as an individual exercises
the right of self-defense, it will act to preserve its existence as an
unprejudiced tribunal.
In Our jurisdiction, this rule finds legal basis on the Court's power of
contempt. Rule 71 of the Rules of Court provides:
Sec. 3. Indirect contempt to be punished after charge and hearing. -After a
charge in writing has been filed, and an opportunity given to the
respondent to comment thereon within such period may be fixed by the
court and to be heard by himself or counsel, a person guilty of any of the
folfowing acts may be punished for indirect contempt:
xxxx
(d) Any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice;
x x x (Emphasis ours)
The oft-cited defense of persons charged with indirect contempt for
violating the sub Judice rule is their right to free speech. Needless to say,
this Court would be the first in line of combat in a legal battle to uphold
such constitutionally-protected right. However, when actions, posing to be
innocent exercise of such right, "impede, interfere with and embarrass the
administration of justice" or "make a serious and imminent threat
thereto", this Court will not hesitate to call out and punish the
same. 327 In Sheppard v. Maxwell,328 the US Supreme Court reminds that
although the freedom of expression should be given great latitutde, it must
not be so broad as to divert the trial away from its objective which is to
adjudicate both criminal and civil matters in an objective, calm, and solemn
courtroom setting.
The sub Judice rule finds a more austere application to members of the Bar
and of the Bench as ·the strict observance thereof is mandated by the
Code of Professional Responsibility and the Code of Judicial Conduct:
CODE OF PROFESSIONAL RESPONSIBILITY
CANON 13 - A LAWYER SHALL RELY UPON THE MERITS OF HIS CAUSE AND
REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE, OR GIVES
THE APPEARANCE OF INFLUENCING THE COURT.
Rule 13.02 - A lawyer shall not make public statements in the media
regarding a pending case tending to arouse public opinion for or against a
party.
NEW CODE OF JUDICIAL CONDUCT FOR THE
PHILIPPINE JUDICIARY
CANON 1 - INDEPENDENCE
Judicial independence is a pre-requisite to the rule of law and a
fundamental guarantee of a fair trial. A judge shall therefore uphold and
exemplify judicial independence in both its individual and institutional
aspects.
SECTION 3. Judges shall refrain from influencing in any manner the
outcome of litigation or dispute pending before any court or administrative
agency.
SECTION 7. Judges shall encourage and uphold safeguards for the
discharge of judicial duties in order to maintain and enhance the
institutional and operational independence of the judiciary.
SECTION 8. Judges shall exhibit and promote high standards of judicial
conduct in order to reinforce public confidence in the judiciary, which is
fundamental to the maintenance of judicial independence.
84 | J U D I C I A L D E P A R T M E N T C A S E S
CANON 2 - INTEGRITY
Integrity is essentially not only to the proper discharge of the judicial office
but also to the personal demeanor of judges.
SECTION 1. Judges shall ensure that not only is their conduct above
reproach, but that it is perceived to be so in the view of a reasonable
observer
SECTION 2. The behavior and conduct of judges must reaffirm the people's
faith in the integrity of the judiciary. Justice must not merely be done but
must also be seen to be done.
CANON 3 - IMPARTIALITY
Impartiality is essential to the proper discharge of the judicial office. It
applies not only to the decision itself but to the process by which the
decision is made.
SECTION 2. Judges shall ensure that his or her conduct, both in and out of
court, maintains and enhances the confidence of the public, the legal
profession, and litigants in the impartiality of the judge and of the
judiciary.
SECTION 4. Judges shall not knowingly, while a proceeding is before or
could come before them, make any comment that might reasonably be
expected to affect the outcome of such proceeding or impair the manifest
fairness of the process. Nor shall judges make any comment in public or
otherwise that might affect the fair trial of any person or issue.
CANON 4 - PROPRIETY
SECTION 2. As a subject of constant public scrutiny, judges must accept
personal restrictions that might be viewed as burdensome by the ordinary
citizen and should do so freely and willingly. In particular, judges shall
conduct themselves in a way that is consistent with the dignity of the
judicial office.
SECTION 6. Judges, like any other citizen, are entitled to freedom of
expression, belief, association and assembly, but in exercising such rights,
they shall always conduct themselves in such a manner as to preserve the
dignity of the judicial office and the impartiality and independence of the
judiciary.
Lawyer speech is subject to greater regulation for two significant reasons:
one, because of the lawyer's relationship to the judicial process; and two,
the signficant dangers that a lawyer's speech poses to the trial
process. 329 As such, actions in violation of the sub Judice rule may be dealt
with not only through contempt proceedings but also through
administrative actions.
It is thus perturbing that certain officials of the separate branches of the
Government and even men and women learned in law had succumbed to
the tempting affray that tends to divert the instant quo warranto action
from its primary purpose. Even worse, respondent and her spokepersons
chose to litigate respondent's case, apart from her Ad
Cautelam submissions to the Court, before several media-covered
engagements. Through her actuations, respondent appears to have
forgotten that this is a court action for quo warranto, and as such, the
concomitant rule on sub Judice unnegotiably applies. Worst still,
respondent who is a lawyer and who asserts right to the Chief Justice
position and therefore must foremost be aware of the rule, continues to
conjure public clamor against the Court and its Members with regard to
this pending case in Court.
It is interesting to note that respondent initially refused to participate in
the congressional hearings for the impeachment complaint. When this
petition for quo warranto was filed, respondent continuously refuses to
recognize this Court's jurisdiction. Instead of participating in the process
and answering the charges against her truthfully to assist in the
expeditious resolution of the matter, respondent opted to proceed to a
nationwide campaign, conducting speeches and accepting interviews,
discussing the merits of the case and making comments thereon to vilify
the members of the Congress, cast aspersions on the impartiality of the
Members of the Court, degrade the faith of the people to the Judiciary,
 85 | J U D I C I A L D E P A R T M E N T C A S E S

and falsely impute ill-motives against the government that it is 10156438427991977/?t=16> requirements, waived, several of them. If th
orchestrating the charges against her. It is well-nigh unthinkable for April 25,2018 JBC was correct in saying that an attempt t
respondent to profess deprivation of due process when she herself chose submit requirements, that good faith shoul
Article:
to litigate her case before the media. be accorded to the 14, including those agai
<http://newsinfo.inquirer.net/
985460/Defend-judicial- me, why am I the only one being singled ou
These public appearances,330 to name a few, are as follows: independence-cj-sereno-tells " she told law students at the Ateneo Law
-law-students> School during a forum on judicial
Event Source Quotations independence.

eak Truth to Power' forum Video: <http://web.facebook.com
UP Diliman, Quezon City on /juliusnleonen/Videos/889291114
y 5, 2018 607029/>
Article:
<http://www.rappler.com/nation/
201854-sereno-quo warranto-
destroy-judicial-independence>
egrated Bar of the Article:
lippines (IBP) .Central <https://businessmirror.com.ph/
on Regional Convention sereno-sees-dictatorshp-after-
d Mandatory Continuing filling-of-quo-warranto-petition-
al Education at thr Quest against-her/>
el here on May 2, 2018
um on upholding Judicial Video:
ependence at the Ateneo <http://web.facebook.com/
w School in Rockwell, 24OrasGMA/videos/
"Kung manalo ang quo warranto, mapupunta "The questions propounded by Supreme Co
tayo sa diktaturya, " she said. "Talagang itself, they wanted to examine everything I
wawasakin completely ng quo warranto na did in the past in the hope they would find
ito angjudiciary." something scandalous in my life. I was just
preparing myself for the question, 'ilang
"Pag itong quo warranto natuloy, hindi na boyfriend mo na?,’" Sereno said, which
right and reason, kundi will - will na nu'ng elicited laughter from the crowd.
whoever is on top. So kailangan natin pigilan
ito . . . " she said. "Hindi ko naman po minanipula ni konti an
"Ano po ang tawag sa kondisyon na ang JBC. .. 14 kaming pareparehong sitwasyon.
citizen walang kalabanlaban sa gobyerno" Bakit nagreklamo kung kayo nalagay sa
Chief Justice Maria Lourdes A. Sereno asked. listahan at ako nalagay sa listahan. Ang
"Ang tawag po doon dictatorship, hindi po masama ay hindi kayo ang nalagay at aka
constitutional democracy ang tawag doon, " ang nalagay, " she added.
she said. "That is what is going to happen if <http://www.philstar.com/ "The month of May is a time that is suppos
the quo waranto petition is granted, " Serenoheadlines/2018/04/23/
Commencement to be devoted to writing decisions in the ma
stated. 1808492/sereneo- pending cases before the Court Anyway the
Exercises of the College Law camp-question-sc-haste- session will resume on June 5, so what '.S'
"The booming of voice of Justiceof
the University Vicente
San decide-her-case> with the rush?"
Mendoza hasAgustin
reverberated that if the quo
(USA) in Iloilo City,
waranto petition is granted, the Judiciary will<http://news.mb.com.ph/ "Wala namang dahilan para magmadali."
destroy itself," Sereno said
April 20, as she also praised2018/04/21/no-need-to-
2018
the IBP s stand to oppose and dismiss the rush-quo-warranto- "Kung totoo po, indication po ito na mayro
petition. sereno/> na po silang conclusion bago pa man marin
"Of my colleagues, I know that several of ang lahat, " Sereno said.
them, have had their qualifications,
Fellowship their
of the Philippine <http://newsinfo.inquirer.net/ "Even your very livelihoods are threatened;
inability to submit documentary
 86 | J U D I C I A L D E P A R T M E N T C A S E S
Association (PBA) in
kati City on April 11, 2018
0th Anniversary and 23rd
tional Convention of the
lippine I Women Judges
ociation
WJA) in Manila Hotel on
ursday, March 8,2018
N Philippines (March 9,
18); One on One with the
ef Justice with Pinky
bb
981806/sereno-ups-attack-
vs-quo-warranto-in-speech-
at-lawyers-forum?
utm _ campaign=Echobox
&utm medium=Social&u
tm_source=Facebook#link
_time=1523450119>
<http://newinfo.inquirer.net/
973692/sereno-Delivers-most-
powerful-speech-yet-not-all-peers-
happy>
<http://www.youtube.com/
watch? v=HIYKAQ4QPcY
I. http://cnnphilippines.com
/videos/2018/03/09/0ne-
on-one-with-ChiefJustice-
there is no safety for any of you ... That is how
deadly this quo warranto petition is, " Maria-LourdesSereno.html>
she added.
Sereno said if the Supreme Court would
cooperate in the move of the Executive to
oust her sans impeachment trial, "I will use
directly the words of Chief Justice Davide that
it will be judicial hara-kiri, if not a judicial
kamikaze bringing it the destruction of the
entire judiciary as well as the entire
constitutional framework. "
"l look at any forum to try me other than the
constitutionally exclusive form of
impeachment as an admission by the
complainant and my other detractors that
after 15 hearings, they have failed to come up
with any evidence which can be convicted in
the Senate, "
she asserted.
"Sila ang nagsimula bakit ayaw nilang
tapusin? Napakaaga naman yata para
umamin sila na wala silang napala kundi
matinding kabiguan kaya Y kung anu-ano na
lamang ang gimik ang ginagawa nila
masunod lamang ang kanilang nais, " Sereno
added.
In this interview, CJOL Sereno, among others,
stated that her defense preparation was
directed towards the impeachment
proceedings as she has not assessed yet the
quo warranto petition as of the interview.
- "From the very beginning, we were lookin
really at the impeachment provisions of the
Constitution so that has been the preparati
all along. Well, I haven't yet assessed this
latest quo warranto petition. Not yet time
maybe"
- CJOL Sereno refused to talk about the quo
warranto petition, but interpreted the SC's
resolution which directed her to comment
said petition without taking due course to t
petition. CJOL said that such action of the S
does not mean anything and affirmed Web
interepretation that such action does not
mean that the SC assumes jurisdiction over
the quo warranto case.
- "Yan naman talaga ang hindi ko pwede
pagusapan, ano."
- On jurisdiction: "Normal yan, marami
kaming ganyan petition. Wala naman
talagang ibig sabihin yan. In most cases,
walang ibig sabihin yun kasi hindi pa
prejudged. Pero hayaan niyo po muna yung
lawyers ko ang magsabi kasi mahirap nam
pong pangunahan ko sila eh ginagawa pa p
nila yung sagot eh".
-"Marami ho kaming lagging ginagamit na
without due course at marami kaming
dinidismiss na nanggaling sa without giving
due course pero pinagkocomment... It does
mean ... Ang usual tradition po namin ay
walang ibig sabihin po yun"
 87 | J U D I C I A L D E P A R T M E N T C A S E S
eech of CJOL Sereno at the <http://www.youtube.com/ Directed towards politicians
npacific University North watch? v=iNSllxW9bpk>
lippines (March 9, 2018) supposedly regarding the ongoing
sted by CNN Philippines) impeachment proceedings, CJOL Sereno
said, "'Wag na 'wag niyo kami gigipitin"
further stated that such what judicia
independence means.
- I know that our women judges, for example,
are always eager to make a stand for judicial
independence. Kayong mga pulltiko, wag
nyong pakialaman ang aming mga gustong
gawin kung palagay nyo kayo ay tama at
andyan ang ebidensya, lalabas naman yan
eh. Pero huwag na huwag nyo kaming
gigipitin. Yan ang ibig sabihin ng judicial
independence"
eech on "The Mumshie on < http:// newsinfo.inquirer. - CJOL Sereno emphasized that AJ Leonardo-
e: Speak Truth to Power" net/987807 /live-chief- justice- De Castro's inhibition would prove that she is
d at the University of the sereno-at-up- diliman-forum> unbiased.
lippines (May 5,
18) *Forum was organized -Hindi sila tumigil, hangga't naisip ng isa,
youth groups, Ako Ay Isang yung nagaakusa sa akin, "ay yung SALN niya,
eno and Youth for Miriam yung SALN nya na sinabi nya sa JBC na
nahihirapan niyang humanap (sic). Yun, dun
tugisin. At sinabi nya na dapat ako ay
idisqualffj; dahil unjust daw na ako ang
naappoint. May injustice na nangyari. So
alam na natin ang isa sa pinagsisimulan nito"
- CJOL Sereno said that "Even when they
thought they have won, in the end, they will
never win. The country is already woke. The
youth would not listen to lies. The people own
the judiciary. They are not owned by the
judiciary, the justices, the judges" and that
the "good will always prevail over evil".
1- CJOL Sereno said that two of her I accuse
who she considers as her rival also, will be
one of those who will decide the quo
warranto petition filed against her, thereby
against the basic rules of fair play.
- "Eh bakit biglang umatras sila (pertaining
his accusers in the impeachment
proceedings) at ginawa itong kaso na
quo warranto kung saan ang dalawa sa
nagsabing hindi aka dapat naappoint eh sil
rin ang maghuhusga sa akin. Saan kayo
nakakita ng sitwasyon na yung karibal niyo
posisyon ang may kapangyarihan sabihin
kayong dapat ka matanggal sa posisyon,
hindi ikaw dapat. Paano nangyari? Under
what rules of fairness, what rules of
Constitution or legal system can an accuser
who acted also as my prosecutor during the
oral arguments now sit as judge? This viola
the most basic norms of fairplay. .. Ngayon
talaga, nakita na, na hindi ho aka bibigyan
talaga ng ilang ito ng kahit anong modicum
of fairness"
- She discussed that one of the effects of an
invalid appointment is the forfeiture of
retirement benefits.
-"At alam nyo ho, pag sinabi na invalid yun
appointment, pati yung retirement benefits
88 | J U D I C I A L D E P A R T M E N T C A S E S
ho tatanggalin"
-The granting of a quo warranto would result
into dictatorship and would destroy the
judiciary.
Speech on Ateneo Law School <http://www.youtube.com/watch?
- At ano ho ang mangyayari kung ang buong
for the forum Tindig: A forum
sangay, ang lahat ng kawani ng gobyerno ay
on upholding judicial '
kayang takutin at hindi na pwedeng maging v=oh35V4BMiww>
independence as a pillar of
independent?.. Ano hong mangyayari kung
democracy (April 25, 2018)
ang COMELEC ho ay sinabihan ng Presidente
at Solicitor General na "yung partido Zang
namin ang pwedeng manalo, kung hindi i-quo
warranto ka namin?" Ano po yun? Ano yung
tawag sa ganoong sitwasyon na may
matinding pananakot sa buong bayan? Ang
tawag po dun, diktaturya.. Kung manalo po
ang quo warranto, yan po ang magiging
resulta"
- "Saang korte kayo pupunta? Sino ang
magtatapang na huwes kung madali na sila
mapatanggal? ... Hindi na ho kayo
makakatakbo, kasi lahat ho ng judges
tatakutin ng Solicitor General...Saan ho kayo
pupunta sa isang arbiter na impartial?.. wala
na po. Wawasakin nitong quo warranto
petition nito, completely ang judiciary"
- "Ano na ho ang mangyayari sa bayan natin
kung wala na hong security of tenure sa
government service? Kasi kung may kaunting
kulang fang sa file... kulang ang file na
nabigay sa JBC.. eh naglalabasan na ho ang
SALN ko... pero eta tatanggalin at gagawa
sila ng prinsipyo at ikawawasak ng buong
bayan para lang sa kanilang personal na
interes. Nakakalagim po ang pangyayaring
ito "
 
CJOL Sereno discussed the contents of the
quo warranto petition.
- On the prescriptive period, CJOL Sereno s
that jobs of the justices, judges and
government employees are jeopardized
because of the assertion of the OSG that a
petition for quo warranto does not prescrib
against the government. CJOL Sereno said
that such assertion makes the action
imprescriptible.
-"According to the Solicitor General, the on
year prescriptive period can never apply
against government. It must be personal
knowledge of the Solicitor General himself
And so if you change the person of the
Solicitor General, the period continues to
always be fresh. It's a never prescriptible, a
completely imprescriptible action. So you
jeopardize the jobs of the justices, the judge
and all gov't employees. You allow selected
targeting against the Chief Justice for reaso
that are very obvious now and you destroy
the legal profession"
1.
- On the effect of the quo warranto petition
CJOL Sereno said that all incumbent judges
89 | J U D I C I A L D E P A R T M E N T C A S E S

Responsibility for violating the sub Judice rule by repeatedly discussing the

merits of the quo warranto petition in different fora and for casting
and justices would be prejudiced because
aspersions and ill motives to the Members of the Court even before a
their qualifications may suddenly be
decision is made, designed to affect the results of the Court's collegial vote
reviewed.
and influence public op1mon. This wrongful actuation exemplify a poor
regard for the judicial system and may amount to conduct unbecoming of
-  "The SC itself really wanted to examine
a Justice and a lawyer.
every little thing I did in the past in the hope
that they would find something scandalous
Such actions, indeed, resulted to the obfuscation of the issues on hand,
about my life ... "
camouflaging the charges against her with assaults to judicial
independence, and falsely conditioning the public's mind that this is a fight
-"It also prejudices more than 2000 forjudges
democracy. Once and for all, it should be stated that this is not a fight
and justices that are already sitting fornow
democracy nor for judicial independence. This is an undertaking of the
because all of their qualifications may
Court's duty, as it is called for by the Republic, to judicially determine and
suddenly be reviewed. The JBC wassettle wrong
thetouncertainty in the qualification, or otherwise, of respondent to
waive this qualification for this position. I can
sit on the highest position in the Judiciary.
tell you as a matter of record that of my
colleagues, I know that several of them have
The detrimental effect of this open and blatant disregard of the sub
had their qualifications, their inability to
Judice rule or the evil sought to be prevented by the said rule is already
submit documentary requirements, waived.
manifest. In fact, in the May 2, 2018 issue of the Philippine Daily Inquirer,
Several of them. So if the JBC was correct in
certain individuals, including lawyers, already made their own pre-
saying that un attempt to submit the
judgment on the case:
requirements, the good faith accorded to
those who had missing requirements, should
be accorded to 14 of us, including those whoGRANTING THE QUO WARRANTO PETITION IS ILLEGAL,
have complained loudly against me among
my colleagues, why am I the only one being A BETRAYAL OF DEMOCRACY
singled out? The rules of inability to submit all
the SALNs were waived in favor ofTHE SUPREME
14 out of COURT TRAMPLED ON the Philippine Constitution and
20 applicants. 6 out of the 8 were betrayed its primary duty to the Filipino people when it violated Chief
shortlisted.
Why is the rule being invoked onlyJustice
againstMa. Loudes Serena's right to due process.
me? And so it would appear that this is
selected targeting" The Supreme Court abandoned its chief mandate to ensure an
independent judiciary by accepting a bankrupt Quo Warranto petition and
The public actuation of respondent showing disdain and contempt towards refusing to inhibit five openly biased Justices.
some Members of the Court whom she dubbed as "Biased 5" later
increased and modified to "Biased 6" can no longer be tolerated. She may The Judiciary's Code of Conduct decrees resistance against attempts to
be held liable for disbarment for violating the Canons of Professional subvert judicial independence. It orders judges to be impartial. The five
90 | J U D I C I A L D E P A R T M E N T C A S E S
justices bowed to Congress' impeachment summons. They attacked the
Chief Justice in proceedings that refused her right to question accusers.
Doing so, they prejudged the Chief Justice and betrayed the Court's
position as a co-equal branch of the government.
We repudiate as illegal a ruling tainted with these shameful acts.
The Quo Warranto action against CJ Sereno, filed beyond the one year
deadline, is itself illegal and unconstitutional. the Supreme Court has
affirmed many times that impeachment is the only mode for removing an
impeachable officer.
In accepting this farcical petition, it crushes constitutional checks and
balances it threatens every Filipino citizen's right to a free, impartial justice
system.
The State derives its power from the people. When the key instruments of
the State conspire to subvert the Constitution and democracy, the people
must rise as the last bastion of our rights and freedoms.
We challenge the Supreme Court: Pull back from the brink. Do not be a
party to the death of judicial independence. Heed the Constitution. OBEY
THE CODE OF JUDICIAL CONDUCT. COMPEL THE INHIBITION OF THE
BIASED 5. DISMISS THE ILLEGAL QUO WARRANTO PETITION!
If the Biased 5 will not inhibit, then we call on them to resign. The people
will not accept any Decision tainted by gross injustice and Justices who
cannot act with justice. (Emphasis ours)
It could readily be seen that such statements do not only "tend to" but
categorically force and influence the deliberative and decision-making
process of this Court. Notably, the threatening tenor could not go
unnoticed.
To be sure, the Court is not merely being unreasonably sensitive in
addressing this matter, as in fact, it guarantees that it is not swayed or
influenced by such attacks and maintains its judicial independence in
resolving this controversial case. However, when aggressive actions are
taken against the Judiciary as an institution and clouds of doubt are casted
upon the people's faith in the administration of justice, especially so when
the same are perpetrated by members of the Bar, this Court cannot be
apathetic to and is not helpless against such attacks, but the prudent thing
to do is to stand and deal with it head on.
Epilogue
The foregoing discourse thins down to a public officer's accountability to
the public.1awp++i1 The very purpose and nature of public office is
grounded upon it being a public trust. No less than our Constitution gave
special importance on the principle of a public office being a public trust.
Section 1, Article XI of the 1987 Constitution categorically states that:
Section 1. Public office is a public trust. Public officers and employees
must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.
It is therefore an established principle that public office is not "property"
but is a public trust or agency, gove1ned by the Constitution and by
existing laws. There is no Torrens title to a public office. Justice Malcolm,
in Cornejo v. Gabriel and Provincial Board of Rizal,331 expounded on this
principle, viz.:
In the case of Taylor v. Beckham ([1899], 178, U. S., 548), Mr. Chief Justice
Fuller said that: "Decisions are numerous to the effect that public offices
are mere agencies or trust, and not property as such." The basic idea of
government in the Philippine Islands, as in the United States, is that of a
popular representative government, the officers being mere agents and
not rulers of the people, one where no one man or set of men has a
proprietary or contractual right to an office, but where every officer
accepts office pursuant to the provisions of the law and holds the office
as a trust for the people whom he represents. 332 (Emphasis ours)
91 | J U D I C I A L D E P A R T M E N T C A S E S
The right to hold public office under our political system is therefore not a
natural right. It exists, when it exists at all, only because and by virtue of
some law expressly or impliedly creating and conferring it. 333 Needless to
say, before one can hold public office, he or she must be eligible in
accordance with the qualifications fixed by law and the authority
conferring and creating the office. There is no such thing as a vested
interest or an estate in an office, or even an absolute right to hold office. A
public officer who is not truthful, not forthright, in complying with the
qualifications to public office, perforce, has not legally qualified, was not
legally appointed, and consequently, has not legally assumed the said
public office. A disqualification cannot be erased by intentional
concealment of certain defects in complying with the qualifications to
public office set by the Constitution and laws. The passage of time will not
cure such invalidity of holding public office, much less, foreclose the right
and duty of the government, the keeper of the said public office, to oust
and remove the usurper
One who claims title to a public office must prove beyond cavil that he/she
is legally qualified to the said office, otherwise, he or she has no ground to
stand upon his or her claim of title to the office and his or her title may
reasonably be challenged. A qualification must be proved positively,
clearly, and affirmatively. It cannot be proved by mere acquiescence nor by
estoppel or prescription. In the same vein, a disqualification cannot be
obliterated by intentional concealment thereof. As a matter of fact, such
concealment is a clear manifestation of lack of integrity, probity, and
honesty. It cannot be over-emphasized that public service requires
integrity. For this reason, public servants must, at all times, exhibit the
highest sense of honesty. By the very nature of their duties and
responsibilities, they must faithfully adhere to, and hold sacred and render
inviolate the constitutional principle that a public office is a public
trust. 334 The expectation of a strong adherence to this principle escalates
proportionately as one ascends to public office. John Adams, then
President of the United States, said, "society's demands· for moral
authority and character increase as the importance of the position
increases."
In this case, it was found that respondent is ineligible to hold the Chief
Justice of the Supreme Court position for lack of integrity on account of her
failure to file a substantial number of SALNs and also, her failure to submit
the required SALNs to the JBC during her application for the position.
Again, one of the Constitutional duties of a public officer is to submit a
declaration under oath of his or her assets, liabilities, and net worth upon
assumption of office and as often thereafter as may be required by
law. 335 When the Constitution and the law exact obedience, public officers
must comply and not offer excuses. When a public officer is unable or
unwilling to comply, he or she must not assume office in the first place, or
if already holding one, he or she must vacate that public office because it is
the correct and honorable thing to do. A public officer who ignores,
trivializes or disrespects Constitutional and legal provisions, as well as the
canons of ethical standards, forfeits his or her right to hold and continue in
that office.
WHEREFORE, the Petition for Quo Warranto is GRANTED. Respondent
Maria Lourdes P.A. Sereno is found DISQUALIFIED from and is hereby
adjudged GUILTY of UNLAWFULLY HOLDING
and EXERCISING the OFFICE OF THE CHIEF JUSTICE. Accordingly,
Respondent Maria Lourdes P. A. Sereno
is OUSTED and EXCLUDED therefrom.
The position of the Chief Justice of the Supreme Court is declared vacant
and the Judicial and Bar Council is directed to commence the application
and nomination process.
This Decision is immediately executory without need of further action from
the Court.
Respondent Maria Lourdes P.A. Sereno is ordered to SHOW CAUSE within
ten (10) days from receipt hereof why she should not be sanctioned for
violating the Code of Professional Responsibility and the Code of Judicial
Conduct for transgressing the sub Judice rule and for casting aspersions
and ill motives to the Members of the Supreme Court.
SO ORDERED.
92 | J U D I C I A L D E P A R T M E N T C A S E S
93 | J U D I C I A L D E P A R T M E N T C A S E S

Republic of the Philippines G.R. No. 209136

SUPREME COURT
Manila MANUELITO R. LUNA, Petitioner,
vs.
EN BANC SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF
THE DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE
G.R. No. 209287               July 1, 2014 SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO
OF THE PRESIDENT, Respondents.
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE x-----------------------x
PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN,
CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA G.R. No. 209155
WOMEN'S PARTY REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAY
AN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR., ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,
SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG vs.
KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON, THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND
ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR, YOUTH ACT THE SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B.
NOW, Petitioners, ABAD, Respondents.
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE x-----------------------x
PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
G.R. No. 209164
MANAGEMENT, Respondents.
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY
x-----------------------x
DEAN FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M.
BRIONES, Petitioners,
G.R. No. 209135 vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON.
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner, FLORENCIO B. ABAD, Respondents.
vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF x-----------------------x
DEPARTMENT OF BUDGET AND MANAGEMENT; AND HON. FRANKLIN
MAGTUNAO DRILON, IN HIS CAP A CITY AS THE SENATE PRESIDENT OF
G.R. No. 209260
THE PHILIPPINES, Respondents.

x-----------------------x
94 | J U D I C I A L D E P A R T M E N T C A S E S
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,
vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT (DBM), Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE AND
REV. JOSE L. GONZALEZ, Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE
PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON;
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO
BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND
MANAGEMENT, REPRESENTED BY SECRETARY FLORENCIO ABAD; THE
DEPARTMENT OF FINANCE, REPRESENTED BY SECRETARY CESAR V.
PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA
V. DE LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF
GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE
PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA NARTATES, FOR
HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION
OF EMPLOYEES NATIONAL HOUSING AUTHORITY (CUENHA); MANUEL
BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL WELFARE
EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF SOCIAL
WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO);
ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE
DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION
(DAREA); ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE
ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION
(EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF
THE KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA
(KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON.
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC), REPRESENTED
BY DANTE L. JIMENEZ, Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality
of the Disbursement Acceleration Program(DAP), National Budget Circular
(NBC) No. 541, and related issuances of the Department of Budget and
Management (DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987
Constitution, a provision of the fundamental law that firmly ordains that
"[n]o money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." The tenor and context of the challenges
posed by the petitioners against the DAP indicate that the DAP
contravened this provision by allowing the Executive to allocate public
money pooled from programmed and unprogrammed funds of its various
95 | J U D I C I A L D E P A R T M E N T C A S E S
agencies in the guise of the President exercising his constitutional authority
under Section 25(5) of the 1987 Constitution to transfer funds out of
savings to augment the appropriations of offices within the Executive
Branch of the Government. But the challenges are further complicated by
the interjection of allegations of transfer of funds to agencies or offices
outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege
speech in the Senate of the Philippines to reveal that some Senators,
including himself, had been allotted an additional ₱50 Million each as
"incentive" for voting in favor of the impeachment of Chief Justice Renato
C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the
DBM issued a public statement entitled Abad: Releases to Senators Part of
Spending Acceleration Program,1 explaining that the funds released to the
Senators had been part of the DAP, a program designed by the DBM to
ramp up spending to accelerate economic expansion. He clarified that the
funds had been released to the Senators based on their letters of request
for funding; and that it was not the first time that releases from the DAP
had been made because the DAP had already been instituted in 2011 to
ramp up spending after sluggish disbursements had caused the growth of
the gross domestic product (GDP) to slow down. He explained that the
funds under the DAP were usually taken from (1) unreleased
appropriations under Personnel Services;2 (2) unprogrammed funds; (3)
carry-over appropriations unreleased from the previous year; and (4)
budgets for slow-moving items or projects that had been realigned to
support faster-disbursing projects.
The DBM soon came out to claim in its website 3 that the DAP releases had
been sourced from savings generated by the Government, and from
unprogrammed funds; and that the savings had been derived from (1) the
pooling of unreleased appropriations, like unreleased Personnel
Services4 appropriations that would lapse at the end of the year,
unreleased appropriations of slow-moving projects and discontinued
projects per zero based budgeting findings;5 and (2) the withdrawal of
unobligated allotments also for slow-moving programs and projects that
had been earlier released to the agencies of the National Government.
The DBM listed the following as the legal bases for the DAP’s use of
savings,6 namely: (1) Section 25(5), Article VI of the 1987 Constitution,
which granted to the President the authority to augment an item for his
office in the general appropriations law; (2) Section 49 (Authority to Use
Savings for Certain Purposes) and Section 38 (Suspension of Expenditure
Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292
(Administrative Code of 1987); and (3) the General Appropriations Acts
(GAAs) of 2011, 2012 and 2013, particularly their provisions on the (a) use
of savings; (b) meanings of savings and augmentation; and (c) priority in
the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as
legal bases the special provisions on unprogrammed fund contained in the
GAAs of 2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM
brought the DAP to the consciousness of the Nation for the first time, and
made this present controversy inevitable. That the issues against the DAP
came at a time when the Nation was still seething in anger over
Congressional pork barrel – "an appropriation of government spending
meant for localized projects and secured solely or primarily to bring money
to a representative’s district"7 – excited the Nation as heatedly as the pork
barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances
relating to the DAP were filed within days of each other, as follows: G.R.
No. 209135 (Syjuco), on October 7, 2013; G.R. No. 209136 (Luna), on
October 7, 2013; G.R. No. 209155 (Villegas),8 on October 16, 2013; G.R. No.
209164 (PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on
October 16, 2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No.
96 | J U D I C I A L D E P A R T M E N T C A S E S
209442 (Belgica), on October 29, 2013; G.R. No. 209517 (COURAGE), on
November6, 2013; and G.R. No. 209569 (VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s
attention NBC No. 541 (Adoption of Operational Efficiency Measure –
Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012),
alleging that NBC No. 541, which was issued to implement the DAP,
directed the withdrawal of unobligated allotments as of June 30, 2012 of
government agencies and offices with low levels of obligations, both for
continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through
the Office of the Solicitor General (OSG).
The Court directed the holding of oral arguments on the significant issues
raised and joined.
Issues
Under the Advisory issued on November 14, 2013, the presentations of the
parties during the oral arguments were limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and mandamus are proper
remedies to assail the constitutionality and validity of the Disbursement
Acceleration Program (DAP), National Budget Circular (NBC) No. 541, and
all other executive issuances allegedly implementing the DAP. Subsumed in
this issue are whether there is a controversy ripe for judicial
determination, and the standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987
Constitution, which provides: "No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law."
C. Whether or not the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987
Constitution insofar as:
(a)They treat the unreleased appropriations and
unobligated allotments withdrawn from government
agencies as "savings" as the term is used in Sec. 25(5), in
relation to the provisions of the GAAs of 2011, 2012 and
2013;
(b)They authorize the disbursement of funds for projects
or programs not provided in the GAAs for the Executive
Department; and
(c)They "augment" discretionary lump sum
appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the
system of checks and balances, and (3) the principle of public
accountability enshrined in the 1987 Constitution considering that it
authorizes the release of funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary
restraining order to restrain the implementation of the DAP, NBC No. 541,
and all other executive issuances allegedly implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of unprogrammed
funds in order to support its argument regarding the President’s power to
spend. During the oral arguments, the propriety of releasing
unprogrammed funds to support projects under the DAP was considerably
discussed. The petitioners in G.R. No. 209287 (Araullo) and G.R. No.
209442 (Belgica) dwelled on unprogrammed funds in their respective
memoranda. Hence, an additional issue for the oral arguments is stated as
follows:
F. Whether or not the release of unprogrammed funds under the DAP was
in accord with the GAAs.
97 | J U D I C I A L D E P A R T M E N T C A S E S
During the oral arguments held on November 19, 2013, the Court directed
Sec. Abad to submit a list of savings brought under the DAP that had been
sourced from (a) completed programs; (b) discontinued or abandoned
programs; (c) unpaid appropriations for compensation; (d) a certified copy
of the President’s directive dated June 27, 2012 referred to in NBC No. 541;
and (e) all circulars or orders issued in relation to the DAP. 9
In compliance, the OSG submitted several documents, as follows:
(1) A certified copy of the Memorandum for the President dated
June 25, 2012 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and their Realignment); 10
(2) Circulars and orders, which the respondents identified as
related to the DAP, namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on the
Release of Funds for FY 2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on
the Release of Funds for FY 2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of
Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012);
d. NBC No. 545 dated January 2, 2013 (Guidelines on the
Release of Funds for FY 2013);
e. DBM Circular Letter No. 2004-2 dated January 26, 2004
(Budgetary Treatment of Commitments/Obligations of
the National Government);
f. COA-DBM Joint Circular No. 2013-1 dated March 15,
2013 (Revised Guidelines on the Submission of Quarterly
Accountability Reports on Appropriations, Allotments,
Obligations and Disbursements);
g. NBC No. 440 dated January 30, 1995 (Adoption of a
Simplified Fund Release System in the Government).
(3) A breakdown of the sources of savings, including savings from
discontinued projects and unpaid appropriations for
compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution issued on
January 21, 2014 directing the respondents to submit the documents not
yet submitted in compliance with the directives of the Court or its
Members, submitted several evidence packets to aid the Court in
understanding the factual bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven memoranda issued
by the DBM through Sec. Abad, inclusive of annexes, listing in
detail the 116 DAP identified projects approved and duly signed
by the President, as follows:
a. Memorandum for the President dated October 12,
2011 (FY 2011 Proposed Disbursement Acceleration
Program (Projects and Sources of Funds);
b. Memorandum for the President dated December 12,
2011 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and its Realignment);
c. Memorandum for the President dated June 25, 2012
(Omnibus Authority to Consolidate Savings/Unutilized
Balances and their Realignment);
d. Memorandum for the President dated September 4,
2012 (Release of funds for other priority projects and
expenditures of the Government);
e. Memorandum for the President dated December 19,
2012 (Proposed Priority Projects and Expenditures of the
Government);
98 | J U D I C I A L D E P A R T M E N T C A S E S

f. Memorandum for the President dated May 20, 2013
(Omnibus Authority to Consolidate Savings/Unutilized
Balances and their Realignment to Fund the Quarterly
Disbursement Acceleration Program); and
g. Memorandum for the President dated September 25,
2013 (Funding for the Task Force Pablo Rehabilitation
Plan).
(2) Second Evidence Packet12 – consisting of 15 applications of the
DAP, with their corresponding Special Allotment Release Orders
(SAROs) and appropriation covers;
(1) Certified copies of the certifications issued by the Bureau of Treasury to
the effect that the revenue collections exceeded the original revenue
targets for the years 2011, 2012 and 2013, including collections arising
from sources not considered in the original revenue targets, which
certifications were required for the release of the unprogrammed funds as
provided in Special Provision No. 1 of Article XLV, Article XVI, and Article
XLV of the 2011, 2012 and 2013 GAAs; and (2) A report on releases of
savings of the Executive Department for the use of the Constitutional
Commissions and other branches of the Government, as well as the fund
releases to the Senate and the Commission on Elections (COMELEC).
RULING

(3) Third Evidence Packet13 – containing a list and descriptions of I.

12 projects under the DAP;
Procedural Issue:
14
(4) Fourth Evidence Packet  – identifying the DAP-related
portions of the Annual Financial Report (AFR) of the Commission a) The petitions under Rule 65 are proper remedies
on Audit for 2011 and 2012;
All the petitions are filed under Rule 65 of the Rules of Court, and include
(5) Fifth Evidence Packet15 – containing a letter of Department of applications for the issuance of writs of preliminary prohibitory injunction
Transportation and Communications(DOTC) Sec. Joseph Abaya or temporary restraining orders. More specifically, the nature of the
addressed to Sec. Abad recommending the withdrawal of funds petitions is individually set forth hereunder, to wit:
from his agency, inclusive of annexes; and
Certiorari, Prohibition and
(6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s G.R. No. 209135 (Syjuco)
Mandamus
visual presentation for the January 28, 2014 oral arguments.
G.R. No. 209136 (Luna) Certiorariand Prohibition
On February 5, 2014,17 the OSG forwarded the Seventh Evidence G.R. No. 209155 (Villegas) Certiorariand Prohibition
Packet,18 which listed the sources of funds brought under the DAP, the uses
of such funds per project or activity pursuant to DAP, and the legal bases G.R. No. 209164
Certiorariand Prohibition
thereof. (PHILCONSA)
G.R. No. 209260 (IBP) Prohibition
On February 14, 2014, the OSG submitted another set of documents in
further compliance with the Resolution dated January 28, 2014, viz: G.R. No. 209287 (Araullo) Certiorariand Prohibition
G.R. No. 209442 (Belgica) Certiorari
99 | J U D I C I A L D E P A R T M E N T C A S E S
G.R. No. 209517 (COURAGE) Certiorari and Prohibition
G.R. No. 209569 (VACC) Certiorari and Prohibition
The respondents submit that there is no actual controversy that is ripe for
adjudication in the absence of adverse claims between the parties; 19 that
the petitioners lacked legal standing to sue because no allegations were
made to the effect that they had suffered any injury as a result of the
adoption of the DAP and issuance of NBC No. 541; that their being
taxpayers did not immediately confer upon the petitioners the legal
standing to sue considering that the adoption and implementation of the
DAP and the issuance of NBC No. 541 were not in the exercise of the taxing
or spending power of Congress;20 and that even if the petitioners had
suffered injury, there were plain, speedy and adequate remedies in the
ordinary course of law available to them, like assailing the regularity of the
DAP and related issuances before the Commission on Audit (COA) or in the
trial courts.21
The respondents aver that the special civil actions of certiorari and
prohibition are not proper actions for directly assailing the constitutionality
and validity of the DAP, NBC No. 541, and the other executive issuances
implementing the DAP.22
In their memorandum, the respondents further contend that there is no
authorized proceeding under the Constitution and the Rules of Court for
questioning the validity of any law unless there is an actual case or
controversy the resolution of which requires the determination of the
constitutional question; that the jurisdiction of the Court is largely
appellate; that for a court of law to pass upon the constitutionality of a law
or any act of the Government when there is no case or controversy is for
that court to set itself up as a reviewer of the acts of Congress and of the
President in violation of the principle of separation of powers; and that, in
the absence of a pending case or controversy involving the DAP and NBC
No. 541, any decision herein could amount to a mere advisory opinion that
no court can validly render.23
The respondents argue that it is the application of the DAP to actual
situations that the petitioners can question either in the trial courts or in
the COA; that if the petitioners are dissatisfied with the ruling either of the
trial courts or of the COA, they can appeal the decision of the trial courts
by petition for review on certiorari, or assail the decision or final order of
the COA by special civil action for certiorari under Rule 64 of the Rules of
Court.24
The respondents’ arguments and submissions on the procedural issue are
bereft of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.
Thus, the Constitution vests judicial power in the Court and in such lower
courts as may be established by law. In creating a lower court, Congress
concomitantly determines the jurisdiction of that court, and that court,
upon its creation, becomes by operation of the Constitution one of the
repositories of judicial power.25 However, only the Court is a
constitutionally created court, the rest being created by Congress in its
exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts
of justice not only "to settle actual controversies involving rights which are
legally demandable and enforceable" but also "to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government." It has thereby expanded the concept of judicial power,
which up to then was confined to its traditional ambit of settling actual
100 | J U D I C I A L D E P A R T M E N T C A S E S

controversies involving rights that were legally demandable and jurisdiction. This is not only a judicial power but a duty to pass judgmenton
enforceable. matters of this nature.

The background and rationale of the expansion of judicial power under the This is the background of paragraph 2 of Section 1, which means that the
1987 Constitution were laid out during the deliberations of the 1986 courts cannot hereafter evade the duty to settle matters of this nature, by
Constitutional Commission by Commissioner Roberto R. Concepcion (a claiming that such matters constitute a political question. (Bold emphasis
former Chief Justice of the Philippines) in his sponsorship of the proposed supplied)26
provisions on the Judiciary, where he said:–
Upon interpellation by Commissioner Nolledo, Commissioner Concepcion
The Supreme Court, like all other courts, has one main function: to settle clarified the scope of judicial power in the following manner:–
actual controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be MR. NOLLEDO. x x x
enforced by a judicial party. In a decided case, a husband complained that
his wife was unwilling to perform her duties as a wife. The Court said: "We The second paragraph of Section 1 states: "Judicial power includes the duty
can tell your wife what her duties as such are and that she is bound to of courts of justice to settle actual controversies…" The term "actual
comply with them, but we cannot force her physically to discharge her controversies" according to the Commissioner should refer to questions
main marital duty to her husband. There are some rights guaranteed by which are political in nature and, therefore, the courts should not refuse to
law, but they are so personal that to enforce them by actual compulsion decide those political questions. But do I understand it right that this is
would be highly derogatory to human dignity." This is why the first part of restrictive or only an example? I know there are cases which are not actual
the second paragraph of Section 1 provides that: Judicial power includes yet the court can assume jurisdiction. An example is the petition for
the duty of courts to settle actual controversies involving rights which are declaratory relief.
legally demandable or enforceable…
May I ask the Commissioner’s opinion about that?
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme Court has,
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant
also, another important function. The powers of government are generally
declaratory judgments.
considered divided into three branches: the Legislative, the Executive and
the Judiciary. Each one is supreme within its own sphere and independent
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial
of the others. Because of that supremacy power to determine whether a
power is not vested in the Supreme Court alone but also in other lower
given law is valid or not is vested in courts of justice.
courts as may be created by law.
Briefly stated, courts of justice determine the limits of power of the
MR. CONCEPCION. Yes.
agencies and offices of the government as well as those of its officers. In
other words, the judiciary is the final arbiter on the question whether or
not a branch of government or any of its officials has acted without MR. NOLLEDO. And so, is this only an example?
jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction or lack of
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MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or
had abused its authority to the extent of lacking jurisdiction or excess of
jurisdiction, that is not a political question. Therefore, the court has the
duty to decide.27
Our previous Constitutions equally recognized the extent of the power of
judicial review and the great responsibility of the Judiciary in maintaining
the allocation of powers among the three great branches of Government.
Speaking for the Court in Angara v. Electoral Commission, 28 Justice Jose P.
Laurel intoned:
x x x In times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper
allocation of powers between the several department and among the
integral or constituent units thereof.
xxxx
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational
way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other department;
it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution
to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the
power of judicial review under the Constitution. x x x29
What are the remedies by which the grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government may be determined under the Constitution?
The present Rules of Court uses two special civil actions for determining
and correcting grave abuse of discretion amounting to lack or excess of
jurisdiction. These are the special civil actions for certiorari and prohibition,
and both are governed by Rule 65. A similar remedy of certiorari exists
under Rule 64, but the remedy is expressly applicable only to the
judgments and final orders or resolutions of the Commission on Elections
and the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present
system are aptly explained in Delos Santos v. Metropolitan Bank and Trust
Company:30
In the common law, from which the remedy of certiorari evolved, the writ
of certiorari was issued out of Chancery, or the King’s Bench, commanding
agents or officers of the inferior courts to return the record of a cause
pending before them, so as to give the party more sure and speedy justice,
for the writ would enable the superior court to determine from an
inspection of the record whether the inferior court’s judgment was
rendered without authority. The errors were of such a nature that, if
allowed to stand, they would result in a substantial injury to the petitioner
to whom no other remedy was available. If the inferior court acted without
authority, the record was then revised and corrected in matters of law. The
writ of certiorari was limited to cases in which the inferior court was said
to be exceeding its jurisdiction or was not proceeding according to
essential requirements of law and would lie only to review judicial or
quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains
much the same as it has been in the common law. In this jurisdiction,
however, the exercise of the power to issue the writ of certiorari is largely
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regulated by laying down the instances or situations in the Rules of Court
in which a superior court may issue the writ of certiorari to an inferior
court or officer. Section 1, Rule 65 of the Rules of Court compellingly
provides the requirements for that purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of
jurisdiction, which includes the commission of grave abuse of discretion
amounting to lack of jurisdiction. In this regard, mere abuse of discretion is
not enough to warrant the issuance of the writ. The abuse of discretion
must be grave, which means either that the judicial or quasi-judicial power
was exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, or that the respondent judge, tribunal or board evaded a
positive duty, or virtually refused to perform the duty enjoined or to act in
contemplation of law, such as when such judge, tribunal or board
exercising judicial or quasi-judicial powers acted in a capricious or
whimsical manner as to be equivalent to lack of jurisdiction. 31
Although similar to prohibition in that it will lie for want or excess of
jurisdiction, certiorari is to be distinguished from prohibition by the fact
that it is a corrective remedy used for the re-examination of some action of
an inferior tribunal, and is directed to the cause or proceeding in the lower
court and not to the court itself, while prohibition is a preventative remedy
issuing to restrain future action, and is directed to the court itself. 32 The
Court expounded on the nature and function of the writ of prohibition in
Holy Spirit Homeowners Association, Inc. v. Defensor: 33
A petition for prohibition is also not the proper remedy to assail an IRR
issued in the exercise of a quasi-legislative function. Prohibition is an
extraordinary writ directed against any tribunal, corporation, board, officer
or person, whether exercising judicial, quasi-judicial or ministerial
functions, ordering said entity or person to desist from further proceedings
when said proceedings are without or in excess of said entity’s or person’s
jurisdiction, or are accompanied with grave abuse of discretion, and there
is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law. Prohibition lies against judicial or ministerial
functions, but not against legislative or quasi-legislative functions.
Generally, the purpose of a writ of prohibition is to keep a lower court
within the limits of its jurisdiction in order to maintain the administration
of justice in orderly channels. Prohibition is the proper remedy to afford
relief against usurpation of jurisdiction or power by an inferior court, or
when, in the exercise of jurisdiction in handling matters clearly within its
cognizance the inferior court transgresses the bounds prescribed to it by
the law, or where there is no adequate remedy available in the ordinary
course of law by which such relief can be obtained. Where the principal
relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary
action for its nullification, an action which properly falls under the
jurisdiction of the Regional Trial Court. In any case, petitioners’ allegation
that "respondents are performing or threatening to perform functions
without or in excess of their jurisdiction" may appropriately be enjoined by
the trial court through a writ of injunction or a temporary restraining
order.
With respect to the Court, however, the remedies of certiorari and
prohibition are necessarily broader in scope and reach, and the writ of
certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officer exercising
judicial, quasi-judicial or ministerial functions but also to set right, undo
and restrain any act of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the Government,
even if the latter does not exercise judicial, quasi-judicial or ministerial
functions. This application is expressly authorized by the text of the second
paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to
raise constitutional issues and to review and/or prohibit or nullify the acts
of legislative and executive officials.34
Necessarily, in discharging its duty under Section 1, supra, to set right and
undo any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, the Court
is not at all precluded from making the inquiry provided the challenge was
properly brought by interested or affected parties. The Court has been
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thereby entrusted expressly or by necessary implication with both the duty
and the obligation of determining, in appropriate cases, the validity of any
assailed legislative or executive action. This entrustment is consistent with
the republican system of checks and balances.35
Following our recent dispositions concerning the congressional pork barrel,
the Court has become more alert to discharge its constitutional duty. We
will not now refrain from exercising our expanded judicial power in order
to review and determine, with authority, the limitations on the Chief
Executive’s spending power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial review are the
following, namely: (1) there must bean actual case or justiciable
controversy before the Court; (2) the question before the Court must be
ripe for adjudication; (3) the person challenging the act must be a proper
party; and (4) the issue of constitutionality must be raised at the earliest
opportunity and must be the very litis mota of the case. 36
The first requisite demands that there be an actual case calling for the
exercise of judicial power by the Court. 37 An actual case or controversy, in
the words of Belgica v. Executive Secretary Ochoa: 38
x x x is one which involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. In other words, "[t]here
must be a contrariety of legal rights that can be interpreted and enforced
on the basis of existing law and jurisprudence." Related to the requirement
of an actual case or controversy is the requirement of "ripeness," meaning
that the questions raised for constitutional scrutiny are already ripe for
adjudication. "A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it.
It is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture, and
the petitioner must allege the existence of an immediate or threatened
injury to itself as a result of the challenged action." "Withal, courts will
decline to pass upon constitutional issues through advisory opinions,
bereft as they are of authority to resolve hypothetical or moot questions."
An actual and justiciable controversy exists in these consolidated cases.
The incompatibility of the perspectives of the parties on the
constitutionality of the DAP and its relevant issuances satisfy the
requirement for a conflict between legal rights. The issues being raised
herein meet the requisite ripeness considering that the challenged
executive acts were already being implemented by the DBM, and there are
averments by the petitioners that such implementation was repugnant to
the letter and spirit of the Constitution. Moreover, the implementation of
the DAP entailed the allocation and expenditure of huge sums of public
funds. The fact that public funds have been allocated, disbursed or utilized
by reason or on account of such challenged executive acts gave rise,
therefore, to an actual controversy that is ripe for adjudication by the
Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral
arguments that the DAP as a program had been meanwhile discontinued
because it had fully served its purpose, saying: "In conclusion, Your Honors,
may I inform the Court that because the DAP has already fully served its
purpose, the Administration’s economic managers have recommended its
termination to the President. x x x."39
The Solicitor General then quickly confirmed the termination of the DAP as
a program, and urged that its termination had already mooted the
challenges to the DAP’s constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these present cases
brought to challenge its constitutionality. Any constitutional challenge
should no longer be at the level of the program, which is now extinct, but
at the level of its prior applications or the specific disbursements under the
now defunct policy. We challenge the petitioners to pick and choose which
among the 116 DAP projects they wish to nullify, the full details we will
have provided by February 5. We urge this Court to be cautious in limiting
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the constitutional authority of the President and the Legislature to respond
to the dynamic needs of the country and the evolving demands of
governance, lest we end up straight jacketing our elected representatives
in ways not consistent with our constitutional structure and democratic
principles.40
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value.41
The Court cannot agree that the termination of the DAP as a program was
a supervening event that effectively mooted these consolidated cases.
Verily, the Court had in the past exercised its power of judicial review
despite the cases being rendered moot and academic by supervening
events, like: (1) when there was a grave violation of the Constitution; (2)
when the case involved a situation of exceptional character and was of
paramount public interest; (3) when the constitutional issue raised
required the formulation of controlling principles to guide the Bench, the
Bar and the public; and (4) when the case was capable of repetition yet
evading review.42
Assuming that the petitioners’ several submissions against the DAP were
ultimately sustained by the Court here, these cases would definitely come
under all the exceptions. Hence, the Court should not abstain from
exercising its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a
right of appearance in a court of justice on a given question." 43 The concept
of legal standing, or locus standi, was particularly discussed in De Castro v.
Judicial and Bar Council,44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-
present need to regulate the invocation of the intervention of the Court to
correct any official action or policy in order to avoid obstructing the
efficient functioning of public officials and offices involved in public service.
It is required, therefore, that the petitioner must have a personal stake in
the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine
International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions." Accordingly, it has been held that the interest of
a person assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent
danger of sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must appear
that the person complaining has been or is about to be denied some right
or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act
complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the
direct injury test for determining whether a petitioner in a public action
had locus standi. There, the Court held that the person who would assail
the validity of a statute must have "a personal and substantial interest in
the case such that he has sustained, or will sustain direct injury as a result."
Vera was followed in Custodio v. President of the Senate, Manila Race
Horse Trainers’ Association v. De la Fuente, Anti-Chinese League of the
Philippines v. Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a
mere procedural technicality, can be waived by the Court in the exercise of
its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court
liberalized the approach when the cases had "transcendental importance."
Some notable controversies whose petitioners did not pass the direct
injury test were allowed to be treated in the same way as in Araneta v.
Dinglasan.
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In the 1975 decision in Aquino v. Commission on Elections, this Court
decided to resolve the issues raised by the petition due to their "far
reaching implications," even if the petitioner had no personality to file the
suit. The liberal approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary citizens, legislators,
and civic organizations to bring their suits involving the constitutionality or
validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a
supposedly illegal or unconstitutional executive or legislative action rests
on the theory that the petitioner represents the public in general. Although
such petitioner may not be as adversely affected by the action complained
against as are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in the
vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or
taxpayer to gain locus standi. That is not surprising, for even if the issue
may appear to concern only the public in general, such capacities
nonetheless equip the petitioner with adequate interest to sue. In David v.
Macapagal-Arroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp
v. Silk, where it was held that the plaintiff in a taxpayer’s suit is in a
different category from the plaintiff in a citizen’s suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter,
he is but the mere instrument of the public concern. As held by the New
York Supreme Court in People ex rel Case v. Collins: "In matter of mere
public right, however…the people are the real parties…It is at least the
right, if not the duty, of every citizen to interfere and see that a public
offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer’s suits, Terr v. Jordan held that "the
right of a citizen and a taxpayer to maintain an action in courts to restrain
the unlawful use of public funds to his injury cannot be denied." 45
The Court has cogently observed in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.46 that "[s]tanding is a peculiar concept in constitutional
law because in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act
but by concerned citizens, taxpayers or voters who actually sue in the
public interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners
have invoked their capacities as taxpayers who, by averring that the
issuance and implementation of the DAP and its relevant issuances
involved the illegal disbursements of public funds, have an interest in
preventing the further dissipation of public funds. The petitioners in G.R.
No. 209287 (Araullo) and G.R. No. 209442 (Belgica) also assert their right
as citizens to sue for the enforcement and observance of the constitutional
limitations on the political branches of the Government. 47
On its part, PHILCONSA simply reminds that the Court has long recognized
its legal standing to bring cases upon constitutional issues. 48 Luna, the
petitioner in G.R. No. 209136, cites his additional capacity as a lawyer. The
IBP, the petitioner in G.R. No. 209260, stands by "its avowed duty to work
for the rule of law and of paramount importance of the question in this
action, not to mention its civic duty as the official association of all lawyers
in this country."49
Under their respective circumstances, each of the petitioners has
established sufficient interest in the outcome of the controversy as to
confer locus standi on each of them.
In addition, considering that the issues center on the extent of the power
of the Chief Executive to disburse and allocate public funds, whether
appropriated by Congress or not, these cases pose issues that are of
transcendental importance to the entire Nation, the petitioners included.
As such, the determination of such important issues call for the Court’s
exercise of its broad and wise discretion "to waive the requirement and so
remove the impediment to its addressing and resolving the serious
constitutional questions raised."50
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II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the
Court in properly appreciating and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that
had derived from the Latin word bulga (which means bag or purse). 51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act)
defined "budget" as the financial program of the National Government for
a designated fiscal year, consisting of the statements of estimated receipts
and expenditures for the fiscal year for which it was intended to be
effective based on the results of operations during the preceding fiscal
years. The term was given a different meaning under Republic Act No. 992
(Revised Budget Act) by describing the budget as the delineation of the
services and products, or benefits that would accrue to the public together
with the estimated unit cost of each type of service, product or
benefit.52 For a forthright definition, budget should simply be identified as
the financial plan of the Government,53 or "the master plan of
government."54
The concept of budgeting has not been the product of recent economies.
In reality, financing public goals and activities was an idea that existed from
the creation of the State.55 To protect the people, the territory and
sovereignty of the State, its government must perform vital functions that
required public expenditures. At the beginning, enormous public
expenditures were spent for war activities, preservation of peace and
order, security, administration of justice, religion, and supply of limited
goods and services.56 In order to finance those expenditures, the State
raised revenues through taxes and impositions.57 Thus, budgeting became
necessary to allocate public revenues for specific government
functions.58 The State’s budgeting mechanism eventually developed
through the years with the growing functions of its government and
changes in its market economy.
The Philippine Budget System has been greatly influenced by western
public financial institutions. This is because of the country’s past as a
colony successively of Spain and the United States for a long period of
time. Many aspects of the country’s public fiscal administration, including
its Budget System, have been naturally patterned after the practices and
experiences of the western public financial institutions. At any rate, the
Philippine Budget System is presently guided by two principal objectives
that are vital to the development of a progressive democratic government,
namely: (1) to carry on all government activities under a comprehensive
fiscal plan developed, authorized and executed in accordance with the
Constitution, prevailing statutes and the principles of sound public
management; and (2) to provide for the periodic review and disclosure of
the budgetary status of the Government in such detail so that persons
entrusted by law with the responsibility as well as the enlightened citizenry
can determine the adequacy of the budget actions taken, authorized or
proposed, as well as the true financial position of the Government. 59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the
American Regime up to the passage of the Jones Law in 1916. A Budget
Office was created within the Department of Finance by the Jones Law to
discharge the budgeting function, and was given the responsibility to assist
in the preparation of an executive budget for submission to the Philippine
Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget
procedure were established, and subsequently strengthened through the
enactment of laws and executive acts.61 EO No. 25, issued by President
Manuel L. Quezon on April 25, 1936, created the Budget Commission to
serve as the agency that carried out the President’s responsibility of
preparing the budget.62 CA No. 246, the first budget law, went into effect
on January 1, 1938 and established the Philippine budget process. The law
107 | J U D I C I A L D E P A R T M E N T C A S E S
also provided a line-item budget as the framework of the Government’s
budgeting system,63 with emphasis on the observance of a "balanced
budget" to tie up proposed expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954
of Republic Act (RA) No. 992,whereby Congress introduced performance-
budgeting to give importance to functions, projects and activities in terms
of expected results.64 RA No. 992 also enhanced the role of the Budget
Commission as the fiscal arm of the Government. 65
The 1973 Constitution and various presidential decrees directed a series of
budgetary reforms that culminated in the enactment of PD No. 1177 that
President Marcos issued on July30, 1977, and of PD No. 1405, issued on
June 11, 1978. The latter decree converted the Budget Commission into
the Ministry of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and
Management (OBM) under EO No. 711. The OBM became the DBM
pursuant to EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1)
Budget Preparation; (2) Budget Legislation; (3) Budget Execution; and (4)
Accountability. Each phase is distinctly separate from the others but they
overlap in the implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a
Budget Call by the DBM. The Budget Call contains budget parameters
earlier set by the Development Budget Coordination Committee (DBCC) as
well as policy guidelines and procedures to aid government agencies in the
preparation and submission of their budget proposals. The Budget Call is of
two kinds, namely: (1) a National Budget Call, which is addressed to all
agencies, including state universities and colleges; and (2) a Corporate
Budget Call, which is addressed to all government-owned and -controlled
corporations (GOCCs) and government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and
agencies submit their respective Agency Budget Proposals to the DBM. To
boost citizen participation, the current administration has tasked the
various departments and agencies to partner with civil society
organizations and other citizen-stakeholders in the preparation of the
Agency Budget Proposals, which proposals are then presented before a
technical panel of the DBM in scheduled budget hearings wherein the
various departments and agencies are given the opportunity to defend
their budget proposals. DBM bureaus thereafter review the Agency Budget
Proposals and come up with recommendations for the Executive Review
Board, comprised by the DBM Secretary and the DBM’s senior officials. The
discussions of the Executive Review Board cover the prioritization of
programs and their corresponding support vis-à-vis the priority agenda of
the National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the
National Expenditure Program (NEP)and a Budget of Expenditures and
Sources of Financing (BESF). The NEP provides the details of spending for
each department and agency by program, activity or project (PAP), and is
submitted in the form of a proposed GAA. The Details of Selected
Programs and Projects is the more detailed disaggregation of key PAPs in
the NEP, especially those in line with the National Government’s
development plan. The Staffing Summary provides the staffing
complement of each department and agency, including the number of
positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to
the President and the Cabinet for further refinements or reprioritization.
Once the NEP and the BESF are approved by the President and the Cabinet,
the DBM prepares the budget documents for submission to Congress. The
budget documents consist of: (1) the President’s Budget Message, through
which the President explains the policy framework and budget priorities;
(2) the BESF, mandated by Section 22, Article VII of the
Constitution,68 which contains the macroeconomic assumptions, public
108 | J U D I C I A L D E P A R T M E N T C A S E S
sector context, breakdown of the expenditures and funding sources for the
fiscal year and the two previous years; and (3) the NEP.
Public or government expenditures are generally classified into two
categories, specifically: (1) capital expenditures or outlays; and (2) current
operating expenditures. Capital expenditures are the expenses whose
usefulness lasts for more than one year, and which add to the assets of the
Government, including investments in the capital of government-owned or
controlled corporations and their subsidiaries.69 Current operating
expenditures are the purchases of goods and services in current
consumption the benefit of which does not extend beyond the fiscal
year.70 The two components of current expenditures are those for personal
services (PS), and those for maintenance and other operating
expenses(MOOE).
Public expenditures are also broadly grouped according to their functions
into: (1) economic development expenditures (i.e., expenditures on
agriculture and natural resources, transportation and communications,
commerce and industry, and other economic development efforts); 71 (2)
social services or social development expenditures (i.e., government outlay
on education, public health and medicare, labor and welfare and
others);72 (3) general government or general public services expenditures
(i.e., expenditures for the general government, legislative services, the
administration of justice, and for pensions and gratuities); 73 (4) national
defense expenditures (i.e., sub-divided into national security expenditures
and expenditures for the maintenance of peace and order); 74 and (5) public
debt.75
Public expenditures may further be classified according to the nature of
funds, i.e., general fund, special fund or bond fund. 76
On the other hand, public revenues complement public expenditures and
cover all income or receipts of the government treasury used to support
government expenditures.77
Classical economist Adam Smith categorized public revenues based on two
principal sources, stating: "The revenue which must defray…the necessary
expenses of government may be drawn either, first from some fund which
peculiarly belongs to the sovereign or commonwealth, and which is
independent of the revenue of the people, or, secondly, from the revenue
of the people."78 Adam Smith’s classification relied on the two aspects of
the nature of the State: first, the State as a juristic person with an artificial
personality, and, second, the State as a sovereign or entity possessing
supreme power. Under the first aspect, the State could hold property and
engage in trade, thereby deriving what is called its quasi private income or
revenues, and which "peculiarly belonged to the sovereign." Under the
second aspect, the State could collect by imposing charges on the revenues
of its subjects in the form of taxes.79
In the Philippines, public revenues are generally derived from the following
sources, to wit: (1) tax revenues(i.e., compulsory contributions to finance
government activities); 80 (2) capital revenues(i.e., proceeds from sales of
fixed capital assets or scrap thereof and public domain, and gains on such
sales like sale of public lands, buildings and other structures, equipment,
and other properties recorded as fixed assets); 81 (3) grants(i.e., voluntary
contributions and aids given to the Government for its operation on
specific purposes in the form of money and/or materials, and do not
require any monetary commitment on the part of the recipient); 82 (4)
extraordinary income(i.e., repayment of loans and advances made by
government corporations and local governments and the receipts and
shares in income of the Banko Sentral ng Pilipinas, and other
receipts);83 and (5) public borrowings(i.e., proceeds of repayable
obligations generally with interest from domestic and foreign creditors of
the Government in general, including the National Government and its
political subdivisions).84
More specifically, public revenues are classified as follows: 85
General Income Specific Income
Subsidy Income from National Income Taxes
Government Property Taxes
Subsidy from Central Office Taxes on Goods and Services
Subsidy from Regional Taxes on International Trade and
 109 | J U D I C I A L D E P A R T M E N T C A S E S

Office/Staff Bureaus Transactions conduct budget hearings to examine the PAPs of the departments and
agencies. Thereafter, the House of Representatives drafts the General
Income from Government Other Taxes 6.Fines and Penalties-Tax Revenue
Appropriations Bill (GAB). 87
Services Other Specific Income
Income from Government The GABis sponsored, presented and defended by the House of
Business Operations Representatives’ Appropriations Committee and Sub-Committees in
Sales Revenue plenary session. As with other laws, the GAB is approved on Third Reading
Rent Income before the House of Representatives’ version is transmitted to the
Insurance Income Senate.88
Dividend Income
After transmission, the Senate conducts its own committee hearings on the
Interest Income GAB. To expedite proceedings, the Senate may conduct its committee
Sale of Confiscated Goods and hearings simultaneously with the House of Representatives’ deliberations.
Properties The Senate’s Finance Committee and its Sub-Committees may submit the
Foreign Exchange (FOREX) proposed amendments to the GAB to the plenary of the Senate only after
Gains the House of Representatives has formally transmitted its version to the
Senate. The Senate version of the GAB is likewise approved on Third
Miscellaneous Operating and
Reading.89
Service Income
Fines and Penalties-Government
The House of Representatives and the Senate then constitute a panel each
Services and Business Operations
to sit in the Bicameral Conference Committee for the purpose of discussing
Income from Grants and and harmonizing the conflicting provisions of their versions of the GAB.
Donations The "harmonized" version of the GAB is next presented to the President
for approval.90 The President reviews the GAB, and prepares the Veto
Message where budget items are subjected to direct veto, 91 or are
identified for conditional implementation.
c.2. Budget Legislation86
If, by the end of any fiscal year, the Congress shall have failed to pass the
The Budget Legislation Phase covers the period commencing from the time GAB for the ensuing fiscal year, the GAA for the preceding fiscal year shall
Congress receives the President’s Budget, which is inclusive of the NEPand be deemed re-enacted and shall remain in force and effect until the GAB is
the BESF, up to the President’s approval of the GAA. This phase is also passed by the Congress.92
known as the Budget Authorization Phase, and involves the significant
participation of the Legislative through its deliberations. c.3. Budget Execution93

Initially, the President’s Budget is assigned to the House of With the GAA now in full force and effect, the next step is the
Representatives’ Appropriations Committee on First Reading. The implementation of the budget. The Budget Execution Phase is primarily the
Appropriations Committee and its various Sub-Committees schedule and function of the DBM, which is tasked to perform the following procedures,
110 | J U D I C I A L D E P A R T M E N T C A S E S
namely: (1) to issue the programs and guidelines for the release of funds;
(2) to prepare an Allotment and Cash Release Program; (3) to release
allotments; and (4) to issue disbursement authorities.
The implementation of the GAA is directed by the guidelines issued by the
DBM. Prior to this, the various departments and agencies are required to
submit Budget Execution Documents(BED) to outline their plans and
performance targets by laying down the physical and financial plan, the
monthly cash program, the estimate of monthly income, and the list of
obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a
Cash Release Program (CRP).The ARP sets a limit for allotments issued in
general and to a specific agency. The CRP fixes the monthly, quarterly and
annual disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued
by the DBM. Allotments are lesser in scope than appropriations, in that the
latter embrace the general legislative authority to spend. Allotments may
be released in two forms – through a comprehensive Agency Budget
Matrix (ABM),94 or, individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to
incur obligations96 on behalf of the Government in order to implement
their PAPs. Obligations may be incurred in various ways, like hiring of
personnel, entering into contracts for the supply of goods and services,
and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues
a disbursement authority so that cash may be allocated in payment of the
obligations. A cash or disbursement authority that is periodically issued is
referred to as a Notice of Cash Allocation (NCA), 97 which issuance is based
upon an agency’s submission of its Monthly Cash Program and other
required documents. The NCA specifies the maximum amount of cash that
can be withdrawn from a government servicing bank for the period
indicated. Apart from the NCA, the DBM may issue a Non-Cash Availment
Authority(NCAA) to authorize non-cash disbursements, or a Cash
Disbursement Ceiling(CDC) for departments with overseas operations to
allow the use of income collected by their foreign posts for their operating
requirements.
Actual disbursement or spending of government funds terminates the
Budget Execution Phase and is usually accomplished through the Modified
Disbursement Scheme under which disbursements chargeable against the
National Treasury are coursed through the government servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget cycle because it ensures
that the government funds have been effectively and efficiently utilized to
achieve the State’s socio-economic goals. It also allows the DBM to assess
the performance of agencies during the fiscal year for the purpose of
implementing reforms and establishing new policies.
An agency’s accountability may be examined and evaluated through (1)
performance targets and outcomes; (2) budget accountability reports; (3)
review of agency performance; and (4) audit conducted by the Commission
on Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to
promote economic growth
Policy is always a part of every budget and fiscal decision of any
Administration.99 The national budget the Executive prepares and presents
to Congress represents the Administration’s "blueprint for public policy"
and reflects the Government’s goals and strategies. 100 As such, the national
budget becomes a tangible representation of the programs of the
Government in monetary terms, specifying therein the PAPs and services
for which specific amounts of public funds are proposed and
allocated.101 Embodied in every national budget is government spending. 102
111 | J U D I C I A L D E P A R T M E N T C A S E S

When he assumed office in the middle of 2010, President Aquino made for prospective investors.113 The PAPs funded under the DAP were chosen
efficiency and transparency in government spending a significant focus of for this reason based on their: (1) multiplier impact on the economy and
his Administration. Yet, although such focus resulted in an improved fiscal infrastructure development; (2) beneficial effect on the poor; and (3)
deficit of 0.5% in the gross domestic product (GDP) from January to July of translation into disbursements.114
2011, it also unfortunately decelerated government project
implementation and payment schedules.103 The World Bank observed that b. History of the implementation of
the Philippines’ economic growth could be reduced, and potential growth the DAP, and sources of funds
could be weakened should the Government continue with its under the DAP
underspending and fail to address the large deficiencies in
infrastructure.104 The economic situation prevailing in the middle of 2011 How the Administration’s economic managers conceptualized and
thus paved the way for the development and implementation of the DAP developed the DAP, and finally presented it to the President remains
as a stimulus package intended to fast-track public spending and to push unknown because the relevant documents appear to be scarce.
economic growth by investing on high-impact budgetary PAPs to be
funded from the "savings" generated during the year as well as from
The earliest available document relating to the genesis of the DAP was the
unprogrammed funds.105 In that respect, the DAP was the product of "plain
memorandum of October 12,2011 from Sec. Abad seeking the approval of
executive policy-making" to stimulate the economy by way of accelerated
the President to implement the proposed DAP. The memorandum, which
spending.106 The Administration would thereby accelerate government
contained a list of the funding sources for ₱72.11 billion and of the
spending by: (1) streamlining the implementation process through the
proposed priority projects to be funded,115 reads:
clustering of infrastructure projects of the Department of Public Works and
Highways (DPWH) and the Department of Education (DepEd),and (2) front
MEMORANDUM FOR THE PRESIDENT
loading PPP-related projects107 due for implementation in the following
year.108
xxxx
Did the stimulus package work?
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM
109 (PROJECTS AND SOURCES OF FUNDS)
The March 2012 report of the World Bank,  released after the initial
implementation of the DAP, revealed that the DAP was partially successful.
The disbursements under the DAP contributed 1.3 percentage points to DATE: OCTOBER 12, 2011
GDP growth by the fourth quarter of 2011.110 The continued
implementation of the DAP strengthened growth by 11.8% year on year Mr. President, this is to formally confirm your approval of the
while infrastructure spending rebounded from a 29% contraction to a 34% Disbursement Acceleration Program totaling ₱72.11 billion. We are already
growth as of September 2013.111 working with all the agencies concerned for the immediate execution of
the projects therein.
The DAP thus proved to be a demonstration that expenditure was a policy
instrument that the Government could use to direct the economies A. Fund Sources for the Acceleration Program
towards growth and development.112 The Government, by spending on
public infrastructure, would signify its commitment of ensuring profitability
 112 | J U D I C I A L D E P A R T M E N T C A S E S

Amount 30,000 Unreleased Personnel Declare as

Action
Fund Sources (In million Description Unreleased Services (PS) savings and
Requested
Php) appropriations which approve/
Services (PS) will lapse at the end of authorize its use
Appropriations FY 2011 but may be for the 2011
pooled as savings and Disbursement
realigned for priority Acceleration
programs that require Program
immediate funding

482 Unreleased  
Unreleased appropriations (slow
Appropriations moving projects and
programs for
discontinuance)

12,336 Supported by the GFI Approve and

Unprogrammed Dividends authorize its use
for the 2011
Disbursement
Acceleration
Program

21,544 Unreleased With prior

appropriations (slow approval from
Appropriation moving projects and the President in
programs for November 2010
discontinuance) and to declare as
savings from Zero-based Budgeting savings and with
Initiative authority to use
for priority
projects

FY 2011 Budget 7,748 FY 2011 Agency For information

Budget items that can
realignment be realigned within the
agency to fund new fast
 113 | J U D I C I A L D E P A R T M E N T C A S E S

disbursing projects 6. HGC: Equity infusion for credit insurance 400

DPWH-3.981 Billion and mortgage guaranty operations of HGC
DA – 2.497 Billion
DOT – 1.000 Billion 7. PHIC: Obligations incurred (premium 1,496
DepEd – 270 Million subsidy for indigent families) in January-June
2010, booked for payment in Jul[y] – Dec
TOTAL 72.110     2010. The delay in payment is due to the
delay in the certification of the LGU
counterpart. Without it, the NG is obliged to
B. Projects in the Disbursement Acceleration Program pay the full amount.

8. Philpost: Purchase of foreclosed property. 644

(Descriptions of projects attached as Annex A)
Payment of Mandatory Obligations, (GSIS,
PhilHealth, ECC), Franking Privilege
GOCCs and GFIs
9. BSP: First equity infusion out of Php 40B 10,000
Agency/Project Allotmentcapitalization under the BSP Law
(SARO and NCA Release) (in Million Php)
10. PCMC: Capital and Equipment Renovation 280
1. LRTA: Rehabilitation of LRT 1 and 2 1,868
11. LCOP: 105
2. NHA: 11,050 a. Pediatric Pulmonary Program
b. Bio-regenerative Technology Program 35
a. Resettlement of North Triangle residents to 450 (Stem-Cell Research – subject to legal
70
Camarin A7 review and presentation)
b. Housing for BFP/BJMP 500
c. On-site development for families living 10,000 12. TIDCORP: NG Equity infusion 570
along dangerous
100 TOTAL 26,945
d. Relocation sites for informal settlers
along Iloilo River and its tributaries

3. PHIL. HEART CENTER: Upgrading of 357 NGAs/LGUs

ageing physical plant and medical equipment
Agency/Project Allotment
4. CREDIT INFO CORP: Establishment of 75 (SARO) Cash
centralized credit information system (In Million Requirement
Php) (NCA)
5. PIDS: purchase of land to relocate the PIDS 100
office and building construction 13. DOF-BIR: NPSTAR
 114 | J U D I C I A L D E P A R T M E N T C A S E S

centralization of data     21. OPAPP: Activities for Peace

processing and others (To be     Process (PAMANA- Project    
synchronized with GFMIS     details: budget breakdown,    
activities) 758 758 implementation plan, and    
conditions on fund release    
14. COA: IT infrastructure attached as Annex B) 1,819 1,819
program and hiring of    
additional litigational experts 144 144 22. DOST 425 425
a. Establishment of National
15. DND-PAF: On Base Housing Meterological and Climate    
Facilities and Communication     Center 275 275
Equipment 30 30 b. Enhancement of Doppler
Radar Network for National    
16. DA: 2,959 2,223
Weather Watch, Accurate    
a. Irrigation, FMRs and
Forecasting and Flood Early    
Integrated Community Based Multi-Species    
Warning 190 190
Hatchery and Aquasilvi    
Farming 1,629 1,62923. DOF-BOC: To settle the
b. Mindanao Rural principal obligations with    
Development Project 919 183 PDIC consistent with the    
agreement with the CISS and    
c. NIA Agno River Integrated
SGS 2,800 2,800
Irrigation Project 411 411
24. OEO-FDCP: Establishment of
17. DAR: 1,293 1,293
the National Film Archive and    
a. Agrarian Reform
local cinematheques, and other    
Communities Project 2 1,293 132
local activities 20 20
b. Landowners Compensation 5,432
25. DPWH: Various infrastructure
18. DBM: Conduct of National
projects 5,500 5,500
Survey of    
Farmers/Fisherfolks/Ips 625 625 26. DepEd/ERDT/DOST: Thin
Client Cloud Computing    
19. DOJ: Operating requirements
Project 270 270
of 50 investigation agents and    
15 state attorneys 11 11 27. DOH: Hiring of nurses and
midwives 294 294
20. DOT: Preservation of the Cine
Corregidor Complex 25 25 28. TESDA: Training Program in
 115 | J U D I C I A L D E P A R T M E N T C A S E S

For His Excellency’s Consideration

partnership with BPO industry    
and other sectors 1,100 1,100
(Sgd.) FLORENCIO B. ABAD
29. DILG: Performance Challenge
Fund (People Empowered     [/] APPROVED
Community Driven    
Development with DSWD and     [ ] DISAPPROVED
NAPC) 250 50

30. ARMM: Comprehensive Peace (Sgd.) H.E. BENIGNO S. AQUINO, III

and Development Intervention 8,592 8,592
OCT 12, 2011
31. DOTC-MRT: Purchase of
additional MRT cars 4,500 - The memorandum of October 12, 2011 was followed by another
memorandum for the President dated December 12, 2011 116 requesting
32. LGU Support Fund 6,500 6,500
omnibus authority to consolidate the savings and unutilized balances for
33. Various Other Local Projects 6,500 6,500 fiscal year 2011. Pertinent portions of the memorandum of December 12,
2011 read:
34. Development Assistance to the
Province of Quezon 750 750 MEMORANDUM FOR THE PRESIDENT
TOTAL 45,165 44,000
xxxx

C. Summary SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances

and its Realignment
  Fund Sources
Identified for Allotments Cash DATE: December 12, 2011
Approval for Release Requirements for
(In Million Release in FY This is to respectfully request for the grant of Omnibus Authority to
Php) 2011 consolidate savings/unutilized balances in FY 2011 corresponding to
completed or discontinued projects which may be pooled to fund
Total 72,110 72,110 70,895 additional projects or expenditures.

GOCCs 26,895 26,895

In addition, Mr. President, this measure will allow us to undertake projects
NGAs/LGUs 45,165 44,000 even if their implementation carries over to 2012 without necessarily
impacting on our budget deficit cap next year.
116 | J U D I C I A L D E P A R T M E N T C A S E S
BACKGROUND
1.0 The DBM, during the course of performance reviews
conducted on the agencies’ operations, particularly on
the implementation of their projects/activities, including
expenses incurred in undertaking the same, have
identified savings out of the 2011 General Appropriations
Act. Said savings correspond to completed or
discontinued projects under certain
departments/agencies which may be pooled, for the
following:
1.1 to provide for new activities which have not
been anticipated during preparation of the
budget;
1.2 to augment additional requirements of on-
going priority projects; and
1.3 to provide for deficiencies under the Special
Purpose Funds, e.g., PDAF, Calamity Fund,
Contingent Fund
1.4 to cover for the modifications of the original
allotment class allocation as a result of on-going
priority projects and implementation of new
activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved our
request for omnibus authority to pool savings/unutilized
balances in FY 2010 last November 25, 2010.
4.0 It is understood that in the utilization of the pooled
savings, the DBM shall secure the corresponding
approval/confirmation of the President. Furthermore, it
is assured that the proposed realignments shall be within
the authorized Expenditure level.
5.0 Relative thereto, we have identified some
expenditure items that may be sourced from the said
pooled appropriations in FY 2010 that will expire on
December 31, 2011 and appropriations in FY 2011 that
may be declared as savings to fund additional
expenditures.
5.1 The 2010 Continuing Appropriations (pooled
savings) is proposed to be spent for the projects
that we have identified to be immediate actual
disbursements considering that this same fund
source will expire on December 31, 2011.
5.2 With respect to the proposed expenditure
items to be funded from the FY 2011 Unreleased
Appropriations, most of these are the same
projects for which the DBM is directed by the
Office of the President, thru the Executive
Secretary, to source funds.
6.0 Among others, the following are such proposed
additional projects that have been chosen given their
multiplier impact on economy and infrastructure
development, their beneficial effect on the poor, and
their translation into disbursements. Please note that we
have classified the list of proposed projects as follows:
117 | J U D I C I A L D E P A R T M E N T C A S E S
7.0 x x x
FOR THE PRESIDENT’S APPROVAL
8.0 Foregoing considered, may we respectfully request
for the President’s approval for the following:
8.1 Grant of omnibus authority to consolidate FY
2011 savings/unutilized balances and its
realignment; and
8.2 The proposed additional projects identified
for funding.
For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund
proposed projects were contained in various other memoranda from Sec.
Abad dated June 25, 2012,117 September 4, 2012,118 December 19,
2012,119 May 20, 2013,120 and September 25, 2013.121 The President
apparently approved all the requests, withholding approval only of the
proposed projects contained in the June 25, 2012 memorandum, as borne
out by his marginal note therein to the effect that the proposed projects
should still be "subject to further discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued
NBC No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012), 123 reproduced
herein as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and Colleges
and other Offices of the National Government, Budget and Planning
Officers; Heads of Accounting Units and All Others Concerned
SUBJECT : Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative
Code of 1987), periodically reviews and evaluates the
departments/agencies’ efficiency and effectiveness in utilizing budgeted
funds for the delivery of services and production of goods, consistent with
the government priorities.
In the event that a measure is necessary to further improve the
operational efficiency of the government, the President is authorized to
suspend or stop further use of funds allotted for any agency or expenditure
authorized in the General Appropriations Act. Withdrawal and pooling of
unutilized allotment releases can be effected by DBM based on authority
of the President, as mandated under Sections 38 and 39, Chapter 5, Book
VI of EO 292.
For the first five months of 2012, the National Government has not met its
spending targets. In order to accelerate spending and sustain the fiscal
targets during the year, expenditure measures have to be implemented to
optimize the utilization of available resources.
118 | J U D I C I A L D E P A R T M E N T C A S E S
Departments/agencies have registered low spending levels, in terms of
obligations and disbursements per initial review of their 2012
performance. To enhance agencies’ performance, the DBM conducts
continuous consultation meetings and/or send call-up letters, requesting
them to identify slow-moving programs/projects and the factors/issues
affecting their performance (both pertaining to internal systems and those
which are outside the agencies’ spheres of control). Also, they are asked to
formulate strategies and improvement plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have
continued to post low obligation levels as of end of first semester, thus
resulting to substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012
authorized the withdrawal of unobligated allotments of agencies with low
levels of obligations as of June 30, 2012, both for continuing and current
allotments. This measure will allow the maximum utilization of available
allotments to fund and undertake other priority expenditures of the
national government.
2.0 Purpose
2.1 To provide the conditions and parameters on the
withdrawal of unobligated allotments of agencies as of
June 30, 2012 to fund priority and/or fast-moving
programs/projects of the national government;
2.2 To prescribe the reports and documents to be used
as bases on the withdrawal of said unobligated
allotments; and
2.3 To provide guidelines in the utilization or reallocation
of the withdrawn allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of
unobligated allotments as of June 30, 2012 of all national
government agencies (NGAs) charged against FY 2011
Continuing Appropriation (R.A. No.10147) and FY 2012
Current Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating
Expenses (MOOE) related to the
implementation of programs and projects, as
well as capitalized MOOE; and
3.1.3 Personal Services corresponding to
unutilized pension benefits declared as savings
by the agencies concerned based on their
updated/validated list of pensioners.
3.2 The withdrawal of unobligated allotments may cover
the identified programs, projects and activities of the
departments/agencies reflected in the DBM list shown as
Annex A or specific programs and projects as may be
identified by the agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy
Group, granted fiscal autonomy under the
Philippine Constitution; and
4.1.2 State Universities and Colleges, adopting
the Normative Funding allocation scheme i.e.,
distribution of a predetermined budget ceiling.
119 | J U D I C I A L D E P A R T M E N T C A S E S
4.2 Fund Sources
4.2.1 Personal Services other than pension
benefits;
4.2.2 MOOE items earmarked for specific
purposes or subject to realignment conditions
per General Provisions of the GAA:
• Confidential and Intelligence Fund;
• Savings from Traveling,
Communication, Transportation and
Delivery, Repair and Maintenance,
Supplies and Materials and Utility
which shall be used for the grant of
Collective Negotiation Agreement
incentive benefit;
• Savings from mandatory expenditures
which can be realigned only in the last
quarter after taking into consideration
the agency’s full year requirements,
i.e., Petroleum, Oil and Lubricants,
Water, Illumination, Power Services,
Telephone, other Communication
Services and Rent.
4.2.3 Foreign-Assisted Projects (loan proceeds
and peso counterpart);
4.2.4 Special Purpose Funds such as: E-
Government Fund, International Commitments
Fund, PAMANA, Priority Development
Assistance Fund, Calamity Fund, Budgetary
Support to GOCCs and Allocation to LGUs,
among others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e., Retirement
Life Insurance Premium and Special Accounts in
the General Fund.
5.0 Guidelines
5.1 National government agencies shall continue to
undertake procurement activities notwithstanding the
implementation of the policy of withdrawal of
unobligated allotments until the end of the third quarter,
FY 2012. Even without the allotments, the agency shall
proceed in undertaking the procurement processes (i.e.,
procurement planning up to the conduct of bidding but
short of awarding of contract) pursuant to GPPB Circular
Nos. 02-2008 and 01-2009 and DBM Circular Letter No.
2010-9.
5.2 For the purpose of determining the amount of
unobligated allotments that shall be withdrawn, all
departments/agencies/operating units (OUs) shall submit
to DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;
• Statement of Allotments, Obligations and
Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited
under item 5.2 of this Circular, the agency’s latest report
available shall be used by DBM as basis for withdrawal of
allotment. The DBM shall compute/approximate the
agency’s obligation level as of June 30 to derive its
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unobligated allotments as of same period. Example: If
the March 31 SAOB or FRO reflects actual obligations of P
800M then the June 30 obligation level shall approximate
to ₱1,600 M (i.e., ₱800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged against
R.A. No. 10147 which remained unobligated as of June
30, 2012 shall be immediately considered for withdrawal.
This policy is based on the following considerations:
5.4.1 The departments/agencies’ approved
priority programs and projects are assumed to
be implementation-ready and doable during the
given fiscal year; and
5.4.2 The practice of having substantial
carryover appropriations may imply that the
agency has a slower-than-programmed
implementation capacity or agency tends to
implement projects within a two-year
timeframe.
5.5. Consistent with the President’s directive, the DBM
shall, based on evaluation of the reports cited above and
results of consultations with the departments/agencies,
withdraw the unobligated allotments as of June 30, 2012
through issuance of negative Special Allotment Release
Orders (SAROs).
5.6 DBM shall prepare and submit to the President, a
report on the magnitude of withdrawn allotments. The
report shall highlight the agencies which failed to submit
the June 30 reports required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs and
projects of the agencies/OUs concerned, from
which the allotments were withdrawn;
5.7.2 Realigned to cover additional funding for
other existing programs and projects of the
agency/OU; or
5.7.3 Used to augment existing programs and
projects of any agency and to fund priority
programs and projects not considered in the
2012 budget but expected to be started or
implemented during the current year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs
concerned may submit to DBM a Special Budget Request
(SBR), supported with the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has started
the procurement processes i.e., Proof of Posting
and/or Advertisement of the Invitation to Bid.
5.9 The deadline for submission of request/s pertaining
to these categories shall be until the end of the third
quarter i.e., September 30, 2012. After said cut-off date,
the withdrawn allotments shall be pooled and form part
of the overall savings of the national government.
5.10 Utilization of the consolidated withdrawn
allotments for other priority programs and projects as
cited under item 5.7.3 of this Circular, shall be subject to
approval of the President. Based on the approval of the
President, DBM shall issue the SARO to cover the
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approved priority expenditures subject to submission by
the agency/OU concerned of the SBR and supported with
PFP and MCP.
5.11 It is understood that all releases to be made out of
the withdrawn allotments (both 2011 and 2012
unobligated allotments) shall be within the approved
Expenditure Program level of the national government
for the current year. The SAROs to be issued shall
properly disclose the appropriation source of the release
to determine the extent of allotment validity, as follows:
• For charges under R.A. 10147 – allotments
shall be valid up to December 31, 2012; and
• For charges under R.A. 10155 – allotments
shall be valid up to December 31, 2013.
5.12 Timely compliance with the submission of existing
BARs and other reportorial requirements is reiterated for
monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD
Secretary
As can be seen, NBC No. 541 specified that the unobligated allotments of
all agencies and departments as of June 30, 2012 that were charged
against the continuing appropriations for fiscal year 2011 and the 2012
GAA (R.A. No. 10155) were subject to withdrawal through the issuance of
negative SAROs, but such allotments could be either: (1) reissued for the
original PAPs of the concerned agencies from which they were withdrawn;
or (2) realigned to cover additional funding for other existing PAPs of the
concerned agencies; or (3) used to augment existing PAPs of any agency
and to fund priority PAPs not considered in the 2012 budget but expected
to be started or implemented in 2012. Financing the other priority PAPs
was made subject to the approval of the President. Note here that NBC No.
541 used terminologies like "realignment" and "augmentation" in the
application of the withdrawn unobligated allotments.
Taken together, all the issuances showed how the DAP was to be
implemented and funded, that is — (1) by declaring "savings" coming from
the various departments and agencies derived from pooling unobligated
allotments and withdrawing unreleased appropriations; (2) releasing
unprogrammed funds; and (3) applying the "savings" and unprogrammed
funds to augment existing PAPs or to support other priority PAPs.
c. DAP was not an appropriation
measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did
not enact a law to establish the DAP, or to authorize the disbursement and
release of public funds to implement the DAP. Villegas, PHILCONSA, IBP,
Araullo, and COURAGE observe that the appropriations funded under the
DAP were not included in the 2011, 2012 and 2013 GAAs. To petitioners
IBP, Araullo, and COURAGE, the DAP, being actually an appropriation that
set aside public funds for public use, should require an enabling law for its
validity. VACC maintains that the DAP, because it involved huge allocations
that were separate and distinct from the GAAs, circumvented and
duplicated the GAAs without congressional authorization and control.
The petitioners contend in unison that based on how it was developed and
implemented the DAP violated the mandate of Section 29(1), Article VI of
the 1987 Constitution that "[n]o money shall be paid out of the Treasury
except in pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and
implementation of the DAP because of its being neither a fund nor an
appropriation, but a program or an administrative system of prioritizing
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spending; and that the adoption of the DAP was by virtue of the authority
of the President as the Chief Executive to ensure that laws were faithfully
executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to stimulate the
economy through accelerated spending. In the context of the DAP’s
adoption and implementation being a function pertaining to the Executive
as the main actor during the Budget Execution Stage under its
constitutional mandate to faithfully execute the laws, including the GAAs,
Congress did not need to legislate to adopt or to implement the DAP.
Congress could appropriate but would have nothing more to do during the
Budget Execution Stage. Indeed, appropriation was the act by which
Congress "designates a particular fund, or sets apart a specified portion of
the public revenue or of the money in the public treasury, to be applied to
some general object of governmental expenditure, or to some individual
purchase or expense."124 As pointed out in Gonzales v. Raquiza:125 ‘"In a
strict sense, appropriation has been defined ‘as nothing more than the
legislative authorization prescribed by the Constitution that money may be
paid out of the Treasury,’ while appropriation made by law refers to ‘the
act of the legislature setting apart or assigning to a particular use a certain
sum to be used in the payment of debt or dues from the State to its
creditors.’"126
On the other hand, the President, in keeping with his duty to faithfully
execute the laws, had sufficient discretion during the execution of the
budget to adapt the budget to changes in the country’s economic
situation.127 He could adopt a plan like the DAP for the purpose. He could
pool the savings and identify the PAPs to be funded under the DAP. The
pooling of savings pursuant to the DAP, and the identification of the PAPs
to be funded under the DAP did not involve appropriation in the strict
sense because the money had been already set apart from the public
treasury by Congress through the GAAs. In such actions, the Executive did
not usurp the power vested in Congress under Section 29(1), Article VI of
the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly
adopted by the Executive to ramp up spending to accelerate economic
growth, the challenges posed by the petitioners constrain us to dissect the
mechanics of the actual execution of the DAP. The management and
utilization of the public wealth inevitably demands a most careful scrutiny
of whether the Executive’s implementation of the DAP was consistent with
the Constitution, the relevant GAAs and other existing laws.
a. Although executive discretion
and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all
issues and needs that may come into play once the budget reaches its
execution stage. Executive discretion is necessary at that stage to achieve a
sound fiscal administration and assure effective budget implementation.
The heads of offices, particularly the President, require flexibility in their
operations under performance budgeting to enable them to make
whatever adjustments are needed to meet established work goals under
changing conditions.128 In particular, the power to transfer funds can give
the President the flexibility to meet unforeseen events that may otherwise
impede the efficient implementation of the PAPs set by Congress in the
GAA.
Congress has traditionally allowed much flexibility to the President in
allocating funds pursuant to the GAAs,129 particularly when the funds are
grouped to form lump sum accounts.130 It is assumed that the agencies of
123 | J U D I C I A L D E P A R T M E N T C A S E S
the Government enjoy more flexibility when the GAAs provide broader
appropriation items.131 This flexibility comes in the form of policies that the
Executive may adopt during the budget execution phase. The DAP – as a
strategy to improve the country’s economic position – was one policy that
the President decided to carry out in order to fulfill his mandate under the
GAAs.
Denying to the Executive flexibility in the expenditure process would be
counterproductive. In Presidential Spending Power,132 Prof. Louis Fisher, an
American constitutional scholar whose specialties have included budget
policy, has justified extending discretionary authority to the Executive
thusly:
[T]he impulse to deny discretionary authority altogether should be
resisted. There are many number of reasons why obligations and outlays
by administrators may have to differ from appropriations by legislators.
Appropriations are made many months, and sometimes years, in advance
of expenditures. Congress acts with imperfect knowledge in trying to
legislate in fields that are highly technical and constantly undergoing
change. New circumstances will develop to make obsolete and mistaken
the decisions reached by Congress at the appropriation stage. It is not
practicable for Congress to adjust to each new development by passing
separate supplemental appropriation bills. Were Congress to control
expenditures by confining administrators to narrow statutory details, it
would perhaps protect its power of the purse but it would not protect the
purse itself. The realities and complexities of public policy require
executive discretion for the sound management of public funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial
discretion for administrators. They need to exercise judgment and take
responsibility for their actions, but those actions ought to be directed
toward executing congressional, not administrative policy. Let there be
discretion, but channel it and use it to satisfy the programs and priorities
established by Congress.
In contrast, by allowing to the heads of offices some power to transfer
funds within their respective offices, the Constitution itself ensures the
fiscal autonomy of their offices, and at the same time maintains the
separation of powers among the three main branches of the Government.
The Court has recognized this, and emphasized so in Bengzon v.
Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must
have the independence and flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and utilize the
funds appropriated for their operations is anathema to fiscal autonomy
and violative not only of the express mandate of the Constitution but
especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional
system is based.
In the case of the President, the power to transfer funds from one item to
another within the Executive has not been the mere offshoot of
established usage, but has emanated from law itself. It has existed since
the time of the American Governors-General. 134 Act No. 1902 (An Act
authorizing the Governor-General to direct any unexpended balances of
appropriations be returned to the general fund of the Insular Treasury and
to transfer from the general fund moneys which have been returned
thereto), passed on May 18, 1909 by the First Philippine Legislature, 135 was
the first enabling law that granted statutory authority to the President to
transfer funds. The authority was without any limitation, for the Act
explicitly empowered the Governor-General to transfer any unexpended
balance of appropriations for any bureau or office to another, and to spend
such balance as if it had originally been appropriated for that bureau or
office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of
funds that could be transferred, thereby limiting the power to transfer
funds. Only 10% of the amounts appropriated for contingent or
miscellaneous expenses could be transferred to a bureau or office, and the
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transferred funds were to be used to cover deficiencies in the
appropriations also for miscellaneous expenses of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items
under miscellaneous expenses to any other item of a certain bureau or
office was removed.
During the Commonwealth period, the power of the President to transfer
funds continued to be governed by the GAAs despite the enactment of the
Constitution in 1935. It is notable that the 1935 Constitution did not
include a provision on the power to transfer funds. At any rate, a shift in
the extent of the President’s power to transfer funds was again
experienced during this era, with the President being given more flexibility
in implementing the budget. The GAAs provided that the power to transfer
all or portions of the appropriations in the Executive Department could be
made in the "interest of the public, as the President may determine." 136
In its time, the 1971 Constitutional Convention wanted to curtail the
President’s seemingly unbounded discretion in transferring funds. 137 Its
Committee on the Budget and Appropriation proposed to prohibit the
transfer of funds among the separate branches of the Government and the
independent constitutional bodies, but to allow instead their respective
heads to augment items of appropriations from savings in their respective
budgets under certain limitations.138 The clear intention of the Convention
was to further restrict, not to liberalize, the power to transfer
appropriations.139 Thus, the Committee on the Budget and Appropriation
initially considered setting stringent limitations on the power to augment,
and suggested that the augmentation of an item of appropriation could be
made "by not more than ten percent if the original item of appropriation
to be augmented does not exceed one million pesos, or by not more than
five percent if the original item of appropriation to be augmented exceeds
one million pesos."140 But two members of the Committee objected to the
₱1,000,000.00 threshold, saying that the amount was arbitrary and might
not be reasonable in the future. The Committee agreed to eliminate the
₱1,000,000.00 threshold, and settled on the ten percent limitation. 141
In the end, the ten percent limitation was discarded during the plenary of
the Convention, which adopted the following final version under Section
16, Article VIII of the 1973 Constitution, to wit:
(5) No law shall be passed authorizing any transfer of appropriations;
however, the President, the Prime Minister, the Speaker, the Chief Justice
of the Supreme Court, and the heads of Constitutional Commissions may
by law be authorized to augment any item in the general appropriations
law for their respective offices from savings in other items of their
respective appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of
funds from one item to another, unless Congress enacted a law authorizing
the President, the Prime Minister, the Speaker, the Chief Justice of the
Supreme Court, and the heads of the Constitutional omissions to transfer
funds for the purpose of augmenting any item from savings in another
item in the GAA of their respective offices. The leeway was limited to
augmentation only, and was further constricted by the condition that the
funds to be transferred should come from savings from another item in the
appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its
Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have
the authority to transfer any fund appropriated for the different
departments, bureaus, offices and agencies of the Executive Department
which are included in the General Appropriations Act, to any program,
project, or activity of any department, bureau or office included in the
General Appropriations Act or approved after its enactment.
The President shall, likewise, have the authority to augment any
appropriation of the Executive Department in the General Appropriations
Act, from savings in the appropriations of another department, bureau,
office or agency within the Executive Branch, pursuant to the provisions of
Article VIII, Section 16 (5) of the Constitution.
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In Demetria v. Alba, however, the Court struck down the first paragraph of
Section 44 for contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the
privilege granted under said Section 16. It empowers the President to
indiscriminately transfer funds from one department, bureau, office or
agency of the Executive Department to any program, project or activity of
any department, bureau or office included in the General Appropriations
Act or approved after its enactment, without regard as to whether or not
the funds to be transferred are actually savings in the item from which the
same are to be taken, or whether or not the transfer is for the purpose of
augmenting the item to which said transfer is to be made. It does not only
completely disregard the standards set in the fundamental law, thereby
amounting to an undue delegation of legislative powers, but likewise goes
beyond the tenor thereof. Indeed, such constitutional infirmities render
the provision in question null and void. 143
It is significant that Demetria was promulgated 25 days after the
ratification by the people of the 1987 Constitution, whose Section 25(5) of
Article VI is identical to Section 16(5), Article VIII of the 1973 Constitution,
to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations;
however, the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and the
heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective
offices from savings in other items of their respective appropriations.
xxxx
The foregoing history makes it evident that the Constitutional Commission
included Section 25(5), supra, to keep a tight rein on the exercise of the
power to transfer funds appropriated by Congress by the President and the
other high officials of the Government named therein. The Court stated in
Nazareth v. Villar:144
In the funding of current activities, projects, and programs, the general rule
should still be that the budgetary amount contained in the appropriations
bill is the extent Congress will determine as sufficient for the budgetary
allocation for the proponent agency. The only exception is found in Section
25 (5), Article VI of the Constitution, by which the President, the President
of the Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of Constitutional Commissions
are authorized to transfer appropriations to augmentany item in the GAA
for their respective offices from the savings in other items of their
respective appropriations. The plain language of the constitutional
restriction leaves no room for the petitioner’s posture, which we should
now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named
in Section 25(5), Article VI of the Constitution limiting the authority to
transfer savings only to augment another item in the GAA is strictly but
reasonably construed as exclusive. As the Court has expounded in Lokin, Jr.
v. Commission on Elections:
When the statute itself enumerates the exceptions to the application of
the general rule, the exceptions are strictly but reasonably construed. The
exceptions extend only as far as their language fairly warrants, and all
doubts should be resolved in favor of the general provision rather than the
exceptions. Where the general rule is established by a statute with
exceptions, none but the enacting authority can curtail the former. Not
even the courts may add to the latter by implication, and it is a rule that an
express exception excludes all others, although it is always proper in
determining the applicability of the rule to inquire whether, in a particular
case, it accords with reason and justice.
The appropriate and natural office of the exception is to exempt something
from the scope of the general words of a statute, which is otherwise within
the scope and meaning of such general words. Consequently, the existence
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of an exception in a statute clarifies the intent that the statute shall apply
to all cases not excepted. Exceptions are subject to the rule of strict
construction; hence, any doubt will be resolved in favor of the general
provision and against the exception. Indeed, the liberal construction of a
statute will seem to require in many circumstances that the exception, by
which the operation of the statute is limited or abridged, should receive a
restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a
limitation on the President’s discretion over the appropriations during the
Budget Execution Phase.
b. Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra,
must be made upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the
appropriations for their respective offices; and (3) The purpose of
the transfer is to augment an item in the general appropriations
law for their respective offices.
b.1. First Requisite–GAAs of 2011 and
2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the
Constitution, must have an implementing law for it to be operative. That
law, generally, is the GAA of a given fiscal year. To comply with the first
requisite, the GAAs should expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high
officials the authority to transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying
fiscal autonomy, and the Ombudsman are hereby authorized to augment
any item in this Act from savings in other items of their respective
appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Section 53. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying
fiscal autonomy, and the Ombudsman are hereby authorized to augment
any item in this Act from savings in other items of their respective
appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by
the DBM as justification for the use of savings under the DAP. 145
A reading shows, however, that the aforequoted provisions of the GAAs of
2011 and 2012 were textually unfaithful to the Constitution for not
carrying the phrase "for their respective offices" contained in Section 25(5),
supra. The impact of the phrase "for their respective offices" was to
authorize only transfers of funds within their offices (i.e., in the case of the
President, the transfer was to an item of appropriation within the
Executive). The provisions carried a different phrase ("to augment any item
in this Act"), and the effect was that the 2011 and 2012 GAAs thereby
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literally allowed the transfer of funds from savings to augment any item in
the GAAs even if the item belonged to an office outside the Executive. To
that extent did the 2011 and 2012 GAAs contravene the Constitution. At
the very least, the aforequoted provisions cannot be used to claim
authority to transfer appropriations from the Executive to another branch,
or to a constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in
the counterpart provision in the 2013 GAA, to wit:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying
fiscal autonomy, and the Ombudsman are hereby authorized to use
savings in their respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section
25(5), supra, existed, there still remained two other requisites to be met,
namely: that the source of funds to be transferred were savings from
appropriations within the respective offices; and that the transfer must be
for the purpose of augmenting an item of appropriation within the
respective offices.
b.2. Second Requisite – There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the unreleased
appropriations and withdrawn unobligated allotments — were not actual
savings within the context of Section 25(5), supra, and the relevant
provisions of the GAAs. Belgica argues that "savings" should be understood
to refer to the excess money after the items that needed to be funded
have been funded, or those that needed to be paid have been paid
pursuant to the budget.146 The petitioners posit that there could be savings
only when the PAPs for which the funds had been appropriated were
actually implemented and completed, or finally discontinued or
abandoned. They insist that savings could not be realized with certainty in
the middle of the fiscal year; and that the funds for "slow-moving" PAPs
could not be considered as savings because such PAPs had not actually
been abandoned or discontinued yet.147 They stress that NBC No. 541, by
allowing the withdrawn funds to be reissued to the "original program or
project from which it was withdrawn," conceded that the PAPs from which
the supposed savings were taken had not been completed, abandoned or
discontinued.148
The OSG represents that "savings" were "appropriations balances," being
the difference between the appropriation authorized by Congress and the
actual amount allotted for the appropriation; that the definition of
"savings" in the GAAs set only the parameters for determining when
savings occurred; that it was still the President (as well as the other officers
vested by the Constitution with the authority to augment) who ultimately
determined when savings actually existed because savings could be
determined only during the stage of budget execution; that the President
must be given a wide discretion to accomplish his tasks; and that the
withdrawn unobligated allotments were savings inasmuch as they were
clearly "portions or balances of any programmed appropriation…free from
any obligation or encumbrances which are (i) still available after the
completion or final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne
in mind. The first principle is that Congress wields the power of the purse.
Congress decides how the budget will be spent; what PAPs to fund; and
the amounts of money to be spent for each PAP. The second principle is
that the Executive, as the department of the Government tasked to
enforce the laws, is expected to faithfully execute the GAA and to spend
the budget in accordance with the provisions of the GAA. 149 The Executive
is expected to faithfully implement the PAPs for which Congress allocated
funds, and to limit the expenditures within the allocations, unless
exigencies result to deficiencies for which augmentation is authorized,
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subject to the conditions provided by law. The third principle is that in
making the President’s power to augment operative under the GAA,
Congress recognizes the need for flexibility in budget execution. In so
doing, Congress diminishes its own power of the purse, for it delegates a
fraction of its power to the Executive. But Congress does not thereby allow
the Executive to override its authority over the purse as to let the
Executive exceed its delegated authority. And the fourth principle is that
savings should be actual. "Actual" denotes something that is real or
substantial, or something that exists presently in fact, as opposed to
something that is merely theoretical, possible, potential or hypothetical. 150
The foregoing principles caution us to construe savings strictly against
expanding the scope of the power to augment. It is then indubitable that
the power to augment was to be used only when the purpose for which
the funds had been allocated were already satisfied, or the need for such
funds had ceased to exist, for only then could savings be properly realized.
This interpretation prevents the Executive from unduly transgressing
Congress’ power of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and
2013, reflected this interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance which are: (i) still
available after the completion or final discontinuance or abandonment of
the work, activity or purpose for which the appropriation is authorized; (ii)
from appropriations balances arising from unpaid compensation and
related costs pertaining to vacant positions and leaves of absence without
pay; and (iii) from appropriations balances realized from the
implementation of measures resulting in improved systems and efficiencies
and thus enabled agencies to meet and deliver the required or planned
targets, programs and services approved in this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a sure
indication that savings could be generated only upon the purpose of the
appropriation being fulfilled, or upon the need for the appropriation being
no longer existent.
The phrase "free from any obligation or encumbrance" in the definition of
savings in the GAAs conveyed the notion that the appropriation was at that
stage when the appropriation was already obligated and the appropriation
was already released. This interpretation was reinforced by the
enumeration of the three instances for savings to arise, which showed that
the appropriation referred to had reached the agency level. It could not be
otherwise, considering that only when the appropriation had reached the
agency level could it be determined whether (a) the PAP for which the
appropriation had been authorized was completed, finally discontinued, or
abandoned; or (b) there were vacant positions and leaves of absence
without pay; or (c) the required or planned targets, programs and services
were realized at a lesser cost because of the implementation of measures
resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came
from "pooling of unreleased appropriations such as unreleased Personnel
Services appropriations which will lapse at the end of the year, unreleased
appropriations of slow moving projects and discontinued projects per Zero-
Based Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for
the treatment of unreleased or unalloted appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a
mere description of the status of the items as unalloted or unreleased.
They have not yet ripened into categories of items from which savings can
be generated. Appropriations have been considered "released" if there has
already been an allotment or authorization to incur obligations and
disbursement authority. This means that the DBM has issued either an
ABM (for those not needing clearance), or a SARO (for those needing
clearance), and consequently an NCA, NCAA or CDC, as the case may be.
Appropriations remain unreleased, for instance, because of noncompliance
with documentary requirements (like the Special Budget Request), or
simply because of the unavailability of funds. But the appropriations do not
actually reach the agencies to which they were allocated under the GAAs,
and have remained with the DBM technically speaking. Ergo, unreleased
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appropriations refer to appropriations with allotments but without
disbursement authority.
For us to consider unreleased appropriations as savings, unless these met
the statutory definition of savings, would seriously undercut the
congressional power of the purse, because such appropriations had not
even reached and been used by the agency concerned vis-à-vis the PAPs
for which Congress had allocated them. However, if an agency has unfilled
positions in its plantilla and did not receive an allotment and NCA for such
vacancies, appropriations for such positions, although unreleased, may
already constitute savings for that agency under the second instance.
Unobligated allotments, on the other hand, were encompassed by the first
part of the definition of "savings" in the GAA, that is, as "portions or
balances of any programmed appropriation in this Act free from any
obligation or encumbrance." But the first part of the definition was further
qualified by the three enumerated instances of when savings would be
realized. As such, unobligated allotments could not be indiscriminately
declared as savings without first determining whether any of the three
instances existed. This signified that the DBM’s withdrawal of unobligated
allotments had disregarded the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that
MOOE appropriations are deemed divided into twelve monthly allocations
within the fiscal year; hence, savings could be generated monthly from the
excess or unused MOOE appropriations other than the Mandatory
Expenditures and Expenditures for Business-type Activities because of the
physical impossibility to obligate and spend such funds as MOOE for a
period that already lapsed. Following this observation, MOOE for future
months are not savings and cannot be transferred.
The DBM’s Memorandum for the President dated June 25, 2012 (which
became the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews
conducted on the agencies’ operations, particularly on the
implementation of their projects/activities, including expenses
incurred in undertaking the same, have been continuously calling
the attention of all National Government agencies (NGAs) with
low levels of obligations as of end of the first quarter to speedup
the implementation of their programs and projects in the second
quarter.
6.0 Said reminders were made in a series of consultation meetings
with the concerned agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the
department’s disposal, the level of financial performance of some
departments registered below program, with the targeted
obligations/disbursements for the first semester still not being
met.
8.0 In order to maximize the use of the available allotment, all
unobligated balances as of June 30, 2012, both for continuing and
current allotments shall be withdrawn and pooled to fund fast
moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn
will be based on the list of slow moving projects to be identified
by the agencies and their catch up plans to be evaluated by the
DBM.
It is apparent from the foregoing text that the withdrawal of unobligated
allotments would be based on whether the allotments pertained to slow-
moving projects, or not. However, NBC No. 541 did not set in clear terms
the criteria for the withdrawal of unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of unobligated
allotments as of June 30, 2012 ofall national government agencies
(NGAs) charged against FY 2011 Continuing Appropriation (R.A.
130 | J U D I C I A L D E P A R T M E N T C A S E S
No. 10147) and FY 2012 Current Appropriation (R.A. No. 10155),
pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses
(MOOE) related to the implementation of programs and
projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized
pension benefits declared as savings by the agencies
concerned based on their undated/validated list of
pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the
"withdrawal of unobligated allotments of agencies with low levels of
obligations"151 "to fund priority and/or fast-moving
programs/projects."152 But the fact that the withdrawn allotments could be
"[r]eissued for the original programs and projects of the agencies/OUs
concerned, from which the allotments were withdrawn" 153 supported the
conclusion that the PAPs had not yet been finally discontinued or
abandoned. Thus, the purpose for which the withdrawn funds had been
appropriated was not yet fulfilled, or did not yet cease to exist, rendering
the declaration of the funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released
allotments in 2011 charged against the 2011 GAA that had remained
unobligated based on the following considerations, to wit:
5.4.1 The departments/agencies’ approved priority programs and
projects are assumed to be implementation-ready and doable
during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations
may imply that the agency has a slower-than-programmed
implementation capacity or agency tends to implement projects
within a two-year timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the
unobligated allotments for continuing and current appropriations as of
June 30, 2012, disregarded the 2-year period of availability of the
appropriations for MOOE and capital outlay extended under Section 65,
General Provisions of the 2011 GAA, viz:
Section 65. Availability of Appropriations. — Appropriations for MOOE and
capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end
of the year in which such items were appropriated: PROVIDED, That
appropriations for MOOE and capital outlays under R.A. No. 9970 shall be
made available up to the end of FY 2011: PROVIDED, FURTHER, That a
report on these releases and obligations shall be submitted to the Senate
Committee on Finance and the House Committee on Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for MOOE and
capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end
of the year in which such items were appropriated: PROVIDED, That a
report on these releases and obligations shall be submitted to the Senate
Committee on Finance and the House Committee on Appropriations, either
in printed form or by way of electronic document.154
Thus, another alleged area of constitutional infirmity was that the DAP and
its relevant issuances shortened the period of availability of the
appropriations for MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all
allotment classes in the 2013 GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations.— All appropriations authorized
in this Act shall be available for release and obligation for the purposes
specified, and under the same special provisions applicable thereto, until
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the end of FY 2013: PROVIDED, That a report on these releases and
obligations shall be submitted to the Senate Committee on Finance and
House Committee on Appropriations, either in printed form or by way of
electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad
sought omnibus authority to consolidate savings and unutilized balances to
fund the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some department will
register below program, even with the availability of funds at their
disposal, the targeted obligations/disbursements for each quarter
will not be met. It is important to note that these funds will lapse
at the end of the fiscal year if these remain unobligated.
8.0 To maximize the use of the available allotment, all unobligated
balances at the end of every quarter, both for continuing and
current allotments shall be withdrawn and pooled to fund fast
moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn
will be based on the list of slow moving projects to be identified
by the agencies and their catch up plans to be evaluated by the
DBM.
The validity period of the affected appropriations, already given the brief
Lifes pan of one year, was further shortened to only a quarter of a year
under the DBM’s memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings
in order to have a larger fund available for discretionary spending. They
aver that the respondents, by withdrawing unobligated allotments in the
middle of the fiscal year, in effect deprived funding for PAPs with existing
appropriations under the GAAs.155
The respondents belie the accusation, insisting that the unobligated
allotments were being withdrawn upon the instance of the implementing
agencies based on their own assessment that they could not obligate those
allotments pursuant to the President’s directive for them to spend their
appropriations as quickly as they could in order to ramp up the
economy.156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were upon the
initiative of the DBM itself. The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments
that shall be withdrawn, all departments/agencies/operating units (OUs)
shall submit to DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;
• Statement of Allotments, Obligation and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this
Circular, the agency’s latest report available shall be used by DBM as basis
for withdrawal of allotment. The DBM shall compute/approximate the
agency’s obligation level as of June 30 to derive its unobligated allotments
as of same period. Example: If the March 31 SAOB or FRO reflects actual
obligations of P 800M then the June 30 obligation level shall approximate
to ₱1,600 M (i.e., ₱800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and
transfer of unobligated allotments and the pooling of unreleased
appropriations; and that the unbridled withdrawal of unobligated
allotments and the retention of appropriated funds were akin to the
impoundment of appropriations that could be allowed only in case of
"unmanageable national government budget deficit" under the
GAAs,157 thus violating the provisions of the GAAs of 2011, 2012 and 2013
prohibiting the retention or deduction of allotments.158
132 | J U D I C I A L D E P A R T M E N T C A S E S
In contrast, the respondents emphasize that NBC No. 541 adopted a
spending, not saving, policy as a last-ditch effort of the Executive to push
agencies into actually spending their appropriations; that such policy did
not amount to an impoundment scheme, because impoundment referred
to the decision of the Executive to refuse to spend funds for political or
ideological reasons; and that the withdrawal of allotments under NBC No.
541 was made pursuant to Section 38, Chapter 5, Book VI of the
Administrative Code, by which the President was granted the authority to
suspend or otherwise stop further expenditure of funds allotted to any
agency whenever in his judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer
of unobligated allotments and the pooling of unreleased appropriations
were invalid for being bereft of legal support. Nonetheless, such
withdrawal of unobligated allotments and the retention of appropriated
funds cannot be considered as impoundment.
According to Philippine Constitution Association v.
Enriquez:159 "Impoundment refers to a refusal by the President, for
whatever reason, to spend funds made available by Congress. It is the
failure to spend or obligate budget authority of any type." Impoundment
under the GAA is understood to mean the retention or deduction of
appropriations. The 2011 GAA authorized impoundment only in case of
unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No
appropriations authorized under this Act shall be impounded through
retention or deduction, unless in accordance with the rules and regulations
to be issued by the DBM: PROVIDED, That all the funds appropriated for
the purposes, programs, projects and activities authorized under this Act,
except those covered under the Unprogrammed Fund, shall be released
pursuant to Section 33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention
or deduction of appropriations authorized in this Act shall be effected only
in cases where there is an unmanageable national government budget
deficit.
Unmanageable national government budget deficit as used in this section
shall be construed to mean that (i) the actual national government budget
deficit has exceeded the quarterly budget deficit targets consistent with
the full-year target deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and
approved by Congress pursuant to Section 22, Article VII of the
Constitution, or (ii) there are clear economic indications of an impending
occurrence of such condition, as determined by the Development Budget
Coordinating Committee and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be
regarded as impoundment because it entailed only the transfer of funds,
not the retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the
2012 and 2013 GAAs) be applicable. They uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund
releases from appropriations provided in this Act shall be transmitted
intact or in full to the office or agency concerned. No retention or
deduction as reserves or overhead shall be made, except as authorized by
law, or upon direction of the President of the Philippines. The COA shall
ensure compliance with this provision to the extent that sub-allotments by
agencies to their subordinate offices are in conformity with the release
documents issued by the DBM.
The provision obviously pertained to the retention or deduction of
allotments upon their release from the DBM, which was a different matter
altogether. The Court should not expand the meaning of the provision by
applying it to the withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the
Administrative Code of 1987 to justify the withdrawal of unobligated
allotments. But the provision authorized only the suspension or stoppage
133 | J U D I C I A L D E P A R T M E N T C A S E S
of further expenditures, not the withdrawal of unobligated allotments, to
wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as
otherwise provided in the General Appropriations Act and whenever in his
judgment the public interest so requires, the President, upon notice to the
head of office concerned, is authorized to suspend or otherwise stop
further expenditure of funds allotted for any agency, or any other
expenditure authorized in the General Appropriations Act, except for
personal services appropriations used for permanent officials and
employees.
Moreover, the DBM did not suspend or stop further expenditures in
accordance with Section 38, supra, but instead transferred the funds to
other PAPs.
It is relevant to remind at this juncture that the balances of appropriations
that remained unexpended at the end of the fiscal year were to be
reverted to the General Fund.1âwphi1 This was the mandate of Section 28,
Chapter IV, Book VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations,
Continuing Appropriations.- Unexpended balances of appropriations
authorized in the General Appropriation Act shall revert to the
unappropriated surplus of the General Fund at the end of the fiscal year
and shall not thereafter be available for expenditure except by subsequent
legislative enactment: Provided, that appropriations for capital outlays
shall remain valid until fully spent or reverted: provided, further, that
continuing appropriations for current operating expenditures may be
specifically recommended and approved as such in support of projects
whose effective implementation calls for multi-year expenditure
commitments: provided, finally, that the President may authorize the use
of savings realized by an agency during given year to meet non-recurring
expenditures in a subsequent year.
The balances of continuing appropriations shall be reviewed as part of the
annual budget preparation process and the preparation process and the
President may approve upon recommendation of the Secretary, the
reversion of funds no longer needed in connection with the activities
funded by said continuing appropriations.
The Executive could not circumvent this provision by declaring unreleased
appropriations and unobligated allotments as savings prior to the end of
the fiscal year.
b.3. Third Requisite – No funds from
savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
The third requisite for a valid transfer of funds is that the purpose of the
transfer should be "to augment an item in the general appropriations law
for the respective offices." The term "augment" means to enlarge or
increase in size, amount, or degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation
that the appropriation for the PAP item to be augmented must be
deficient, to wit: –
x x x Augmentation implies the existence in this Act of a program, activity,
or project with an appropriation, which upon implementation, or
subsequent evaluation of needed resources, is determined to be deficient.
In no case shall a non-existent program, activity, or project, be funded by
augmentation from savings or by the use of appropriations otherwise
authorized in this Act.
In other words, an appropriation for any PAP must first be determined to
be deficient before it could be augmented from savings. Note is taken of
the fact that the 2013 GAA already made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying
fiscal autonomy, and the Ombudsman are hereby authorized to use
134 | J U D I C I A L D E P A R T M E N T C A S E S
savings in their respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective appropriations.
As of 2013, a total of ₱144.4 billion worth of PAPs were implemented
through the DAP.161
Of this amount ₱82.5 billion were released in 2011 and ₱54.8 billion in
2012.162 Sec. Abad has reported that 9% of the total DAP releases were
applied to the PAPs identified by the legislators. 163
The petitioners disagree, however, and insist that the DAP supported the
following PAPs that had not been covered with appropriations in the
respective GAAs, namely:
(i) ₱1.5 billion for the Cordillera People’s Liberation Army;
(ii) ₱1.8 billion for the Moro National Liberation Front;
(iii) ₱700 million for assistance to Quezon Province; 164
(iv) ₱50 million to ₱100 (million) each to certain senators; 165
(v) ₱10 billion for the relocation of families living along dangerous
zones under the National Housing Authority;
(vi) ₱10 billion and ₱20 billion equity infusion under the Bangko
Sentral;
(vii) ₱5.4 billion landowners’ compensation under the Department
of Agrarian Reform; APPROPRIATION
CODE
(viii) ₱8.6 billion for the ARMM comprehensive peace and
A.03.a.01.a
development program;
(ix) ₱6.5 billion augmentation of LGU internal revenue allotments
(x) ₱5 billion for crucial projects like tourism road construction
under the Department of Tourism and the Department of Public
Works and Highways;
(xi) ₱1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) ₱1.96 billion for the DOH-DPWH rehabilitation of regional
health units; and
(xiii) ₱4 billion for the DepEd-PPP school infrastructure projects. 166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were
implemented, had appropriation covers, and could properly be accounted
for because the funds were released following and pursuant to the
standard practices adopted by the DBM.167 In support of its argument, the
OSG has submitted seven evidence packets containing memoranda, SAROs,
and other pertinent documents relative to the implementation and fund
transfers under the DAP.168
Upon careful review of the documents contained in the seven evidence
packets, we conclude that the "savings" pooled under the DAP were
allocated to PAPs that were not covered by any appropriations in the
pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly
vaunted Disaster Risk, Exposure, Assessment and Mitigation (DREAM)
project under the Department of Science and Technology (DOST) covered
the amount of ₱1.6 Billion,169 broken down as follows:
PARTICULARS AMOUNT
AUTHORIZED
Generation of new knowledge and technologies and
research capability building in priority areas identified
as strategic to National Development
Personnel Services
135 | J U D I C I A L D E P A R T M E N T C A S E S

Maintenance and Other Operating Expenses P 43,504,024 areas

Capital Outlays 1,164,517,589 identified
391,978,387 as
P 1,600,000,000 strategic to
National
Developme
the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that nt
Congress had appropriated only ₱537,910,000 for MOOE, but nothing for
personnel services and capital outlays, to wit:
Aside from this transfer under the DAP to the DREAM project exceeding by
almost 300% the appropriation by Congress for the program Generation of
Personnel Maintenanc Capital TOTAL new knowledge and technologies and research capability building in
Services e Outlays priority areas identified as strategic to National Development, the
and Other Executive allotted funds for personnel services and capital outlays. The
Operating Executive thereby substituted its will to that of Congress. Worse, the
Expenditur Executive had not earlier proposed any amount for personnel services and
es capital outlays in the NEP that became the basis of the 2011 GAA. 170
III. Operations
It is worth stressing in this connection that the failure of the GAAs to set
a. Funding 177,406,0 1,887,365,0 49,090,0 2,113,861,0 aside any amounts for an expense category sufficiently indicated that
Assistance to 00 00 00 00 Congress purposely did not see fit to fund, much less implement, the PAP
Science concerned. This indication becomes clearer when even the President
and Technology himself did not recommend in the NEP to fund the PAP. The consequence
Activities was that any PAP requiring expenditure that did not receive any
appropriation under the GAAs could only be a new PAP, any funding for
1. Central Office 1,554,238,0 1,554,238,0
which would go beyond the authority laid down by Congress in enacting
00 00
the GAAs. That happened in some instances under the DAP.
a. 537,910,00 537,910,00
Generation 0 0 In relation to the December 22, 2011 SARO issued to the Philippine Council
of new for Industry, Energy and Emerging Technology Research and Development
knowledge (DOST-PCIEETRD)171 for Establishment of the Advanced Failure Analysis
and Laboratory, which reads:
technologi
es and
APPROPRIATIO PARTICULARS AMOUNT
research
AUTHORIZED
capability
CODE
building in
priority
 136 | J U D I C I A L D E P A R T M E N T C A S E S
Development, integration and coordination of the National
Research System for Industry, Energy and Emerging Technology
A.02.a
and Related Fields
Capital Outlays
P 300,000,000
the appropriation code and the particulars appearing in the SARO did not
correspond to the program specified in the GAA, whose particulars were
Research and Management Services(inclusive of the following activities: (1)
Technological and Economic Assessment for Industry, Energy and Utilities;
(2) Dissemination of Science and Technology Information; and (3)
Management of PCIERD Information System for Industry, Energy and
Utilities. Even assuming that Development, integration and coordination of
the National Research System for Industry, Energy and Emerging
Technology and Related Fields– the particulars stated in the SARO – could
fall under the broad program description of Research and Management
Services– as appearing in the SARO, it would nonetheless remain a new
activity by reason of its not being specifically stated in the GAA. As such,
the DBM, sans legislative authorization, could not validly fund and
implement such PAP under the DAP.
In defending the disbursements, however, the OSG contends that the
Executive enjoyed sound discretion in implementing the budget given the
generality in the language and the broad policy objectives identified under
the GAAs;172 and that the President enjoyed unlimited authority to spend
the initial appropriations under his authority to declare and utilize
savings,173 and in keeping with his duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to
spend in line with its mandate to faithfully execute the laws (which
included the GAAs), such authority did not translate to unfettered
discretion that allowed the President to substitute his own will for that of
Congress. He was still required to remain faithful to the provisions of the
GAAs, given that his power to spend pursuant to the GAAs was but a
delegation to him from Congress. Verily, the power to spend the public
wealth resided in Congress, not in the Executive.174 Moreover, leaving the
spending power of the Executive unrestricted would threaten to undo the
principle of separation of powers.175
Congress acts as the guardian of the public treasury in faithful discharge of
its power of the purse whenever it deliberates and acts on the budget
proposal submitted by the Executive.176 Its power of the purse is touted as
the very foundation of its institutional strength,177 and underpins "all other
legislative decisions and regulating the balance of influence between the
legislative and executive branches of government." 178 Such enormous
power encompasses the capacity to generate money for the Government,
to appropriate public funds, and to spend the money.179 Pertinently, when
it exercises its power of the purse, Congress wields control by specifying
the PAPs for which public money should be spent.
It is the President who proposes the budget but it is Congress that has the
final say on matters of appropriations.180 For this purpose, appropriation
involves two governing principles, namely: (1) "a Principle of the Public
Fisc, asserting that all monies received from whatever source by any part
of the government are public funds;" and (2) "a Principle of Appropriations
Control, prohibiting expenditure of any public money without legislative
authorization."181 To conform with the governing principles, the Executive
cannot circumvent the prohibition by Congress of an expenditure for a PAP
by resorting to either public or private funds.182 Nor could the Executive
transfer appropriated funds resulting in an increase in the budget for one
PAP, for by so doing the appropriation for another PAP is necessarily
decreased. The terms of both appropriations will thereby be violated.
b.4 Third Requisite – Cross-border
augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, and
the Heads of the Constitutional Commissions may be authorized to
augment any item in the GAA "for their respective offices," Section 25(5),
supra, has delineated borders between their offices, such that funds
appropriated for one office are prohibited from crossing over to another
office even in the guise of augmentation of a deficient item or items. Thus,
we call such transfers of funds cross-border transfers or cross-border
augmentations.
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To be sure, the phrase "respective offices" used in Section 25(5), supra,
refers to the entire Executive, with respect to the President; the Senate,
with respect to the Senate President; the House of Representatives, with
respect to the Speaker; the Judiciary, with respect to the Chief Justice; the
Constitutional Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad admitted
making some cross-border augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of
Budget and Management, did the Executive Department ever redirect any
part of savings of the National Government under your control cross
border to another department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance, Your
Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I don’t recall having read your material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of
Representatives. They started building their e-library in 2010 and they had
a budget for about 207 Million but they lack about 43 Million to complete
its 250 Million requirements. Prior to that, the COA, in an audit observation
informed the Speaker that they had to continue with that construction
otherwise the whole building, as well as the equipments therein may suffer
from serious deterioration. And at that time, since the budget of the House
of Representatives was not enough to complete 250 Million, they wrote to
the President requesting for an augmentation of that particular item,
which was granted, Your Honor. The second instance in the Memos is a
request from the Commission on Audit. At the time they were pushing very
strongly the good governance programs of the government and therefore,
part of that is a requirement to conduct audits as well as review financial
reports of many agencies. And in the performance of that function, the
Commission on Audit needed information technology equipment as well as
hire consultants and litigators to help them with their audit work and for
that they requested funds from the Executive and the President saw that it
was important for the Commission to be provided with those IT
equipments and litigators and consultants and the request was granted,
Your Honor.
JUSTICE BERSAMIN:
These cross border examples, cross border augmentations were not
supported by appropriations…
SECRETARY ABAD:
They were, we were augmenting existing items within their… (interrupted)
JUSTICE BERSAMIN:
No, appropriations before you augmented because this is a cross border
and the tenor or text of the Constitution is quite clear as far as I am
concerned. It says here, "The power to augment may only be made to
increase any item in the General Appropriations Law for their respective
offices." Did you not feel constricted by this provision?
SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was on the
transfer of appropriations, Your Honor. What we thought we did was to
transfer savings which was needed by the Commission to address
 138 | J U D I C I A L D E P A R T M E N T C A S E S

deficiency in an existing item in both the Commission as well as in the additional litigation experts
House of Representatives; that’s how we saw…(interrupted)
Completion of the construction of the 07/23/12 207,034 250,000
JUSTICE BERSAMIN: Legislative Library and Archives (Savings of HOR)
Representatives Building/Congressional e-library
So your position as Secretary of Budget is that you could do that?
The respondents further stated in their memorandum that the President
SECRETARY ABAD: "made available" to the "Commission on Elections the savings of his
department upon [its] request for funds…"187 This was another instance of
In an extreme instances because…(interrupted) a cross-border augmentation.

JUSTICE BERSAMIN: The respondents justified all the cross-border transfers thusly:

No, no, in all instances, extreme or not extreme, you could do that, that’s 99. The Constitution does not prevent the President from transferring
your feeling. savings of his department to another department upon the latter’s
request, provided it is the recipient department that uses such funds to
SECRETARY ABAD: augment its own appropriation. In such a case, the President merely gives
the other department access to public funds but he cannot dictate how
they shall be applied by that department whose fiscal autonomy is
Well, in that particular situation when the request was made by the
guaranteed by the Constitution.188
Commission and the House of Representatives, we felt that we needed to
respond because we felt…(interrupted). 183
In the oral arguments held on February 18, 2014, Justice Vicente V.
Mendoza, representing Congress, announced a different characterization
The records show, indeed, that funds amounting to ₱143,700,000.00 and
of the cross-border transfers of funds as in the nature of "aid" instead of
₱250,000,000.00 were transferred under the DAP respectively to the
"augmentation," viz:
COA184 and the House of Representatives.185 Those transfers of funds,
which constituted cross-border augmentations for being from the
Executive to the COA and the House of Representatives, are graphed as HONORABLE MENDOZA:
follows:186
The cross-border transfers, if Your Honors please, is not an application of
the DAP. What were these cross-border transfers? They are transfers of
savings as defined in the various General Appropriations Act. So, that
AMOUNT makes it similar to the DAP, the use of savings. There was a cross-border
DATE (In thousand pesos)
which appears to be in violation of Section 25, paragraph 5 of Article VI, in
OFFICE PURPOSE RELEASE
Reserve the sense that the border was crossed. But never has it been claimed that
D
Imposed the purpose was to augment a deficient item in another department of the
government or agency of the government. The cross-border transfers, if
mmission on IT Infrastructure Program and hiring of 11/11/11   Your Honors please, were in the nature of [aid] rather than augmentations.
139 | J U D I C I A L D E P A R T M E N T C A S E S

Here is a government entity separate and independent from the Executive JUSTICE LEONEN:
Department solely in need of public funds. The President is there 24 hours
a day, 7 days a week. He’s in charge of the whole operation although six or So, the residual powers labelled in Marcos v. Manglapus would be the
seven heads of government offices are given the power to augment. Only basis for this theory of the government?
the President stationed there and in effect in-charge and has the
responsibility for the failure of any part of the government. You have HONORABLE MENDOZA:
election, for one reason or another, the money is not enough to hold
election. There would be chaos if no money is given as an aid, not to
Yes, if Your Honor, please.
augment, but as an aid to a department like COA. The President is
responsible in a way that the other heads, given the power to augment,
JUSTICE LEONEN:
are not. So, he cannot very well allow this, if Your Honor please. 189

A while ago, Justice Carpio mentioned that the remedy is might be to go to

JUSTICE LEONEN:
Congress. That there are opportunities and there have been opportunities
of the President to actually go to Congress and ask for supplemental
May I move to another point, maybe just briefly. I am curious that the
budgets?
position now, I think, of government is that some transfers of savings is
now considered to be, if I’m not mistaken, aid not augmentation. Am I
HONORABLE MENDOZA:
correct in my hearing of your argument?

If there is time to do that, I would say yes.

HONORABLE MENDOZA:

JUSTICE LEONEN:
That’s our submission, if Your Honor, please.

So, the theory of aid rather than augmentation applies in extra-ordinary

JUSTICE LEONEN:
situation?
May I know, Justice, where can we situate this in the text of the
HONORABLE MENDOZA:
Constitution? Where do we actually derive the concepts that transfers of
appropriation from one branch to the other or what happened in DAP can
be considered a said? What particular text in the Constitution can we Very extra-ordinary situations.
situate this?
JUSTICE LEONEN:
HONORABLE MENDOZA:
But Counsel, this would be new doctrine, in case?
There is no particular provision or statutory provision for that matter, if
Your Honor please. It is drawn from the fact that the Executive is the HONORABLE MENDOZA:
executive in-charge of the success of the government.
Yes, if Your Honor please.190
140 | J U D I C I A L D E P A R T M E N T C A S E S
Regardless of the variant characterizations of the cross-border transfers of
funds, the plain text of Section 25(5), supra, disallowing cross border
transfers was disobeyed. Cross-border transfers, whether as
augmentation, or as aid, were prohibited under Section 25(5), supra.
4.
Sourcing the DAP from unprogrammed
funds despite the original revenue targets
not having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed funds
provided in the GAAs for 2011, 2012,and 2013. The respondents stress,
however, that the unprogrammed funds were not brought under the DAP
as savings, but as separate sources of funds; and that, consequently, the
release and use of unprogrammed funds were not subject to the
restrictions under Section 25(5), supra.
The documents contained in the Evidence Packets by the OSG have
confirmed that the unprogrammed funds were treated as separate sources
of funds. Even so, the release and use of the unprogrammed funds were
still subject to restrictions, for, to start with, the GAAs precisely specified
the instances when the unprogrammed funds could be released and the
purposes for which they could be used.
The petitioners point out that a condition for the release of the
unprogrammed funds was that the revenue collections must exceed
revenue targets; and that the release of the unprogrammed funds was
illegal because such condition was not met. 191
The respondents disagree, holding that the release and use of the
unprogrammed funds under the DAP were in accordance with the
pertinent provisions of the GAAs. In particular, the DBM avers that the
unprogrammed funds could be availed of when any of the following three
instances occur, to wit: (1) the revenue collections exceeded the original
revenue targets proposed in the BESFs submitted by the President to
Congress; (2) new revenues were collected or realized from sources not
originally considered in the BESFs; or(3) newly-approved loans for foreign
assisted projects were secured, or when conditions were triggered for
other sources of funds, such as perfected loan agreements for foreign-
assisted projects.192 This view of the DBM was adopted by all the
respondents in their Consolidated Comment. 193
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed
appropriations" as appropriations that provided standby authority to incur
additional agency obligations for priority PAPs when revenue collections
exceeded targets, and when additional foreign funds are
generated.194 Contrary to the DBM’s averment that there were three
instances when unprogrammed funds could be released, the BESFs
envisioned only two instances. The third mentioned by the DBM – the
collection of new revenues from sources not originally considered in the
BESFs – was not included. This meant that the collection of additional
revenues from new sources did not warrant the release of the
unprogrammed funds. Hence, even if the revenues not considered in the
BESFs were collected or generated, the basic condition that the revenue
collections should exceed the revenue targets must still be complied with
in order to justify the release of the unprogrammed funds.
The view that there were only two instances when the unprogrammed
funds could be released was bolstered by the following texts of the Special
Provisions of the 2011 and 2012 GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets
submitted by the President of the Philippines to Congress pursuant to
Section 22, Article VII of the Constitution, including savings generated from
programmed appropriations for the year: PROVIDED, That collections
arising from sources not considered in the aforesaid original revenue
targets may be used to cover releases from appropriations in this Fund:
PROVIDED, FURTHER, That in case of newly approved loans for foreign-
assisted projects, the existence of a perfected loan agreement for the
purpose shall be sufficient basis for the issuance of a SARO covering the
loan proceeds: PROVIDED, FURTHERMORE, That if there are savings
141 | J U D I C I A L D E P A R T M E N T C A S E S
generated from the programmed appropriations for the first two quarters
of the year, the DBM may, subject to the approval of the President, release
the pertinent appropriations under the Unprogrammed Fund
corresponding to only fifty percent (50%) of the said savings net of revenue
shortfall: PROVIDED, FINALLY, That the release of the balance of the total
savings from programmed appropriations for the year shall be subject to
fiscal programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released
only when the revenue collections exceed the original revenue targets
submitted by the President of the Philippines to Congress pursuant to
Section 22, Article VII of the Constitution: PROVIDED, That collections
arising from sources not considered in the aforesaid original revenue
targets may be used to cover releases from appropriations in this Fund:
PROVIDED, FURTHER, That in case of newly approved loans for foreign-
assisted projects, the existence of a perfected loan agreement for the
purpose shall be sufficient basis for the issuance of a SARO covering the
loan proceeds.
As can be noted, the provisos in both provisions to the effect that
"collections arising from sources not considered in the aforesaid original
revenue targets may be used to cover releases from appropriations in this
Fund" gave the authority to use such additional revenues for
appropriations funded from the unprogrammed funds. They did not at all
waive compliance with the basic requirement that revenue collections
must still exceed the original revenue targets.
In contrast, the texts of the provisos with regard to additional revenues
generated from newly-approved foreign loans were clear to the effect that
the perfected loan agreement would be in itself "sufficient basis" for the
issuance of a SARO to release the funds but only to the extent of the
amount of the loan. In such instance, the revenue collections need not
exceed the revenue targets to warrant the release of the loan proceeds,
and the mere perfection of the loan agreement would suffice.
It can be inferred from the foregoing that under these provisions of the
GAAs the additional revenues from sources not considered in the BESFs
must be taken into account in determining if the revenue collections
exceeded the revenue targets. The text of the relevant provision of the
2013 GAA, which was substantially similar to those of the GAAs for 2011
and 2012, already made this explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be released
only when the revenue collections exceed the original revenue targets
submitted by the President of the Philippines to Congress pursuant to
Section 22, Article VII of the Constitution, including collections arising from
sources not considered in the aforesaid original revenue target, as certified
by the BTr: PROVIDED, That in case of newly approved loans for foreign-
assisted projects, the existence of a perfected loan agreement for the
purpose shall be sufficient basis for the issuance of a SARO covering the
loan proceeds.
Consequently, that there were additional revenues from sources not
considered in the revenue target would not be enough. The total revenue
collections must still exceed the original revenue targets to justify the
release of the unprogrammed funds (other than those from newly-
approved foreign loans).
The present controversy on the unprogrammed funds was rooted in the
correct interpretation of the phrase "revenue collections should exceed
the original revenue targets." The petitioners take the phrase to mean that
the total revenue collections must exceed the total revenue target stated
in the BESF, but the respondents understand the phrase to refer only to
the collections for each source of revenue as enumerated in the BESF, with
the condition being deemed complied with once the revenue collections
from a particular source already exceeded the stated target.
The BESF provided for the following sources of revenue, with the
corresponding revenue target stated for each source of revenue, to wit:
TAX REVENUES
142 | J U D I C I A L D E P A R T M E N T C A S E S

Taxes on Net Income and Profits Thus, when the Court required the respondents to submit a certification
Taxes on Property from the Bureau of Treasury (BTr) to the effect that the revenue collections
Taxes on Domestic Goods and Services had exceeded the original revenue targets,195 they complied by submitting
certifications from the BTr and Department of Finance (DOF) pertaining to
General Sales, Turnover or VAT only one identified source of revenue – the dividends from the shares of
Selected Excises on Goods stock held by the Government in government-owned and controlled
corporations.
Selected Taxes on Services
Taxes on the Use of Goods or Property or Permission to Perform To justify the release of the unprogrammed funds for 2011, the OSG
Activities presented the certification dated March 4, 2011 issued by DOF
Other Taxes Undersecretary Gil S. Beltran, as follows:
Taxes on International Trade and Transactions
This is to certify that under the Budget for Expenditures and Sources of
NON-TAX REVENUES Financing for 2011, the programmed income from dividends from shares of
stock in government-owned and controlled corporations is 5.5 billion.
Fees and Charges
BTR Income This is to certify further that based on the records of the Bureau of
Treasury, the National Government has recorded dividend income
Government Services amounting to ₱23.8 billion as of 31 January 2011.196
Interest on NG Deposits
Interest on Advances to Government Corporations For 2012, the OSG submitted the certification dated April 26, 2012 issued
Income from Investments by National Treasurer Roberto B. Tan, viz:

Interest on Bond Holdings This is to certify that the actual dividend collections remitted to the
National Government for the period January to March 2012 amounted to
Guarantee Fee ₱19.419 billion compared to the full year program of ₱5.5 billion for
Gain on Foreign Exchange 2012.197
NG Income Collected by BTr
And, finally, for 2013, the OSG presented the certification dated July 3,
Dividends on Stocks 2013 issued by National Treasurer Rosalia V. De Leon, to wit:
NG Share from Airport Terminal Fee
NG Share from PAGCOR Income This is to certify that the actual dividend collections remitted to the
NG Share from MIAA Profit National Government for the period January to May 2013 amounted to
₱12.438 billion compared to the full year program of ₱10.0 198 billion for
Privatization 2013.
Foreign Grants
143 | J U D I C I A L D E P A R T M E N T C A S E S
Moreover, the National Government accounted for the sale of the right to
build and operate the NAIA expressway amounting to ₱11.0 billion in June
2013.199
The certifications reflected that by collecting dividends amounting to ₱23.8
billion in 2011, ₱19.419 billion in 2012, and ₱12.438 billion in 2013 the BTr
had exceeded only the ₱5.5 billion in target revenues in the form of
dividends from stocks in each of 2011 and 2012, and only the ₱10 billion in
target revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original
revenue targets was to be construed in light of the purpose for which the
unprogrammed funds were incorporated in the GAAs as standby
appropriations to support additional expenditures for certain priority PAPs
should the revenue collections exceed the resource targets assumed in the
budget or when additional foreign project loan proceeds were realized.
The unprogrammed funds were included in the GAAs to provide ready
cover so as not to delay the implementation of the PAPs should new or
additional revenue sources be realized during the year. 200 Given the tenor
of the certifications, the unprogrammed funds were thus not yet
supported by the corresponding resources.201
The revenue targets stated in the BESF were intended to address the
funding requirements of the proposed programmed appropriations. In
contrast, the unprogrammed funds, as standby appropriations, were to be
released only when there were revenues in excess of what the
programmed appropriations required. As such, the revenue targets should
be considered as a whole, not individually; otherwise, we would be dealing
with artificial revenue surpluses. The requirement that revenue collections
must exceed revenue target should be understood to mean that the
revenue collections must exceed the total of the revenue targets stated in
the BESF. Moreover, to release the unprogrammed funds simply because
there was an excess revenue as to one source of revenue would be an
unsound fiscal management measure because it would disregard the
budget plan and foster budget deficits, in contravention of the
Government’s surplus budget policy.202
We cannot, therefore, subscribe to the respondents’ view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection Clause,
the system of checks and balances, and the principle of public
accountability.
With respect to the challenge against the DAP under the Equal Protection
Clause,203 Luna argues that the implementation of the DAP was "unfair as it
[was] selective" because the funds released under the DAP was not made
available to all the legislators, with some of them refusing to avail
themselves of the DAP funds, and others being unaware of the availability
of such funds. Thus, the DAP practised "undue favoritism" in favor of select
legislators in contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection
Clause because no reasonable classification was used in distributing the
funds under the DAP; and that the Senators who supposedly availed
themselves of said funds were differently treated as to the amounts they
respectively received.
Anent the petitioners’ theory that the DAP violated the system of checks
and balances, Luna submits that the grant of the funds under the DAP to
some legislators forced their silence about the issues and anomalies
surrounding the DAP. Meanwhile, Belgica stresses that the DAP, by
allowing the legislators to identify PAPs, authorized them to take part in
the implementation and execution of the GAAs, a function that exclusively
belonged to the Executive; that such situation constituted undue and
unjustified legislative encroachment in the functions of the Executive; and
that the President arrogated unto himself the power of appropriation
vested in Congress because NBC No. 541 authorized the use of the funds
under the DAP for PAPs not considered in the 2012 budget.
144 | J U D I C I A L D E P A R T M E N T C A S E S
Finally, the petitioners insist that the DAP was repugnant to the principle of
public accountability enshrined in the Constitution, 204 because the
legislators relinquished the power of appropriation to the Executive, and
exhibited a reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination
in the release of funds under the DAP could be raised only by the affected
Members of Congress themselves, and if the challenge based on the
violation of the Equal Protection Clause was really against the
constitutionality of the DAP, the arguments of the petitioners should be
directed to the entitlement of the legislators to the funds, not to the
proposition that all of the legislators should have been given such
entitlement.
The challenge based on the contravention of the Equal Protection Clause,
which focuses on the release of funds under the DAP to legislators, lacks
factual and legal basis. The allegations about Senators and Congressmen
being unaware of the existence and implementation of the DAP, and about
some of them having refused to accept such funds were unsupported with
relevant data. Also, the claim that the Executive discriminated against
some legislators on the ground alone of their receiving less than the others
could not of itself warrant a finding of contravention of the Equal
Protection Clause. The denial of equal protection of any law should be an
issue to be raised only by parties who supposedly suffer it, and, in these
cases, such parties would be the few legislators claimed to have been
discriminated against in the releases of funds under the DAP. The reason
for the requirement is that only such affected legislators could properly
and fully bring to the fore when and how the denial of equal protection
occurred, and explain why there was a denial in their situation. The
requirement was not met here. Consequently, the Court was not put in the
position to determine if there was a denial of equal protection. To have the
Court do so despite the inadequacy of the showing of factual and legal
support would be to compel it to speculate, and the outcome would not do
justice to those for whose supposed benefit the claim of denial of equal
protection has been made.
The argument that the release of funds under the DAP effectively stayed
the hands of the legislators from conducting congressional inquiries into
the legality and propriety of the DAP is speculative. That deficiency
eliminated any need to consider and resolve the argument, for it is
fundamental that speculation would not support any proper judicial
determination of an issue simply because nothing concrete can thereby be
gained. In order to sustain their constitutional challenges against official
acts of the Government, the petitioners must discharge the basic burden of
proving that the constitutional infirmities actually existed. 205 Simply put,
guesswork and speculation cannot overcome the presumption of the
constitutionality of the assailed executive act.
We do not need to discuss whether or not the DAP and its implementation
through the various circulars and memoranda of the DBM transgressed the
system of checks and balances in place in our constitutional system. Our
earlier expositions on the DAP and its implementing issuances infringing
the doctrine of separation of powers effectively addressed this particular
concern.
Anent the principle of public accountability being transgressed because the
adoption and implementation of the DAP constituted an assumption by the
Executive of Congress’ power of appropriation, we have already held that
the DAP and its implementing issuances were policies and acts that the
Executive could properly adopt and do in the execution of the GAAs to the
extent that they sought to implement strategies to ramp up or accelerate
the economy of the country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally
infirm, we must now deal with the consequences of the declaration.
Article 7 of the Civil Code provides:
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Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to
the contrary.
When the courts declared a law to be inconsistent with the Constitution,
the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being
unconstitutional cannot give rise to any right or obligation. 206 However, the
generality of the rule makes us ponder whether rigidly applying the rule
may at times be impracticable or wasteful. Should we not recognize the
need to except from the rigid application of the rule the instances in which
the void law or executive act produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine,
definitely not a novel one, has been exhaustively explained in De Agbayani
v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that an
unconstitutional act, for that matter an executive order or a municipal
ordinance likewise suffering from that infirmity, cannot be the source of
any legal rights or duties. Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared results in its
being to all intents and purposes a mere scrap of paper. As the new Civil
Code puts it: ‘When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.’
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws of the Constitution. It is
understandable why it should be so, the Constitution being supreme and
paramount. Any legislative or executive act contrary to its terms cannot
survive.
Such a view has support in logic and possesses the merit of simplicity. It
may not however be sufficiently realistic. It does not admit of doubt that
prior to the declaration of nullity such challenged legislative or executive
act must have been in force and had to be complied with. This is so as until
after the judiciary, in an appropriate case, declares its invalidity, it is
entitled to obedience and respect. Parties may have acted under it and
may have changed their positions. What could be more fitting than that in
a subsequent litigation regard be had to what has been done while such
legislative or executive act was in operation and presumed to be valid in all
respects. It is now accepted as a doctrine that prior to its being nullified, its
existence as a fact must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is the governmental organ
which has the final say on whether or not a legislative or executive
measure is valid, a period of time may have elapsed before it can exercise
the power of judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and justice then, if
there be no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: ‘The actual
existence of a statute, prior to such a determination [of
unconstitutionality], is an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as to invalidity may
have to be considered in various aspects, with respect to particular
relations, individual and corporate, and particular conduct, private and
official.’"
The doctrine of operative fact recognizes the existence of the law or
executive act prior to the determination of its unconstitutionality as an
operative fact that produced consequences that cannot always be erased,
ignored or disregarded. In short, it nullifies the void law or executive act
but sustains its effects. It provides an exception to the general rule that a
void or unconstitutional law produces no effect. 208 But its use must be
subjected to great scrutiny and circumspection, and it cannot be invoked
to validate an unconstitutional law or executive act, but is resorted to only
as a matter of equity and fair play. 209 It applies only to cases where
extraordinary circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that will permit its
application.
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We find the doctrine of operative fact applicable to the adoption and
implementation of the DAP. Its application to the DAP proceeds from
equity and fair play. The consequences resulting from the DAP and its
related issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or
unconstitutional executive act. The term executive act is broad enough to
include any and all acts of the Executive, including those that are quasi
legislative and quasi-judicial in nature. The Court held so in Hacienda
Luisita, Inc. v. Presidential Agrarian Reform Council: 210
Nonetheless, the minority is of the persistent view that the applicability of
the operative fact doctrine should be limited to statutes and rules and
regulations issued by the executive department that are accorded the
same status as that of a statute or those which are quasi-legislative in
nature. Thus, the minority concludes that the phrase ‘executive act’ used in
the case of De Agbayani v. Philippine National Bank refers only to acts,
orders, and rules and regulations that have the force and effect of law. The
minority also made mention of the Concurring Opinion of Justice Enrique
Fernando in Municipality of Malabang v. Benito, where it was supposedly
made explicit that the operative fact doctrine applies to executive acts,
which are ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of
Malabang case elaborates what ‘executive act’ mean. Moreover, while
orders, rules and regulations issued by the President or the executive
branch have fixed definitions and meaning in the Administrative Code and
jurisprudence, the phrase ‘executive act’ does not have such specific
definition under existing laws. It should be noted that in the cases cited by
the minority, nowhere can it be found that the term ‘executive act’ is
confined to the foregoing. Contrarily, the term ‘executive act’ is broad
enough to encompass decisions of administrative bodies and agencies
under the executive department which are subsequently revoked by the
agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma)
as Chairman of the Presidential Commission on Good Government (PCGG)
and as Chief Presidential Legal Counsel (CPLC) which was declared
unconstitutional by this Court in Public Interest Center, Inc. v. Elma. In said
case, this Court ruled that the concurrent appointment of Elma to these
offices is in violation of Section 7, par. 2, Article IX-B of the 1987
Constitution, since these are incompatible offices. Notably, the
appointment of Elma as Chairman of the PCGG and as CPLC is, without a
question, an executive act. Prior to the declaration of unconstitutionality of
the said executive act, certain acts or transactions were made in good faith
and in reliance of the appointment of Elma which cannot just be set aside
or invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held
that despite the invalidity of the jurisdiction of the military courts over
civilians, certain operative facts must be acknowledged to have existed so
as not to trample upon the rights of the accused therein. Relevant thereto,
in Olaguer v. Military Commission No. 34, it was ruled that ‘military
tribunals pertain to the Executive Department of the Government and are
simply instrumentalities of the executive power, provided by the
legislature for the President as Commander-in-Chief to aid him in properly
commanding the army and navy and enforcing discipline therein, and
utilized under his orders or those of his authorized military
representatives.’
Evidently, the operative fact doctrine is not confined to statutes and rules
and regulations issued by the executive department that are accorded the
same status as that of a statute or those which are quasi-legislative in
nature.
Even assuming that De Agbayani initially applied the operative fact
doctrine only to executive issuances like orders and rules and regulations,
said principle can nonetheless be applied, by analogy, to decisions made by
the President or the agencies under the executive department. This
doctrine, in the interest of justice and equity, can be applied liberally and
in a broad sense to encompass said decisions of the executive branch. In
keeping with the demands of equity, the Court can apply the operative fact
doctrine to acts and consequences that resulted from the reliance not only
on a law or executive act which is quasi-legislative in nature but also on
147 | J U D I C I A L D E P A R T M E N T C A S E S
decisions or orders of the executive branch which were later nullified. This
Court is not unmindful that such acts and consequences must be
recognized in the higher interest of justice, equity and fairness.
Significantly, a decision made by the President or the administrative
agencies has to be complied with because it has the force and effect of
law, springing from the powers of the President under the Constitution and
existing laws. Prior to the nullification or recall of said decision, it may have
produced acts and consequences in conformity to and in reliance of said
decision, which must be respected. It is on this score that the operative
fact doctrine should be applied to acts and consequences that resulted
from the implementation of the PARC Resolution approving the SDP of HLI.
(Bold underscoring supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power
Corporation,211 the Court likewise declared that "for the operative fact
doctrine to apply, there must be a ‘legislative or executive measure,’
meaning a law or executive issuance." Thus, the Court opined there that
the operative fact doctrine did not apply to a mere administrative practice
of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the
Commissioner from the time the rule or ruling is issued up to its reversal by
the Commissioner or this Court. The reversal is not given retroactive effect.
This, in essence, is the doctrine of operative fact. There must, however, be
a rule or ruling issued by the Commissioner that is relied upon by the
taxpayer in good faith. A mere administrative practice, not formalized into
a rule or ruling, will not suffice because such a mere administrative practice
may not be uniformly and consistently applied. An administrative practice,
if not formalized as a rule or ruling, will not be known to the general public
and can be availed of only by those with informal contacts with the
government agency.
It is clear from the foregoing that the adoption and the implementation of
the DAP and its related issuances were executive acts.1avvphi1 The DAP
itself, as a policy, transcended a merely administrative practice especially
after the Executive, through the DBM, implemented it by issuing various
memoranda and circulars. The pooling of savings pursuant to the DAP from
the allotments made available to the different agencies and departments
was consistently applied throughout the entire Executive. With the
Executive, through the DBM, being in charge of the third phase of the
budget cycle – the budget execution phase, the President could
legitimately adopt a policy like the DAP by virtue of his primary
responsibility as the Chief Executive of directing the national economy
towards growth and development. This is simply because savings could
and should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the
use of savings pooled by the Executive to finance the PAPs that were not
covered in the GAA, or that did not have proper appropriation covers, as
well as to augment items pertaining to other departments of the
Government in clear violation of the Constitution. To declare the
implementation of the DAP unconstitutional without recognizing that its
prior implementation constituted an operative fact that produced
consequences in the real as well as juristic worlds of the Government and
the Nation is to be impractical and unfair. Unless the doctrine is held to
apply, the Executive as the disburser and the offices under it and
elsewhere as the recipients could be required to undo everything that they
had implemented in good faith under the DAP. That scenario would be
enormously burdensome for the Government. Equity alleviates such
burden.
The other side of the coin is that it has been adequately shown as to be
beyond debate that the implementation of the DAP yielded undeniably
positive results that enhanced the economic welfare of the country. To
count the positive results may be impossible, but the visible ones, like
public infrastructure, could easily include roads, bridges, homes for the
homeless, hospitals, classrooms and the like. Not to apply the doctrine of
operative fact to the DAP could literally cause the physical undoing of such
worthy results by destruction, and would result in most undesirable
wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the
doctrine of operative fact does not always apply, and is not always the
148 | J U D I C I A L D E P A R T M E N T C A S E S
consequence of every declaration of constitutional invalidity. It can be
invoked only in situations where the nullification of the effects of what
used to be a valid law would result in inequity and injustice; 212 but where
no such result would ensue, the general rule that an unconstitutional law is
totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact
can apply only to the PAPs that can no longer be undone, and whose
beneficiaries relied in good faith on the validity of the DAP, but cannot
apply to the authors, proponents and implementors of the DAP, unless
there are concrete findings of good faith in their favor by the proper
tribunals determining their criminal, civil, administrative and other
liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and
prohibition; and DECLARES the following acts and practices under the
Disbursement Acceleration Program, National Budget Circular No. 541 and
related executive issuances UNCONSTITUTIONAL for being in violation of
Section 25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:
(a) The withdrawal of unobligated allotments from the
implementing agencies, and the declaration of the withdrawn
unobligated allotments and unreleased appropriations as savings
prior to the end of the fiscal year and without complying with the
statutory definition of savings contained in the General
Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to
augment the appropriations of other offices outside the
Executive; and
(c) The funding of projects, activities and programs that were not
covered by any appropriation in the General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite
the absence of a certification by the National Treasurer that the revenue
collections exceeded the revenue targets for non-compliance with the
conditions provided in the relevant General Appropriations Acts.
SO ORD
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 209287               July 1, 2014
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE
PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN,
CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA
WOMEN'S PARTY REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAY
AN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR.,
SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG
KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON,
ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR, YOUTH ACT
NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209135
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner,
vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF
DEPARTMENT OF BUDGET AND MANAGEMENT; AND HON. FRANKLIN
149 | J U D I C I A L D E P A R T M E N T C A S E S

MAGTUNAO DRILON, IN HIS CAP A CITY AS THE SENATE PRESIDENT OF G.R. No. 209260
THE PHILIPPINES, Respondents.
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,
x-----------------------x vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND
G.R. No. 209136 MANAGEMENT (DBM), Respondent.

MANUELITO R. LUNA, Petitioner, x-----------------------x

vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF
THE DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE
SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO
OF THE PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,
vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND
THE SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B.
ABAD, Respondents.
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE AND
REV. JOSE L. GONZALEZ, Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE
PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON;
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO
BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND
MANAGEMENT, REPRESENTED BY SECRETARY FLORENCIO ABAD; THE
DEPARTMENT OF FINANCE, REPRESENTED BY SECRETARY CESAR V.
PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA
V. DE LEON, Respondents.

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

G.R. No. 209164 G.R. No. 209517

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF
DEAN FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M. GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE
BRIONES, Petitioners, PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA NARTATES, FOR
vs. HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. OF EMPLOYEES NATIONAL HOUSING AUTHORITY (CUENHA); MANUEL
FLORENCIO B. ABAD, Respondents. BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL WELFARE
EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF SOCIAL
WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO);
x-----------------------x
ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE
150 | J U D I C I A L D E P A R T M E N T C A S E S
DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION
(DAREA); ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE
ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION
(EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF
THE KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA
(KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON.
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC), REPRESENTED
BY DANTE L. JIMENEZ, Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality
of the Disbursement Acceleration Program(DAP), National Budget Circular
(NBC) No. 541, and related issuances of the Department of Budget and
Management (DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987
Constitution, a provision of the fundamental law that firmly ordains that
"[n]o money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." The tenor and context of the challenges
posed by the petitioners against the DAP indicate that the DAP
contravened this provision by allowing the Executive to allocate public
money pooled from programmed and unprogrammed funds of its various
agencies in the guise of the President exercising his constitutional authority
under Section 25(5) of the 1987 Constitution to transfer funds out of
savings to augment the appropriations of offices within the Executive
Branch of the Government. But the challenges are further complicated by
the interjection of allegations of transfer of funds to agencies or offices
outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege
speech in the Senate of the Philippines to reveal that some Senators,
including himself, had been allotted an additional ₱50 Million each as
"incentive" for voting in favor of the impeachment of Chief Justice Renato
C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the
DBM issued a public statement entitled Abad: Releases to Senators Part of
Spending Acceleration Program,1 explaining that the funds released to the
Senators had been part of the DAP, a program designed by the DBM to
ramp up spending to accelerate economic expansion. He clarified that the
funds had been released to the Senators based on their letters of request
for funding; and that it was not the first time that releases from the DAP
had been made because the DAP had already been instituted in 2011 to
ramp up spending after sluggish disbursements had caused the growth of
the gross domestic product (GDP) to slow down. He explained that the
funds under the DAP were usually taken from (1) unreleased
appropriations under Personnel Services;2 (2) unprogrammed funds; (3)
carry-over appropriations unreleased from the previous year; and (4)
budgets for slow-moving items or projects that had been realigned to
support faster-disbursing projects.
The DBM soon came out to claim in its website 3 that the DAP releases had
been sourced from savings generated by the Government, and from
151 | J U D I C I A L D E P A R T M E N T C A S E S

unprogrammed funds; and that the savings had been derived from (1) the
pooling of unreleased appropriations, like unreleased Personnel
Services4 appropriations that would lapse at the end of the year,
unreleased appropriations of slow-moving projects and discontinued
projects per zero based budgeting findings;5 and (2) the withdrawal of
unobligated allotments also for slow-moving programs and projects that
had been earlier released to the agencies of the National Government.
The DBM listed the following as the legal bases for the DAP’s use of
savings,6 namely: (1) Section 25(5), Article VI of the 1987 Constitution,
which granted to the President the authority to augment an item for his
office in the general appropriations law; (2) Section 49 (Authority to Use
Savings for Certain Purposes) and Section 38 (Suspension of Expenditure
Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292
(Administrative Code of 1987); and (3) the General Appropriations Acts
(GAAs) of 2011, 2012 and 2013, particularly their provisions on the (a) use
of savings; (b) meanings of savings and augmentation; and (c) priority in
the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as
legal bases the special provisions on unprogrammed fund contained in the
GAAs of 2011, 2012 and 2013.
October 16, 2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No.
209442 (Belgica), on October 29, 2013; G.R. No. 209517 (COURAGE), on
November6, 2013; and G.R. No. 209569 (VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s
attention NBC No. 541 (Adoption of Operational Efficiency Measure –
Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012),
alleging that NBC No. 541, which was issued to implement the DAP,
directed the withdrawal of unobligated allotments as of June 30, 2012 of
government agencies and offices with low levels of obligations, both for
continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through
the Office of the Solicitor General (OSG).
The Court directed the holding of oral arguments on the significant issues
raised and joined.
Issues
Under the Advisory issued on November 14, 2013, the presentations of the
parties during the oral arguments were limited to the following, to wit:

The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM
Procedural Issue:
brought the DAP to the consciousness of the Nation for the first time, and
made this present controversy inevitable. That the issues against the DAP
A. Whether or not certiorari, prohibition, and mandamus are proper
came at a time when the Nation was still seething in anger over
remedies to assail the constitutionality and validity of the Disbursement
Congressional pork barrel – "an appropriation of government spending
Acceleration Program (DAP), National Budget Circular (NBC) No. 541, and
meant for localized projects and secured solely or primarily to bring money
all other executive issuances allegedly implementing the DAP. Subsumed in
to a representative’s district"7 – excited the Nation as heatedly as the pork
this issue are whether there is a controversy ripe for judicial
barrel controversy.
determination, and the standing of petitioners.
Nine petitions assailing the constitutionality of the DAP and the issuances
Substantive Issues:
relating to the DAP were filed within days of each other, as follows: G.R.
No. 209135 (Syjuco), on October 7, 2013; G.R. No. 209136 (Luna), on
October 7, 2013; G.R. No. 209155 (Villegas),8 on October 16, 2013; G.R. No. B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987
209164 (PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on Constitution, which provides: "No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law."
152 | J U D I C I A L D E P A R T M E N T C A S E S
C. Whether or not the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987
Constitution insofar as:
(a)They treat the unreleased appropriations and
unobligated allotments withdrawn from government
agencies as "savings" as the term is used in Sec. 25(5), in
relation to the provisions of the GAAs of 2011, 2012 and
2013;
(b)They authorize the disbursement of funds for projects
or programs not provided in the GAAs for the Executive
Department; and
(c)They "augment" discretionary lump sum
appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the
system of checks and balances, and (3) the principle of public
accountability enshrined in the 1987 Constitution considering that it
authorizes the release of funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary
restraining order to restrain the implementation of the DAP, NBC No. 541,
and all other executive issuances allegedly implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of unprogrammed
funds in order to support its argument regarding the President’s power to
spend. During the oral arguments, the propriety of releasing
unprogrammed funds to support projects under the DAP was considerably
discussed. The petitioners in G.R. No. 209287 (Araullo) and G.R. No.
209442 (Belgica) dwelled on unprogrammed funds in their respective
memoranda. Hence, an additional issue for the oral arguments is stated as
follows:
F. Whether or not the release of unprogrammed funds under the DAP was
in accord with the GAAs.
During the oral arguments held on November 19, 2013, the Court directed
Sec. Abad to submit a list of savings brought under the DAP that had been
sourced from (a) completed programs; (b) discontinued or abandoned
programs; (c) unpaid appropriations for compensation; (d) a certified copy
of the President’s directive dated June 27, 2012 referred to in NBC No. 541;
and (e) all circulars or orders issued in relation to the DAP. 9
In compliance, the OSG submitted several documents, as follows:
(1) A certified copy of the Memorandum for the President dated
June 25, 2012 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and their Realignment); 10
(2) Circulars and orders, which the respondents identified as
related to the DAP, namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on the
Release of Funds for FY 2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on
the Release of Funds for FY 2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of
Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012);
d. NBC No. 545 dated January 2, 2013 (Guidelines on the
Release of Funds for FY 2013);
e. DBM Circular Letter No. 2004-2 dated January 26, 2004
(Budgetary Treatment of Commitments/Obligations of
the National Government);
f. COA-DBM Joint Circular No. 2013-1 dated March 15,
2013 (Revised Guidelines on the Submission of Quarterly
Accountability Reports on Appropriations, Allotments,
Obligations and Disbursements);
153 | J U D I C I A L D E P A R T M E N T C A S E S
g. NBC No. 440 dated January 30, 1995 (Adoption of a
Simplified Fund Release System in the Government).
(3) A breakdown of the sources of savings, including savings from
discontinued projects and unpaid appropriations for
compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution issued on
January 21, 2014 directing the respondents to submit the documents not
yet submitted in compliance with the directives of the Court or its
Members, submitted several evidence packets to aid the Court in
understanding the factual bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven memoranda issued
by the DBM through Sec. Abad, inclusive of annexes, listing in
detail the 116 DAP identified projects approved and duly signed
by the President, as follows:
a. Memorandum for the President dated October 12,
2011 (FY 2011 Proposed Disbursement Acceleration
Program (Projects and Sources of Funds);
b. Memorandum for the President dated December 12,
2011 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and its Realignment);
c. Memorandum for the President dated June 25, 2012
(Omnibus Authority to Consolidate Savings/Unutilized
Balances and their Realignment);
d. Memorandum for the President dated September 4,
2012 (Release of funds for other priority projects and
expenditures of the Government);
e. Memorandum for the President dated December 19,
2012 (Proposed Priority Projects and Expenditures of the
Government);
f. Memorandum for the President dated May 20, 2013
(Omnibus Authority to Consolidate Savings/Unutilized
Balances and their Realignment to Fund the Quarterly
Disbursement Acceleration Program); and
g. Memorandum for the President dated September 25,
2013 (Funding for the Task Force Pablo Rehabilitation
Plan).
(2) Second Evidence Packet12 – consisting of 15 applications of the
DAP, with their corresponding Special Allotment Release Orders
(SAROs) and appropriation covers;
(3) Third Evidence Packet13 – containing a list and descriptions of
12 projects under the DAP;
(4) Fourth Evidence Packet14 – identifying the DAP-related
portions of the Annual Financial Report (AFR) of the Commission
on Audit for 2011 and 2012;
(5) Fifth Evidence Packet15 – containing a letter of Department of
Transportation and Communications(DOTC) Sec. Joseph Abaya
addressed to Sec. Abad recommending the withdrawal of funds
from his agency, inclusive of annexes; and
(6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s
visual presentation for the January 28, 2014 oral arguments.
On February 5, 2014,17 the OSG forwarded the Seventh Evidence
Packet,18 which listed the sources of funds brought under the DAP, the uses
of such funds per project or activity pursuant to DAP, and the legal bases
thereof.
On February 14, 2014, the OSG submitted another set of documents in
further compliance with the Resolution dated January 28, 2014, viz:
154 | J U D I C I A L D E P A R T M E N T C A S E S

(1) Certified copies of the certifications issued by the Bureau of Treasury to G.R. No. 209517 (COURAGE) Certiorari and Prohibition
the effect that the revenue collections exceeded the original revenue
targets for the years 2011, 2012 and 2013, including collections arising G.R. No. 209569 (VACC) Certiorari and Prohibition
from sources not considered in the original revenue targets, which
certifications were required for the release of the unprogrammed funds as The respondents submit that there is no actual controversy that is ripe for
provided in Special Provision No. 1 of Article XLV, Article XVI, and Article adjudication in the absence of adverse claims between the parties; 19 that
XLV of the 2011, 2012 and 2013 GAAs; and (2) A report on releases of the petitioners lacked legal standing to sue because no allegations were
savings of the Executive Department for the use of the Constitutional made to the effect that they had suffered any injury as a result of the
Commissions and other branches of the Government, as well as the fund adoption of the DAP and issuance of NBC No. 541; that their being
releases to the Senate and the Commission on Elections (COMELEC). taxpayers did not immediately confer upon the petitioners the legal
standing to sue considering that the adoption and implementation of the
RULING DAP and the issuance of NBC No. 541 were not in the exercise of the taxing
or spending power of Congress;20 and that even if the petitioners had
I. suffered injury, there were plain, speedy and adequate remedies in the
ordinary course of law available to them, like assailing the regularity of the
Procedural Issue: DAP and related issuances before the Commission on Audit (COA) or in the
trial courts.21
a) The petitions under Rule 65 are proper remedies
The respondents aver that the special civil actions of certiorari and
All the petitions are filed under Rule 65 of the Rules of Court, and include prohibition are not proper actions for directly assailing the constitutionality
applications for the issuance of writs of preliminary prohibitory injunction and validity of the DAP, NBC No. 541, and the other executive issuances
or temporary restraining orders. More specifically, the nature of the implementing the DAP.22
petitions is individually set forth hereunder, to wit:
In their memorandum, the respondents further contend that there is no
authorized proceeding under the Constitution and the Rules of Court for
Certiorari, Prohibition and
G.R. No. 209135 (Syjuco) questioning the validity of any law unless there is an actual case or
Mandamus
controversy the resolution of which requires the determination of the
G.R. No. 209136 (Luna) Certiorariand Prohibition constitutional question; that the jurisdiction of the Court is largely
appellate; that for a court of law to pass upon the constitutionality of a law
G.R. No. 209155 (Villegas) Certiorariand Prohibition or any act of the Government when there is no case or controversy is for
G.R. No. 209164 that court to set itself up as a reviewer of the acts of Congress and of the
Certiorariand Prohibition President in violation of the principle of separation of powers; and that, in
(PHILCONSA)
the absence of a pending case or controversy involving the DAP and NBC
G.R. No. 209260 (IBP) Prohibition No. 541, any decision herein could amount to a mere advisory opinion that
no court can validly render.23
G.R. No. 209287 (Araullo) Certiorariand Prohibition
G.R. No. 209442 (Belgica) Certiorari
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The respondents argue that it is the application of the DAP to actual
situations that the petitioners can question either in the trial courts or in
the COA; that if the petitioners are dissatisfied with the ruling either of the
trial courts or of the COA, they can appeal the decision of the trial courts
by petition for review on certiorari, or assail the decision or final order of
the COA by special civil action for certiorari under Rule 64 of the Rules of
Court.24
The respondents’ arguments and submissions on the procedural issue are
bereft of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.
Thus, the Constitution vests judicial power in the Court and in such lower
courts as may be established by law. In creating a lower court, Congress
concomitantly determines the jurisdiction of that court, and that court,
upon its creation, becomes by operation of the Constitution one of the
repositories of judicial power.25 However, only the Court is a
constitutionally created court, the rest being created by Congress in its
exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts
of justice not only "to settle actual controversies involving rights which are
legally demandable and enforceable" but also "to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government." It has thereby expanded the concept of judicial power,
which up to then was confined to its traditional ambit of settling actual
controversies involving rights that were legally demandable and
enforceable.
The background and rationale of the expansion of judicial power under the
1987 Constitution were laid out during the deliberations of the 1986
Constitutional Commission by Commissioner Roberto R. Concepcion (a
former Chief Justice of the Philippines) in his sponsorship of the proposed
provisions on the Judiciary, where he said:–
The Supreme Court, like all other courts, has one main function: to settle
actual controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be
enforced by a judicial party. In a decided case, a husband complained that
his wife was unwilling to perform her duties as a wife. The Court said: "We
can tell your wife what her duties as such are and that she is bound to
comply with them, but we cannot force her physically to discharge her
main marital duty to her husband. There are some rights guaranteed by
law, but they are so personal that to enforce them by actual compulsion
would be highly derogatory to human dignity." This is why the first part of
the second paragraph of Section 1 provides that: Judicial power includes
the duty of courts to settle actual controversies involving rights which are
legally demandable or enforceable…
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme Court has,
also, another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and
the Judiciary. Each one is supreme within its own sphere and independent
of the others. Because of that supremacy power to determine whether a
given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the
agencies and offices of the government as well as those of its officers. In
other words, the judiciary is the final arbiter on the question whether or
not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction or lack of
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jurisdiction. This is not only a judicial power but a duty to pass judgmenton
matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the
courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question. (Bold emphasis
supplied)26
Upon interpellation by Commissioner Nolledo, Commissioner Concepcion
clarified the scope of judicial power in the following manner:–
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power includes the duty
of courts of justice to settle actual controversies…" The term "actual
controversies" according to the Commissioner should refer to questions
which are political in nature and, therefore, the courts should not refuse to
decide those political questions. But do I understand it right that this is
restrictive or only an example? I know there are cases which are not actual
yet the court can assume jurisdiction. An example is the petition for
declaratory relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant
declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial
power is not vested in the Supreme Court alone but also in other lower
courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or
had abused its authority to the extent of lacking jurisdiction or excess of
jurisdiction, that is not a political question. Therefore, the court has the
duty to decide.27
Our previous Constitutions equally recognized the extent of the power of
judicial review and the great responsibility of the Judiciary in maintaining
the allocation of powers among the three great branches of Government.
Speaking for the Court in Angara v. Electoral Commission, 28 Justice Jose P.
Laurel intoned:
x x x In times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper
allocation of powers between the several department and among the
integral or constituent units thereof.
xxxx
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational
way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other department;
it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution
to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is
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involved in what is termed "judicial supremacy" which properly is the
power of judicial review under the Constitution. x x x29
What are the remedies by which the grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government may be determined under the Constitution?
The present Rules of Court uses two special civil actions for determining
and correcting grave abuse of discretion amounting to lack or excess of
jurisdiction. These are the special civil actions for certiorari and prohibition,
and both are governed by Rule 65. A similar remedy of certiorari exists
under Rule 64, but the remedy is expressly applicable only to the
judgments and final orders or resolutions of the Commission on Elections
and the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present
system are aptly explained in Delos Santos v. Metropolitan Bank and Trust
Company:30
In the common law, from which the remedy of certiorari evolved, the writ
of certiorari was issued out of Chancery, or the King’s Bench, commanding
agents or officers of the inferior courts to return the record of a cause
pending before them, so as to give the party more sure and speedy justice,
for the writ would enable the superior court to determine from an
inspection of the record whether the inferior court’s judgment was
rendered without authority. The errors were of such a nature that, if
allowed to stand, they would result in a substantial injury to the petitioner
to whom no other remedy was available. If the inferior court acted without
authority, the record was then revised and corrected in matters of law. The
writ of certiorari was limited to cases in which the inferior court was said
to be exceeding its jurisdiction or was not proceeding according to
essential requirements of law and would lie only to review judicial or
quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains
much the same as it has been in the common law. In this jurisdiction,
however, the exercise of the power to issue the writ of certiorari is largely
regulated by laying down the instances or situations in the Rules of Court
in which a superior court may issue the writ of certiorari to an inferior
court or officer. Section 1, Rule 65 of the Rules of Court compellingly
provides the requirements for that purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of
jurisdiction, which includes the commission of grave abuse of discretion
amounting to lack of jurisdiction. In this regard, mere abuse of discretion is
not enough to warrant the issuance of the writ. The abuse of discretion
must be grave, which means either that the judicial or quasi-judicial power
was exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, or that the respondent judge, tribunal or board evaded a
positive duty, or virtually refused to perform the duty enjoined or to act in
contemplation of law, such as when such judge, tribunal or board
exercising judicial or quasi-judicial powers acted in a capricious or
whimsical manner as to be equivalent to lack of jurisdiction. 31
Although similar to prohibition in that it will lie for want or excess of
jurisdiction, certiorari is to be distinguished from prohibition by the fact
that it is a corrective remedy used for the re-examination of some action of
an inferior tribunal, and is directed to the cause or proceeding in the lower
court and not to the court itself, while prohibition is a preventative remedy
issuing to restrain future action, and is directed to the court itself. 32 The
Court expounded on the nature and function of the writ of prohibition in
Holy Spirit Homeowners Association, Inc. v. Defensor: 33
A petition for prohibition is also not the proper remedy to assail an IRR
issued in the exercise of a quasi-legislative function. Prohibition is an
extraordinary writ directed against any tribunal, corporation, board, officer
or person, whether exercising judicial, quasi-judicial or ministerial
functions, ordering said entity or person to desist from further proceedings
when said proceedings are without or in excess of said entity’s or person’s
jurisdiction, or are accompanied with grave abuse of discretion, and there
is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law. Prohibition lies against judicial or ministerial
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functions, but not against legislative or quasi-legislative functions.
Generally, the purpose of a writ of prohibition is to keep a lower court
within the limits of its jurisdiction in order to maintain the administration
of justice in orderly channels. Prohibition is the proper remedy to afford
relief against usurpation of jurisdiction or power by an inferior court, or
when, in the exercise of jurisdiction in handling matters clearly within its
cognizance the inferior court transgresses the bounds prescribed to it by
the law, or where there is no adequate remedy available in the ordinary
course of law by which such relief can be obtained. Where the principal
relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary
action for its nullification, an action which properly falls under the
jurisdiction of the Regional Trial Court. In any case, petitioners’ allegation
that "respondents are performing or threatening to perform functions
without or in excess of their jurisdiction" may appropriately be enjoined by
the trial court through a writ of injunction or a temporary restraining
order.
With respect to the Court, however, the remedies of certiorari and
prohibition are necessarily broader in scope and reach, and the writ of
certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officer exercising
judicial, quasi-judicial or ministerial functions but also to set right, undo
and restrain any act of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the Government,
even if the latter does not exercise judicial, quasi-judicial or ministerial
functions. This application is expressly authorized by the text of the second
paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to
raise constitutional issues and to review and/or prohibit or nullify the acts
of legislative and executive officials.34
Necessarily, in discharging its duty under Section 1, supra, to set right and
undo any act of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch or instrumentality of the Government, the Court
is not at all precluded from making the inquiry provided the challenge was
properly brought by interested or affected parties. The Court has been
thereby entrusted expressly or by necessary implication with both the duty
and the obligation of determining, in appropriate cases, the validity of any
assailed legislative or executive action. This entrustment is consistent with
the republican system of checks and balances.35
Following our recent dispositions concerning the congressional pork barrel,
the Court has become more alert to discharge its constitutional duty. We
will not now refrain from exercising our expanded judicial power in order
to review and determine, with authority, the limitations on the Chief
Executive’s spending power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial review are the
following, namely: (1) there must bean actual case or justiciable
controversy before the Court; (2) the question before the Court must be
ripe for adjudication; (3) the person challenging the act must be a proper
party; and (4) the issue of constitutionality must be raised at the earliest
opportunity and must be the very litis mota of the case. 36
The first requisite demands that there be an actual case calling for the
exercise of judicial power by the Court. 37 An actual case or controversy, in
the words of Belgica v. Executive Secretary Ochoa: 38
x x x is one which involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. In other words, "[t]here
must be a contrariety of legal rights that can be interpreted and enforced
on the basis of existing law and jurisprudence." Related to the requirement
of an actual case or controversy is the requirement of "ripeness," meaning
that the questions raised for constitutional scrutiny are already ripe for
adjudication. "A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it.
It is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture, and
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the petitioner must allege the existence of an immediate or threatened
injury to itself as a result of the challenged action." "Withal, courts will
decline to pass upon constitutional issues through advisory opinions,
bereft as they are of authority to resolve hypothetical or moot questions."
An actual and justiciable controversy exists in these consolidated cases.
The incompatibility of the perspectives of the parties on the
constitutionality of the DAP and its relevant issuances satisfy the
requirement for a conflict between legal rights. The issues being raised
herein meet the requisite ripeness considering that the challenged
executive acts were already being implemented by the DBM, and there are
averments by the petitioners that such implementation was repugnant to
the letter and spirit of the Constitution. Moreover, the implementation of
the DAP entailed the allocation and expenditure of huge sums of public
funds. The fact that public funds have been allocated, disbursed or utilized
by reason or on account of such challenged executive acts gave rise,
therefore, to an actual controversy that is ripe for adjudication by the
Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral
arguments that the DAP as a program had been meanwhile discontinued
because it had fully served its purpose, saying: "In conclusion, Your Honors,
may I inform the Court that because the DAP has already fully served its
purpose, the Administration’s economic managers have recommended its
termination to the President. x x x."39
The Solicitor General then quickly confirmed the termination of the DAP as
a program, and urged that its termination had already mooted the
challenges to the DAP’s constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these present cases
brought to challenge its constitutionality. Any constitutional challenge
should no longer be at the level of the program, which is now extinct, but
at the level of its prior applications or the specific disbursements under the
now defunct policy. We challenge the petitioners to pick and choose which
among the 116 DAP projects they wish to nullify, the full details we will
have provided by February 5. We urge this Court to be cautious in limiting
the constitutional authority of the President and the Legislature to respond
to the dynamic needs of the country and the evolving demands of
governance, lest we end up straight jacketing our elected representatives
in ways not consistent with our constitutional structure and democratic
principles.40
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value.41
The Court cannot agree that the termination of the DAP as a program was
a supervening event that effectively mooted these consolidated cases.
Verily, the Court had in the past exercised its power of judicial review
despite the cases being rendered moot and academic by supervening
events, like: (1) when there was a grave violation of the Constitution; (2)
when the case involved a situation of exceptional character and was of
paramount public interest; (3) when the constitutional issue raised
required the formulation of controlling principles to guide the Bench, the
Bar and the public; and (4) when the case was capable of repetition yet
evading review.42
Assuming that the petitioners’ several submissions against the DAP were
ultimately sustained by the Court here, these cases would definitely come
under all the exceptions. Hence, the Court should not abstain from
exercising its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a
right of appearance in a court of justice on a given question." 43 The concept
of legal standing, or locus standi, was particularly discussed in De Castro v.
Judicial and Bar Council,44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-
present need to regulate the invocation of the intervention of the Court to
correct any official action or policy in order to avoid obstructing the
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efficient functioning of public officials and offices involved in public service.
It is required, therefore, that the petitioner must have a personal stake in
the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine
International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions." Accordingly, it has been held that the interest of
a person assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent
danger of sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must appear
that the person complaining has been or is about to be denied some right
or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act
complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the
direct injury test for determining whether a petitioner in a public action
had locus standi. There, the Court held that the person who would assail
the validity of a statute must have "a personal and substantial interest in
the case such that he has sustained, or will sustain direct injury as a result."
Vera was followed in Custodio v. President of the Senate, Manila Race
Horse Trainers’ Association v. De la Fuente, Anti-Chinese League of the
Philippines v. Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a
mere procedural technicality, can be waived by the Court in the exercise of
its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court
liberalized the approach when the cases had "transcendental importance."
Some notable controversies whose petitioners did not pass the direct
injury test were allowed to be treated in the same way as in Araneta v.
Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court
decided to resolve the issues raised by the petition due to their "far
reaching implications," even if the petitioner had no personality to file the
suit. The liberal approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary citizens, legislators,
and civic organizations to bring their suits involving the constitutionality or
validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a
supposedly illegal or unconstitutional executive or legislative action rests
on the theory that the petitioner represents the public in general. Although
such petitioner may not be as adversely affected by the action complained
against as are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in the
vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or
taxpayer to gain locus standi. That is not surprising, for even if the issue
may appear to concern only the public in general, such capacities
nonetheless equip the petitioner with adequate interest to sue. In David v.
Macapagal-Arroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp
v. Silk, where it was held that the plaintiff in a taxpayer’s suit is in a
different category from the plaintiff in a citizen’s suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter,
he is but the mere instrument of the public concern. As held by the New
York Supreme Court in People ex rel Case v. Collins: "In matter of mere
public right, however…the people are the real parties…It is at least the
right, if not the duty, of every citizen to interfere and see that a public
offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer’s suits, Terr v. Jordan held that "the
right of a citizen and a taxpayer to maintain an action in courts to restrain
the unlawful use of public funds to his injury cannot be denied." 45
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The Court has cogently observed in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.46 that "[s]tanding is a peculiar concept in constitutional
law because in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act
but by concerned citizens, taxpayers or voters who actually sue in the
public interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners
have invoked their capacities as taxpayers who, by averring that the
issuance and implementation of the DAP and its relevant issuances
involved the illegal disbursements of public funds, have an interest in
preventing the further dissipation of public funds. The petitioners in G.R.
No. 209287 (Araullo) and G.R. No. 209442 (Belgica) also assert their right
as citizens to sue for the enforcement and observance of the constitutional
limitations on the political branches of the Government. 47
On its part, PHILCONSA simply reminds that the Court has long recognized
its legal standing to bring cases upon constitutional issues. 48 Luna, the
petitioner in G.R. No. 209136, cites his additional capacity as a lawyer. The
IBP, the petitioner in G.R. No. 209260, stands by "its avowed duty to work
for the rule of law and of paramount importance of the question in this
action, not to mention its civic duty as the official association of all lawyers
in this country."49
Under their respective circumstances, each of the petitioners has
established sufficient interest in the outcome of the controversy as to
confer locus standi on each of them.
In addition, considering that the issues center on the extent of the power
of the Chief Executive to disburse and allocate public funds, whether
appropriated by Congress or not, these cases pose issues that are of
transcendental importance to the entire Nation, the petitioners included.
As such, the determination of such important issues call for the Court’s
exercise of its broad and wise discretion "to waive the requirement and so
remove the impediment to its addressing and resolving the serious
constitutional questions raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the
Court in properly appreciating and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that
had derived from the Latin word bulga (which means bag or purse). 51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act)
defined "budget" as the financial program of the National Government for
a designated fiscal year, consisting of the statements of estimated receipts
and expenditures for the fiscal year for which it was intended to be
effective based on the results of operations during the preceding fiscal
years. The term was given a different meaning under Republic Act No. 992
(Revised Budget Act) by describing the budget as the delineation of the
services and products, or benefits that would accrue to the public together
with the estimated unit cost of each type of service, product or
benefit.52 For a forthright definition, budget should simply be identified as
the financial plan of the Government,53 or "the master plan of
government."54
The concept of budgeting has not been the product of recent economies.
In reality, financing public goals and activities was an idea that existed from
the creation of the State.55 To protect the people, the territory and
sovereignty of the State, its government must perform vital functions that
required public expenditures. At the beginning, enormous public
expenditures were spent for war activities, preservation of peace and
order, security, administration of justice, religion, and supply of limited
goods and services.56 In order to finance those expenditures, the State
raised revenues through taxes and impositions.57 Thus, budgeting became
necessary to allocate public revenues for specific government
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functions.58 The State’s budgeting mechanism eventually developed
through the years with the growing functions of its government and
changes in its market economy.
The Philippine Budget System has been greatly influenced by western
public financial institutions. This is because of the country’s past as a
colony successively of Spain and the United States for a long period of
time. Many aspects of the country’s public fiscal administration, including
its Budget System, have been naturally patterned after the practices and
experiences of the western public financial institutions. At any rate, the
Philippine Budget System is presently guided by two principal objectives
that are vital to the development of a progressive democratic government,
namely: (1) to carry on all government activities under a comprehensive
fiscal plan developed, authorized and executed in accordance with the
Constitution, prevailing statutes and the principles of sound public
management; and (2) to provide for the periodic review and disclosure of
the budgetary status of the Government in such detail so that persons
entrusted by law with the responsibility as well as the enlightened citizenry
can determine the adequacy of the budget actions taken, authorized or
proposed, as well as the true financial position of the Government. 59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the
American Regime up to the passage of the Jones Law in 1916. A Budget
Office was created within the Department of Finance by the Jones Law to
discharge the budgeting function, and was given the responsibility to assist
in the preparation of an executive budget for submission to the Philippine
Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget
procedure were established, and subsequently strengthened through the
enactment of laws and executive acts.61 EO No. 25, issued by President
Manuel L. Quezon on April 25, 1936, created the Budget Commission to
serve as the agency that carried out the President’s responsibility of
preparing the budget.62 CA No. 246, the first budget law, went into effect
on January 1, 1938 and established the Philippine budget process. The law
also provided a line-item budget as the framework of the Government’s
budgeting system,63 with emphasis on the observance of a "balanced
budget" to tie up proposed expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954
of Republic Act (RA) No. 992,whereby Congress introduced performance-
budgeting to give importance to functions, projects and activities in terms
of expected results.64 RA No. 992 also enhanced the role of the Budget
Commission as the fiscal arm of the Government. 65
The 1973 Constitution and various presidential decrees directed a series of
budgetary reforms that culminated in the enactment of PD No. 1177 that
President Marcos issued on July30, 1977, and of PD No. 1405, issued on
June 11, 1978. The latter decree converted the Budget Commission into
the Ministry of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and
Management (OBM) under EO No. 711. The OBM became the DBM
pursuant to EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1)
Budget Preparation; (2) Budget Legislation; (3) Budget Execution; and (4)
Accountability. Each phase is distinctly separate from the others but they
overlap in the implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a
Budget Call by the DBM. The Budget Call contains budget parameters
earlier set by the Development Budget Coordination Committee (DBCC) as
well as policy guidelines and procedures to aid government agencies in the
preparation and submission of their budget proposals. The Budget Call is of
two kinds, namely: (1) a National Budget Call, which is addressed to all
agencies, including state universities and colleges; and (2) a Corporate
163 | J U D I C I A L D E P A R T M E N T C A S E S
Budget Call, which is addressed to all government-owned and -controlled
corporations (GOCCs) and government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and
agencies submit their respective Agency Budget Proposals to the DBM. To
boost citizen participation, the current administration has tasked the
various departments and agencies to partner with civil society
organizations and other citizen-stakeholders in the preparation of the
Agency Budget Proposals, which proposals are then presented before a
technical panel of the DBM in scheduled budget hearings wherein the
various departments and agencies are given the opportunity to defend
their budget proposals. DBM bureaus thereafter review the Agency Budget
Proposals and come up with recommendations for the Executive Review
Board, comprised by the DBM Secretary and the DBM’s senior officials. The
discussions of the Executive Review Board cover the prioritization of
programs and their corresponding support vis-à-vis the priority agenda of
the National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the
National Expenditure Program (NEP)and a Budget of Expenditures and
Sources of Financing (BESF). The NEP provides the details of spending for
each department and agency by program, activity or project (PAP), and is
submitted in the form of a proposed GAA. The Details of Selected
Programs and Projects is the more detailed disaggregation of key PAPs in
the NEP, especially those in line with the National Government’s
development plan. The Staffing Summary provides the staffing
complement of each department and agency, including the number of
positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to
the President and the Cabinet for further refinements or reprioritization.
Once the NEP and the BESF are approved by the President and the Cabinet,
the DBM prepares the budget documents for submission to Congress. The
budget documents consist of: (1) the President’s Budget Message, through
which the President explains the policy framework and budget priorities;
(2) the BESF, mandated by Section 22, Article VII of the
Constitution,68 which contains the macroeconomic assumptions, public
sector context, breakdown of the expenditures and funding sources for the
fiscal year and the two previous years; and (3) the NEP.
Public or government expenditures are generally classified into two
categories, specifically: (1) capital expenditures or outlays; and (2) current
operating expenditures. Capital expenditures are the expenses whose
usefulness lasts for more than one year, and which add to the assets of the
Government, including investments in the capital of government-owned or
controlled corporations and their subsidiaries.69 Current operating
expenditures are the purchases of goods and services in current
consumption the benefit of which does not extend beyond the fiscal
year.70 The two components of current expenditures are those for personal
services (PS), and those for maintenance and other operating
expenses(MOOE).
Public expenditures are also broadly grouped according to their functions
into: (1) economic development expenditures (i.e., expenditures on
agriculture and natural resources, transportation and communications,
commerce and industry, and other economic development efforts); 71 (2)
social services or social development expenditures (i.e., government outlay
on education, public health and medicare, labor and welfare and
others);72 (3) general government or general public services expenditures
(i.e., expenditures for the general government, legislative services, the
administration of justice, and for pensions and gratuities); 73 (4) national
defense expenditures (i.e., sub-divided into national security expenditures
and expenditures for the maintenance of peace and order); 74 and (5) public
debt.75
Public expenditures may further be classified according to the nature of
funds, i.e., general fund, special fund or bond fund. 76
On the other hand, public revenues complement public expenditures and
cover all income or receipts of the government treasury used to support
government expenditures.77
Classical economist Adam Smith categorized public revenues based on two
principal sources, stating: "The revenue which must defray…the necessary
 164 | J U D I C I A L D E P A R T M E N T C A S E S

expenses of government may be drawn either, first from some fund which Office/Staff Bureaus Transactions
peculiarly belongs to the sovereign or commonwealth, and which is
Income from Government Other Taxes 6.Fines and Penalties-Tax Revenue
independent of the revenue of the people, or, secondly, from the revenue
Services Other Specific Income
of the people."78 Adam Smith’s classification relied on the two aspects of
the nature of the State: first, the State as a juristic person with an artificial Income from Government
personality, and, second, the State as a sovereign or entity possessing Business Operations
supreme power. Under the first aspect, the State could hold property and Sales Revenue
engage in trade, thereby deriving what is called its quasi private income or Rent Income
revenues, and which "peculiarly belonged to the sovereign." Under the
Insurance Income
second aspect, the State could collect by imposing charges on the revenues
of its subjects in the form of taxes.79 Dividend Income
Interest Income
In the Philippines, public revenues are generally derived from the following Sale of Confiscated Goods and
sources, to wit: (1) tax revenues(i.e., compulsory contributions to finance Properties
government activities); 80 (2) capital revenues(i.e., proceeds from sales of Foreign Exchange (FOREX)
fixed capital assets or scrap thereof and public domain, and gains on such Gains
sales like sale of public lands, buildings and other structures, equipment,
Miscellaneous Operating and
and other properties recorded as fixed assets); 81 (3) grants(i.e., voluntary
Service Income
contributions and aids given to the Government for its operation on
specific purposes in the form of money and/or materials, and do not Fines and Penalties-Government
require any monetary commitment on the part of the recipient); 82 (4) Services and Business Operations
extraordinary income(i.e., repayment of loans and advances made by Income from Grants and
government corporations and local governments and the receipts and Donations
shares in income of the Banko Sentral ng Pilipinas, and other
receipts);83 and (5) public borrowings(i.e., proceeds of repayable
obligations generally with interest from domestic and foreign creditors of
the Government in general, including the National Government and its
c.2. Budget Legislation86
political subdivisions).84

More specifically, public revenues are classified as follows: 85
General Income
Subsidy Income from National
Government
Subsidy from Central Office
Subsidy from Regional
The Budget Legislation Phase covers the period commencing from the time
Congress receives the President’s Budget, which is inclusive of the NEPand
the BESF, up to the President’s approval of the GAA. This phase is also
Specific Income known as the Budget Authorization Phase, and involves the significant
Income Taxes participation of the Legislative through its deliberations.
Property Taxes
Initially, the President’s Budget is assigned to the House of
Taxes on Goods and Services
Representatives’ Appropriations Committee on First Reading. The
Taxes on International Trade and Appropriations Committee and its various Sub-Committees schedule and
165 | J U D I C I A L D E P A R T M E N T C A S E S
conduct budget hearings to examine the PAPs of the departments and
agencies. Thereafter, the House of Representatives drafts the General
Appropriations Bill (GAB). 87
The GABis sponsored, presented and defended by the House of
Representatives’ Appropriations Committee and Sub-Committees in
plenary session. As with other laws, the GAB is approved on Third Reading
before the House of Representatives’ version is transmitted to the
Senate.88
After transmission, the Senate conducts its own committee hearings on the
GAB. To expedite proceedings, the Senate may conduct its committee
hearings simultaneously with the House of Representatives’ deliberations.
The Senate’s Finance Committee and its Sub-Committees may submit the
proposed amendments to the GAB to the plenary of the Senate only after
the House of Representatives has formally transmitted its version to the
Senate. The Senate version of the GAB is likewise approved on Third
Reading.89
The House of Representatives and the Senate then constitute a panel each
to sit in the Bicameral Conference Committee for the purpose of discussing
and harmonizing the conflicting provisions of their versions of the GAB.
The "harmonized" version of the GAB is next presented to the President
for approval.90 The President reviews the GAB, and prepares the Veto
Message where budget items are subjected to direct veto, 91 or are
identified for conditional implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the
GAB for the ensuing fiscal year, the GAA for the preceding fiscal year shall
be deemed re-enacted and shall remain in force and effect until the GAB is
passed by the Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next step is the
implementation of the budget. The Budget Execution Phase is primarily the
function of the DBM, which is tasked to perform the following procedures,
namely: (1) to issue the programs and guidelines for the release of funds;
(2) to prepare an Allotment and Cash Release Program; (3) to release
allotments; and (4) to issue disbursement authorities.
The implementation of the GAA is directed by the guidelines issued by the
DBM. Prior to this, the various departments and agencies are required to
submit Budget Execution Documents(BED) to outline their plans and
performance targets by laying down the physical and financial plan, the
monthly cash program, the estimate of monthly income, and the list of
obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a
Cash Release Program (CRP).The ARP sets a limit for allotments issued in
general and to a specific agency. The CRP fixes the monthly, quarterly and
annual disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued
by the DBM. Allotments are lesser in scope than appropriations, in that the
latter embrace the general legislative authority to spend. Allotments may
be released in two forms – through a comprehensive Agency Budget
Matrix (ABM),94 or, individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to
incur obligations96 on behalf of the Government in order to implement
their PAPs. Obligations may be incurred in various ways, like hiring of
personnel, entering into contracts for the supply of goods and services,
and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues
a disbursement authority so that cash may be allocated in payment of the
obligations. A cash or disbursement authority that is periodically issued is
referred to as a Notice of Cash Allocation (NCA), 97 which issuance is based
upon an agency’s submission of its Monthly Cash Program and other
required documents. The NCA specifies the maximum amount of cash that
can be withdrawn from a government servicing bank for the period
indicated. Apart from the NCA, the DBM may issue a Non-Cash Availment
Authority(NCAA) to authorize non-cash disbursements, or a Cash
166 | J U D I C I A L D E P A R T M E N T C A S E S
Disbursement Ceiling(CDC) for departments with overseas operations to
allow the use of income collected by their foreign posts for their operating
requirements.
Actual disbursement or spending of government funds terminates the
Budget Execution Phase and is usually accomplished through the Modified
Disbursement Scheme under which disbursements chargeable against the
National Treasury are coursed through the government servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget cycle because it ensures
that the government funds have been effectively and efficiently utilized to
achieve the State’s socio-economic goals. It also allows the DBM to assess
the performance of agencies during the fiscal year for the purpose of
implementing reforms and establishing new policies.
An agency’s accountability may be examined and evaluated through (1)
performance targets and outcomes; (2) budget accountability reports; (3)
review of agency performance; and (4) audit conducted by the Commission
on Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to
promote economic growth
Policy is always a part of every budget and fiscal decision of any
Administration.99 The national budget the Executive prepares and presents
to Congress represents the Administration’s "blueprint for public policy"
and reflects the Government’s goals and strategies. 100 As such, the national
budget becomes a tangible representation of the programs of the
Government in monetary terms, specifying therein the PAPs and services
for which specific amounts of public funds are proposed and
allocated.101 Embodied in every national budget is government spending. 102
When he assumed office in the middle of 2010, President Aquino made
efficiency and transparency in government spending a significant focus of
his Administration. Yet, although such focus resulted in an improved fiscal
deficit of 0.5% in the gross domestic product (GDP) from January to July of
2011, it also unfortunately decelerated government project
implementation and payment schedules.103 The World Bank observed that
the Philippines’ economic growth could be reduced, and potential growth
could be weakened should the Government continue with its
underspending and fail to address the large deficiencies in
infrastructure.104 The economic situation prevailing in the middle of 2011
thus paved the way for the development and implementation of the DAP
as a stimulus package intended to fast-track public spending and to push
economic growth by investing on high-impact budgetary PAPs to be
funded from the "savings" generated during the year as well as from
unprogrammed funds.105 In that respect, the DAP was the product of "plain
executive policy-making" to stimulate the economy by way of accelerated
spending.106 The Administration would thereby accelerate government
spending by: (1) streamlining the implementation process through the
clustering of infrastructure projects of the Department of Public Works and
Highways (DPWH) and the Department of Education (DepEd),and (2) front
loading PPP-related projects107 due for implementation in the following
year.108
Did the stimulus package work?
The March 2012 report of the World Bank,109 released after the initial
implementation of the DAP, revealed that the DAP was partially successful.
The disbursements under the DAP contributed 1.3 percentage points to
GDP growth by the fourth quarter of 2011.110 The continued
implementation of the DAP strengthened growth by 11.8% year on year
while infrastructure spending rebounded from a 29% contraction to a 34%
growth as of September 2013.111
The DAP thus proved to be a demonstration that expenditure was a policy
instrument that the Government could use to direct the economies
towards growth and development.112 The Government, by spending on
public infrastructure, would signify its commitment of ensuring profitability
167 | J U D I C I A L D E P A R T M E N T C A S E S

for prospective investors.113 The PAPs funded under the DAP were chosen
Amount
for this reason based on their: (1) multiplier impact on the economy and Action
Fund Sources (In million Description
infrastructure development; (2) beneficial effect on the poor; and (3) Requested
114 Php)
translation into disbursements.
30,000 Unreleased Personnel Declare as
b. History of the implementation of Unreleased Services (PS) savings and
the DAP, and sources of funds appropriations which approve/
under the DAP Services (PS) will lapse at the end of authorize its use
Appropriations FY 2011 but may be for the 2011
How the Administration’s economic managers conceptualized and pooled as savings and Disbursement
developed the DAP, and finally presented it to the President remains realigned for priority Acceleration
unknown because the relevant documents appear to be scarce. programs that require Program
immediate funding
The earliest available document relating to the genesis of the DAP was the
memorandum of October 12,2011 from Sec. Abad seeking the approval of 482 Unreleased  
the President to implement the proposed DAP. The memorandum, which Unreleased appropriations (slow
contained a list of the funding sources for ₱72.11 billion and of the Appropriations moving projects and
proposed priority projects to be funded,115 reads: programs for
discontinuance)
MEMORANDUM FOR THE PRESIDENT
12,336 Supported by the GFI Approve and
xxxx Unprogrammed Dividends authorize its use
for the 2011
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM Disbursement
(PROJECTS AND SOURCES OF FUNDS) Acceleration
Program
DATE: OCTOBER 12, 2011
21,544 Unreleased With prior
appropriations (slow approval from
Mr. President, this is to formally confirm your approval of the Appropriation moving projects and the President in
Disbursement Acceleration Program totaling ₱72.11 billion. We are already programs for November 2010
working with all the agencies concerned for the immediate execution of discontinuance) and to declare as
the projects therein. savings from Zero-based Budgeting savings and with
Initiative authority to use
A. Fund Sources for the Acceleration Program for priority
projects
 168 | J U D I C I A L D E P A R T M E N T C A S E S

FY 2011 Budget 7,748 FY 2011 Agency centralized credit information system

For information
items for Budget items that can
realignment be realigned within the 5. PIDS: purchase of land to relocate the PIDS 100
agency to fund new fast office and building construction
disbursing projects 6. HGC: Equity infusion for credit insurance 400
DPWH-3.981 Billion and mortgage guaranty operations of HGC
DA – 2.497 Billion
DOT – 1.000 Billion 7. PHIC: Obligations incurred (premium 1,496
DepEd – 270 Million subsidy for indigent families) in January-June
2010, booked for payment in Jul[y] – Dec
TOTAL 72.110     2010. The delay in payment is due to the
delay in the certification of the LGU
counterpart. Without it, the NG is obliged to
B. Projects in the Disbursement Acceleration Program pay the full amount.

(Descriptions of projects attached as Annex A) 8. Philpost: Purchase of foreclosed property. 644

Payment of Mandatory Obligations, (GSIS,
PhilHealth, ECC), Franking Privilege
GOCCs and GFIs
9. BSP: First equity infusion out of Php 40B 10,000
Agency/Project Allotment
capitalization under the BSP Law
(SARO and NCA Release) (in Million Php)
10. PCMC: Capital and Equipment Renovation 280
1. LRTA: Rehabilitation of LRT 1 and 2 1,868
11. LCOP: 105
2. NHA: 11,050
a. Pediatric Pulmonary Program
35
a. Resettlement of North Triangle residents to 450 b. Bio-regenerative Technology Program
(Stem-Cell Research – subject to legal
Camarin A7 70
b. Housing for BFP/BJMP 500 review and presentation)
c. On-site development for families living 10,000
12. TIDCORP: NG Equity infusion 570
along dangerous
d. Relocation sites for informal settlers 100 TOTAL 26,945
along Iloilo River and its tributaries

3. PHIL. HEART CENTER: Upgrading of 357

NGAs/LGUs
ageing physical plant and medical equipment
Agency/Project Allotment
4. CREDIT INFO CORP: Establishment of 75
 169 | J U D I C I A L D E P A R T M E N T C A S E S

(SARO) Cash of 50 investigation agents and    

(In Million Requirement
15 state attorneys 11 11
Php) (NCA)
20. DOT: Preservation of the Cine
13. DOF-BIR: NPSTAR Corregidor Complex 25 25
centralization of data    
processing and others (To be     21. OPAPP: Activities for Peace
synchronized with GFMIS     Process (PAMANA- Project    
activities) 758 758 details: budget breakdown,    
implementation plan, and    
14. COA: IT infrastructure conditions on fund release    
program and hiring of     attached as Annex B) 1,819 1,819
additional litigational experts 144 144
22. DOST 425 425
15. DND-PAF: On Base Housing a. Establishment of National
Facilities and Communication     Meterological and Climate    
Equipment 30 30 Center 275 275
b. Enhancement of Doppler
16. DA: 2,959 2,223Radar Network for National    
a. Irrigation, FMRs and Weather Watch, Accurate    
Integrated Community Based Multi-Species     Forecasting and Flood Early    
Hatchery and Aquasilvi     Warning 190 190
Farming 1,629 1,629
b. Mindanao Rural 23. DOF-BOC: To settle the
Development Project 919 183 principal obligations with    
PDIC consistent with the    
c. NIA Agno River Integrated agreement with the CISS and    
Irrigation Project 411 411 SGS 2,800 2,800
17. DAR: 1,293 1,29324. OEO-FDCP: Establishment of
a. Agrarian Reform the National Film Archive and    
Communities Project 2 1,293 132 local cinematheques, and other    
b. Landowners Compensation 5,432local activities 20 20
18. DBM: Conduct of National 25. DPWH: Various infrastructure
Survey of     projects 5,500 5,500
Farmers/Fisherfolks/Ips 625 625
26. DepEd/ERDT/DOST: Thin
19. DOJ: Operating requirements Client Cloud Computing    
 170 | J U D I C I A L D E P A R T M E N T C A S E S

Project 270 270 Total 72,110 72,110 70,895

27. DOH: Hiring of nurses and GOCCs 26,895 26,895

midwives 294 294
NGAs/LGUs 45,165 44,000
28. TESDA: Training Program in
partnership with BPO industry    
For His Excellency’s Consideration
and other sectors 1,100 1,100

29. DILG: Performance Challenge (Sgd.) FLORENCIO B. ABAD

Fund (People Empowered    
Community Driven     [/] APPROVED
Development with DSWD and    
NAPC) 250 50 [ ] DISAPPROVED
30. ARMM: Comprehensive Peace
and Development Intervention 8,592 8,592 (Sgd.) H.E. BENIGNO S. AQUINO, III

31. DOTC-MRT: Purchase of OCT 12, 2011

additional MRT cars 4,500 -
The memorandum of October 12, 2011 was followed by another
32. LGU Support Fund 6,500 6,500
memorandum for the President dated December 12, 2011 116 requesting
33. Various Other Local Projects 6,500 6,500 omnibus authority to consolidate the savings and unutilized balances for
fiscal year 2011. Pertinent portions of the memorandum of December 12,
34. Development Assistance to the 2011 read:
Province of Quezon 750 750
MEMORANDUM FOR THE PRESIDENT
TOTAL 45,165 44,000
xxxx
C. Summary
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances
and its Realignment
  Fund Sources
Identified for Allotments Cash
Approval for Release Requirements for DATE: December 12, 2011
(In Million Release in FY
Php) 2011 This is to respectfully request for the grant of Omnibus Authority to
consolidate savings/unutilized balances in FY 2011 corresponding to
171 | J U D I C I A L D E P A R T M E N T C A S E S
completed or discontinued projects which may be pooled to fund
additional projects or expenditures.
In addition, Mr. President, this measure will allow us to undertake projects
even if their implementation carries over to 2012 without necessarily
impacting on our budget deficit cap next year.
BACKGROUND
1.0 The DBM, during the course of performance reviews
conducted on the agencies’ operations, particularly on
the implementation of their projects/activities, including
expenses incurred in undertaking the same, have
identified savings out of the 2011 General Appropriations
Act. Said savings correspond to completed or
discontinued projects under certain
departments/agencies which may be pooled, for the
following:
1.1 to provide for new activities which have not
been anticipated during preparation of the
budget;
1.2 to augment additional requirements of on-
going priority projects; and
1.3 to provide for deficiencies under the Special
Purpose Funds, e.g., PDAF, Calamity Fund,
Contingent Fund
1.4 to cover for the modifications of the original
allotment class allocation as a result of on-going
priority projects and implementation of new
activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved our
request for omnibus authority to pool savings/unutilized
balances in FY 2010 last November 25, 2010.
4.0 It is understood that in the utilization of the pooled
savings, the DBM shall secure the corresponding
approval/confirmation of the President. Furthermore, it
is assured that the proposed realignments shall be within
the authorized Expenditure level.
5.0 Relative thereto, we have identified some
expenditure items that may be sourced from the said
pooled appropriations in FY 2010 that will expire on
December 31, 2011 and appropriations in FY 2011 that
may be declared as savings to fund additional
expenditures.
5.1 The 2010 Continuing Appropriations (pooled
savings) is proposed to be spent for the projects
that we have identified to be immediate actual
disbursements considering that this same fund
source will expire on December 31, 2011.
5.2 With respect to the proposed expenditure
items to be funded from the FY 2011 Unreleased
Appropriations, most of these are the same
projects for which the DBM is directed by the
Office of the President, thru the Executive
Secretary, to source funds.
172 | J U D I C I A L D E P A R T M E N T C A S E S
6.0 Among others, the following are such proposed
additional projects that have been chosen given their
multiplier impact on economy and infrastructure
development, their beneficial effect on the poor, and
their translation into disbursements. Please note that we
have classified the list of proposed projects as follows:
7.0 x x x
FOR THE PRESIDENT’S APPROVAL
8.0 Foregoing considered, may we respectfully request
for the President’s approval for the following:
8.1 Grant of omnibus authority to consolidate FY
2011 savings/unutilized balances and its
realignment; and
8.2 The proposed additional projects identified
for funding.
For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund
proposed projects were contained in various other memoranda from Sec.
Abad dated June 25, 2012,117 September 4, 2012,118 December 19,
2012,119 May 20, 2013,120 and September 25, 2013.121 The President
apparently approved all the requests, withholding approval only of the
proposed projects contained in the June 25, 2012 memorandum, as borne
out by his marginal note therein to the effect that the proposed projects
should still be "subject to further discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued
NBC No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012), 123 reproduced
herein as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and Colleges
and other Offices of the National Government, Budget and Planning
Officers; Heads of Accounting Units and All Others Concerned
SUBJECT : Adoption of Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative
Code of 1987), periodically reviews and evaluates the
departments/agencies’ efficiency and effectiveness in utilizing budgeted
funds for the delivery of services and production of goods, consistent with
the government priorities.
In the event that a measure is necessary to further improve the
operational efficiency of the government, the President is authorized to
suspend or stop further use of funds allotted for any agency or expenditure
authorized in the General Appropriations Act. Withdrawal and pooling of
unutilized allotment releases can be effected by DBM based on authority
of the President, as mandated under Sections 38 and 39, Chapter 5, Book
VI of EO 292.
173 | J U D I C I A L D E P A R T M E N T C A S E S
For the first five months of 2012, the National Government has not met its
spending targets. In order to accelerate spending and sustain the fiscal
targets during the year, expenditure measures have to be implemented to
optimize the utilization of available resources.
Departments/agencies have registered low spending levels, in terms of
obligations and disbursements per initial review of their 2012
performance. To enhance agencies’ performance, the DBM conducts
continuous consultation meetings and/or send call-up letters, requesting
them to identify slow-moving programs/projects and the factors/issues
affecting their performance (both pertaining to internal systems and those
which are outside the agencies’ spheres of control). Also, they are asked to
formulate strategies and improvement plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have
continued to post low obligation levels as of end of first semester, thus
resulting to substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012
authorized the withdrawal of unobligated allotments of agencies with low
levels of obligations as of June 30, 2012, both for continuing and current
allotments. This measure will allow the maximum utilization of available
allotments to fund and undertake other priority expenditures of the
national government.
2.0 Purpose
2.1 To provide the conditions and parameters on the
withdrawal of unobligated allotments of agencies as of
June 30, 2012 to fund priority and/or fast-moving
programs/projects of the national government;
2.2 To prescribe the reports and documents to be used
as bases on the withdrawal of said unobligated
allotments; and
2.3 To provide guidelines in the utilization or reallocation
of the withdrawn allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of
unobligated allotments as of June 30, 2012 of all national
government agencies (NGAs) charged against FY 2011
Continuing Appropriation (R.A. No.10147) and FY 2012
Current Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating
Expenses (MOOE) related to the
implementation of programs and projects, as
well as capitalized MOOE; and
3.1.3 Personal Services corresponding to
unutilized pension benefits declared as savings
by the agencies concerned based on their
updated/validated list of pensioners.
3.2 The withdrawal of unobligated allotments may cover
the identified programs, projects and activities of the
departments/agencies reflected in the DBM list shown as
Annex A or specific programs and projects as may be
identified by the agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
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4.1.1 Constitutional Offices/Fiscal Autonomy
Group, granted fiscal autonomy under the
Philippine Constitution; and
4.1.2 State Universities and Colleges, adopting
the Normative Funding allocation scheme i.e.,
distribution of a predetermined budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than pension
benefits;
4.2.2 MOOE items earmarked for specific
purposes or subject to realignment conditions
per General Provisions of the GAA:
5.0 Guidelines
• Confidential and Intelligence Fund;
• Savings from Traveling,
Communication, Transportation and
Delivery, Repair and Maintenance,
Supplies and Materials and Utility
which shall be used for the grant of
Collective Negotiation Agreement
incentive benefit;
• Savings from mandatory expenditures
which can be realigned only in the last
quarter after taking into consideration
the agency’s full year requirements,
i.e., Petroleum, Oil and Lubricants,
Water, Illumination, Power Services,
Telephone, other Communication
Services and Rent.
4.2.3 Foreign-Assisted Projects (loan proceeds
and peso counterpart);
4.2.4 Special Purpose Funds such as: E-
Government Fund, International Commitments
Fund, PAMANA, Priority Development
Assistance Fund, Calamity Fund, Budgetary
Support to GOCCs and Allocation to LGUs,
among others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e., Retirement
Life Insurance Premium and Special Accounts in
the General Fund.
5.1 National government agencies shall continue to
undertake procurement activities notwithstanding the
implementation of the policy of withdrawal of
unobligated allotments until the end of the third quarter,
FY 2012. Even without the allotments, the agency shall
proceed in undertaking the procurement processes (i.e.,
procurement planning up to the conduct of bidding but
short of awarding of contract) pursuant to GPPB Circular
Nos. 02-2008 and 01-2009 and DBM Circular Letter No.
2010-9.
5.2 For the purpose of determining the amount of
unobligated allotments that shall be withdrawn, all
departments/agencies/operating units (OUs) shall submit
to DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;
• Statement of Allotments, Obligations and
Balances (SAOB);
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• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited
under item 5.2 of this Circular, the agency’s latest report
available shall be used by DBM as basis for withdrawal of
allotment. The DBM shall compute/approximate the
agency’s obligation level as of June 30 to derive its
unobligated allotments as of same period. Example: If
the March 31 SAOB or FRO reflects actual obligations of P
800M then the June 30 obligation level shall approximate
to ₱1,600 M (i.e., ₱800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged against
R.A. No. 10147 which remained unobligated as of June
30, 2012 shall be immediately considered for withdrawal.
This policy is based on the following considerations:
5.4.1 The departments/agencies’ approved
priority programs and projects are assumed to
be implementation-ready and doable during the
given fiscal year; and
5.4.2 The practice of having substantial
carryover appropriations may imply that the
agency has a slower-than-programmed
implementation capacity or agency tends to
implement projects within a two-year
timeframe.
5.5. Consistent with the President’s directive, the DBM
shall, based on evaluation of the reports cited above and
results of consultations with the departments/agencies,
withdraw the unobligated allotments as of June 30, 2012
through issuance of negative Special Allotment Release
Orders (SAROs).
5.6 DBM shall prepare and submit to the President, a
report on the magnitude of withdrawn allotments. The
report shall highlight the agencies which failed to submit
the June 30 reports required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs and
projects of the agencies/OUs concerned, from
which the allotments were withdrawn;
5.7.2 Realigned to cover additional funding for
other existing programs and projects of the
agency/OU; or
5.7.3 Used to augment existing programs and
projects of any agency and to fund priority
programs and projects not considered in the
2012 budget but expected to be started or
implemented during the current year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs
concerned may submit to DBM a Special Budget Request
(SBR), supported with the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has started
the procurement processes i.e., Proof of Posting
and/or Advertisement of the Invitation to Bid.
5.9 The deadline for submission of request/s pertaining
to these categories shall be until the end of the third
quarter i.e., September 30, 2012. After said cut-off date,
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the withdrawn allotments shall be pooled and form part
of the overall savings of the national government.
5.10 Utilization of the consolidated withdrawn
allotments for other priority programs and projects as
cited under item 5.7.3 of this Circular, shall be subject to
approval of the President. Based on the approval of the
President, DBM shall issue the SARO to cover the
approved priority expenditures subject to submission by
the agency/OU concerned of the SBR and supported with
PFP and MCP.
5.11 It is understood that all releases to be made out of
the withdrawn allotments (both 2011 and 2012
unobligated allotments) shall be within the approved
Expenditure Program level of the national government
for the current year. The SAROs to be issued shall
properly disclose the appropriation source of the release
to determine the extent of allotment validity, as follows:
• For charges under R.A. 10147 – allotments
shall be valid up to December 31, 2012; and
• For charges under R.A. 10155 – allotments
shall be valid up to December 31, 2013.
5.12 Timely compliance with the submission of existing
BARs and other reportorial requirements is reiterated for
monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD
Secretary
As can be seen, NBC No. 541 specified that the unobligated allotments of
all agencies and departments as of June 30, 2012 that were charged
against the continuing appropriations for fiscal year 2011 and the 2012
GAA (R.A. No. 10155) were subject to withdrawal through the issuance of
negative SAROs, but such allotments could be either: (1) reissued for the
original PAPs of the concerned agencies from which they were withdrawn;
or (2) realigned to cover additional funding for other existing PAPs of the
concerned agencies; or (3) used to augment existing PAPs of any agency
and to fund priority PAPs not considered in the 2012 budget but expected
to be started or implemented in 2012. Financing the other priority PAPs
was made subject to the approval of the President. Note here that NBC No.
541 used terminologies like "realignment" and "augmentation" in the
application of the withdrawn unobligated allotments.
Taken together, all the issuances showed how the DAP was to be
implemented and funded, that is — (1) by declaring "savings" coming from
the various departments and agencies derived from pooling unobligated
allotments and withdrawing unreleased appropriations; (2) releasing
unprogrammed funds; and (3) applying the "savings" and unprogrammed
funds to augment existing PAPs or to support other priority PAPs.
c. DAP was not an appropriation
measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did
not enact a law to establish the DAP, or to authorize the disbursement and
release of public funds to implement the DAP. Villegas, PHILCONSA, IBP,
Araullo, and COURAGE observe that the appropriations funded under the
DAP were not included in the 2011, 2012 and 2013 GAAs. To petitioners
IBP, Araullo, and COURAGE, the DAP, being actually an appropriation that
set aside public funds for public use, should require an enabling law for its
validity. VACC maintains that the DAP, because it involved huge allocations
that were separate and distinct from the GAAs, circumvented and
duplicated the GAAs without congressional authorization and control.
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The petitioners contend in unison that based on how it was developed and
implemented the DAP violated the mandate of Section 29(1), Article VI of
the 1987 Constitution that "[n]o money shall be paid out of the Treasury
except in pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and
implementation of the DAP because of its being neither a fund nor an
appropriation, but a program or an administrative system of prioritizing
spending; and that the adoption of the DAP was by virtue of the authority
of the President as the Chief Executive to ensure that laws were faithfully
executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to stimulate the
economy through accelerated spending. In the context of the DAP’s
adoption and implementation being a function pertaining to the Executive
as the main actor during the Budget Execution Stage under its
constitutional mandate to faithfully execute the laws, including the GAAs,
Congress did not need to legislate to adopt or to implement the DAP.
Congress could appropriate but would have nothing more to do during the
Budget Execution Stage. Indeed, appropriation was the act by which
Congress "designates a particular fund, or sets apart a specified portion of
the public revenue or of the money in the public treasury, to be applied to
some general object of governmental expenditure, or to some individual
purchase or expense."124 As pointed out in Gonzales v. Raquiza:125 ‘"In a
strict sense, appropriation has been defined ‘as nothing more than the
legislative authorization prescribed by the Constitution that money may be
paid out of the Treasury,’ while appropriation made by law refers to ‘the
act of the legislature setting apart or assigning to a particular use a certain
sum to be used in the payment of debt or dues from the State to its
creditors.’"126
On the other hand, the President, in keeping with his duty to faithfully
execute the laws, had sufficient discretion during the execution of the
budget to adapt the budget to changes in the country’s economic
situation.127 He could adopt a plan like the DAP for the purpose. He could
pool the savings and identify the PAPs to be funded under the DAP. The
pooling of savings pursuant to the DAP, and the identification of the PAPs
to be funded under the DAP did not involve appropriation in the strict
sense because the money had been already set apart from the public
treasury by Congress through the GAAs. In such actions, the Executive did
not usurp the power vested in Congress under Section 29(1), Article VI of
the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly
adopted by the Executive to ramp up spending to accelerate economic
growth, the challenges posed by the petitioners constrain us to dissect the
mechanics of the actual execution of the DAP. The management and
utilization of the public wealth inevitably demands a most careful scrutiny
of whether the Executive’s implementation of the DAP was consistent with
the Constitution, the relevant GAAs and other existing laws.
a. Although executive discretion
and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all
issues and needs that may come into play once the budget reaches its
execution stage. Executive discretion is necessary at that stage to achieve a
sound fiscal administration and assure effective budget implementation.
The heads of offices, particularly the President, require flexibility in their
operations under performance budgeting to enable them to make
whatever adjustments are needed to meet established work goals under
178 | J U D I C I A L D E P A R T M E N T C A S E S
changing conditions.128 In particular, the power to transfer funds can give
the President the flexibility to meet unforeseen events that may otherwise
impede the efficient implementation of the PAPs set by Congress in the
GAA.
Congress has traditionally allowed much flexibility to the President in
allocating funds pursuant to the GAAs,129 particularly when the funds are
grouped to form lump sum accounts.130 It is assumed that the agencies of
the Government enjoy more flexibility when the GAAs provide broader
appropriation items.131 This flexibility comes in the form of policies that the
Executive may adopt during the budget execution phase. The DAP – as a
strategy to improve the country’s economic position – was one policy that
the President decided to carry out in order to fulfill his mandate under the
GAAs.
Denying to the Executive flexibility in the expenditure process would be
counterproductive. In Presidential Spending Power,132 Prof. Louis Fisher, an
American constitutional scholar whose specialties have included budget
policy, has justified extending discretionary authority to the Executive
thusly:
[T]he impulse to deny discretionary authority altogether should be
resisted. There are many number of reasons why obligations and outlays
by administrators may have to differ from appropriations by legislators.
Appropriations are made many months, and sometimes years, in advance
of expenditures. Congress acts with imperfect knowledge in trying to
legislate in fields that are highly technical and constantly undergoing
change. New circumstances will develop to make obsolete and mistaken
the decisions reached by Congress at the appropriation stage. It is not
practicable for Congress to adjust to each new development by passing
separate supplemental appropriation bills. Were Congress to control
expenditures by confining administrators to narrow statutory details, it
would perhaps protect its power of the purse but it would not protect the
purse itself. The realities and complexities of public policy require
executive discretion for the sound management of public funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial
discretion for administrators. They need to exercise judgment and take
responsibility for their actions, but those actions ought to be directed
toward executing congressional, not administrative policy. Let there be
discretion, but channel it and use it to satisfy the programs and priorities
established by Congress.
In contrast, by allowing to the heads of offices some power to transfer
funds within their respective offices, the Constitution itself ensures the
fiscal autonomy of their offices, and at the same time maintains the
separation of powers among the three main branches of the Government.
The Court has recognized this, and emphasized so in Bengzon v.
Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must
have the independence and flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and utilize the
funds appropriated for their operations is anathema to fiscal autonomy
and violative not only of the express mandate of the Constitution but
especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional
system is based.
In the case of the President, the power to transfer funds from one item to
another within the Executive has not been the mere offshoot of
established usage, but has emanated from law itself. It has existed since
the time of the American Governors-General. 134 Act No. 1902 (An Act
authorizing the Governor-General to direct any unexpended balances of
appropriations be returned to the general fund of the Insular Treasury and
to transfer from the general fund moneys which have been returned
thereto), passed on May 18, 1909 by the First Philippine Legislature, 135 was
the first enabling law that granted statutory authority to the President to
transfer funds. The authority was without any limitation, for the Act
explicitly empowered the Governor-General to transfer any unexpended
balance of appropriations for any bureau or office to another, and to spend
179 | J U D I C I A L D E P A R T M E N T C A S E S
such balance as if it had originally been appropriated for that bureau or
office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of
funds that could be transferred, thereby limiting the power to transfer
funds. Only 10% of the amounts appropriated for contingent or
miscellaneous expenses could be transferred to a bureau or office, and the
transferred funds were to be used to cover deficiencies in the
appropriations also for miscellaneous expenses of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items
under miscellaneous expenses to any other item of a certain bureau or
office was removed.
During the Commonwealth period, the power of the President to transfer
funds continued to be governed by the GAAs despite the enactment of the
Constitution in 1935. It is notable that the 1935 Constitution did not
include a provision on the power to transfer funds. At any rate, a shift in
the extent of the President’s power to transfer funds was again
experienced during this era, with the President being given more flexibility
in implementing the budget. The GAAs provided that the power to transfer
all or portions of the appropriations in the Executive Department could be
made in the "interest of the public, as the President may determine." 136
In its time, the 1971 Constitutional Convention wanted to curtail the
President’s seemingly unbounded discretion in transferring funds. 137 Its
Committee on the Budget and Appropriation proposed to prohibit the
transfer of funds among the separate branches of the Government and the
independent constitutional bodies, but to allow instead their respective
heads to augment items of appropriations from savings in their respective
budgets under certain limitations.138 The clear intention of the Convention
was to further restrict, not to liberalize, the power to transfer
appropriations.139 Thus, the Committee on the Budget and Appropriation
initially considered setting stringent limitations on the power to augment,
and suggested that the augmentation of an item of appropriation could be
made "by not more than ten percent if the original item of appropriation
to be augmented does not exceed one million pesos, or by not more than
five percent if the original item of appropriation to be augmented exceeds
one million pesos."140 But two members of the Committee objected to the
₱1,000,000.00 threshold, saying that the amount was arbitrary and might
not be reasonable in the future. The Committee agreed to eliminate the
₱1,000,000.00 threshold, and settled on the ten percent limitation. 141
In the end, the ten percent limitation was discarded during the plenary of
the Convention, which adopted the following final version under Section
16, Article VIII of the 1973 Constitution, to wit:
(5) No law shall be passed authorizing any transfer of appropriations;
however, the President, the Prime Minister, the Speaker, the Chief Justice
of the Supreme Court, and the heads of Constitutional Commissions may
by law be authorized to augment any item in the general appropriations
law for their respective offices from savings in other items of their
respective appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of
funds from one item to another, unless Congress enacted a law authorizing
the President, the Prime Minister, the Speaker, the Chief Justice of the
Supreme Court, and the heads of the Constitutional omissions to transfer
funds for the purpose of augmenting any item from savings in another
item in the GAA of their respective offices. The leeway was limited to
augmentation only, and was further constricted by the condition that the
funds to be transferred should come from savings from another item in the
appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its
Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have
the authority to transfer any fund appropriated for the different
departments, bureaus, offices and agencies of the Executive Department
which are included in the General Appropriations Act, to any program,
project, or activity of any department, bureau or office included in the
General Appropriations Act or approved after its enactment.
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The President shall, likewise, have the authority to augment any
appropriation of the Executive Department in the General Appropriations
Act, from savings in the appropriations of another department, bureau,
office or agency within the Executive Branch, pursuant to the provisions of
Article VIII, Section 16 (5) of the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of
Section 44 for contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the
privilege granted under said Section 16. It empowers the President to
indiscriminately transfer funds from one department, bureau, office or
agency of the Executive Department to any program, project or activity of
any department, bureau or office included in the General Appropriations
Act or approved after its enactment, without regard as to whether or not
the funds to be transferred are actually savings in the item from which the
same are to be taken, or whether or not the transfer is for the purpose of
augmenting the item to which said transfer is to be made. It does not only
completely disregard the standards set in the fundamental law, thereby
amounting to an undue delegation of legislative powers, but likewise goes
beyond the tenor thereof. Indeed, such constitutional infirmities render
the provision in question null and void. 143
It is significant that Demetria was promulgated 25 days after the
ratification by the people of the 1987 Constitution, whose Section 25(5) of
Article VI is identical to Section 16(5), Article VIII of the 1973 Constitution,
to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations;
however, the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and the
heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective
offices from savings in other items of their respective appropriations.
xxxx
The foregoing history makes it evident that the Constitutional Commission
included Section 25(5), supra, to keep a tight rein on the exercise of the
power to transfer funds appropriated by Congress by the President and the
other high officials of the Government named therein. The Court stated in
Nazareth v. Villar:144
In the funding of current activities, projects, and programs, the general rule
should still be that the budgetary amount contained in the appropriations
bill is the extent Congress will determine as sufficient for the budgetary
allocation for the proponent agency. The only exception is found in Section
25 (5), Article VI of the Constitution, by which the President, the President
of the Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of Constitutional Commissions
are authorized to transfer appropriations to augmentany item in the GAA
for their respective offices from the savings in other items of their
respective appropriations. The plain language of the constitutional
restriction leaves no room for the petitioner’s posture, which we should
now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named
in Section 25(5), Article VI of the Constitution limiting the authority to
transfer savings only to augment another item in the GAA is strictly but
reasonably construed as exclusive. As the Court has expounded in Lokin, Jr.
v. Commission on Elections:
When the statute itself enumerates the exceptions to the application of
the general rule, the exceptions are strictly but reasonably construed. The
exceptions extend only as far as their language fairly warrants, and all
doubts should be resolved in favor of the general provision rather than the
exceptions. Where the general rule is established by a statute with
exceptions, none but the enacting authority can curtail the former. Not
even the courts may add to the latter by implication, and it is a rule that an
181 | J U D I C I A L D E P A R T M E N T C A S E S
express exception excludes all others, although it is always proper in
determining the applicability of the rule to inquire whether, in a particular
case, it accords with reason and justice.
The appropriate and natural office of the exception is to exempt something
from the scope of the general words of a statute, which is otherwise within
the scope and meaning of such general words. Consequently, the existence
of an exception in a statute clarifies the intent that the statute shall apply
to all cases not excepted. Exceptions are subject to the rule of strict
construction; hence, any doubt will be resolved in favor of the general
provision and against the exception. Indeed, the liberal construction of a
statute will seem to require in many circumstances that the exception, by
which the operation of the statute is limited or abridged, should receive a
restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a
limitation on the President’s discretion over the appropriations during the
Budget Execution Phase.
b. Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra,
must be made upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the
appropriations for their respective offices; and (3) The purpose of
the transfer is to augment an item in the general appropriations
law for their respective offices.
b.1. First Requisite–GAAs of 2011 and
2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the
Constitution, must have an implementing law for it to be operative. That
law, generally, is the GAA of a given fiscal year. To comply with the first
requisite, the GAAs should expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high
officials the authority to transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying
fiscal autonomy, and the Ombudsman are hereby authorized to augment
any item in this Act from savings in other items of their respective
appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Section 53. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying
fiscal autonomy, and the Ombudsman are hereby authorized to augment
any item in this Act from savings in other items of their respective
appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by
the DBM as justification for the use of savings under the DAP. 145
A reading shows, however, that the aforequoted provisions of the GAAs of
2011 and 2012 were textually unfaithful to the Constitution for not
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carrying the phrase "for their respective offices" contained in Section 25(5),
supra. The impact of the phrase "for their respective offices" was to
authorize only transfers of funds within their offices (i.e., in the case of the
President, the transfer was to an item of appropriation within the
Executive). The provisions carried a different phrase ("to augment any item
in this Act"), and the effect was that the 2011 and 2012 GAAs thereby
literally allowed the transfer of funds from savings to augment any item in
the GAAs even if the item belonged to an office outside the Executive. To
that extent did the 2011 and 2012 GAAs contravene the Constitution. At
the very least, the aforequoted provisions cannot be used to claim
authority to transfer appropriations from the Executive to another branch,
or to a constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in
the counterpart provision in the 2013 GAA, to wit:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying
fiscal autonomy, and the Ombudsman are hereby authorized to use
savings in their respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section
25(5), supra, existed, there still remained two other requisites to be met,
namely: that the source of funds to be transferred were savings from
appropriations within the respective offices; and that the transfer must be
for the purpose of augmenting an item of appropriation within the
respective offices.
b.2. Second Requisite – There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the unreleased
appropriations and withdrawn unobligated allotments — were not actual
savings within the context of Section 25(5), supra, and the relevant
provisions of the GAAs. Belgica argues that "savings" should be understood
to refer to the excess money after the items that needed to be funded
have been funded, or those that needed to be paid have been paid
pursuant to the budget.146 The petitioners posit that there could be savings
only when the PAPs for which the funds had been appropriated were
actually implemented and completed, or finally discontinued or
abandoned. They insist that savings could not be realized with certainty in
the middle of the fiscal year; and that the funds for "slow-moving" PAPs
could not be considered as savings because such PAPs had not actually
been abandoned or discontinued yet.147 They stress that NBC No. 541, by
allowing the withdrawn funds to be reissued to the "original program or
project from which it was withdrawn," conceded that the PAPs from which
the supposed savings were taken had not been completed, abandoned or
discontinued.148
The OSG represents that "savings" were "appropriations balances," being
the difference between the appropriation authorized by Congress and the
actual amount allotted for the appropriation; that the definition of
"savings" in the GAAs set only the parameters for determining when
savings occurred; that it was still the President (as well as the other officers
vested by the Constitution with the authority to augment) who ultimately
determined when savings actually existed because savings could be
determined only during the stage of budget execution; that the President
must be given a wide discretion to accomplish his tasks; and that the
withdrawn unobligated allotments were savings inasmuch as they were
clearly "portions or balances of any programmed appropriation…free from
any obligation or encumbrances which are (i) still available after the
completion or final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne
in mind. The first principle is that Congress wields the power of the purse.
Congress decides how the budget will be spent; what PAPs to fund; and
the amounts of money to be spent for each PAP. The second principle is
183 | J U D I C I A L D E P A R T M E N T C A S E S
that the Executive, as the department of the Government tasked to
enforce the laws, is expected to faithfully execute the GAA and to spend
the budget in accordance with the provisions of the GAA. 149 The Executive
is expected to faithfully implement the PAPs for which Congress allocated
funds, and to limit the expenditures within the allocations, unless
exigencies result to deficiencies for which augmentation is authorized,
subject to the conditions provided by law. The third principle is that in
making the President’s power to augment operative under the GAA,
Congress recognizes the need for flexibility in budget execution. In so
doing, Congress diminishes its own power of the purse, for it delegates a
fraction of its power to the Executive. But Congress does not thereby allow
the Executive to override its authority over the purse as to let the
Executive exceed its delegated authority. And the fourth principle is that
savings should be actual. "Actual" denotes something that is real or
substantial, or something that exists presently in fact, as opposed to
something that is merely theoretical, possible, potential or hypothetical. 150
The foregoing principles caution us to construe savings strictly against
expanding the scope of the power to augment. It is then indubitable that
the power to augment was to be used only when the purpose for which
the funds had been allocated were already satisfied, or the need for such
funds had ceased to exist, for only then could savings be properly realized.
This interpretation prevents the Executive from unduly transgressing
Congress’ power of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and
2013, reflected this interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance which are: (i) still
available after the completion or final discontinuance or abandonment of
the work, activity or purpose for which the appropriation is authorized; (ii)
from appropriations balances arising from unpaid compensation and
related costs pertaining to vacant positions and leaves of absence without
pay; and (iii) from appropriations balances realized from the
implementation of measures resulting in improved systems and efficiencies
and thus enabled agencies to meet and deliver the required or planned
targets, programs and services approved in this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a sure
indication that savings could be generated only upon the purpose of the
appropriation being fulfilled, or upon the need for the appropriation being
no longer existent.
The phrase "free from any obligation or encumbrance" in the definition of
savings in the GAAs conveyed the notion that the appropriation was at that
stage when the appropriation was already obligated and the appropriation
was already released. This interpretation was reinforced by the
enumeration of the three instances for savings to arise, which showed that
the appropriation referred to had reached the agency level. It could not be
otherwise, considering that only when the appropriation had reached the
agency level could it be determined whether (a) the PAP for which the
appropriation had been authorized was completed, finally discontinued, or
abandoned; or (b) there were vacant positions and leaves of absence
without pay; or (c) the required or planned targets, programs and services
were realized at a lesser cost because of the implementation of measures
resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came
from "pooling of unreleased appropriations such as unreleased Personnel
Services appropriations which will lapse at the end of the year, unreleased
appropriations of slow moving projects and discontinued projects per Zero-
Based Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for
the treatment of unreleased or unalloted appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a
mere description of the status of the items as unalloted or unreleased.
They have not yet ripened into categories of items from which savings can
be generated. Appropriations have been considered "released" if there has
already been an allotment or authorization to incur obligations and
disbursement authority. This means that the DBM has issued either an
184 | J U D I C I A L D E P A R T M E N T C A S E S
ABM (for those not needing clearance), or a SARO (for those needing
clearance), and consequently an NCA, NCAA or CDC, as the case may be.
Appropriations remain unreleased, for instance, because of noncompliance
with documentary requirements (like the Special Budget Request), or
simply because of the unavailability of funds. But the appropriations do not
actually reach the agencies to which they were allocated under the GAAs,
and have remained with the DBM technically speaking. Ergo, unreleased
appropriations refer to appropriations with allotments but without
disbursement authority.
For us to consider unreleased appropriations as savings, unless these met
the statutory definition of savings, would seriously undercut the
congressional power of the purse, because such appropriations had not
even reached and been used by the agency concerned vis-à-vis the PAPs
for which Congress had allocated them. However, if an agency has unfilled
positions in its plantilla and did not receive an allotment and NCA for such
vacancies, appropriations for such positions, although unreleased, may
already constitute savings for that agency under the second instance.
Unobligated allotments, on the other hand, were encompassed by the first
part of the definition of "savings" in the GAA, that is, as "portions or
balances of any programmed appropriation in this Act free from any
obligation or encumbrance." But the first part of the definition was further
qualified by the three enumerated instances of when savings would be
realized. As such, unobligated allotments could not be indiscriminately
declared as savings without first determining whether any of the three
instances existed. This signified that the DBM’s withdrawal of unobligated
allotments had disregarded the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that
MOOE appropriations are deemed divided into twelve monthly allocations
within the fiscal year; hence, savings could be generated monthly from the
excess or unused MOOE appropriations other than the Mandatory
Expenditures and Expenditures for Business-type Activities because of the
physical impossibility to obligate and spend such funds as MOOE for a
period that already lapsed. Following this observation, MOOE for future
months are not savings and cannot be transferred.
The DBM’s Memorandum for the President dated June 25, 2012 (which
became the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews
conducted on the agencies’ operations, particularly on the
implementation of their projects/activities, including expenses
incurred in undertaking the same, have been continuously calling
the attention of all National Government agencies (NGAs) with
low levels of obligations as of end of the first quarter to speedup
the implementation of their programs and projects in the second
quarter.
6.0 Said reminders were made in a series of consultation meetings
with the concerned agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the
department’s disposal, the level of financial performance of some
departments registered below program, with the targeted
obligations/disbursements for the first semester still not being
met.
8.0 In order to maximize the use of the available allotment, all
unobligated balances as of June 30, 2012, both for continuing and
current allotments shall be withdrawn and pooled to fund fast
moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn
will be based on the list of slow moving projects to be identified
by the agencies and their catch up plans to be evaluated by the
DBM.
It is apparent from the foregoing text that the withdrawal of unobligated
allotments would be based on whether the allotments pertained to slow-
moving projects, or not. However, NBC No. 541 did not set in clear terms
the criteria for the withdrawal of unobligated allotments, viz:
185 | J U D I C I A L D E P A R T M E N T C A S E S
3.1. These guidelines shall cover the withdrawal of unobligated
allotments as of June 30, 2012 ofall national government agencies
(NGAs) charged against FY 2011 Continuing Appropriation (R.A.
No. 10147) and FY 2012 Current Appropriation (R.A. No. 10155),
pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses
(MOOE) related to the implementation of programs and
projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized
pension benefits declared as savings by the agencies
concerned based on their undated/validated list of
pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the
"withdrawal of unobligated allotments of agencies with low levels of
obligations"151 "to fund priority and/or fast-moving
programs/projects."152 But the fact that the withdrawn allotments could be
"[r]eissued for the original programs and projects of the agencies/OUs
concerned, from which the allotments were withdrawn" 153 supported the
conclusion that the PAPs had not yet been finally discontinued or
abandoned. Thus, the purpose for which the withdrawn funds had been
appropriated was not yet fulfilled, or did not yet cease to exist, rendering
the declaration of the funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released
allotments in 2011 charged against the 2011 GAA that had remained
unobligated based on the following considerations, to wit:
5.4.1 The departments/agencies’ approved priority programs and
projects are assumed to be implementation-ready and doable
during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations
may imply that the agency has a slower-than-programmed
implementation capacity or agency tends to implement projects
within a two-year timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the
unobligated allotments for continuing and current appropriations as of
June 30, 2012, disregarded the 2-year period of availability of the
appropriations for MOOE and capital outlay extended under Section 65,
General Provisions of the 2011 GAA, viz:
Section 65. Availability of Appropriations. — Appropriations for MOOE and
capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end
of the year in which such items were appropriated: PROVIDED, That
appropriations for MOOE and capital outlays under R.A. No. 9970 shall be
made available up to the end of FY 2011: PROVIDED, FURTHER, That a
report on these releases and obligations shall be submitted to the Senate
Committee on Finance and the House Committee on Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for MOOE and
capital outlays authorized in this Act shall be available for release and
obligation for the purpose specified, and under the same special provisions
applicable thereto, for a period extending to one fiscal year after the end
of the year in which such items were appropriated: PROVIDED, That a
report on these releases and obligations shall be submitted to the Senate
Committee on Finance and the House Committee on Appropriations, either
in printed form or by way of electronic document.154
Thus, another alleged area of constitutional infirmity was that the DAP and
its relevant issuances shortened the period of availability of the
appropriations for MOOE and capital outlays.
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Congress provided a one-year period of availability of the funds for all
allotment classes in the 2013 GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations.— All appropriations authorized
in this Act shall be available for release and obligation for the purposes
specified, and under the same special provisions applicable thereto, until
the end of FY 2013: PROVIDED, That a report on these releases and
obligations shall be submitted to the Senate Committee on Finance and
House Committee on Appropriations, either in printed form or by way of
electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad
sought omnibus authority to consolidate savings and unutilized balances to
fund the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some department will
register below program, even with the availability of funds at their
disposal, the targeted obligations/disbursements for each quarter
will not be met. It is important to note that these funds will lapse
at the end of the fiscal year if these remain unobligated.
8.0 To maximize the use of the available allotment, all unobligated
balances at the end of every quarter, both for continuing and
current allotments shall be withdrawn and pooled to fund fast
moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn
will be based on the list of slow moving projects to be identified
by the agencies and their catch up plans to be evaluated by the
DBM.
The validity period of the affected appropriations, already given the brief
Lifes pan of one year, was further shortened to only a quarter of a year
under the DBM’s memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings
in order to have a larger fund available for discretionary spending. They
aver that the respondents, by withdrawing unobligated allotments in the
middle of the fiscal year, in effect deprived funding for PAPs with existing
appropriations under the GAAs.155
The respondents belie the accusation, insisting that the unobligated
allotments were being withdrawn upon the instance of the implementing
agencies based on their own assessment that they could not obligate those
allotments pursuant to the President’s directive for them to spend their
appropriations as quickly as they could in order to ramp up the
economy.156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were upon the
initiative of the DBM itself. The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments
that shall be withdrawn, all departments/agencies/operating units (OUs)
shall submit to DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;
• Statement of Allotments, Obligation and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this
Circular, the agency’s latest report available shall be used by DBM as basis
for withdrawal of allotment. The DBM shall compute/approximate the
agency’s obligation level as of June 30 to derive its unobligated allotments
as of same period. Example: If the March 31 SAOB or FRO reflects actual
obligations of P 800M then the June 30 obligation level shall approximate
to ₱1,600 M (i.e., ₱800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and
transfer of unobligated allotments and the pooling of unreleased
187 | J U D I C I A L D E P A R T M E N T C A S E S

appropriations; and that the unbridled withdrawal of unobligated
allotments and the retention of appropriated funds were akin to the
impoundment of appropriations that could be allowed only in case of
"unmanageable national government budget deficit" under the
GAAs,157 thus violating the provisions of the GAAs of 2011, 2012 and 2013
prohibiting the retention or deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541 adopted a
spending, not saving, policy as a last-ditch effort of the Executive to push
agencies into actually spending their appropriations; that such policy did
not amount to an impoundment scheme, because impoundment referred
to the decision of the Executive to refuse to spend funds for political or
ideological reasons; and that the withdrawal of allotments under NBC No.
541 was made pursuant to Section 38, Chapter 5, Book VI of the
Administrative Code, by which the President was granted the authority to
suspend or otherwise stop further expenditure of funds allotted to any
agency whenever in his judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer
of unobligated allotments and the pooling of unreleased appropriations
were invalid for being bereft of legal support. Nonetheless, such
withdrawal of unobligated allotments and the retention of appropriated
funds cannot be considered as impoundment.
According to Philippine Constitution Association v.
Enriquez:159 "Impoundment refers to a refusal by the President, for
whatever reason, to spend funds made available by Congress. It is the
failure to spend or obligate budget authority of any type." Impoundment
under the GAA is understood to mean the retention or deduction of
appropriations. The 2011 GAA authorized impoundment only in case of
unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No
appropriations authorized under this Act shall be impounded through
retention or deduction, unless in accordance with the rules and regulations
to be issued by the DBM: PROVIDED, That all the funds appropriated for
the purposes, programs, projects and activities authorized under this Act,
except those covered under the Unprogrammed Fund, shall be released
pursuant to Section 33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention
or deduction of appropriations authorized in this Act shall be effected only
in cases where there is an unmanageable national government budget
deficit.
Unmanageable national government budget deficit as used in this section
shall be construed to mean that (i) the actual national government budget
deficit has exceeded the quarterly budget deficit targets consistent with
the full-year target deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and
approved by Congress pursuant to Section 22, Article VII of the
Constitution, or (ii) there are clear economic indications of an impending
occurrence of such condition, as determined by the Development Budget
Coordinating Committee and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be
regarded as impoundment because it entailed only the transfer of funds,
not the retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the
2012 and 2013 GAAs) be applicable. They uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund
releases from appropriations provided in this Act shall be transmitted
intact or in full to the office or agency concerned. No retention or
deduction as reserves or overhead shall be made, except as authorized by
law, or upon direction of the President of the Philippines. The COA shall
ensure compliance with this provision to the extent that sub-allotments by
agencies to their subordinate offices are in conformity with the release
documents issued by the DBM.
188 | J U D I C I A L D E P A R T M E N T C A S E S
The provision obviously pertained to the retention or deduction of
allotments upon their release from the DBM, which was a different matter
altogether. The Court should not expand the meaning of the provision by
applying it to the withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the
Administrative Code of 1987 to justify the withdrawal of unobligated
allotments. But the provision authorized only the suspension or stoppage
of further expenditures, not the withdrawal of unobligated allotments, to
wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as
otherwise provided in the General Appropriations Act and whenever in his
judgment the public interest so requires, the President, upon notice to the
head of office concerned, is authorized to suspend or otherwise stop
further expenditure of funds allotted for any agency, or any other
expenditure authorized in the General Appropriations Act, except for
personal services appropriations used for permanent officials and
employees.
Moreover, the DBM did not suspend or stop further expenditures in
accordance with Section 38, supra, but instead transferred the funds to
other PAPs.
It is relevant to remind at this juncture that the balances of appropriations
that remained unexpended at the end of the fiscal year were to be
reverted to the General Fund.1âwphi1 This was the mandate of Section 28,
Chapter IV, Book VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations,
Continuing Appropriations.- Unexpended balances of appropriations
authorized in the General Appropriation Act shall revert to the
unappropriated surplus of the General Fund at the end of the fiscal year
and shall not thereafter be available for expenditure except by subsequent
legislative enactment: Provided, that appropriations for capital outlays
shall remain valid until fully spent or reverted: provided, further, that
continuing appropriations for current operating expenditures may be
specifically recommended and approved as such in support of projects
whose effective implementation calls for multi-year expenditure
commitments: provided, finally, that the President may authorize the use
of savings realized by an agency during given year to meet non-recurring
expenditures in a subsequent year.
The balances of continuing appropriations shall be reviewed as part of the
annual budget preparation process and the preparation process and the
President may approve upon recommendation of the Secretary, the
reversion of funds no longer needed in connection with the activities
funded by said continuing appropriations.
The Executive could not circumvent this provision by declaring unreleased
appropriations and unobligated allotments as savings prior to the end of
the fiscal year.
b.3. Third Requisite – No funds from
savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
The third requisite for a valid transfer of funds is that the purpose of the
transfer should be "to augment an item in the general appropriations law
for the respective offices." The term "augment" means to enlarge or
increase in size, amount, or degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation
that the appropriation for the PAP item to be augmented must be
deficient, to wit: –
x x x Augmentation implies the existence in this Act of a program, activity,
or project with an appropriation, which upon implementation, or
subsequent evaluation of needed resources, is determined to be deficient.
In no case shall a non-existent program, activity, or project, be funded by
augmentation from savings or by the use of appropriations otherwise
authorized in this Act.
189 | J U D I C I A L D E P A R T M E N T C A S E S
In other words, an appropriation for any PAP must first be determined to
be deficient before it could be augmented from savings. Note is taken of
the fact that the 2013 GAA already made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the Senate
President, the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, the Heads of Constitutional Commissions enjoying
fiscal autonomy, and the Ombudsman are hereby authorized to use
savings in their respective appropriations to augment actual deficiencies
incurred for the current year in any item of their respective appropriations.
As of 2013, a total of ₱144.4 billion worth of PAPs were implemented
through the DAP.161
Of this amount ₱82.5 billion were released in 2011 and ₱54.8 billion in
2012.162 Sec. Abad has reported that 9% of the total DAP releases were
applied to the PAPs identified by the legislators. 163
The petitioners disagree, however, and insist that the DAP supported the
following PAPs that had not been covered with appropriations in the
respective GAAs, namely:
(i) ₱1.5 billion for the Cordillera People’s Liberation Army;
(ii) ₱1.8 billion for the Moro National Liberation Front;
(iii) ₱700 million for assistance to Quezon Province; 164
(iv) ₱50 million to ₱100 (million) each to certain senators; 165
(v) ₱10 billion for the relocation of families living along dangerous
zones under the National Housing Authority;
(vi) ₱10 billion and ₱20 billion equity infusion under the Bangko
Sentral;
(vii) ₱5.4 billion landowners’ compensation under the Department
of Agrarian Reform;
(viii) ₱8.6 billion for the ARMM comprehensive peace and
development program;
(ix) ₱6.5 billion augmentation of LGU internal revenue allotments
(x) ₱5 billion for crucial projects like tourism road construction
under the Department of Tourism and the Department of Public
Works and Highways;
(xi) ₱1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) ₱1.96 billion for the DOH-DPWH rehabilitation of regional
health units; and
(xiii) ₱4 billion for the DepEd-PPP school infrastructure projects. 166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were
implemented, had appropriation covers, and could properly be accounted
for because the funds were released following and pursuant to the
standard practices adopted by the DBM.167 In support of its argument, the
OSG has submitted seven evidence packets containing memoranda, SAROs,
and other pertinent documents relative to the implementation and fund
transfers under the DAP.168
Upon careful review of the documents contained in the seven evidence
packets, we conclude that the "savings" pooled under the DAP were
allocated to PAPs that were not covered by any appropriations in the
pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly
vaunted Disaster Risk, Exposure, Assessment and Mitigation (DREAM)
project under the Department of Science and Technology (DOST) covered
the amount of ₱1.6 Billion,169 broken down as follows:
 190 | J U D I C I A L D E P A R T M E N T C A S E S

APPROPRIATION PARTICULARS AMOUNT and

CODE AUTHORIZED technologi
es and
A.03.a.01.a Generation of new knowledge and technologies and research
research capability building in priority areas identified capability
as strategic to National Development building in
Personnel Services priority
Maintenance and Other Operating Expenses P 43,504,024 areas
Capital Outlays 1,164,517,589 identified
391,978,387 as
P 1,600,000,000 strategic to
National
Developme
the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that
nt
Congress had appropriated only ₱537,910,000 for MOOE, but nothing for
personnel services and capital outlays, to wit:
Aside from this transfer under the DAP to the DREAM project exceeding by
almost 300% the appropriation by Congress for the program Generation of
Personnel Maintenanc Capital TOTAL
new knowledge and technologies and research capability building in
Services e Outlays
priority areas identified as strategic to National Development, the
and Other
Executive allotted funds for personnel services and capital outlays. The
Operating
Executive thereby substituted its will to that of Congress. Worse, the
Expenditur
Executive had not earlier proposed any amount for personnel services and
es
capital outlays in the NEP that became the basis of the 2011 GAA. 170
III. Operations
It is worth stressing in this connection that the failure of the GAAs to set
a. Funding 177,406,0 1,887,365,0 49,090,0 2,113,861,0
aside any amounts for an expense category sufficiently indicated that
Assistance to 00 00 00 00
Congress purposely did not see fit to fund, much less implement, the PAP
Science
concerned. This indication becomes clearer when even the President
and Technology
himself did not recommend in the NEP to fund the PAP. The consequence
Activities
was that any PAP requiring expenditure that did not receive any
1. Central Office 1,554,238,0 1,554,238,0 appropriation under the GAAs could only be a new PAP, any funding for
00 00 which would go beyond the authority laid down by Congress in enacting
the GAAs. That happened in some instances under the DAP.
a. 537,910,00 537,910,00
Generation 0 0 In relation to the December 22, 2011 SARO issued to the Philippine Council
of new for Industry, Energy and Emerging Technology Research and Development
knowledge
 191 | J U D I C I A L D E P A R T M E N T C A S E S
(DOST-PCIEETRD)171 for Establishment of the Advanced Failure Analysis
Laboratory, which reads:
APPROPRIATIO PARTICULARS
N AUTHORIZED
CODE
Development, integration and coordination of the National
Research System for Industry, Energy and Emerging Technology
A.02.a
and Related Fields
Capital Outlays P 300,000,000
the appropriation code and the particulars appearing in the SARO did not
correspond to the program specified in the GAA, whose particulars were
Research and Management Services(inclusive of the following activities: (1)
Technological and Economic Assessment for Industry, Energy and Utilities;
(2) Dissemination of Science and Technology Information; and (3)
Management of PCIERD Information System for Industry, Energy and
Utilities. Even assuming that Development, integration and coordination of
the National Research System for Industry, Energy and Emerging
Technology and Related Fields– the particulars stated in the SARO – could
fall under the broad program description of Research and Management
Services– as appearing in the SARO, it would nonetheless remain a new
activity by reason of its not being specifically stated in the GAA. As such,
the DBM, sans legislative authorization, could not validly fund and
implement such PAP under the DAP.
In defending the disbursements, however, the OSG contends that the
Executive enjoyed sound discretion in implementing the budget given the
generality in the language and the broad policy objectives identified under
the GAAs;172 and that the President enjoyed unlimited authority to spend
the initial appropriations under his authority to declare and utilize
savings,173 and in keeping with his duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to
spend in line with its mandate to faithfully execute the laws (which
included the GAAs), such authority did not translate to unfettered
discretion that allowed the President to substitute his own will for that of
Congress. He was still required to remain faithful to the provisions of the
GAAs, given that his power to spend pursuant to the GAAs was but a
delegation to him from Congress. Verily, the power to spend the public
AMOUNT
wealth resided in Congress, not in the Executive.174 Moreover, leaving the
spending power of the Executive unrestricted would threaten to undo the
principle of separation of powers.175
Congress acts as the guardian of the public treasury in faithful discharge of
its power of the purse whenever it deliberates and acts on the budget
proposal submitted by the Executive.176 Its power of the purse is touted as
the very foundation of its institutional strength,177 and underpins "all other
legislative decisions and regulating the balance of influence between the
legislative and executive branches of government." 178 Such enormous
power encompasses the capacity to generate money for the Government,
to appropriate public funds, and to spend the money.179 Pertinently, when
it exercises its power of the purse, Congress wields control by specifying
the PAPs for which public money should be spent.
It is the President who proposes the budget but it is Congress that has the
final say on matters of appropriations.180 For this purpose, appropriation
involves two governing principles, namely: (1) "a Principle of the Public
Fisc, asserting that all monies received from whatever source by any part
of the government are public funds;" and (2) "a Principle of Appropriations
Control, prohibiting expenditure of any public money without legislative
authorization."181 To conform with the governing principles, the Executive
cannot circumvent the prohibition by Congress of an expenditure for a PAP
by resorting to either public or private funds.182 Nor could the Executive
transfer appropriated funds resulting in an increase in the budget for one
PAP, for by so doing the appropriation for another PAP is necessarily
decreased. The terms of both appropriations will thereby be violated.
b.4 Third Requisite – Cross-border
augmentations from savings were
prohibited by the Constitution
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By providing that the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, and
the Heads of the Constitutional Commissions may be authorized to
augment any item in the GAA "for their respective offices," Section 25(5),
supra, has delineated borders between their offices, such that funds
appropriated for one office are prohibited from crossing over to another
office even in the guise of augmentation of a deficient item or items. Thus,
we call such transfers of funds cross-border transfers or cross-border
augmentations.
To be sure, the phrase "respective offices" used in Section 25(5), supra,
refers to the entire Executive, with respect to the President; the Senate,
with respect to the Senate President; the House of Representatives, with
respect to the Speaker; the Judiciary, with respect to the Chief Justice; the
Constitutional Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad admitted
making some cross-border augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of
Budget and Management, did the Executive Department ever redirect any
part of savings of the National Government under your control cross
border to another department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance, Your
Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I don’t recall having read your material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of
Representatives. They started building their e-library in 2010 and they had
a budget for about 207 Million but they lack about 43 Million to complete
its 250 Million requirements. Prior to that, the COA, in an audit observation
informed the Speaker that they had to continue with that construction
otherwise the whole building, as well as the equipments therein may suffer
from serious deterioration. And at that time, since the budget of the House
of Representatives was not enough to complete 250 Million, they wrote to
the President requesting for an augmentation of that particular item,
which was granted, Your Honor. The second instance in the Memos is a
request from the Commission on Audit. At the time they were pushing very
strongly the good governance programs of the government and therefore,
part of that is a requirement to conduct audits as well as review financial
reports of many agencies. And in the performance of that function, the
Commission on Audit needed information technology equipment as well as
hire consultants and litigators to help them with their audit work and for
that they requested funds from the Executive and the President saw that it
was important for the Commission to be provided with those IT
equipments and litigators and consultants and the request was granted,
Your Honor.
JUSTICE BERSAMIN:
These cross border examples, cross border augmentations were not
supported by appropriations…
SECRETARY ABAD:
They were, we were augmenting existing items within their… (interrupted)
JUSTICE BERSAMIN:
No, appropriations before you augmented because this is a cross border
and the tenor or text of the Constitution is quite clear as far as I am
concerned. It says here, "The power to augment may only be made to
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increase any item in the General Appropriations Law for their respective
offices." Did you not feel constricted by this provision? AMOUNT
DATE (In thousand pesos)
SECRETARY ABAD: PURPOSE RELEASE
D Reserve Releases
Well, as the Constitution provides, the prohibition we felt was on the Imposed
transfer of appropriations, Your Honor. What we thought we did was to IT Infrastructure Program and hiring of 11/11/11   143,700
transfer savings which was needed by the Commission to address additional litigation experts
deficiency in an existing item in both the Commission as well as in the
House of Representatives; that’s how we saw…(interrupted) Completion of the construction of the 07/23/12 207,034 250,000
Legislative Library and Archives (Savings of HOR)
JUSTICE BERSAMIN: Representatives Building/Congressional e-library

So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
In an extreme instances because…(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, that’s
your feeling.
SECRETARY ABAD:
Well, in that particular situation when the request was made by the
Commission and the House of Representatives, we felt that we needed to
respond because we felt…(interrupted). 183
The records show, indeed, that funds amounting to ₱143,700,000.00 and
₱250,000,000.00 were transferred under the DAP respectively to the
COA184 and the House of Representatives.185 Those transfers of funds,
which constituted cross-border augmentations for being from the
Executive to the COA and the House of Representatives, are graphed as
follows:186
The respondents further stated in their memorandum that the President
"made available" to the "Commission on Elections the savings of his
department upon [its] request for funds…"187 This was another instance of
a cross-border augmentation.
The respondents justified all the cross-border transfers thusly:
99. The Constitution does not prevent the President from transferring
savings of his department to another department upon the latter’s
request, provided it is the recipient department that uses such funds to
augment its own appropriation. In such a case, the President merely gives
the other department access to public funds but he cannot dictate how
they shall be applied by that department whose fiscal autonomy is
guaranteed by the Constitution.188
In the oral arguments held on February 18, 2014, Justice Vicente V.
Mendoza, representing Congress, announced a different characterization
of the cross-border transfers of funds as in the nature of "aid" instead of
"augmentation," viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of
the DAP. What were these cross-border transfers? They are transfers of
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savings as defined in the various General Appropriations Act. So, that HONORABLE MENDOZA:
makes it similar to the DAP, the use of savings. There was a cross-border
which appears to be in violation of Section 25, paragraph 5 of Article VI, in There is no particular provision or statutory provision for that matter, if
the sense that the border was crossed. But never has it been claimed that Your Honor please. It is drawn from the fact that the Executive is the
the purpose was to augment a deficient item in another department of the executive in-charge of the success of the government.
government or agency of the government. The cross-border transfers, if
Your Honors please, were in the nature of [aid] rather than augmentations. JUSTICE LEONEN:
Here is a government entity separate and independent from the Executive
Department solely in need of public funds. The President is there 24 hours
So, the residual powers labelled in Marcos v. Manglapus would be the
a day, 7 days a week. He’s in charge of the whole operation although six or
basis for this theory of the government?
seven heads of government offices are given the power to augment. Only
the President stationed there and in effect in-charge and has the
HONORABLE MENDOZA:
responsibility for the failure of any part of the government. You have
election, for one reason or another, the money is not enough to hold
election. There would be chaos if no money is given as an aid, not to Yes, if Your Honor, please.
augment, but as an aid to a department like COA. The President is
responsible in a way that the other heads, given the power to augment, JUSTICE LEONEN:
are not. So, he cannot very well allow this, if Your Honor please. 189
A while ago, Justice Carpio mentioned that the remedy is might be to go to
JUSTICE LEONEN: Congress. That there are opportunities and there have been opportunities
of the President to actually go to Congress and ask for supplemental
May I move to another point, maybe just briefly. I am curious that the budgets?
position now, I think, of government is that some transfers of savings is
now considered to be, if I’m not mistaken, aid not augmentation. Am I HONORABLE MENDOZA:
correct in my hearing of your argument?
If there is time to do that, I would say yes.
HONORABLE MENDOZA:
JUSTICE LEONEN:
That’s our submission, if Your Honor, please.
So, the theory of aid rather than augmentation applies in extra-ordinary
JUSTICE LEONEN: situation?

May I know, Justice, where can we situate this in the text of the HONORABLE MENDOZA:
Constitution? Where do we actually derive the concepts that transfers of
appropriation from one branch to the other or what happened in DAP can Very extra-ordinary situations.
be considered a said? What particular text in the Constitution can we
situate this? JUSTICE LEONEN:
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But Counsel, this would be new doctrine, in case?
HONORABLE MENDOZA:
Yes, if Your Honor please.190
Regardless of the variant characterizations of the cross-border transfers of
funds, the plain text of Section 25(5), supra, disallowing cross border
transfers was disobeyed. Cross-border transfers, whether as
augmentation, or as aid, were prohibited under Section 25(5), supra.
4.
Sourcing the DAP from unprogrammed
funds despite the original revenue targets
not having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed funds
provided in the GAAs for 2011, 2012,and 2013. The respondents stress,
however, that the unprogrammed funds were not brought under the DAP
as savings, but as separate sources of funds; and that, consequently, the
release and use of unprogrammed funds were not subject to the
restrictions under Section 25(5), supra.
The documents contained in the Evidence Packets by the OSG have
confirmed that the unprogrammed funds were treated as separate sources
of funds. Even so, the release and use of the unprogrammed funds were
still subject to restrictions, for, to start with, the GAAs precisely specified
the instances when the unprogrammed funds could be released and the
purposes for which they could be used.
The petitioners point out that a condition for the release of the
unprogrammed funds was that the revenue collections must exceed
revenue targets; and that the release of the unprogrammed funds was
illegal because such condition was not met. 191
The respondents disagree, holding that the release and use of the
unprogrammed funds under the DAP were in accordance with the
pertinent provisions of the GAAs. In particular, the DBM avers that the
unprogrammed funds could be availed of when any of the following three
instances occur, to wit: (1) the revenue collections exceeded the original
revenue targets proposed in the BESFs submitted by the President to
Congress; (2) new revenues were collected or realized from sources not
originally considered in the BESFs; or(3) newly-approved loans for foreign
assisted projects were secured, or when conditions were triggered for
other sources of funds, such as perfected loan agreements for foreign-
assisted projects.192 This view of the DBM was adopted by all the
respondents in their Consolidated Comment. 193
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed
appropriations" as appropriations that provided standby authority to incur
additional agency obligations for priority PAPs when revenue collections
exceeded targets, and when additional foreign funds are
generated.194 Contrary to the DBM’s averment that there were three
instances when unprogrammed funds could be released, the BESFs
envisioned only two instances. The third mentioned by the DBM – the
collection of new revenues from sources not originally considered in the
BESFs – was not included. This meant that the collection of additional
revenues from new sources did not warrant the release of the
unprogrammed funds. Hence, even if the revenues not considered in the
BESFs were collected or generated, the basic condition that the revenue
collections should exceed the revenue targets must still be complied with
in order to justify the release of the unprogrammed funds.
The view that there were only two instances when the unprogrammed
funds could be released was bolstered by the following texts of the Special
Provisions of the 2011 and 2012 GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only
when the revenue collections exceed the original revenue targets
submitted by the President of the Philippines to Congress pursuant to
Section 22, Article VII of the Constitution, including savings generated from
programmed appropriations for the year: PROVIDED, That collections
196 | J U D I C I A L D E P A R T M E N T C A S E S
arising from sources not considered in the aforesaid original revenue
targets may be used to cover releases from appropriations in this Fund:
PROVIDED, FURTHER, That in case of newly approved loans for foreign-
assisted projects, the existence of a perfected loan agreement for the
purpose shall be sufficient basis for the issuance of a SARO covering the
loan proceeds: PROVIDED, FURTHERMORE, That if there are savings
generated from the programmed appropriations for the first two quarters
of the year, the DBM may, subject to the approval of the President, release
the pertinent appropriations under the Unprogrammed Fund
corresponding to only fifty percent (50%) of the said savings net of revenue
shortfall: PROVIDED, FINALLY, That the release of the balance of the total
savings from programmed appropriations for the year shall be subject to
fiscal programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released
only when the revenue collections exceed the original revenue targets
submitted by the President of the Philippines to Congress pursuant to
Section 22, Article VII of the Constitution: PROVIDED, That collections
arising from sources not considered in the aforesaid original revenue
targets may be used to cover releases from appropriations in this Fund:
PROVIDED, FURTHER, That in case of newly approved loans for foreign-
assisted projects, the existence of a perfected loan agreement for the
purpose shall be sufficient basis for the issuance of a SARO covering the
loan proceeds.
As can be noted, the provisos in both provisions to the effect that
"collections arising from sources not considered in the aforesaid original
revenue targets may be used to cover releases from appropriations in this
Fund" gave the authority to use such additional revenues for
appropriations funded from the unprogrammed funds. They did not at all
waive compliance with the basic requirement that revenue collections
must still exceed the original revenue targets.
In contrast, the texts of the provisos with regard to additional revenues
generated from newly-approved foreign loans were clear to the effect that
the perfected loan agreement would be in itself "sufficient basis" for the
issuance of a SARO to release the funds but only to the extent of the
amount of the loan. In such instance, the revenue collections need not
exceed the revenue targets to warrant the release of the loan proceeds,
and the mere perfection of the loan agreement would suffice.
It can be inferred from the foregoing that under these provisions of the
GAAs the additional revenues from sources not considered in the BESFs
must be taken into account in determining if the revenue collections
exceeded the revenue targets. The text of the relevant provision of the
2013 GAA, which was substantially similar to those of the GAAs for 2011
and 2012, already made this explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be released
only when the revenue collections exceed the original revenue targets
submitted by the President of the Philippines to Congress pursuant to
Section 22, Article VII of the Constitution, including collections arising from
sources not considered in the aforesaid original revenue target, as certified
by the BTr: PROVIDED, That in case of newly approved loans for foreign-
assisted projects, the existence of a perfected loan agreement for the
purpose shall be sufficient basis for the issuance of a SARO covering the
loan proceeds.
Consequently, that there were additional revenues from sources not
considered in the revenue target would not be enough. The total revenue
collections must still exceed the original revenue targets to justify the
release of the unprogrammed funds (other than those from newly-
approved foreign loans).
The present controversy on the unprogrammed funds was rooted in the
correct interpretation of the phrase "revenue collections should exceed
the original revenue targets." The petitioners take the phrase to mean that
the total revenue collections must exceed the total revenue target stated
in the BESF, but the respondents understand the phrase to refer only to
the collections for each source of revenue as enumerated in the BESF, with
the condition being deemed complied with once the revenue collections
from a particular source already exceeded the stated target.
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The BESF provided for the following sources of revenue, with the NG Share from PAGCOR Income
corresponding revenue target stated for each source of revenue, to wit: NG Share from MIAA Profit

TAX REVENUES Privatization

Foreign Grants
Taxes on Net Income and Profits
Taxes on Property Thus, when the Court required the respondents to submit a certification
Taxes on Domestic Goods and Services from the Bureau of Treasury (BTr) to the effect that the revenue collections
had exceeded the original revenue targets,195 they complied by submitting
General Sales, Turnover or VAT certifications from the BTr and Department of Finance (DOF) pertaining to
Selected Excises on Goods only one identified source of revenue – the dividends from the shares of
stock held by the Government in government-owned and controlled
Selected Taxes on Services corporations.
Taxes on the Use of Goods or Property or Permission to Perform
Activities To justify the release of the unprogrammed funds for 2011, the OSG
Other Taxes presented the certification dated March 4, 2011 issued by DOF
Taxes on International Trade and Transactions Undersecretary Gil S. Beltran, as follows:

NON-TAX REVENUES This is to certify that under the Budget for Expenditures and Sources of
Financing for 2011, the programmed income from dividends from shares of
Fees and Charges stock in government-owned and controlled corporations is 5.5 billion.
BTR Income
This is to certify further that based on the records of the Bureau of
Government Services Treasury, the National Government has recorded dividend income
Interest on NG Deposits amounting to ₱23.8 billion as of 31 January 2011.196
Interest on Advances to Government Corporations
Income from Investments For 2012, the OSG submitted the certification dated April 26, 2012 issued
by National Treasurer Roberto B. Tan, viz:
Interest on Bond Holdings
This is to certify that the actual dividend collections remitted to the
Guarantee Fee National Government for the period January to March 2012 amounted to
Gain on Foreign Exchange ₱19.419 billion compared to the full year program of ₱5.5 billion for
NG Income Collected by BTr 2012.197

Dividends on Stocks And, finally, for 2013, the OSG presented the certification dated July 3,
NG Share from Airport Terminal Fee 2013 issued by National Treasurer Rosalia V. De Leon, to wit:
198 | J U D I C I A L D E P A R T M E N T C A S E S
This is to certify that the actual dividend collections remitted to the
National Government for the period January to May 2013 amounted to
₱12.438 billion compared to the full year program of ₱10.0 198 billion for
2013.
Moreover, the National Government accounted for the sale of the right to
build and operate the NAIA expressway amounting to ₱11.0 billion in June
2013.199
The certifications reflected that by collecting dividends amounting to ₱23.8
billion in 2011, ₱19.419 billion in 2012, and ₱12.438 billion in 2013 the BTr
had exceeded only the ₱5.5 billion in target revenues in the form of
dividends from stocks in each of 2011 and 2012, and only the ₱10 billion in
target revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original
revenue targets was to be construed in light of the purpose for which the
unprogrammed funds were incorporated in the GAAs as standby
appropriations to support additional expenditures for certain priority PAPs
should the revenue collections exceed the resource targets assumed in the
budget or when additional foreign project loan proceeds were realized.
The unprogrammed funds were included in the GAAs to provide ready
cover so as not to delay the implementation of the PAPs should new or
additional revenue sources be realized during the year. 200 Given the tenor
of the certifications, the unprogrammed funds were thus not yet
supported by the corresponding resources.201
The revenue targets stated in the BESF were intended to address the
funding requirements of the proposed programmed appropriations. In
contrast, the unprogrammed funds, as standby appropriations, were to be
released only when there were revenues in excess of what the
programmed appropriations required. As such, the revenue targets should
be considered as a whole, not individually; otherwise, we would be dealing
with artificial revenue surpluses. The requirement that revenue collections
must exceed revenue target should be understood to mean that the
revenue collections must exceed the total of the revenue targets stated in
the BESF. Moreover, to release the unprogrammed funds simply because
there was an excess revenue as to one source of revenue would be an
unsound fiscal management measure because it would disregard the
budget plan and foster budget deficits, in contravention of the
Government’s surplus budget policy.202
We cannot, therefore, subscribe to the respondents’ view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection Clause,
the system of checks and balances, and the principle of public
accountability.
With respect to the challenge against the DAP under the Equal Protection
Clause,203 Luna argues that the implementation of the DAP was "unfair as it
[was] selective" because the funds released under the DAP was not made
available to all the legislators, with some of them refusing to avail
themselves of the DAP funds, and others being unaware of the availability
of such funds. Thus, the DAP practised "undue favoritism" in favor of select
legislators in contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection
Clause because no reasonable classification was used in distributing the
funds under the DAP; and that the Senators who supposedly availed
themselves of said funds were differently treated as to the amounts they
respectively received.
Anent the petitioners’ theory that the DAP violated the system of checks
and balances, Luna submits that the grant of the funds under the DAP to
some legislators forced their silence about the issues and anomalies
surrounding the DAP. Meanwhile, Belgica stresses that the DAP, by
allowing the legislators to identify PAPs, authorized them to take part in
the implementation and execution of the GAAs, a function that exclusively
belonged to the Executive; that such situation constituted undue and
unjustified legislative encroachment in the functions of the Executive; and
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that the President arrogated unto himself the power of appropriation
vested in Congress because NBC No. 541 authorized the use of the funds
under the DAP for PAPs not considered in the 2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of
public accountability enshrined in the Constitution, 204 because the
legislators relinquished the power of appropriation to the Executive, and
exhibited a reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination
in the release of funds under the DAP could be raised only by the affected
Members of Congress themselves, and if the challenge based on the
violation of the Equal Protection Clause was really against the
constitutionality of the DAP, the arguments of the petitioners should be
directed to the entitlement of the legislators to the funds, not to the
proposition that all of the legislators should have been given such
entitlement.
The challenge based on the contravention of the Equal Protection Clause,
which focuses on the release of funds under the DAP to legislators, lacks
factual and legal basis. The allegations about Senators and Congressmen
being unaware of the existence and implementation of the DAP, and about
some of them having refused to accept such funds were unsupported with
relevant data. Also, the claim that the Executive discriminated against
some legislators on the ground alone of their receiving less than the others
could not of itself warrant a finding of contravention of the Equal
Protection Clause. The denial of equal protection of any law should be an
issue to be raised only by parties who supposedly suffer it, and, in these
cases, such parties would be the few legislators claimed to have been
discriminated against in the releases of funds under the DAP. The reason
for the requirement is that only such affected legislators could properly
and fully bring to the fore when and how the denial of equal protection
occurred, and explain why there was a denial in their situation. The
requirement was not met here. Consequently, the Court was not put in the
position to determine if there was a denial of equal protection. To have the
Court do so despite the inadequacy of the showing of factual and legal
support would be to compel it to speculate, and the outcome would not do
justice to those for whose supposed benefit the claim of denial of equal
protection has been made.
The argument that the release of funds under the DAP effectively stayed
the hands of the legislators from conducting congressional inquiries into
the legality and propriety of the DAP is speculative. That deficiency
eliminated any need to consider and resolve the argument, for it is
fundamental that speculation would not support any proper judicial
determination of an issue simply because nothing concrete can thereby be
gained. In order to sustain their constitutional challenges against official
acts of the Government, the petitioners must discharge the basic burden of
proving that the constitutional infirmities actually existed. 205 Simply put,
guesswork and speculation cannot overcome the presumption of the
constitutionality of the assailed executive act.
We do not need to discuss whether or not the DAP and its implementation
through the various circulars and memoranda of the DBM transgressed the
system of checks and balances in place in our constitutional system. Our
earlier expositions on the DAP and its implementing issuances infringing
the doctrine of separation of powers effectively addressed this particular
concern.
Anent the principle of public accountability being transgressed because the
adoption and implementation of the DAP constituted an assumption by the
Executive of Congress’ power of appropriation, we have already held that
the DAP and its implementing issuances were policies and acts that the
Executive could properly adopt and do in the execution of the GAAs to the
extent that they sought to implement strategies to ramp up or accelerate
the economy of the country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally
infirm, we must now deal with the consequences of the declaration.
Article 7 of the Civil Code provides:
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Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to
the contrary.
When the courts declared a law to be inconsistent with the Constitution,
the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being
unconstitutional cannot give rise to any right or obligation. 206 However, the
generality of the rule makes us ponder whether rigidly applying the rule
may at times be impracticable or wasteful. Should we not recognize the
need to except from the rigid application of the rule the instances in which
the void law or executive act produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine,
definitely not a novel one, has been exhaustively explained in De Agbayani
v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that an
unconstitutional act, for that matter an executive order or a municipal
ordinance likewise suffering from that infirmity, cannot be the source of
any legal rights or duties. Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared results in its
being to all intents and purposes a mere scrap of paper. As the new Civil
Code puts it: ‘When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.’
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws of the Constitution. It is
understandable why it should be so, the Constitution being supreme and
paramount. Any legislative or executive act contrary to its terms cannot
survive.
Such a view has support in logic and possesses the merit of simplicity. It
may not however be sufficiently realistic. It does not admit of doubt that
prior to the declaration of nullity such challenged legislative or executive
act must have been in force and had to be complied with. This is so as until
after the judiciary, in an appropriate case, declares its invalidity, it is
entitled to obedience and respect. Parties may have acted under it and
may have changed their positions. What could be more fitting than that in
a subsequent litigation regard be had to what has been done while such
legislative or executive act was in operation and presumed to be valid in all
respects. It is now accepted as a doctrine that prior to its being nullified, its
existence as a fact must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is the governmental organ
which has the final say on whether or not a legislative or executive
measure is valid, a period of time may have elapsed before it can exercise
the power of judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and justice then, if
there be no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: ‘The actual
existence of a statute, prior to such a determination [of
unconstitutionality], is an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as to invalidity may
have to be considered in various aspects, with respect to particular
relations, individual and corporate, and particular conduct, private and
official.’"
The doctrine of operative fact recognizes the existence of the law or
executive act prior to the determination of its unconstitutionality as an
operative fact that produced consequences that cannot always be erased,
ignored or disregarded. In short, it nullifies the void law or executive act
but sustains its effects. It provides an exception to the general rule that a
void or unconstitutional law produces no effect. 208 But its use must be
subjected to great scrutiny and circumspection, and it cannot be invoked
to validate an unconstitutional law or executive act, but is resorted to only
as a matter of equity and fair play. 209 It applies only to cases where
extraordinary circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that will permit its
application.
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We find the doctrine of operative fact applicable to the adoption and
implementation of the DAP. Its application to the DAP proceeds from
equity and fair play. The consequences resulting from the DAP and its
related issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or
unconstitutional executive act. The term executive act is broad enough to
include any and all acts of the Executive, including those that are quasi
legislative and quasi-judicial in nature. The Court held so in Hacienda
Luisita, Inc. v. Presidential Agrarian Reform Council: 210
Nonetheless, the minority is of the persistent view that the applicability of
the operative fact doctrine should be limited to statutes and rules and
regulations issued by the executive department that are accorded the
same status as that of a statute or those which are quasi-legislative in
nature. Thus, the minority concludes that the phrase ‘executive act’ used in
the case of De Agbayani v. Philippine National Bank refers only to acts,
orders, and rules and regulations that have the force and effect of law. The
minority also made mention of the Concurring Opinion of Justice Enrique
Fernando in Municipality of Malabang v. Benito, where it was supposedly
made explicit that the operative fact doctrine applies to executive acts,
which are ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of
Malabang case elaborates what ‘executive act’ mean. Moreover, while
orders, rules and regulations issued by the President or the executive
branch have fixed definitions and meaning in the Administrative Code and
jurisprudence, the phrase ‘executive act’ does not have such specific
definition under existing laws. It should be noted that in the cases cited by
the minority, nowhere can it be found that the term ‘executive act’ is
confined to the foregoing. Contrarily, the term ‘executive act’ is broad
enough to encompass decisions of administrative bodies and agencies
under the executive department which are subsequently revoked by the
agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma)
as Chairman of the Presidential Commission on Good Government (PCGG)
and as Chief Presidential Legal Counsel (CPLC) which was declared
unconstitutional by this Court in Public Interest Center, Inc. v. Elma. In said
case, this Court ruled that the concurrent appointment of Elma to these
offices is in violation of Section 7, par. 2, Article IX-B of the 1987
Constitution, since these are incompatible offices. Notably, the
appointment of Elma as Chairman of the PCGG and as CPLC is, without a
question, an executive act. Prior to the declaration of unconstitutionality of
the said executive act, certain acts or transactions were made in good faith
and in reliance of the appointment of Elma which cannot just be set aside
or invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held
that despite the invalidity of the jurisdiction of the military courts over
civilians, certain operative facts must be acknowledged to have existed so
as not to trample upon the rights of the accused therein. Relevant thereto,
in Olaguer v. Military Commission No. 34, it was ruled that ‘military
tribunals pertain to the Executive Department of the Government and are
simply instrumentalities of the executive power, provided by the
legislature for the President as Commander-in-Chief to aid him in properly
commanding the army and navy and enforcing discipline therein, and
utilized under his orders or those of his authorized military
representatives.’
Evidently, the operative fact doctrine is not confined to statutes and rules
and regulations issued by the executive department that are accorded the
same status as that of a statute or those which are quasi-legislative in
nature.
Even assuming that De Agbayani initially applied the operative fact
doctrine only to executive issuances like orders and rules and regulations,
said principle can nonetheless be applied, by analogy, to decisions made by
the President or the agencies under the executive department. This
doctrine, in the interest of justice and equity, can be applied liberally and
in a broad sense to encompass said decisions of the executive branch. In
keeping with the demands of equity, the Court can apply the operative fact
doctrine to acts and consequences that resulted from the reliance not only
on a law or executive act which is quasi-legislative in nature but also on
202 | J U D I C I A L D E P A R T M E N T C A S E S
decisions or orders of the executive branch which were later nullified. This
Court is not unmindful that such acts and consequences must be
recognized in the higher interest of justice, equity and fairness.
Significantly, a decision made by the President or the administrative
agencies has to be complied with because it has the force and effect of
law, springing from the powers of the President under the Constitution and
existing laws. Prior to the nullification or recall of said decision, it may have
produced acts and consequences in conformity to and in reliance of said
decision, which must be respected. It is on this score that the operative
fact doctrine should be applied to acts and consequences that resulted
from the implementation of the PARC Resolution approving the SDP of HLI.
(Bold underscoring supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power
Corporation,211 the Court likewise declared that "for the operative fact
doctrine to apply, there must be a ‘legislative or executive measure,’
meaning a law or executive issuance." Thus, the Court opined there that
the operative fact doctrine did not apply to a mere administrative practice
of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the
Commissioner from the time the rule or ruling is issued up to its reversal by
the Commissioner or this Court. The reversal is not given retroactive effect.
This, in essence, is the doctrine of operative fact. There must, however, be
a rule or ruling issued by the Commissioner that is relied upon by the
taxpayer in good faith. A mere administrative practice, not formalized into
a rule or ruling, will not suffice because such a mere administrative practice
may not be uniformly and consistently applied. An administrative practice,
if not formalized as a rule or ruling, will not be known to the general public
and can be availed of only by those with informal contacts with the
government agency.
It is clear from the foregoing that the adoption and the implementation of
the DAP and its related issuances were executive acts.1avvphi1 The DAP
itself, as a policy, transcended a merely administrative practice especially
after the Executive, through the DBM, implemented it by issuing various
memoranda and circulars. The pooling of savings pursuant to the DAP from
the allotments made available to the different agencies and departments
was consistently applied throughout the entire Executive. With the
Executive, through the DBM, being in charge of the third phase of the
budget cycle – the budget execution phase, the President could
legitimately adopt a policy like the DAP by virtue of his primary
responsibility as the Chief Executive of directing the national economy
towards growth and development. This is simply because savings could
and should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the
use of savings pooled by the Executive to finance the PAPs that were not
covered in the GAA, or that did not have proper appropriation covers, as
well as to augment items pertaining to other departments of the
Government in clear violation of the Constitution. To declare the
implementation of the DAP unconstitutional without recognizing that its
prior implementation constituted an operative fact that produced
consequences in the real as well as juristic worlds of the Government and
the Nation is to be impractical and unfair. Unless the doctrine is held to
apply, the Executive as the disburser and the offices under it and
elsewhere as the recipients could be required to undo everything that they
had implemented in good faith under the DAP. That scenario would be
enormously burdensome for the Government. Equity alleviates such
burden.
The other side of the coin is that it has been adequately shown as to be
beyond debate that the implementation of the DAP yielded undeniably
positive results that enhanced the economic welfare of the country. To
count the positive results may be impossible, but the visible ones, like
public infrastructure, could easily include roads, bridges, homes for the
homeless, hospitals, classrooms and the like. Not to apply the doctrine of
operative fact to the DAP could literally cause the physical undoing of such
worthy results by destruction, and would result in most undesirable
wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the
doctrine of operative fact does not always apply, and is not always the
203 | J U D I C I A L D E P A R T M E N T C A S E S

consequence of every declaration of constitutional invalidity. It can be
invoked only in situations where the nullification of the effects of what
used to be a valid law would result in inequity and injustice; 212 but where
no such result would ensue, the general rule that an unconstitutional law is
totally ineffective should apply.
collections exceeded the revenue targets for non-compliance with the
conditions provided in the relevant General Appropriations Acts.
SO ORDERED.

In that context, as Justice Brion has clarified, the doctrine of operative fact
can apply only to the PAPs that can no longer be undone, and whose
beneficiaries relied in good faith on the validity of the DAP, but cannot
apply to the authors, proponents and implementors of the DAP, unless
there are concrete findings of good faith in their favor by the proper
tribunals determining their criminal, civil, administrative and other EN BANC
liabilities.
G.R. No. 211833, April 07, 2015
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and
prohibition; and DECLARES the following acts and practices under the
FERDINAND R. VILLANUEVA, PRESIDING JUDGE, MCTC, COMPOSTELA-
Disbursement Acceleration Program, National Budget Circular No. 541 and
NEW BATAAN, COMPOSTELA VALLEY PROVINCE, Petitioner, v. JUDICIAL
related executive issuances UNCONSTITUTIONAL for being in violation of
AND BAR COUNCIL, Respondent.
Section 25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:
DECISION
(a) The withdrawal of unobligated allotments from the
implementing agencies, and the declaration of the withdrawn REYES, J.:
unobligated allotments and unreleased appropriations as savings
prior to the end of the fiscal year and without complying with the Presiding Judge Ferdinand R. Villanueva (petitioner) directly came to this
statutory definition of savings contained in the General Court via a Petition for Prohibition, Mandamus, and Certiorari, and
Appropriations Acts; Declaratory Relief1 under Rules 65 and 63 of the Rules of Court,
respectively, with prayer for the issuance of a temporary restraining order
(b) The cross-border transfers of the savings of the Executive to and/or writ of preliminary injunction, to assail the policy of the Judicial and
augment the appropriations of other offices outside the Bar Council (JBC), requiring five years of service as judges of first-level
Executive; and courts before they can qualify as applicant to second-level courts, on the
ground that it is unconstitutional, and was issued with grave abuse of
discretion.chanRoblesvirtualLawlibrary
(c) The funding of projects, activities and programs that were not
covered by any appropriation in the General Appropriations Act.
The Facts

The Court further DECLARES VOID the use of unprogrammed funds despite The petitioner was appointed on September 18, 2012 as the Presiding
the absence of a certification by the National Treasurer that the revenue Judge of the Municipal Circuit Trial Court, Compostela-New Bataan,
204 | J U D I C I A L D E P A R T M E N T C A S E S
Poblacion, Compostela Valley Province, Region XI, which is a first-level
court. On September 27, 2013, he applied for the vacant position of
Presiding Judge in the following Regional Trial Courts (RTCs): Branch 31,
Tagum City; Branch 13, Davao City; and Branch 6, Prosperidad, Agusan Del
Sur.
In a letter2 dated December 18, 2013, JBC's Office of Recruitment, Selection
and Nomination, informed the petitioner that he was not included in the
list of candidates for the said stations. On the same date, the petitioner
sent a letter, through electronic mail, seeking reconsideration of his non-
inclusion in the list of considered applicants and protesting the inclusion of
applicants who did not pass the prejudicature examination.
The petitioner was informed by the JBC Executive Officer, through a
letter3 dated February 3, 2014, that his protest and reconsideration was
duly noted by the JBC en banc. However, its decision not to include his
name in the list of applicants was upheld due to the JBC's long-standing
policy of opening the chance for promotion to second-level courts to,
among others, incumbent judges who have served in their current position
for at least five years, and since the petitioner has been a judge only for
more than a year, he was excluded from the list. This caused the petitioner
to take recourse to this Court.
In his petition, he argued that: (1) the Constitution already prescribed the
qualifications of an RTC judge, and the JBC could add no more; (2) the JBC's
five-year requirement violates the equal protection and due process
clauses of the Constitution; and (3) the JBC's five-year requirement violates
the constitutional provision on Social Justice and Human Rights for Equal
Opportunity of Employment. The petitioner also asserted that the
requirement of the Prejudicature Program mandated by Section 10 4 of
Republic Act (R.A.) No. 85575 should not be merely directory and should be
fully implemented. He further alleged that he has all the qualifications for
the position prescribed by the Constitution and by Congress, since he has
already complied with the requirement of 10 years of practice of law.
In compliance with the Court's Resolution6 dated April 22, 2014, the
JBC7 and the Office of the Solicitor General (OSG) 8separately submitted
their Comments. Summing up the arguments of the JBC and the OSG, they
essentially stated that the petition is procedurally infirm and that the
assailed policy does not violate the equal protection and due process
clauses. They posited that: (1) the writ of certiorari and prohibition cannot
issue to prevent the JBC from performing its principal function under the
Constitution to recommend appointees to the Judiciary because the JBC is
not a tribunal exercising judicial or quasi-judicial function; (2) the remedy
of mandamus and declaratory relief will not lie because the petitioner has
no clear legal right that needs to be protected; (3) the equal protection
clause is not violated because the classification of lower court judges who
have served at least five years and those who have served less than five
years is valid as it is performance and experience based; and (4) there is no
violation of due process as the policy is merely internal in
nature.chanRoblesvirtualLawlibrary
The Issue
The crux of this petition is whether or not the policy of JBC requiring five
years of service as judges of first-level courts before they can qualify as
applicant to second-level courts is constitutional.
Ruling of the Court
Procedural Issues:
Before resolving the substantive issues, the Court considers it necessary to
first determine whether or not the action for certiorari, prohibition and
mandamus, and declaratory relief commenced by the petitioner was
proper.
One. The remedies of certiorari and prohibition are tenable. "The present
Rules of Court uses two special civil actions for determining and correcting
grave abuse of discretion amounting to lack or excess of jurisdiction. These
are the special civil actions for certiorari and prohibition, and both are
governed by Rule 65."9 As discussed in the case of Maria Carolina P.
Araullo, etc., et al. v. Benigno Simeon C. Aquino III, etc., et al.,10 this Court
explained that:chanroblesvirtuallawlibrary
With respect to the Court, however, the remedies of certiorari and
prohibition are necessarily broader in scope and reach, and the writ
of certiorari or prohibition may be issued to correct errors of jurisdiction
205 | J U D I C I A L D E P A R T M E N T C A S E S
committed not only by a tribunal, corporation, board or officer exercising
judicial, quasi-judicial or ministerial functions but also to set right, undo
and restrain any act of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the Government,
even if the latter does not exercise judicial, quasi-judicial or ministerial
functions. This application is expressly authorized by the text of the second
paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to
raise constitutional issues and to review and/or prohibit or nullify the acts
of legislative and executive officials.11 (Citation omitted)
In this case, it is clear that the JBC does not fall within the scope of a
tribunal, board, or officer exercising judicial or quasi-judicial functions. In
the process of selecting and screening applicants, the JBC neither acted in
any judicial or quasi-judicial capacity nor assumed unto itself any
performance of judicial or quasi-judicial prerogative. However, since the
formulation of guidelines and criteria, including the policy that the
petitioner now assails, is necessary and incidental to the exercise of the
JBC's constitutional mandate, a determination must be made on whether
the JBC has acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing and enforcing the said policy.
Besides, the Court can appropriately take cognizance of this case by virtue
of the Court's power of supervision over the JBC. Jurisprudence provides
that the power of supervision is the power of oversight, or the authority to
see that subordinate officers perform their duties. It ensures that the laws
and the rules governing the conduct of a government entity are observed
and complied with. Supervising officials see to it that rules are followed,
but they themselves do not lay down such rules, nor do they have the
discretion to modify or replace them. If the rules are not observed, they
may order the work done or redone, but only to conform to such rules.
They may not prescribe their own manner of execution of the act. They
have no discretion on this matter except to see to it that the rules are
followed.12
Following this definition, the supervisory authority of the Court over the
JBC is to see to it that the JBC complies with its own rules and procedures.
Thus, when the policies of the JBC are being attacked, then the Court,
through its supervisory authority over the JBC, has the duty to inquire
about the matter and ensure that the JBC complies with its own rules.
Two. The remedy of mandamus cannot be availed of by the petitioner in
assailing JBC's policy. The petitioner insisted that mandamus is proper
because his right was violated when he was not included in the list of
candidates for the RTC courts he applied for. He said that his non-inclusion
in the list of candidates for these stations has caused him direct injury.
It is essential to the issuance of a writ of mandamus that the applicant
should have a clear legal right to the thing demanded and it must be the
imperative duty of the respondent to perform the act required. 13 The
petitioner bears the burden to show that there is such a clear legal right to
the performance of the act, and a corresponding compelling duty on the
part of the respondent to perform the act. The remedy of mandamus, as
an extraordinary writ, lies only to compel an officer to perform a
ministerial duty, not a discretionary one.14 Clearly, the use of discretion and
the performance of a ministerial act are mutually exclusive.
The writ of mandamus does not issue to control or review the exercise of
discretion or to compel a course of conduct, which, it quickly seems to us,
was what the petitioner would have the JBC do in his favor. The function of
the JBC to select and recommend nominees for vacant judicial positions is
discretionary, not ministerial. Moreso, the petitioner cannot claim any
legal right to be included in the list of nominees for judicial vacancies.
Possession of the constitutional and statutory qualifications for
appointment to the judiciary may not be used to legally demand that one's
name be included in the list of candidates for a judicial vacancy. One's
inclusion in the list of the candidates depends on the discretion of the JBC,
thus:chanroblesvirtuallawlibrary
The fact that an individual possesses the constitutional and statutory
qualifications for appointment to the Judiciary does not create an
entitlement or expectation that his or her name be included in the list of
candidates for a judicial vacancy. By submitting an application or accepting
a recommendation, one submits to the authority of the JBC to subject the
former to the search, screening, and selection process, and to use its
discretion in deciding whether or not one should be included in the list.
Indeed, assuming that if one has the legal right to be included in the list of
206 | J U D I C I A L D E P A R T M E N T C A S E S
candidates simply because he or she possesses the constitutional and
statutory qualifications, then the application process would then be
reduced to a mere mechanical function of the JBC; and the search,
screening, and selection process would not only be unnecessary, but also
improper. However, this is clearly not the constitutional intent. One's
inclusion in the list of candidates is subject to the discretion of the JBC
over the selection of nominees for a particular judicial post. Such
candidate's inclusion is not, therefore, a legally demandable right, but
simply a privilege the conferment of which is subject to the JBC's sound
discretion.
Moreover, petitioner is essentially seeking a promotional appointment,
that is, a promotion from a first-level court to a second level court. There is
no law, however, that grants him the right to a promotion to second-
level courts.15 (Emphasis in the original)
Clearly, to be included as an applicant to second-level judge is not properly
compellable by mandamus inasmuch as it involves the exercise of sound
discretion by the JBC.
Three. The petition for declaratory relief is improper. "An action for
declaratory relief should be filed by a person interested under a deed, a
will, a contract or other written instrument, and whose rights are affected
by a statute, an executive order, a regulation or an ordinance. The relief
sought under this remedy includes the interpretation and determination of
the validity of the written instrument and the judicial declaration of the
parties' rights or duties thereunder."16 "[T]he purpose of the action is to
secure an authoritative statement of the rights and obligations of the
parties under a statute, deed, contract, etc., for their guidance in its
enforcement or compliance and not to settle issues arising from its alleged
breach."17
In this case, the petition for declaratory relief did not involve an unsound
policy. Rather, the petition specifically sought a judicial declaration that the
petitioner has the right to be included in the list of applicants although he
failed to meet JBC's five-year requirement policy. Again, the Court
reiterates that no person possesses a legal right under the Constitution to
be included in the list of nominees for vacant judicial positions. The
opportunity of appointment to judicial office is a mere privilege, and not a
judicially enforceable right that may be properly claimed by any person.
The inclusion in the list of candidates, which is one of the incidents of such
appointment, is not a right either. Thus, the petitioner cannot claim any
right that could have been affected by the assailed policy.
Furthermore, the instant petition must necessarily fail because this Court
does not have original jurisdiction over a petition for declaratory relief
even if only questions of law are involved.18 The special civil action of
declaratory relief falls under the exclusive jurisdiction of the appropriate
RTC pursuant to Section 1919 of Batas Pambansa Blg. 129, as amended by
R.A.No. 7691.20
Therefore, by virtue of the Court's supervisory duty over the JBC and in the
exercise of its expanded judicial power, the Court assumes jurisdiction over
the present petition. But in any event, even if the Court will set aside
procedural infirmities, the instant petition should still be
dismissed.chanRoblesvirtualLawlibrary
Substantive Issues
As an offspring of the 1987 Constitution, the JBC is mandated to
recommend appointees to the judiciary and only those nominated by the
JBC in a list officially transmitted to the President may be appointed by the
latter as justice or judge in the judiciary. Thus, the JBC is burdened with a
great responsibility that is imbued with public interest as it determines the
men and women who will sit on the judicial bench. While the 1987
Constitution has provided the qualifications of members of the judiciary,
this does not preclude the JBC from having its own set of rules and
procedures and providing policies to effectively ensure its mandate.
The functions of searching, screening, and selecting are necessary and
incidental to the JBC's principal function of choosing and recommending
nominees for vacancies in the judiciary for appointment by the President.
However, the Constitution did not lay down in precise terms the process
that the JBC shall follow in determining applicants' qualifications. In
carrying out its main function, the JBC has the authority to set the
standards/criteria in choosing its nominees for every vacancy in the
judiciary, subject only to the minimum qualifications required by the
207 | J U D I C I A L D E P A R T M E N T C A S E S
Constitution and law for every position. The search for these long held
qualities necessarily requires a degree of flexibility in order to determine
who is most fit among the applicants. Thus, the JBC has sufficient but not
unbridled license to act in performing its duties.
JBC's ultimate goal is to recommend nominees and not simply to fill up
judicial vacancies in order to promote an effective and efficient
administration of justice. Given this pragmatic situation, the JBC had to
establish a set of uniform criteria in order to ascertain whether an
applicant meets the minimum constitutional qualifications and possesses
the qualities expected of him and his office. Thus, the adoption of the five-
year requirement policy applied by JBC to the petitioner's case is necessary
and incidental to the function conferred by the Constitution to the JBC.
Equal Protection
There is no question that JBC employs standards to have a rational basis to
screen applicants who cannot be all accommodated and appointed to a
vacancy in the judiciary, to determine who is best qualified among the
applicants, and not to discriminate against any particular individual or
class.
The equal protection clause of the Constitution does not require the
universal application of the laws to all persons or things without
distinction; what it requires is simply equality among equals as determined
according to a valid classification. Hence, the Court has affirmed that if a
law neither burdens a fundamental right nor targets a suspect class, the
classification stands as long as it bears a rational relationship to some
legitimate government end.21ChanRoblesVirtualawlibrary
"The equal protection clause, therefore, does not preclude classification of
individuals who may be accorded different treatment under the law as
long as the classification is reasonable and not arbitrary." 22 "The mere fact
that the legislative classification may result in actual inequality is not
violative of the right to equal protection, for every classification of persons
or things for regulation by law produces inequality in some degree, but the
law is not thereby rendered invalid."23
That is the situation here. In issuing the assailed policy, the JBC merely
exercised its discretion in accordance with the constitutional requirement
and its rules that a member of the Judiciary must be of proven
competence, integrity, probity and independence.24"To ensure the
fulfillment of these standards in every member of the Judiciary, the JBC has
been tasked to screen aspiring judges and justices, among others, making
certain that the nominees submitted to the President are all qualified and
suitably best for appointment. In this way, the appointing process itself is
shielded from the possibility of extending judicial appointment to the
undeserving and mediocre and, more importantly, to the ineligible or
disqualified."25
Consideration of experience by JBC as one factor in choosing
recommended appointees does not constitute a violation of the equal
protection clause. The JBC does not discriminate when it employs number
of years of service to screen and differentiate applicants from the
competition. The number of years of service provides a relevant basis to
determine proven competence which may be measured by experience,
among other factors. The difference in treatment between lower court
judges who have served at least five years and those who have served less
than five years, on the other hand, was rationalized by JBC as
follows:chanroblesvirtuallawlibrary
Formulating policies which streamline the selection process falls squarely
under the purview of the JBC. No other constitutional body is bestowed
with the mandate and competency to set criteria for applicants that refer
to the more general categories of probity, integrity and independence.
The assailed criterion or consideration for promotion to a second-level
court, which is five years experience as judge of a first-level court, is a
direct adherence to the qualities prescribed by the Constitution. Placing a
premium on many years of judicial experience, the JBC is merely applying
one of the stringent constitutional standards requiring that a member of
the judiciary be of "proven competence." In determining competence, the
JBC considers, among other qualifications, experience and performance.
Based on the JBC's collective judgment, those who have been judges of
first-level courts for five (5) years are better qualified for promotion to
second-level courts. It deems length of experience as a judge as indicative
208 | J U D I C I A L D E P A R T M E N T C A S E S
of conversance with the law and court procedure. Five years is considered
as a sufficient span of time for one to acquire professional skills for the
next level court, declog the dockets, put in place improved procedures and
an efficient case management system, adjust to the work environment,
and gain extensive experience in the judicial process.
A five-year stint in the Judiciary can also provide evidence of the integrity,
probity, and independence of judges seeking promotion. To merit JBC's
nomination for their promotion, they must have had a "record of, and
reputation for, honesty, integrity, incorruptibility, irreproachable conduct,
and fidelity to sound moral and ethical standards." Likewise, their decisions
must be reflective of the soundness of their judgment, courage, rectitude,
cold neutrality and strength of character.
Hence, for the purpose of determining whether judges are worthy of
promotion to the next level court, it would be premature or difficult to
assess their merit if they have had less than one year of service on the
bench.26 (Citations omitted and emphasis in the original)
At any rate, five years of service as a lower court judge is not the only
factor that determines the selection of candidates for RTC judge to be
appointed by the President. Persons with this qualification are neither
automatically selected nor do they automatically become nominees. The
applicants are chosen based on an array of factors and are evaluated based
on their individual merits. Thus, it cannot be said that the questioned
policy was arbitrary, capricious, or made without any basis.
Clearly, the classification created by the challenged policy satisfies the
rational basis test. The foregoing shows that substantial distinctions do
exist between lower court judges with five year experience and those with
less than five years of experience, like the petitioner, and the classification
enshrined in the assailed policy is reasonable and relevant to its legitimate
purpose. The Court, thus, rules that the questioned policy does not infringe
on the equal protection clause as it is based on reasonable classification
intended to gauge the proven competence of the applicants. Therefore,
the said policy is valid and constitutional.
Due Process
The petitioner averred that the assailed policy violates procedural due
process for lack of publication and non-submission to the University of the
Philippines Law Center Office of the National Administrative Register
(ONAR). The petitioner said that the assailed policy will affect all applying
judges, thus, the said policy should have been published.
Contrary to the petitioner's contention, the assailed JBC policy need not be
filed in the ONAR because the publication requirement in the ONAR is
confined to issuances of administrative agencies under the Executive
branch of the government.27 Since the JBC is a body under the supervision
of the Supreme Court,28 it is not covered by the publication requirements
of the Administrative Code.
Nevertheless, the assailed JBC policy requiring five years of service as
judges of first-level courts before they can qualify as applicants to second-
level courts should have been published. As a general rule, publication is
indispensable in order that all statutes, including administrative rules that
are intended to enforce or implement existing laws, attain binding force
and effect. There are, however, several exceptions to the requirement of
publication, such as interpretative regulations and those merely internal in
nature, which regulate only the personnel of the administrative agency and
not the public. Neither is publication required of the so-called letters of
instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their
duties.29
Here, the assailed JBC policy does not fall within the administrative rules
and regulations exempted from the publication requirement. The assailed
policy involves a qualification standard by which the JBC shall determine
proven competence of an applicant. It is not an internal regulation,
because if it were, it would regulate and affect only the members of the
JBC and their staff. Notably, the selection process involves a call to lawyers
who meet the qualifications in the Constitution and are willing to serve in
the Judiciary to apply to these vacant positions. Thus, it is but a natural
consequence thereof that potential applicants be informed of the
requirements to the judicial positions, so that they would be able to
prepare for and comply with them.
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The Court also noted the fact that in JBC-009, otherwise known as the
Rules of the Judicial and Bar Council, the JBC had put its criteria in writing
and listed the guidelines in determining competence, independence,
integrity and probity. Section 1, Paragraph 1 of Rule 9 expressly provides
that applicants for the Court of Appeals and the Sandiganbayan, should, as
a general rule, have at least five years of experience as an RTC judge,
thus:chanroblesvirtuallawlibrary
RULE 9 - SPECIAL GUIDELINES FOR NOMINATION TO A VACANCY IN THE
COURT OF APPEALS AND SANDIGANBAYAN
Section 1. Additional criteria for nomination to the Court of Appeals and
the Sandiganbayan. - In addition to the foregoing guidelines the Council
should consider the following in evaluating the merits of applicants for a
vacancy in the Court of Appeals and Sandiganbayan:
1. As a general rule, he must have at least five years of experience as a
judge of Regional Trial Court, except when he has in his favor outstanding
credentials, as evidenced by, inter alia, impressive scholastic or educational
record and performance in the Bar examinations, excellent reputation for
honesty, integrity, probity and independence of mind; at least very
satisfactory performance rating for three (3) years preceding the filing of
his application for nomination; and excellent potentials for appellate
judgeship.
x x x x (Emphasis ours)
The express declaration of these guidelines in JBC-009, which have been
duly published on the website of the JBC and in a newspaper of general
circulation suggests that the JBC is aware that these are not mere internal
rules, but are rules implementing the Constitution that should be
published. Thus, if the JBC were so-minded to add special guidelines for
determining competence of applicants for RTC judges, then it could and
should have amended its rules and published the same. This, the JBC did
not do as JBC-009 and its amendatory rule do not have special guidelines
for applicants to the RTC.
Moreover, jurisprudence has held that rules implementing a statute should
be published. Thus, by analogy, publication is also required for the five-
year requirement because it seeks to implement a constitutional provision
requiring proven competence from members of the judiciary.
Nonetheless, the JBC's failure to publish the assailed policy has not
prejudiced the petitioner's private interest. At the risk of being repetitive,
the petitioner has no legal right to be included in the list of nominees for
judicial vacancies since the possession of the constitutional and statutory
qualifications for appointment to the Judiciary may not be used to legally
demand that one's name be included in the list of candidates for a judicial
vacancy. One's inclusion in the shortlist is strictly within the discretion of
the JBC.30
As to the issue that the JBC failed or refused to implement the completion
of the prejudicature program as a requirement for appointment or
promotion in the judiciary under R.A. No. 8557, this ground of the petition,
being unsubstantiated, was unfounded. Clearly, it cannot be said that JBC
unlawfully neglects the performance of a duty enjoined by law.
Finally, the petitioner argued but failed to establish that the assailed policy
violates the constitutional provision under social justice and human rights
for equal opportunity of employment. The OSG
explained:chanroblesvirtuallawlibrary
[T]he questioned policy does not violate equality of employment
opportunities. The constitutional provision does not call for appointment
to the Judiciary of all who might, for any number of reasons, wish to apply.
As with all professions, it is regulated by the State. The office of a judge is
no ordinary office. It is imbued with public interest and is central in the
administration of justice x x x. Applicants who meet the constitutional and
legal qualifications must vie and withstand the competition and rigorous
screening and selection process. They must submit themselves to the
selection criteria, processes and discretion of respondent JBC, which has
the constitutional mandate of screening and selecting candidates whose
names will be in the list to be submitted to the President. So long as a fair
opportunity is available for all applicants who are evaluated on the basis of
their individual merits and abilities, the questioned policy cannot be struck
down as unconstitutional.31 (Citations omitted)
From the foregoing, it is apparent that the petitioner has not established a
clear legal right to justify the issuance of a preliminary injunction. The
petitioner has merely filed an application with the JBC for the position of
210 | J U D I C I A L D E P A R T M E N T C A S E S

RTC judge, and he has no clear legal right to be nominated for that office
nor to be selected and included in the list to be submitted to the President
which is subject to the discretion of the JBC. The JBC has the power to
determine who shall be recommended to the judicial post. To be included
in the list of applicants is a privilege as one can only be chosen under
existing criteria imposed by the JBC itself. As such, prospective applicants,
including the petitioner, cannot claim any demandable right to take part in
it if they fail to meet these criteria. Hence, in the absence of a clear legal
right, the issuance of an injunctive writ is not justified.

As the constitutional body granted with the power of searching for,

screening, and selecting applicants relative to recommending appointees
to the Judiciary, the JBC has the authority to determine how best to
perform such constitutional mandate. Pursuant to this authority, the JBC
issues various policies setting forth the guidelines to be observed in the
evaluation of applicants, and formulates rules and guidelines in order to
ensure that the rules are updated to respond to existing circumstances. Its
discretion is freed from legislative, executive or judicial intervention to
ensure that the JBC is shielded from any outside pressure and improper
influence. Limiting qualified applicants in this case to those judges with five
years of experience was an exercise of discretion by the JBC. The potential
applicants, however, should have been informed of the requirements to
the judicial positions, so that they could properly prepare for and comply
with them. Hence, unless there are good and compelling reasons to do so,
the Court will refrain from interfering with the exercise of JBC's powers,
and will respect the initiative and independence inherent in the
latter.cralawred
WHEREFORE, premises considered, the petition is DISMISSED. The Court,
however, DIRECTS that the Judicial and Bar Council comply with the
publication requirement of (1) the assailed policy requiring five years of
experience as judges of first-level courts before they can qualify as
applicant to the Regional Trial Court, and (2) other special guidelines that
the Judicial and Bar Council is or will be implementing.
SO ORDERED.chanroblesvirtuallawlibrary
THIRD DIVISION
G.R. No. 212686, September 28, 2015
SERGIO R. OSMENA III, Petitioner, v. POWER SECTOR ASSETS AND
LIABILITIES MANAGEMENT CORPORATION, EMMANUEL R. LEDESMA, JR.,
SPC POWER CORPORATION AND THERMA POWER VISAYAS,
INC., Respondents.
DECISION
VILLARAMA, JR., J.:
In a direct recourse to this Court, Senator Sergio R. Osmeña III (petitioner)
seeks to enjoin the sale of the Naga Power Plant Complex (NPPC) to
respondent SPC Power Corporation (SPC) resulting from the latter's
exercise of the right to top the winning bid of respondent Therma Power
Visayas, Inc. (TPVI), and to declare such stipulation in the Lease Agreement
as void for being contrary to public policy.
Antecedents
Respondent Power Sector Assets and Liabilities Management Corporation
(PSALM) is a government-owned and controlled corporation created by
virtue of Republic Act (R.A.) No. 9136, otherwise known as the Electric
Power Industry Reform Act (EPIRA) of 2001. Its principal purpose is to
manage the orderly sale, disposition, and privatization of the National
211 | J U D I C I A L D E P A R T M E N T C A S E S

Power Corporation's (NPC's) generation assets, real estate and other (LBGT) by way of negotiated sale after a failed bidding in accordance with
disposable assets, and Independent Power Producer (IPP) contracts, with the LBGT Bidding Procedures.5 The land underlying the LBGT was also
the objective of liquidating all NPC financial obligations and stranded leased out for a period of 10 years. This bidding resulted in SPC's
contract costs in an optimal manner.1 Respondent Emmanuel R. Ledesma, acquisition of the LBGT through an Asset Purchase Agreement (LBGT-APA)
Jr. (Ledesma) is the incumbent President and Chief Executive Officer of and lease of the land under a Land Lease Agreement (LBGT-LLA). The LBGT-
PSALM. LLA would expire on January 29, 2020. The LBGT-LLA contained a provision
for SPC's right to top in the event of lease or sale of property which is not
SPC is a joint venture corporation between Salcon Power Corporation and part of the leased premises.
Korea Power Corporation (Kepco).2 TPVI is a subsidiary of AboitizPower,
the power generation company of the Aboitiz Group. On December 27, 2013, the Board of Directors of PSALM approved the
commencement of the 3rd Round of Bidding for the sale of the 153.1-MW
PSALM provided the following brief description of the two (2) facilities NPPC. Only SPC and TPVI submitted bids. On March 31, 2014, TPVI was
subject of the present controversy: declared as the highest bidder. Consequently, a Notice of Award 6 was
issued to TPVI on April 30, 2014, subject to SPC's right under Section 3.02
Facility Naga Power Plant Complex Land-Based Gas of the LBGT-LLA, as previously stated in Section 1B-20 of the Bidding
Name (NPPCx) Turbine (LBGT) Procedures.
Location Brgy. Colon, Naga,Cebu Brgy. Colon, Naga, The results of the NPPC bidding are as follows:
Cebu
Power a. 52.5 MW Cebu 1 coal-fired thermal 55-MW Naga LBGT TPVI SPC
Plants power plant; Power Plant
Installed a. Purchase Price 441,191,500.00 211,391,388.88
b. 56.8 MW Cebu 2 coal-fired thermal b. Rentals 588,735,000.00 588,735,000.00
power plants; and c. Option Price 58,873,500.00 58,873,500.00
Financial Bid, PHP 1,088,800,000.00 858,999,888.887
c. 43.8 MW Cebu Diesel Power Plant 1
composed of six (6)7.3 MW bunker-C fed
power units In a letter dated April 29, 2014, PSALM notified SPC of TPVI's winning bid
which covers the purchase of the NPPC and lease of the land. It also
Total 153.10 MW 55.00 MW advised SPC that under the terms of LBGT-LLA (Sections 2.01 and 3.02), the
Rated lease of the land (as governed by the LBGT-LLA) will likewise expire on
Capacity January 29, 2020.8 In a letter-reply dated May 7, 2014, SPC confirmed that
Land Area 209,000.00 [sq. m.] 5,504.02 [sq. m.]3 it is exercising the right to top the winning bid of TPVI and will pay the
amount of Php1,143,240,000.00 on the understanding that the term of the
The Naga Land-Based Gas Turbine (LBGT) is located inside the same lease is 25 years from Closing Date. SPC argued that -
compound as the NPPC.4
As SPC also participated in the bidding, the bid for the lease component
On October 16, 2009, PSALM privatized the 55-MW Naga Power Plant clearly computed on the basis of, and was for twenty-five (25) years.
212 | J U D I C I A L D E P A R T M E N T C A S E S
However, by now stating in your letter that the "lease has a Term often
(10) years and will expire on 29 January 2020," SPC would effectively have
less than six (6) years from today to use the property, which is extremely
short for the lease component computed and based on the twenty-five
(25) year term that was offered during the bidding. While we are aware
that the second paragraph of Section 3.02 of the LLA-LBGT provides that
the property covered by the right to top will be "governed" by the LLA-
LBGT, we are of the reasonable belief that this does not include "Term"
under Section 2.01 thereof considering that the "Draft Land Lease
Agreement for the 153.1-MW Naga Power Plant," which formed part of
the bid documents, specifically provided for a "Term" of twenty-five (25)
years.9
PSALM then wrote the Office of the Government Corporate Counsel
(OGCC) requesting for legal opinion or confirmation of its position that the
term of the lease of the NPPC upon SPC's exercise of its right to top would
be for the remaining period of the lease of the land of the Naga LBGT
Power Plant, which will expire in 2020.10
On May 21, 2014, the OGCC rendered Opinion No. 098, Series of 2014
which upheld PSALM's position that SPC may exercise the right to top
under the LBGT-LLA provisions, the source of such right. It explained that
the NPPC-LLA is a separate and distinct transaction which is inapplicable
with respect to SPC's right to top.11
However, upon re-evaluation of the arguments in the position papers
submitted by SPC and PSALM, the OGCC submitted its study and
recommendation to Secretary of Justice Leila M. De Lima. The study
concluded that the right to top exercised by SPC in the NPPC bidding is a
right to top on a sale, which must then be separately governed by the
NPPC-APA, and implemented in accordance with the NPPC-APA and LLA
provisions.12
On June 16, 2014, the present petition was filed in this Court praying that
(1) a temporary restraining order (TRO) be issued  ex parte, and after
hearing the parties, a writ of preliminary injunction be issued enjoining
PSALM from implementing SPC's exercise of its right to top in connection
with the NPPC bidding; (2) SPC's right to top as provided in Section 3.02 of
the LBGT-LLA be declared void; and (3) a permanent injunction be issued
enjoining respondents Ledesma and PSALM from committing any act in
furtherance of SPC's exercise of the right to top.13
SPC, TPVI and PSALM filed their respective Comments on the petition,
while SPC filed a Reply to TPVI's Comment and petitioner his Reply to
PSALM's Comment.
On August 7, 2014, SPC filed a Manifestation with Motion informing this
Court that on July 28, 2014, PSALM advised that PSALM's Board of
Directors has already declared SPC as the winning bidder for the
privatization of NPPC. It thus contended that with this development, the
present petition had become moot.14
On August 11, 2014, petitioner filed a Supplemental Petition with Motion
for Early Resolution of the Application for Temporary Restraining Order
and/or Writ of Preliminary Injunction. 15 According to petitioner, the
transfer and possession to SPC of the NPPC and of the land on which it is
built should be deferred until after this Court has ruled on his petition due
to the following reasons: (1) there seems to be no urgency for PSALM to
rush the award of the NPPC; (2) by the execution of the subject NPPC-APA
and LLA in favor of SPC, PSALM has invalidly awarded a government
property without the requisite public bidding; and (3) there are practical
difficulties and expense that will be incurred in order to reverse acts that
are committed before any provisional or preventive relief is issued, such as
transfer of ownership and/or possession of the properties in SPC's name or
to third parties, and potential liability of the Government under suit for
damages to be filed by any interested party.
On November 11, 2014, PSALM filed a Manifestation in Lieu of Comment
to the Supplemental Petition,16 stating that: (1) PSALM's Board of Directors,
in a meeting held on July 25, 2014, taking into consideration the OGCC's
letter dated June 13, 2014 and the DOJ's opinion-letter dated June 23,
2014, declared SPC as the winning bidder for the sale of 153.1-MW NPPC;
(2) PSALM issued on July 28, 2014 the Notice of Award and Certificate of
Effectivity in favor of SPC; (3) the NPPC-APA and LLA were already signed
and delivered to SPC; and (4) PSALM turned over the properties to SPC last
September 25, 2014.
213 | J U D I C I A L D E P A R T M E N T C A S E S
Petitioner's Arguments
Petitioner asserts that the right to top provision in the LBGT-LLA is an
option contract which must be supported by a consideration separate from
the lease contract and may be withdrawn at any time by PSALM in the
absence of such consideration. He submits that SPC's preferential right to
buy or lease "any property in the vicinity of the Leased Premises which is
not part of the Leased Premises" was a gratuitous concession to SPC, and
most likely was part of a scheme to bar any competition to SPC and to
restrict the production of energy. Citing Power Sector Assets and Liabilities
Management Corporation v. Pozzolanic Philippines
Incorporated,17 petitioner argues that the right of first refusal is upheld
only in cases where the holder of such right holds an existing, or at least, a
vested interest in the object for which the right is to be exercised. Thus,
even if SPC has a legal interest in the vicinity lots, its right to top can no
longer be exercised because it is not operating the Naga LBGT itself.
Another legal ground for the nullity of the option raised by petitioner
pertains to the policy requiring competitive public bidding in all
government contracts. Petitioner contends that by granting SPC the right
to top, PSALM violated the express provisions of R.A. No. 9136 (EPIRA Law)
and R.A. No. 9184 (Procurement Law) on public bidding by failing to
maintain bidders on equal footing in order to give the government the best
possible and available offer for public assets being sold or leased. He posits
that SPC's exercise of its right to top is disadvantageous to the Government
and that the provision enables SPC to skirt around eligibility requirements
for a qualified bidder.
Alleging an anomalous track record for SPC since 1994 when as then Salcon
Power Corporation it entered into a 15-year contract to "Rehabilitate,
Operate, Maintain and Manage" a coal plant, petitioner argues that the
2009 Naga LBGT contract should have been terminated for SPC's failure to
comply with its obligations. Under the 2009 Naga LBGT, not only does SPC
enjoy an invalid option or preferential right unsupported by any
consideration, such right to top is also without a determinate object and
founded on illegal cause considering that it was merely intended to
maintain SPC's dominance and to assist SPC in restricting competition.
Respondents' Arguments
At the outset, SPC questions petitioner's legal standing to file the present
petition, having failed to establish any personal benefit in the event relief is
granted, and there being no expenditure of public funds involved that
would impress upon the petition the character of a taxpayer's suit. Neither
could petitioner invoke his office as a Senator because legislators may only
be accorded standing to sue if there is a claim that official action
complained of infringes upon their prerogative as legislators. Petitioner
could also not have anchored his standing upon his status as a citizen as he
failed to demonstrate how he would suffer personal injury as a result of
respondents' acts and erroneously invoked this Court's jurisdiction to rule
on a policy issue relating to the manner PSALM carries out its mandate,
even as he failed to cite specific provision in the law and in EPIRA which
was supposedly violated by the petitioner.
On procedural grounds, SPC seeks the dismissal of the petition as there is
no basis for annulling PSALM's acts by way of a petition for certiorari or
prohibition, and said petition was not filed within the 60-day reglementary
period from the time the Naga LBGT contract incorporating the right to top
was awarded to SPC in 2009 and the issuance of DOJ opinion dated January
9, 2013 wherein SPC's right to top was held to be valid and not disallowed
by law.
SPC asserts that even on substantive grounds, the petition should still be
dismissed as the right to top is clearly not an option contract and the Naga
LBGT was validly awarded to SPC through a public bidding. Citing JG
Summit Holdings, Inc. v. Court of Appeals.,18 SPC maintains that the right to
top granted under the LBGT-LLA and exercised by it did not violate the
rules of competitive bidding. The implementation of such right to top,
moreover, does not place the Government in a disadvantaged position but
rather assures the Government of an additional 5% of the highest
reasonable bid. SPC thus argues that the right to top provision in the LBGT-
LLA is consistent with public policy and there is no law that invalidates such
provision, such that SPC's vested right should not be disregarded.
On its part, PSALM notes that similar right to top provisions are found in
several other land lease agreements in its privatization undertakings. In the
214 | J U D I C I A L D E P A R T M E N T C A S E S
2013 Bidding Procedures for the 3rd Round of Bidding for the NPPC,
PSALM duly disclosed to the potential bidders the right to top provision
under the LBGT-LLA (Sections 1B-05 and 1B-20 and Form of Certificate
Closing for Seller). PSALM avers that it simply complied with the opinions
rendered by the DOJ and the second opinion of the OGCC, which have
been held persuasive and hence it acted in good faith in subsequently
allowing SPC to exercise its right to top the winning bid for the purchase of
NPPC and lease of the land.
TPVI concurs with the allegations in the petition which it said are sufficient
to vest standing upon petitioner as citizen, taxpayer, Senator and Chairman
of the Joint Congressional Power Committee (Committee). It likewise finds
the petition for certiorari as the proper remedy in view of the grave abuse
of discretion committed by PSALM in determining the terms of reference
of the public bidding to be conducted, as well as in determining the
qualifications of the bidders. As to the timeliness of the petition, TPVI
points out that SPC exercised its right to top only on May 29, 2014 and
therefore the 60-day period within which to file a petition
for certiorari under Rule 65 started only from that date.
Citing LTFRB v. Stronghold Insurance Company, Inc.,19 TPVI argues that the
right of first refusal and right to top provisions contravene the public policy
on competitive public bidding and are valid only in specific cases. In this
case, SPC owns a power generation asset (LBGT) and has interest only over
the land on which the LBGT is located. TPVI underscores that the right to
top in the LBGT does not stand in the same footing as the right to top
granted under the other Land Lease Agreements entered into by PSALM,
considering the nature of the gas turbine facility it owns. TPVI further
contends that aside from SPC's continuous breach of its obligation to
operate the Naga LBGT, the right to top provision in the LBGT-LLA provides
SPC with the ability to prevent any entity from successfully bidding for and
ultimately owning the LBGT and leasing the land. Hence, the Government
does not stand to benefit from the right to top provision in the LBGT-LLA.
Assuming the right to top is valid, still TPVI maintains that SPC failed to
timely exercise the same within the period provided therefor, or until May
30, 2014. Moreover, SPC's letter dated May 7, 2014 and subsequent
deposit in PSALM's account of the amount to cover the right to top is not
the exercise sanctioned under the LBGT-LLA, and SPC's insistence on a 25-
year term instead of the remaining term of the LBGT-LLA is an erroneous
and invalid exercise of such right to top.
Replying to TPVI's arguments, SPC contends that the right to top is valid
and its validity was upheld by the DOJ in its Opinion dated January 9, 2013.
Contrary to the averment that the right to top was a gratuitous concession,
SPC clarified that it participated and won in the bidding conducted for the
sale of LBGT and lease of the land which included the right to top
provision, of which TPVI was well aware. During the bidding for the NPPC,
all bidders were given an equal chance of winning and none of them
challenged SPC's right to top which was duly disclosed to them. SPC further
asserts that the right to top is more advantageous to the Government
considering that the bidders tend to offer only competitive bids knowing
that their bids can be "topped out" by SPC, and hence the Government is
assured of receiving an offer even better than the best bid tendered during
the bidding proper.
As to the alleged lack of interest over the object of the right to top, SPC
points out that it was the bidders' concern that the buyer of the power
plant obtain reasonable access to properties or lands in close proximity to
the power plant for purposes of security, right of way or other operational
requirements. SPC further avers that it has timely exercised the right to top
as can be gleaned from its May 20, 2014 letter informing PSALM that SPC
already wired to PSALM the winning bid of Php 1,143,240,000.00, which is
equivalent to the amount tendered by the winning bidder plus 5%.
Issues
From the foregoing, the issues may be summarized as follows: (1)
Is certiorari the proper remedy and was it timely filed?; (2) Does petitioner
possess legal standing to institute the present action questioning the
validity of SPC's right to top?; (3) Do right to top provisions in the land
lease agreements entered into by PSALM contravene public policy on
competitive bidding?; and (4) Did PSALM gravely abuse its discretion in
allowing SPC's exercise of the right to top under the LBGT-LLA?
Our Ruling
215 | J U D I C I A L D E P A R T M E N T C A S E S
The petition is meritorious.
Propriety of Certiorari
The Constitution under Section 1, Article VIII expressly directs the Judiciary,
as a matter of power and duty, not only to settle actual controversies
involving rights which are legally demandable and enforceable but, to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government. We thus have the duty to take
cognizance of allegations of grave abuse of discretion in this
case,20 involving the sale by PSALM of a power plant, which supposedly
contravenes the policy on competitive public bidding.
R.A. No. 9136 created PSALM for the principal purpose of undertaking the
mandated privatization of all disposable assets of the NPC as well as IPP
contracts in an optimal manner.21 Such disposition is made subject to all
existing laws, rules and regulations. Thus, the implementing rules of R.A.
No.  9136 provided guidelines in the privatization to be conducted by
PSALM, among which are:
(a) The Privatization value to the National Government of the NPC
generation assets, real estate, other disposable assets as well as IPP
contracts shall be optimized;cralawlawlibrary
xxxx
(d) All assets of NPC shall be sold in an open and transparent manner
through public bidding, and the same shall apply to the disposition of IPP
contracts;cralawlawlibrary
x x x x22  (Emphasis supplied)ChanRoblesVirtualawlibrary
Specifically Section 51 (m) of the EPIRA empowered PSALM "[t]o
restructure the sale, privatization or disposition of NPC assets and IPP
contracts and/or their energy output based on such terms and conditions
which shall optimize the value and sale prices of said assets." Any act of
PSALM that violates these provisions and other applicable laws may
constitute grave abuse of discretion. There is grave abuse of discretion (1)
when an act is done contrary to the Constitution, the law or jurisprudence;
or (2) when it is executed whimsically, capriciously or arbitrarily out of
malice, ill will or personal bias.23
However, the implementation of EPIRA may not be restrained or enjoined
except by order issued by this Court.24 Petitioner's resort to this Court to
obtain an order enjoining PSALM's privatization of the NPPC through SPC's
invalid exercise of its right to option, was therefore proper and justified.
Legal Standing
We have held that legislators have the standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in their
office and are allowed to sue to question the validity of any official action
which they claim infringes their prerogatives as legislators. 25 In this case,
there was no allegation of usurpation of legislative function as petitioner is
suing in his capacity as Chairperson of the Committee created pursuant to
Section 62 of R.A. No. 9136. Such position by itself is not sufficient to vest
petitioner with standing to institute the present suit. Notably, the
enumerated functions of the Committee under the aforesaid provision are
basically "in aid of legislation."
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public
interest."26 When the proceeding involves the assertion of a public right,
the mere fact that the petitioner is a citizen satisfies the requirement of
personal interest.27
The privatization of power plants in a manner that ensures the reliability
and affordability of electricity in our country pursuant to the EPIRA is an
issue of paramount public interest. Petitioner has underscored the effect
of the right to top provision in preventing a competitive public bidding for
the NPPC. While the alleged detrimental result referred to the severe
216 | J U D I C I A L D E P A R T M E N T C A S E S
power shortage that occurred in only one region, PSALM had admitted that
the right to top provisions are also found in several other land lease
agreements.
In the light of the foregoing considerations, we hold that petitioner
possesses the requisite legal standing to file this case.
Validity  of Right  to
Top provision in LBGT-LLA
The provision in the LBGT-LLA which is assailed in the present petition
reads:
3.02 Exclusive Right of LESSOR
Nothing in this Agreement shall limit the right of the LESSOR to sell, lease,
alienate or encumber any property in the vicinity of the Leased Premises
which is not part of the Leased Premises to any Person; provided, the
LESSEE shall have the right to top the price of the winning bidder for the
sale or lease of such property. In exercising the right to top, the LESSEE
must exceed the bid of the winning bidder by five percent (5%). The right
to top granted to the LESSEE must be exercised and paid within a period of
thirty (30) days from the receipt of written notice from the LESSOR
notifying the LESSEE of the result of the bidding or negotiation and the
price of the winning bid.
In the event of a lease, upon the exercise by the LESSEE of the right to top
granted herein, the property covered by it shall form part of the Leased
Premises and shall be governed by this Agreement. In the event of a sale,
upon the exercise by the LESSEE of the right to top granted herein, the
property covered by the sale shall not form part of the Leased Premises. 28
A right to top is a variation of the right of first refusal often incorporated in
lease contracts. When a lease contract contains a right of first refusal, the
lessor is under a legal duty to the lessee not to sell to anybody at any price
until after he has made an offer to sell to the latter at a certain price and
the lessee has failed to accept it. The lessee has a right that the lessor's
first offer shall be in his favor.29 While sometimes referred to as a "first
option to buy" or "option of first refusal," a right of first refusal is not an
option contract. We explained the distinction between a right of first
refusal and option to purchase in Spouses Vasquez v. Ayala
Corporation,30 to wit:
The Court has clearly distinguished between an option contract and a right
of first refusal. An option is a preparatory contract in which one party
grants to another, for a fixed period and at a determined price, the
privilege to buy or sell, or to decide whether or not to enter into a principal
contract. It binds the party who has given the option not to enter into the
principal contract with any other person during the period designated, and
within that period, to enter into such contract with the one to whom the
option was granted, if the latter should decide to use the option. It is a
separate and distinct contract from that which the parties may enter into
upon the consummation of the option. It must be supported by
consideration.
In a right of first refusal, on the other hand, while the object might be
made determinate, the exercise of the right would be dependent not only
on the grantor's eventual intention to enter into a binding juridical relation
with another but also on terms, including the price, that are yet to be
firmed up.31
We disagree with petitioner's theory that SPC's right of first refusal should
be declared void as it was not supported by a separate consideration. As
we held in Polytechnic University of the Philippines v. Golden Horizon
Realty Corporation32:
Indeed, basic is the rule that a party to a contract cannot unilaterally
withdraw a right of first refusal that stands upon valuable consideration.
We have categorically ruled that it is not correct to say that there is no
consideration for the grant of the right of first refusal if such grant is
embodied in the same contract of lease. Since the stipulation forms part
of the entire lease contract, the consideration for the lease includes the
consideration for the grant of the right of first refusal. In entering into the
contract, the lessee is in effect stating that it consents to lease the
premises and to pay the price agreed upon provided the lessor also
consents that, should it sell the leased property, then, the lessee shall be
217 | J U D I C I A L D E P A R T M E N T C A S E S
given the right to match the offered purchase price and to buy the
property at that price.33 (Emphasis supplied)
Stipulations on right of first refusal over the leased premises have been
held to be valid as they are commonly inserted in contracts of lease for the
benefit of lessees who wanted to be assured that they shall be given the
first crack or the first option to buy the property at the price which the
owner is willing to accept. Where such right of first refusal is incorporated
in lease contracts involving public assets, however, courts go beyond
ascertaining and giving effect to the intent of the contracting parties. For in
this jurisdiction, public bidding is the established procedure in the grant of
government contracts. The award of public contracts, through public
bidding, is a matter of public policy. 34
In the award of government contracts, the law requires a competitive
public bidding, which aims to protect the public interest by giving the
public the best possible advantages thru open competition. It is a
mechanism that enables the government agency to avoid or preclude
anomalies in the execution of public contracts. 35
In JG Summit Holdings, Inc. v. Court of Appeals,36 this Court was presented
with the issue of validity of right of first refusal granted to both parties
under a joint venture agreement between a government corporation
(National Investment and Development Corporation) and private firm
(Kawasaki Heavy Industries, Ltd. of Kobe, Japan) should either of them
decide to sell, assign or transfer its interest in the joint venture. In the
subsequent negotiations for the sale of the government's interest, it was
agreed that Kawasaki's right of first refusal be exchanged for the right to
top by five percent (5%) the highest bid for the subject shares. We initially
granted the petition for review on certiorari and reversed the Court of
Appeals' dismissal of the petition for mandamus questioning the aforesaid
right to top which was held illegal not only because it violates the rules on
competitive bidding but more so because it allows foreign corporations to
own more than 40% equity in the shipyard.
On motions for reconsideration filed by the parties, we ruled that the right
to top granted to and exercised by Kawasaki did not violate the rules on
competitive bidding, viz:
We also hold that the right to top granted to KAWASAKI and exercised by
private respondent did not violate the rules of competitive bidding.
The word "bidding" in its comprehensive sense means making an offer or
an invitation to prospective contractors whereby the government
manifests its intention to make proposals for the purpose of supplies,
materials and equipment for official business or public use, or for public
works or repair. The three principles of public bidding are: (1) the offer to
the public; (2) an opportunity for competition; and (3) a basis for
comparison of bids. As long as these three principles are complied with,
the public bidding can be considered valid and legal, x x x
xxxx
In the instant case, the sale of the Government shares in PHILSECO was
publicly known. All interested bidders were welcomed. The basis for
comparing the bids were laid down. All bids were accepted sealed and
were opened and read in the presence of the COA's official representative
and before all interested bidders. The only question that remains is
whether or not the existence of KAWASAKI's right to top destroys the
essence of competitive bidding so as to say that the bidders did not have
an opportunity for competition. We hold that it does not.
The essence of competition in public bidding is that the bidders are
placed on equal footing. This means that all qualified bidders have an
equal chance of winning the auction through their bids. In the case at bar,
all of the bidders were exposed to the same risk and were subjected to the
same condition,  i.e., the existence of KAWASAKI's right to top. Under the
ASBR, the Government expressly reserved the right to reject any or all bids,
and manifested its intention not to accept the highest bid should
KAWASAKI decide to exercise its right to top under the ABSR. This
reservation or qualification was made known to the bidders in a pre-
bidding conference held on September 28, 1993. They all expressly
accepted this condition in writing without any qualification. Furthermore,
when the Committee on Privatization notified petitioner of the approval of
the sale of the National Government shares of stock in PHILSECO, it
specifically stated that such approval was subject to the right of KAWASAKI
Heavy Industries, Inc./Philyards Holdings, Inc. to top JGSMI's bid by 5% as
218 | J U D I C I A L D E P A R T M E N T C A S E S
specified in the bidding rules. Clearly, the approval of the sale was a
conditional one. Since Philyards eventually exercised its right to top
petitioner's bid by 5%, the sale was not consummated. Parenthetically, it
cannot be argued that the existence of the right to top "set for naught
the entire public bidding." Had Philyards Holdings, Inc. failed or refused to
exercise its right to top, the sale between the petitioner and the National
Government would have been consummated. In like manner, the existence
of the right to top cannot be likened to a second bidding, which is
countenanced, except when there is failure to bid as when there is only
one bidder or none at all. A prohibited second bidding presupposes that
based on the terms and conditions of the sale, there is already a highest
bidder with the right to demand that the seller accept its bid. In the instant
case, the highest bidder was well aware that the acceptance of its bid
was conditioned upon the non-exercise of the right to top.
To be sure, respondents did not circumvent the requirements for bidding
by granting KAWASAKI, a non-bidder, the right to top the highest bidder.
The fact that KAWASAKI's nominee to exercise the right to top has among
its stockholders some losing bidders cannot also be deemed "unfair."
It must be emphasized that none of the parties questions the existence of
KAWASAKI's right of first refusal, which is concededly the basis for the
grant of the right to top. Under KAWASAKI's right of first refusal, the
National Government is under the obligation to give preferential right to
KAWASAKI in the event it decides to sell its shares in PHILSECO. It has to
offer to KAWASAKI the shares and give it the option to buy or refuse under
the same terms for which it is willing to sell the said shares to third parties.
KAWASAKI is not a mere non-bidder. It is a partner in the joint venture; the
incidents of which are governed by the law on contracts and on
partnership.
It is true that properties of the National Government, as a rule, may be
sold only after a public bidding is held. Public bidding is the accepted
method in arriving at a fair and reasonable price and ensures that
overpricing, favoritism and other anomalous practices are eliminated or
minimized. But the requirement for public bidding does not negate the
exercise of the right of first refusal. In fact, public bidding is an essential
first step in the exercise of the right of first refusal because it is only after
the public bidding that the terms upon which the Government may be
said to be willing to sell its shares to third parties may be known. It is
only after the public bidding that the Government will have a basis with
which to offer KAWASAKI the option to buy or forego the
shares.37 (Emphasis supplied)ChanRoblesVirtualawlibrary
The above-cited case involved a right of first refusal in favor of a
contracting party which did not participate in the bidding conducted for
the sale of the subject shares. In Power Sector Assets and Liabilities
Management Corporation v. Pozzolanic Philippines Incorporated,38 the right
of first refusal was held invalid for being contrary to public policy, as it
dispensed with public bidding for future sale of waste products by the NPC.
Respondent therein had earlier won the public bidding for the purchase of
the fly ash generated by NPC's power plant in Batangas. Subsequently,
after negotiations, NPC entered into a long-term contract with respondent
for the purchase of fly ash to be produced by NPC's future coal-fired plants.
The provision granting the right of first refusal to respondent reads:
PURCHASER has first option to purchase Fly Ash under similar terms and
conditions as herein contained from the second unit of Batangas Coal-Fired
Thermal Plant that the CORPORATION may construct. PURCHASER may
also exercise the right of first refusal to purchase fly ash from any new
coal-fired plants which will be put up by CORPORATION.39
We held that the grant of first refusal to respondent constitutes an
unauthorized provision in the contract that was entered into pursuant to
the bidding, having been contractually bargained for by respondent after it
won the public bidding for the purchase of fly ash from NPC's Batangas
Power Plant. We noted that not only did the provision substantially
amended the terms of the contract bidded upon — so that resultantly, the
other bidders were deprived of the terms and opportunities granted to
respondent after it won the public auction -- it so altered the bid terms by
effectively barring any and a true biddings in the future. The right of first
refusal being contrary to public policy that government contracts must be
awarded through public bidding, it was therefore invalid and have no
binding effect nor does it confer a preferential right upon respondent to
the fly ash of NPC's power plants.
219 | J U D I C I A L D E P A R T M E N T C A S E S
Relevantly, we also held that the grant of right of first refusal to
respondent has no basis whatsoever considering that the bidding subject
was still inexistent. Thus:
Two: The right to buy fly ash precedes and is the basis of the right of first
refusal, and the consequent right cannot be acquired together with and at
the same time as the precedent right.
The right of first refusal has long been recognized, both legally and
jurisprudentially, as valid in our jurisdiction. It is significant to note,
however, that in those cases where the right of refusal is upheld by both
law and jurisprudence, the party in whose favor the right is granted has
an interest on the object over which the right of first refusal is to be
exercised. In those instances, the grant of the right of first refusal is a
means to protect such interest.
Thus, Presidential Decree (P.D.) No. 1517, as amended by P.D. No. 2016,
grants to qualified tenants of land in areas declared as urban land reform
zones, the right of first refusal to purchase the same within a reasonable
time and at a reasonable price. The same right is accorded by Republic Act
No. 7279 (Urban Development and Housing Act of 1992) to qualified
beneficiaries of socialized housing, with respect to the land they are
occupying. Accordingly, in Valderama v. Macalde, Paranaque Kings
Enterprises, Inc. v. Court of Appeals, and Conculada v. Court of Appeals, the
Supreme Court sustained the tenant's right of first refusal pursuant to P.D.
1517.
In Polytechnic University of the Philippines v. Court of Appeals and
Polytechnic University of the Philippines v. Golden Horizon Realty
Corporation, this Court upheld the right of refusal of therein respondent
private corporations concerning lots they are leasing from the
government.
In the case of Republic v. Sandiganbayan, the Presidential Commission on
Good Government (PCGG) sought to exercise its right of first refusal as a
stockholder of Eastern Telecommunications Philippines, Inc. (ETPI), a
corporation sequestered by the PCGG, to purchase ETPI shares being sold
by another stockholder to a non-stockholder. While the Court recognized
that PCGG had a right of first refusal with respect to ETPI's shares, it
nevertheless did not sustain such right on the ground that the same was
not seasonably exercised.
Finally, in Litonjua v. L & R Corporation, the Supreme Court recognized the
validity and enforceability of a stipulation in a mortgage contract granting
the mortgagee the right of first refusal should the mortgagor decide to
sell the property subject of the mortgage.
In all the foregoing cases, the party seeking to exercise the right has a
vested interest in, if not a right to, the subject of the right of first refusal.
Thus, on account of such interest, a tenant (with respect to the land
occupied), a lessee (vis-a-vis the property leased), a stockholder (as
regards shares of stock), and a mortgagor (in relation to the subject of the
mortgage), are all granted first priority to buy the property over which they
have an interest in the event of its sale. Even in the JG Summit Case, which
case was heavily relied upon by the lower court in its decision and by
respondent in support of its arguments, the right of first refusal to the
corporation's shares of stock - later exchanged for the right to top -
granted to KAWASAKI was based on the fact that it was a shareholder in
the joint venture for the construction, operation, and management of the
Philippine Shipyard and Engineering Corporation (PHILSECO).
In the case at bar, however, there is no basis whatsoever for the grant to
respondent of the right of first refusal with respect to the fly ash of NPC
power plants since the right to purchase at the time of bidding is that
which is precisely the bidding subject, not yet existent much more vested
in respondent.40 (Emphasis and underscoring supplied; citations omitted)
In this case, all potential bidders were aware of the existence of SPC's right
to top as duly disclosed in the Bidding Procedures for the 3rd Round of
Bidding for the NPPC.41 TPVI did not question the said right to top and
participated in the bidding where SPC was also a bidder. Emerging as the
winning bidder, TPVI nevertheless knew that the acceptance of its bid was
subject to SPC's exercise of the right to top by confirming its exercise of the
right of first refusal and paying the amount of the winning bid plus five
percent (5%).
220 | J U D I C I A L D E P A R T M E N T C A S E S
Notwithstanding compliance with the conduct of bidding and procedures,
we hold that SPC's right to top under the LBGT-LLA is void for lack of a valid
interest or right to the object over which the right of first refusal is to be
exercised. First, the property subject of the right of first refusal is outside
the leased premises covered by the LBGT-LLA. Second, the right of first
refusal refers not only to land but to any property within the vicinity of the
leased premises, as in this case, an entire power plant complex (NPPC) and
the land on which it is built. And third, while SPC cited concerns regarding
security, right of way or other operational requirements, these are clearly
not analogous to a lessee's legitimate interest on the property being
leased. Indeed, acquisition of a three coal-fired thermal plants with far
greater generating capacity than the gas turbine plant currently owned by
SPC will not be merely for purposes of the latter's reasonable access,
security or present operational needs. Besides, no such right or interest
may be invoked by SPC because, as confirmed by PSALM itself, SPC never
operated the Naga LBGT.
More recently, in LTFRB v. Stronghold Insurance Company,42 we declared as
void the right to match clause in a memorandum of agreement which was
being invoked by respondent after it failed to meet capitalization
requirements and was consequently excluded by the petitioner from the
pool of qualified bidders for the third round of bidding to accredit
providers of accident insurance to operators of passenger public utility
vehicles. The CA granted respondent's petition for prohibition and nullified
the said bidding proceedings. On appeal, we reversed the CA and found no
grave abuse of discretion committed by the LTFRB, viz:
The Matching Clause in the First MOA, which Stronghold invokes as basis
for its right to participate in the third round of bidding,
provides:chanRoblesvirtualLawlibrary
[T]he two management groups herein shall be given the right to match the
best bid/proposal in event another management group qualifies at the end
of the term of this agreement[.]ChanRoblesVirtualawlibrary
The Court of Appeals sustained Stronghold's claim, effectively reading the
Matching Clause to vest in Stronghold not only "the right to match the best
bid/proposal in event another management group qualifies at the end of
the term of this agreement," but also the prerogative not to comply with
the terms of the succeeding bidding. We find it unnecessary to pass upon
the correctness of the Court of Appeals' construction of the Matching
Clause. It is, in the first place, void.
The Matching Clause contains what is referred to in contract law as the
right of first refusal or the "right to match." Such stipulations grant to a
party the right to offer the same amount as the highest bid to beat the
highest bidder. "Right to match" stipulations are different from
agreements granting to a party the so-called "right to top." Under the
latter arrangement, a party is accorded the right to offer a higher amount,
usually a fixed sum or percentage, to beat the highest bid.
In the field of public contracts, these stipulations are weighed with the
taint of invalidity for contravening the policy requiring government
contracts to be awarded through public bidding. Unless clearly falling
under statutory exceptions, government contracts for the procurement of
goods or services are required to undergo public bidding "to protect the
public interest by giving the public the best possible advantages thru open
competition." The inclusion of a right of first refusal in a government
contract executed post-bidding, as here, negates the essence of public
bidding because the stipulation "gives the winning bidder an x x x
advantage over the other bidders who participated in the bidding x x x."
Moreover, a "right of first refusal", " or "right to top," whether granted to
a bidder or non-bidder, discourages other parties from submitting bids,
narrowing the number of possible bidders and thus preventing the
government from securing the best bid.
These clauses escape the taint of invalidity only in the narrow instance
where the right of first refusal (or "right to top") is founded on the
beneficiary's "interest on the object over which the right of first refusal is
to be exercised" (such as a "tenant with respect to the land occupied, a
lessee vis-a-vis the property leased, a stockholder as regards shares of
stock, and a mortgagor in relation to the subject of the mortgage") and the
government stands to benefit from the stipulation. Thus, we upheld the
validity of a "right to top" clause allowing a private stockholder in a
corporation to top by 5% the highest bid for the shares disposed by the
government in that corporation. Under the joint venture agreement
creating the corporation, a party had the right of first refusal in case the
other party disposed its shares. The government, the disposing party in the
221 | J U D I C I A L D E P A R T M E N T C A S E S

joint venture agreement, benefitted from the 5% increase in price under prayed for accordingly GRANTED. The right of first refusal (right to top)
the "right to top," on outcome better than the right of first refusal. granted to Salcon Power Corporation under the 2009 Naga LBGT-LLA is
hereby declared NULL and VOID. Consequently, the Asset Purchase
The Matching Clause in this case does not fall under this narrow Agreement (NPPC-APA) and Land Lease Agreement (NPPC-LLA) executed
exception. The First MOA (and for that matter the Second MOA) was a by the Power Sector Assets and Liabilities Management Corporation and
contract for the procurement of services; hence, there is no "object" over SPC are ANNULLED and SET ASIDE.
which Stronghold can claim an interest which the Matching Clause
protects. Nor did the government benefit from the inclusion of the No costs.
Matching Clause in the First MOA. The Matching Clause was added in the
First MOA "in consideration, x x x of the initial investment and the SO ORDERED.chanroblesvirtuallawlibrary
assumption of initial risk" of the two accredited management groups.
These "initial investment" and "initial risk," however, are inherent in the
business of providing accident insurance to public utility vehicle operators,
which the bidders for the First MOA, including Stronghold's group
UNITRANS, logically took into account when they submitted their bids to
LTFRB. The government was under no obligation to reward the accredited
insurers' investment and risk-taking with a right of first refusal stipulation
at the expense of denying the public the benefits public bidding brings, and
did bring, to select the insurance providers in the Second MOA.43
(Emphasis supplied)

In the light of the foregoing, we hold that the grant of right to top to SPC
under the LBGT-LLA is void as it is not founded on the said lessee's
legitimate interest over the leased premises. SPC's argument that the
privatization of NPPC was even more advantageous to the Government,
simply because it resulted in a higher price (Php54 million more) than EN BANC
TPVI's winning bid, is likewise untenable. Whatever initial gain from the
higher price obtained for the NPPC compared to the original bid price of August 8, 2017
TPVI is negated by the fact that SPC's right to top had discouraged more
potential buyers from submitting their bids, knowing that even their most G.R. No. 225442
reasonable bid can be defeated by SPC's exercise of its right to top. In fact,
only SPC and TPVI participated in the 3rd Round of Bidding. Attracting as SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK),* JOANNE ROSE
many bidders to participate in the bidding for public assets is still the SACE LIM, JOHN ARVIN NAVARRO BUENAAGUA, RONEL BACCUTAN,
better means to secure the best bid for the Government, and achieve the MARK LEO DELOS REYES, and CLARISSA JOYCE VILLEGAS, minor, for
objective under the EPIRA to private NPC's assets in the most optimal herself and as represented by her father, JULIAN VILLEGAS,
manner. JR., Petitioners,
vs.
WHEREFORE, the petition is hereby GIVEN DUE COURSE and the writ
222 | J U D I C I A L D E P A R T M E N T C A S E S
QUEZON CITY, as represented by MAYOR HERBERT BAUTISTA, CITY OF
MANILA, as represented by MAYOR JOSEPH ESTRADA, and NAVOTAS
CITY, as represented by MAYOR JOHN REY TIANGCO,, Respondents,
DECISION
PERLAS-BERNABE, J.:
This petition for certiorari and prohibition1 assails the constitutionality of
the curfew ordinances issued by the local governments of Quezon City,
Manila, and Navotas. The petition prays that a temporary restraining order
(TRO) be issued ordering respondents Herbert Bautista, Joseph Estrada,
and John Rey Tiangco, as Mayors of their respective local governments, to
prohibit, refrain, and desist from implementing and enforcing these
issuances, pending resolution of this case, and eventually, declare the City
of Manila's ordinance as ultra vires for being contrary to Republic Act No.
(RA) 9344,2 or the "Juvenile Justice and Welfare Act," as amended, and all
curfew ordinances as unconstitutional for violating the constitutional right
of minors to travel, as well as the right of parents to rear their children.
The Facts
Following the campaign of President Rodrigo Roa Duterte to implement a
nationwide curfew for minors, several local governments in Metro Manila
started to strictly implement their curfew ordinances on minors through
police operations which were publicly known as part of "Oplan Rody." 3
Among those local governments that implemented curfew ordinances
were respondents: (a) Navotas City, through Pambayang Ordinansa
Blg. 99- 02,4 dated August 26, 1999, entitled "Nagtatakdang 'Curfew' ng
mga Kabataan na Wala Pang Labing Walong (18) Taong Gulang sa Bayan
ng Navotas, Kalakhang Maynila," as amended by Pambayang Ordinansa
Blg. 2002-13,5 dated June 6, 2002 (Navotas Ordinance); (b) City of Manila,
through Ordinance No. 80466 entitled "An Ordinance Declaring the Hours
from 10:00 P.M. to 4:00 A.M. of the Following Day as 'Barangay Curfew
Hours' for Children and Youths Below Eighteen (18) Years of Age;
Prescribing Penalties Therefor; and for Other Purposes" dated October 14,
2002 (Manila Ordinance); and (c) Quezon City, through Ordinance No. SP-
2301,7 Series of 2014, entitled "An Ordinance Setting for a [sic] Disciplinary
Hours in Quezon City for Minors from 10:00 P.M. to 5:00 A.M., Providing
Penalties for Parent/Guardian, for Violation Thereof and for Other
Purposes" dated July 31, 2014 (Quezon City Ordinance; collectively, Curfew
Ordinances).8
Petitioners,9 spearheaded by the Samahan ng mga Progresibong
Kabataan (SPARK) - an association of young adults and minors that aims to
forward a free and just society, in particular the protection of the rights
and welfare of the youth and minors10 - filed this present petition, arguing
that the Curfew Ordinances are unconstitutional because they: (a) result in
arbitrary and discriminatory enforcement, and thus, fall under the void for
vagueness doctrine; (b) suffer from overbreadth by proscribing or
impairing legitimate activities of minors during curfew hours; (c) deprive
minors of the right to liberty and the right to travel without substantive
due process; and (d) deprive parents of their natural and primary right in
rearing the youth without substantive due process.11 In addition,
petitioners assert that the Manila Ordinance contravenes RA 9344, as
amended by RA 10630.12
More specifically, petitioners posit that the Curfew Ordinances encourage
arbitrary and discriminatory enforcement as there are no clear provisions
or detailed standards on how law enforcers should apprehend and
properly determine the age of the alleged curfew violators. 13 They further
argue that the law enforcer's apprehension depends only on his physical
assessment, and, thus, subjective and based only on the law enforcer's
visual assessment of the alleged curfew violator.14
While petitioners recognize that the Curfew Ordinances contain provisions
indicating the activities exempted from the operation of the imposed
curfews, i.e., exemption of working students or students with evening
class, they contend that the lists of exemptions do not cover the range and
breadth of legitimate activities or reasons as to why minors would be out
at night, and, hence, proscribe or impair the legitimate activities of minors
during curfew hours.15
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Petitioners likewise proffer that the Curfew Ordinances: (a) are
unconstitutional as they deprive minors of the right to liberty and the right
to travel without substantive due process;16 and (b) fail to pass the strict
scrutiny test, for not being narrowly tailored and for employing means that
bear no reasonable relation to their purpose.17 They argue that the
prohibition of minors on streets during curfew hours will not per se protect
and promote the social and moral welfare of children of the community. 18
Furthermore, petitioners claim that the Manila Ordinance, particularly
Section 419 thereof, contravenes Section 57-A20 of RA 9344, as amended,
given that the cited curfew provision imposes on minors the penalties of
imprisonment, reprimand, and admonition. They contend that the
imposition of penalties contravenes RA 9344's express command that no
penalty shall be imposed on minors for curfew violations. 21
Lastly, petitioners submit that there is no compelling State interest to
impose curfews contrary to the parents' prerogative to impose them in the
exercise of their natural and primary right in the rearing of the youth, and
that even if a compelling interest exists, less restrictive means are available
to achieve the same. In this regard, they suggest massive street lighting
programs, installation of CCTV s (closed-circuit televisions) in public streets,
and regular visible patrols by law enforcers as other viable means of
protecting children and preventing crimes at night. They further opine that
the government can impose more reasonable sanctions, i.e., mandatory
parental counseling and education seminars informing the parents of the
reasons behind the curfew, and that imprisonment is too harsh a penalty
for parents who allowed their children to be out during curfew hours. 22
The Issue Before the Court
The primordial issue for the Court's resolution in this case is whether or
not the Curfew Ordinances are unconstitutional.
The Court's Ruling
The petition is partly granted.
I.
At the onset, the Court addresses the procedural issues raised in this case.
Respondents seek the dismissal of the petition, questioning: (a) the
propriety of certiorari and prohibition under Rule 65 of the Rules of Court
to assail the constitutionality of the Curfew Ordinances; (b) petitioners'
direct resort to the Court, contrary to the hierarchy of courts doctrine;
and (c) the lack of actual controversy and standing to warrant judicial
review.23
A. Propriety of the Petition for
Certiorari and Prohibition.
Under the 1987 Constitution, judicial power includes the duty of the courts
of justice not only "to settle actual controversies involving rights which are
legally demandable and enforceable," but also "to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government."24 Section 1, Article VIII of the 1987 Constitution reads:
ARTICLE VIII
JUDICIAL DEPARTMENT
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government. (Emphasis and
underscoring supplied)
Case law explains that the present Constitution has "expanded the concept
of judicial power, which up to then was confined to its traditional ambit of
settling actual controversies involving rights that were legally demandable
and enforceable."25
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In Araullo v. Aquino III,26 it was held that petitions for certiorari and
prohibition filed before the Court "are the remedies by which the grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government may be determined
under the Constitution."27 It was explained that "[w]ith respect to the
Court, x x x the remedies of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of certiorari or prohibition may be
issued to correct errors of jurisdiction committed not only by a tribunal,
corporation, board or officer exercising judicial, quasi-judicial or ministerial
functions, but also to set right, undo[,] and restrain any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any
branch or instrumentality of the Government, even if the latter does not
exercise judicial, quasi-judicial or ministerial functions. This application is
expressly authorized by the text of the second paragraph of Section 1,
[Article VIII of the 1987 Constitution cited above]." 28
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC
Approved Medical Centers Association, Inc., 29 it was expounded that "[ m ]
eanwhile that no specific procedural rule has been promulgated to enforce
[the] 'expanded' constitutional definition of judicial power and because of
the commonality of 'grave abuse of discretion' as a ground for review
under Rule 65 and the courts' expanded jurisdiction, the Supreme Court -
based on its power to relax its rules - allowed Rule 65 to be used as the
medium for petitions invoking the courts' expanded jurisdiction[. ]" 30
of certiorari and prohibition, although these governmental actions were
not made pursuant to any judicial or quasi-judicial function.
B. Direct Resort to the Court.
Since petitions for certiorari and prohibition are allowed as remedies to
assail the constitutionality of legislative and executive enactments, the
next question to be resolved is whether or not petitioners' direct resort to
this Court is justified.
The doctrine of hierarchy of courts "[r]equires that recourse must first be
made to the lower-ranked court exercising concurrent jurisdiction with a
higher court. The Supreme Court has original jurisdiction over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus. While this jurisdiction is shared with the Court of Appeals [(CA)]
and the [Regional Trial Courts], a direct invocation of this Court's
jurisdiction is allowed when there are special and important reasons
therefor, clearly and especially set out in the petition[.]"32 This Court is
tasked to resolve "the issue of constitutionality of a law or regulation at
the first instance [if it] is of paramount importance and immediately
affects the social, economic, and moral well-being of the people," 33 as in
this case. Hence, petitioners' direct resort to the Court is justified.
C. Requisites of Judicial Review.

In this case, petitioners question the issuance of the Curfew Ordinances by

"The prevailing rule in constitutional litigation is that no question involving
the legislative councils of Quezon City, Manila, and Navotas in the exercise
the constitutionality or validity of a law or governmental act may be heard
of their delegated legislative powers on the ground that these ordinances
and decided by the Court unless there is compliance with the legal
violate the Constitution, specifically, the provisions pertaining to the right
requisites for judicial inquiry, namely: (a) there must be an actual case or
to travel of minors, and the right of parents to rear their children. They
controversy calling for the exercise of judicial power; (b) the person
also claim that the Manila Ordinance, by imposing penalties against
challenging the act must have the standing to question the validity of the
minors, conflicts with RA 9344, as amended, which prohibits the imposition
subject act or issuance; (c) the question of constitutionality must be raised
of penalties on minors for status offenses. It has been held that "[t]here is
at the earliest opportunity; and (d) the issue of constitutionality must be
grave abuse of discretion when an act is (1) done contrary to the
the very lis mota of the case."34 In this case, respondents assail the
Constitution, the law or jurisprudence or (2) executed whimsically,
existence of the first two (2) requisites.
capriciously or arbitrarily, out of malice, ill will or personal bias. " 31 In light
of the foregoing, petitioners correctly availed of the remedies
1. Actual Case or Controversy.
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"Basic in the exercise of judicial power - whether under the traditional or in
the expanded setting - is the presence of an actual case or
controversy."35 "[A]n actual case or controversy is one which 'involves a
conflict of legal rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or abstract
difference or dispute.' In other words, 'there must be a contrariety of legal
rights that can be interpreted and enforced on the basis of existing law
and jurisprudence."36 According to recent jurisprudence, in the Court's
exercise of its expanded jurisdiction under the 1987 Constitution, this
requirement is simplified "by merely requiring a prima facie showing of
grave abuse of discretion in the assailed governmental act." 37
"Corollary to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed
by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened
injury to himself as a result of the challenged action. He must show that
he has sustained or is immediately in danger of sustaining some direct
injury as a result of the act complained of." 38
Applying these precepts, this Court finds that there exists an actual
justiciable controversy in this case given the evident clash of the parties'
legal claims, particularly on whether the Curfew Ordinances impair the
minors' and parents' constitutional rights, and whether the Manila
Ordinance goes against the provisions of RA 9344. Based on their
asseverations, petitioners have - as will be gleaned from the substantive
discussions below - conveyed a prima facie case of grave abuse of
discretion, which perforce impels this Court to exercise its expanded
jurisdiction. The case is likewise ripe for adjudication, considering that the
Curfew Ordinances were being implemented until the Court issued the
TRO39 enjoining their enforcement. The purported threat or incidence of
injury is, therefore, not merely speculative or hypothetical but rather, real
and apparent.
2. Legal Standing.
"The question of locus standi or legal standing focuses on the
determination of whether those assailing the governmental act have the
right of appearance to bring the matter to the court for adjudication.
[Petitioners] must show that they have a personal and substantial interest
in the case, such that they have sustained or are in immediate danger of
sustaining, some direct injury as a consequence of the enforcement of
the challenged governmental act."40 "' [I]nterest' in the question involved
must be material - an interest that is in issue and will be affected by the
official act- as distinguished from being merely incidental or general." 41
"The gist of the question of [legal] standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional
questions. Unless a person is injuriously affected in any of his
constitutional rights by the operation of statute or ordinance, he has no
standing."42
As abovementioned, the petition is anchored on the alleged breach of two
(2) constitutional rights, namely: (1) the right of minors to freely travel
within their respective localities; and (2) the primary right of parents to
rear their children. Related to the first is the purported conflict between
RA 9344, as amended, and the penal provisions of the Manila Ordinance.
Among the five (5) individual petitioners, only Clarissa Joyce Villegas
(Clarissa) has legal standing to raise the issue affecting the minor's right to
travel,43 because: (a) she was still a minor at the time the petition was filed
before this Court,44 and, hence, a proper subject of the Curfew Ordinances;
and (b) as alleged, she travels from Manila to Quezon City at night after
school and is, thus, in imminent danger of apprehension by virtue of the
Curfew Ordinances. On the other hand, petitioners Joanne Rose Sace Lim,
John Arvin Navarro Buenaagua, Ronel Baccutan (Ronel), and Mark Leo
Delos Reyes (Mark Leo) admitted in the petition that they are all of legal
age, and therefore, beyond the ordinances' coverage. Thus, they are not
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proper subjects of the Curfew Ordinances, for which they could base any
direct injury as a consequence thereof.
None of them, however, has standing to raise the issue of whether the
Curfew Ordinances violate the parents' right to rear their children as they
have not shown that they stand before this Court as parent/s and/or
guardian/s whose constitutional parental right has been infringed. It
should be noted that Clarissa is represented by her father, Julian Villegas,
Jr. (Mr. Villegas), who could have properly filed the petition for himself for
the alleged violation of his parental right. But Mr. Villegas did not question
the Curfew Ordinances based on his primary right as a parent as he only
stands as the representative of his minor child, Clarissa, whose right to
travel was supposedly infringed.
As for SPARK, it is an unincorporated association and, consequently, has no
legal personality to bring an action in court. 45 Even assuming that it has the
capacity to sue, SPARK still has no standing as it failed to allege that it was
authorized by its members who were affected by the Curfew Ordinances,
i.e., the minors, to file this case on their behalf.
Hence, save for Clarissa, petitioners do not have the required personal
interest in the controversy. More particularly, Clarissa has standing only on
the issue of the alleged violation of the minors' right to travel, but not on
the alleged violation of the parents' right.
These notwithstanding, this Court finds it proper to relax the standing
requirement insofar as all the petitioners are concerned, in view of the
transcendental importance of the issues involved in this case. "In a number
of cases, this Court has taken a liberal stance towards the requirement of
legal standing, especially when paramount interest is involved. Indeed,
when those who challenge the official act are able to craft an issue of
transcendental significance to the people, the Court may exercise its
sound discretion and take cognizance of the suit. It may do so in spite of
the inability of the petitioners to show that they have been personally
injured by the operation of a law or any other government act." 46
This is a case of first impression in which the constitutionality of juvenile
curfew ordinances is placed under judicial review. Not only is this Court
asked to determine the impact of these issuances on the right of parents to
rear their children and the right of minors to travel, it is also requested to
determine the extent of the State's authority to regulate these rights in the
interest of general welfare. Accordingly, this case is of overarching
significance to the public, which, therefore, impels a relaxation of
procedural rules, including, among others, the standing requirement.
That being said, this Court now proceeds to the substantive aspect of this
case.
II.
A. Void for Vagueness.
Before resolving the issues pertaining to the rights of minors to travel and
of parents to rear their children, this Court must first tackle petitioners'
contention that the Curfew Ordinances are void for vagueness.
In particular, petitioners submit that the Curfew Ordinances are void for
not containing sufficient enforcement parameters, which leaves the
enforcing authorities with unbridled discretion to carry out their
provisions. They claim that the lack of procedural guidelines in these
issuances led to the questioning of petitioners Ronel and Mark Leo, even
though they were already of legal age. They maintain that the enforcing
authorities apprehended the suspected curfew offenders based only on
their physical appearances and, thus, acted arbitrarily. Meanwhile,
although they conceded that the Quezon City Ordinance requires enforcers
to determine the age of the child, they submit that nowhere does the said
ordinance require the law enforcers to ask for proof or identification of the
child to show his age.47
The arguments are untenable.
"A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
227 | J U D I C I A L D E P A R T M E N T C A S E S
necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two (2) respects: (1) it violates due
process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle."48
In this case, petitioners' invocation of the void for vagueness doctrine is
improper, considering that they do not properly identify any provision in
any of the Curfew Ordinances, which, because of its vague terminology,
fails to provide fair warning and notice to the public of what is prohibited
or required so that one may act accordingly. 49 The void for vagueness
doctrine is premised on due process considerations,  which are absent
from this particular claim. In one case, it was opined that:
[T]he vagueness doctrine is a specie of "unconstitutional uncertainty,"
which may involve "procedural due process uncertainty cases" and
"substantive due process uncertainty cases." "Procedural due process
uncertainty" involves cases where the statutory language was so obscure
that it failed to give adequate warning to those subject to its prohibitions
as well as to provide proper standards for adjudication. Such a definition
encompasses the vagueness doctrine. This perspective rightly integrates
the vagueness doctrine with the due process clause, a necessary
interrelation since there is no constitutional provision that explicitly bars
statutes that are "void-for-vagueness." 50
Essentially, petitioners only bewail the lack of enforcement parameters to
guide the local authorities in the proper apprehension of suspected curfew
offenders. They do not assert any confusion as to what conduct the
subject ordinances prohibit or not prohibit but only point to the
ordinances' lack of enforcement guidelines. The mechanisms related to
the implementation of the Curfew Ordinances are, however, matters of
policy that are best left for the political branches of government to resolve.
Verily, the objective of curbing unbridled enforcement is not the sole
consideration in a void for vagueness analysis; rather, petitioners must
show that this perceived danger of unbridled enforcement stems from an
ambiguous provision in the law that allows enforcement authorities to
second-guess if a particular conduct is prohibited or not prohibited. In this
regard, that ambiguous provision of law contravenes due process because
agents of the government cannot reasonably decipher what conduct the
law permits and/or forbids. In Bykofsky v. Borough of Middletown, 51 it was
ratiocinated that:
A vague law impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on ad hoc and subjective basis, and vague
standards result in erratic and arbitrary application based on individual
impressions and personal predilections.52
As above-mentioned, petitioners fail to point out any ambiguous standard
in any of the provisions of the Curfew Ordinances, but rather, lament the
lack of detail on how the age of a suspected minor would be determined.
Thus, without any correlation to any vague legal provision, the Curfew
Ordinances cannot be stricken down under the void for vagueness
doctrine.
Besides, petitioners are mistaken in claiming that there are no sufficient
standards to identify suspected curfew violators. While it is true that the
Curfew Ordinances do not explicitly state these parameters, law
enforcement agents are still bound to follow the prescribed measures
found in statutory law when implementing ordinances. Specifically, RA
9344, as amended, provides:
Section 7. Determination of Age. - x x x The age of a child may be
determined from the child's birth certificate, baptismal certificate or any
other pertinent documents. In the absence of these documents, age may
be based on information from the child himself/herself, testimonies of
other persons, the physical appearance of the child and other relevant
evidence. (Emphases supplied)
This provision should be read in conjunction with · the Curfew Ordinances
because RA 10630 (the law that amended RA 9344) repeals all ordinances
inconsistent with statutory law.53 Pursuant to Section 57-A of RA 9344, as
amended by RA 10630,54 minors caught in violation of curfew ordinances
are children at risk and, therefore, covered by its provisions. 55 It is a long-
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standing principle that "[c]onformity with law is one of the essential
requisites for the validity of a municipal ordinance."56 Hence, by
necessary implication, ordinances should be read and implemented in
conjunction with related statutory law.
Applying the foregoing, any person, such as petitioners Ronel and Mark
Leo, who was perceived to be a minor violating the curfew, may therefore
prove that he is beyond the application of the Curfew Ordinances by
simply presenting any competent proof of identification establishing their
majority age. In the absence of such proof, the law authorizes enforcement
authorities to conduct a visual assessment of the suspect, which - needless
to state - should be done ethically and judiciously under the circumstances.
Should law enforcers disregard these rules, the remedy is to pursue the
appropriate action against the erring enforcing authority, and not to have
the ordinances invalidated.
All told, petitioners' prayer to declare the Curfew Ordinances as void for
vagueness is denied.
B. Right of Parents to Rear their
Children.
Petitioners submit that the Curfew Ordinances are unconstitutional
because they deprive parents of their natural and primary right in the
rearing of the youth without substantive due process. In this regard, they
assert that this right includes the right to determine whether minors will
be required to go home at a certain time or will be allowed to stay late
outdoors. Given that the right to impose curfews is primarily with parents
and not with the State, the latter's interest in imposing curfews cannot
logically be compelling.57
Petitioners' stance cannot be sustained.
Section 12, Article II of the 1987 Constitution articulates the State's policy
relative to the rights of parents in the rearing of their children:
Section 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government. (Emphasis and
underscoring supplied.)
As may be gleaned from this provision, the rearing of children
(i.e., referred to as the "youth") for civic efficiency and the development of
their moral character are characterized not only as parental rights, but also
as parental duties. This means that parents are not only given the privilege
of exercising their authority over their children; they are equally obliged to
exercise this authority conscientiously. The duty aspect of this provision is
a reflection of the State's independent interest to ensure that the youth
would eventually grow into free, independent, and well-developed citizens
of this nation. For indeed, it is during childhood that minors are prepared
for additional obligations to society. "[T]he duty to prepare the child for
these [obligations] must be read to include the inculcation of moral
standards, religious beliefs, and elements of good citizenship." 58 "This
affirmative process of teaching, guiding, and inspiring by precept and
example is essential to the growth of young people into mature, socially
responsible citizens."59
By history and tradition, "the parental role implies a substantial measure of
authority over one's children."60 In Ginsberg v. New York,61 the Supreme
Court of the United States (US) remarked that "constitutional
interpretation has consistently recognized that the parents' claim to
authority in their own household to direct the rearing of their children
is basic in the structure of our society."62 As in our Constitution, the right
and duty of parents to rear their children is not only described as "natural,"
but also as "primary." The qualifier "primary" connotes the parents'
superior right over the State in the upbringing of their children. 63 The
rationale for the State's deference to parental control over their children
was explained by the US Supreme Court in Bellotti v. Baird (Bellotti),64 as
follows:
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[T]he guiding role of parents in their upbringing of their children justifies
limitations on the freedoms of minors. The State commonly protects its
youth from adverse governmental action and from their own immaturity
by requiring parental consent to or involvement in important decisions by
minors. But an additional and more important justification for state
deference to parental control over children is that "the child is not [a)
mere creature of the State; those who nurture him and direct his destiny
have the right, coupled with the high duty, to recognize and prepare him
for additional obligations."65 (Emphasis and underscoring supplied)
While parents have the primary role in child-rearing, it should be stressed
that "when actions concerning the child have a relation to the public
welfare or the well-being of the child, the [Sltate may act to promote
these legitimate interests."66 Thus, "[i]n cases in which harm to the
physical or mental health of the child or to public safety, peace, order, or
welfare is demonstrated, these legitimate state interests may override
the parents' qualified right to control the upbringing of their children." 67
As our Constitution itself provides, the State is mandated
to support parents in the exercise of these rights and duties. State
authority is therefore, not exclusive of, but rather, complementary to
parental supervision. In Nery v. Lorenzo,68 this Court acknowledged the
State's role as parens patriae in protecting minors, viz. :
[Where minors are involved, the State acts as parens patriae. To it is cast
the duty of protecting the rights of persons or individual who because of
age or incapacity are in an unfavorable position,  vis-a-vis other
parties. Unable as they are to take due care of what concerns them, they
have the political community to look after their welfare. This obligation the
state must live up to. It cannot be recreant to such a trust. As was set forth
in an opinion of the United States Supreme Court: "This prerogative
of parens patriae is inherent in the supreme power of every State, x x
x."69 (Emphases and underscoring supplied)
As parens patriae, the State has the inherent right and duty to aid
parents in the moral development of their children, 70 and, thus, assumes
a supporting role for parents to fulfill their parental obligations. In Bellotti,
it was held that "[I]egal restriction on minors, especially those supportive
of the parental role, may be important to the child's chances for the full
growth and maturity that make eventual participation in a free society
meaningful and rewarding. Under the Constitution, the State can properly
conclude that parents and others, teachers for example, who have the
primary responsibility for children's well-being are entitled to the
support of the laws designed to aid discharge of that responsibility." 71
The Curfew Ordinances are but examples of legal restrictions designed to
aid parents in their role of promoting their children's well-being. As will be
later discussed at greater length, these ordinances further compelling
State interests (particularly, the promotion of juvenile safety and the
prevention of juvenile crime), which necessarily entail limitations on the
primary right of parents to rear their children. Minors, because of their
peculiar vulnerability and lack of experience, are not only more exposed to
potential physical harm by criminal elements that operate during the night;
their moral well-being is likewise imperiled as minor children are prone to
making detrimental decisions during this time.72
At this juncture, it should be emphasized that the Curfew Ordinances apply
only when the minors are not - whether actually or constructively (as will
be later discussed) - accompanied by their parents. This serves as an
explicit recognition of the State's deference to the primary nature of
parental authority and the importance of parents' role in child-rearing.
Parents are effectively given unfettered authority over their children's
conduct during curfew hours when they are able to supervise them. Thus,
in all actuality, the only aspect of parenting that the Curfew Ordinances
affects is the parents' prerogative to allow minors to remain in public
places without parental accompaniment during the curfew hours. 73 In
this respect, the ordinances neither dictate an over-all plan of discipline
for the parents to apply to their minors nor force parents to abdicate
their authority to influence or control their minors' activities. 74 As such,
the Curfew Ordinances only amount to a minimal - albeit reasonable -
infringement upon a parent's right to bring up his or her child.
Finally, it may be well to point out that the Curfew Ordinances positively
influence children to spend more time at home. Consequently, this
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situation provides parents with better opportunities to take a more active
role in their children's upbringing. In Schleifer v. City of
Charlottesvillle (Schleifer),75 the US court observed that the city
government "was entitled to believe x x x that a nocturnal curfew would
promote parental involvement in a child's upbringing. A curfew aids the
efforts of parents who desire to protect their children from the perils of
the street but are unable to control the nocturnal behavior of those
children."76 Curfews may also aid the "efforts of parents who prefer their
children to spend time on their studies than on the streets." 77 Reason
dictates that these realities observed in Schleifer are no less applicable to
our local context. Hence, these are additional reasons which justify the
impact of the nocturnal curfews on parental rights.
In fine, the Curfew Ordinances should not be declared unconstitutional for
violating the parents' right to rear their children.
C. Right to Travel.
Petitioners further assail the constitutionality of the Curfew Ordinances
based on the minors' right to travel. They claim that the liberty to travel is
a fundamental right, which, therefore, necessitates the application of the
strict scrutiny test. Further, they submit that even if there exists a
compelling State interest, such as the prevention of juvenile crime and the
protection of minors from crime, there are other less restrictive means for
achieving the government's interest.78 In addition, they posit that the
Curfew Ordinances suffer from overbreadth by proscribing or impairing
legitimate activities of minors during curfew hours. 79
Petitioner's submissions are partly meritorious.
At the outset, the Court rejects petitioners' invocation of the overbreadth
doctrine, considering that petitioners have not claimed any transgression
of their rights to free speech or any inhibition of speech-related conduct.
In Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism
Council(Southern Hemisphere),80 this Court explained that "the application
of the overbreadth doctrine is limited to a facial kind of challenge and,
owing to the given rationale of a facial challenge, applicable only to free
speech cases,"81 viz.:
By its nature, the overbreadth doctrine has to necessarily apply a facial
type of invalidation in order to plot areas of protected speech, inevitably
almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise
stated, a statute cannot be properly analyzed for being substantially
overbroad if the court confines itself only to facts as applied to the
litigants.
The most distinctive feature of the overbreadth technique is that it marks
an exception to some of the usual rules of constitutional litigation.
Ordinarily, a particular litigant claims that a statute is unconstitutional as
applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not
permitted to raise the rights of third parties and can only assert their own
interests. In overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the "chilling;"
deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law's "very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third
parties.82 (Emphases and underscoring supplied)
In the same case, it was further pointed out that "[i]n restricting the
overbreadth doctrine to free speech claims, the Court, in at least two [(2)]
cases, observed that the US Supreme Court has not recognized an
overbreadth doctrine outside the limited context of the First
Amendment,83 and that claims of facial overbreadth have been entertained
in cases involving statutes which, by their terms, seek to regulate only
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spoken words. In Virginia v. Hicks,84 it was held that rarely, if ever, will an
overbreadth challenge succeed against a law or regulation that is not
specifically addressed to speech or speech-related conduct. Attacks on
overly broad statutes are justified by the 'transcendent value to all society
of constitutionally protected expression. "'85
In the more recent case of SpousesImbong v. Ochoa, Jr.,86 it was opined
that "[f]acial challenges can only be raised on the basis of
overbreadth and not on vagueness. Southern Hemisphere demonstrated
how vagueness relates to violations of due process rights, whereas facial
challenges are raised on the basis of overbreadth and limited to the
realm of freedom of expression."87
That being said, this Court finds it improper to undertake an overbreadth
analysis in this case, there being no claimed curtailment of free speech. On
the contrary, however, this Court finds proper to examine the assailed
regulations under the strict scrutiny test.
The right to travel is recognized and guaranteed as a fundamental right88
under Section 6, Article III of the 1987 Constitution, to wit:
Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided by
law. (Emphases and underscoring supplied)
Jurisprudence provides that this right refers to the right to move freely
from the Philippines to other countries or within the Philippines. 89 It is a
right embraced within the general concept of liberty. 90 Liberty - a birthright
of every person - includes the power of locomotion 91 and the right of
citizens to be free to use their faculties in lawful ways and to live and work
where they desire or where they can best pursue the ends of life. 92
The right to travel is essential as it enables individuals to access and
exercise their other rights, such as the rights to education, free expression,
assembly, association, and religion.93 The inter-relation of the right to
travel with other fundamental rights was briefly rationalized in City of
Maquoketa v. Russell,94 as follows:
Whenever the First Amendment rights of freedom of religion, speech,
assembly, and association require one to move about, such movement
must necessarily be protected under the First Amendment.
Restricting movement in those circumstances to the extent that First
Amendment Rights cannot be exercised without violating the law is
equivalent to a denial of those rights. One court has eloquently pointed
this out:
We would not deny the relatedness of the rights guaranteed by the First
Amendment to freedom of travel and movement. If, for any reason,
people cannot walk or drive to their church, their freedom to worship is
impaired. If, for any reason, people cannot walk or drive to the meeting
hall, freedom of assembly is effectively blocked. If, for any reason, people
cannot safely walk the sidewalks or drive the streets of a community,
opportunities for freedom of speech are sharply limited. Freedom of
movement is inextricably involved with freedoms set forth in the First
Amendment. (Emphases supplied)
Nevertheless, grave and overriding considerations of public interest justify
restrictions even if made against fundamental rights. Specifically on the
freedom to move from one place to another, jurisprudence provides that
this right is not absolute.95 As the 1987 Constitution itself reads, the
State96 may impose limitations on the exercise of this right, provided that
they: (1) serve the interest of national security, public safety, or public
health; and (2) are provided by law.97
The stated purposes of the Curfew Ordinances, specifically the promotion
of juvenile safety and prevention of juvenile crime, inarguably serve the
interest of public safety. The restriction on the minor's movement and
activities within the confines of their residences and their immediate
vicinity during the curfew period is perceived to reduce the probability of
the minor becoming victims of or getting involved in crimes and criminal
activities. As to the second requirement, i.e., that the limitation "be
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provided by law," our legal system is replete with laws emphasizing the
State's duty to afford special protection to children, i.e., RA 7610, 98 as
amended, RA 977599 RA 9262100 RA 9851101RA 9344102 RA 10364103 RA
9211104 RA8980,105 RA9288,106 and Presidential Decree (PD) 603,107 as
amended.
Particularly relevant to this case is Article 139 of PD 603, which explicitly
authorizes local government units, through their city or municipal councils,
to set curfew hours for children. It reads:
Article 139. Curfew Hours for Children. - City or municipal councils may
prescribe such curfew hours for children as may be warranted by local
conditions. The duty to enforce curfew ordinances shall devolve upon the
parents or guardians and the local authorities.
x x x x (Emphasis and underscoring supplied)
As explicitly worded, city councils are authorized to enact curfew
ordinances (as what respondents have done in this case) and enforce the
same through their local officials. In other words, PD 603 provides
sufficient statutory basis - as required by the Constitution - to restrict the
minors' exercise of the right to travel.
The restrictions set by the Curfew Ordinances that apply solely to minors
are likewise constitutionally permissible. In this relation, this Court
recognizes that minors do possess and enjoy constitutional rights, 108 but
the exercise of these rights is not co-extensive as those of adults. 109 They
are always subject to the authority or custody of another, such as their
parent/s and/or guardian/s, and the State. 110 As parens patriae, the State
regulates and, to a certain extent, restricts the minors' exercise of their
rights, such as in their affairs concerning the right to vote, 111 the right to
execute contracts,112 and the right to engage in gainful
employment.113 With respect to the right to travel, minors are required by
law to obtain a clearance from the Department of Social Welfare and
Development before they can travel to a foreign country by themselves or
with a person other than their parents. 114 These limitations demonstrate
that the State has broader authority over the minors' activities than over
similar actions of adults,115 and overall, reflect the State's general interest
in the well-being of minors.116 Thus, the State may impose limitations on
the minors' exercise of rights even though these limitations do not
generally apply to adults.
In Bellotti,117the US Supreme Court identified three (3) justifications for the
differential treatment of the minors' constitutional rights. These are: first,
the peculiar vulnerability of children; second, their inability to make
critical decisions in an informed and mature manner; and third, the
importance of the parental role in child rearing: 118
[On the first reason,] our cases show that although children generally are
protected by the same constitutional guarantees against governmental
deprivations as are adults, the State is entitled to adjust its legal system to
account for children's vulnerability and their needs for 'concern, ...
sympathy, and ... paternal attention.x x x.
[On the second reason, this Court's rulings are] grounded [on] the
recognition that, during the formative years of childhood and
adolescence, minors often lack the experience, perspective, and
judgment to recognize and avoid choices that could be detrimental to
them. x x x.
xxxx
[On the third reason,] the guiding role of parents in the upbringing of their
children justifies limitations on the freedoms of minors. The State
commonly protects its youth from adverse governmental action and from
their own immaturity by requiring parental consent to or involvement in
important decisions by minors. x x x.
xxxx
x x x Legal restrictions on minors, especially those supportive of the
parental role, may be important to the child's chances for the full growth
and maturity that make eventual participation in a free society meaningful
and rewarding.119 (Emphases and underscoring supplied)
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Moreover, in Prince v. Massachusetts,120 the US Supreme Court
acknowledged the heightened dangers on the streets to minors, as
compared to adults:
A democratic society rests, for its continuance, upon the healthy, well-
rounded growth of young people into full maturity as citizens, with all that
implies. It may secure this against impeding restraints and dangers within a
broad range of selection. Among evils most appropriate for such action are
the crippling effects of child employment, more especially in public places,
and the possible harms arising from other activities subject to all the
diverse influences of the [streets]. It is too late now to doubt that
legislation appropriately designed to reach such evils is within the state's
police power, whether against the parent's claim to control of the child or
one that religious scruples dictate contrary action.
It is true children have rights, in common with older people, in the primary
use of highways. But even in such use streets afford dangers for them not
affecting adults. And in other uses, whether in work or in other things,
this difference may be magnified.121 (Emphases and underscoring
supplied)
For these reasons, the State is justified in setting restrictions on the minors'
exercise of their travel rights, provided, they are singled out on reasonable
grounds.
Philippine jurisprudence has developed three (3) tests of judicial scrutiny
to determine the reasonableness of classifications. 122 The strict scrutiny
test applies when a classification either (i) interferes with the exercise of
fundamental rights, including the basic liberties guaranteed under the
Constitution, or (ii) burdens suspect classes.123 The intermediate scrutiny
test applies when a classification does not involve suspect classes or
fundamental rights, but requires heightened scrutiny, such as in
classifications based on gender and legitimacy. 124 Lastly, the rational basis
test applies to all other subjects not covered by the first two tests. 125
Considering that the right to travel is a fundamental right in our legal
system guaranteed no less by our Constitution, the strict scrutiny test 126 is
the applicable test.127 At this juncture, it should be emphasized that minors
enjoy the same constitutional rights as adults; the fact that the State has
broader authority over minors than over adults does not trigger the
application of a lower level of scrutiny. 128 In Nunez v. City of San Diego
(Nunez),129 the US court illumined that:
Although many federal courts have recognized that juvenile curfews
implicate the fundamental rights of minors, the parties dispute whether
strict scrutiny review is necessary. The Supreme Court teaches that rights
are no less "fundamental" for minors than adults, but that the analysis of
those rights may differ:
Constitutional rights do not mature and come into being magically only
when one attains the state-defined age of majority.1âwphi1 Minors, as
well as adults, are protected by the Constitution and possess
constitutional rights. The Court[,] indeed, however, [has long] recognized
that the State has somewhat broader authority to regulate the activities of
children than of adults. xxx. Thus, minors' rights are not coextensive with
the rights of adults because the state has a greater range of interests that
justify the infringement of minors' rights.
The Supreme Court has articulated three specific factors that, when
applicable, warrant differential analysis of the constitutional rights of
minors and adults: x x x. The Bellotti test [however] does not establish a
lower level of scrutiny for the constitutional rights of minors in the
context of a juvenile curfew. Rather, the Bellotti framework enables courts
to determine whether the state has a compelling state interest justifying
greater restrictions on minors than on adults. x x x.
x x x Although the state may have a compelling interest in regulating
minors differently than adults, we do not believe that [a] lesser degree of
scrutiny is appropriate to review burdens on minors' fundamental
rights. x x x.
According, we apply strict scrutiny to our review of the ordinance. x x
x.130 (Emphases supplied)
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The strict scrutiny test as applied to minors entails a consideration of the [lead] them into exploitation, drug addiction, and become vulnerable to
peculiar circumstances of minors as enumerated in Bellotti vis-a-vis the and at the risk of committing criminal offenses;
State's duty as parenspatriae to protect and preserve their well-being with
the compelling State interests justifying the assailed government act. xxxx
Under the strict scrutiny test, a legislative classification that interferes with
the exercise of a fundamental right or operates to the disadvantage of a [d] as a consequence, most of minor children become out-of-school youth,
suspect class is presumed unconstitutional.131 Thus, the government has unproductive by-standers, street children, and member of notorious gangs
the burden of proving that the classification (1) is necessary to achieve who stay, roam around or meander in public or private roads, streets or
a compelling State interest, and (i1) is the least restrictive means to other public places, whether singly or in groups without lawful purpose or
protect such interest or the means chosen is narrowly tailored to justification;
accomplish the interest.132
xxxx
a. Compelling State Interest.
[f] reports of barangay officials and law enforcement agencies reveal that
Jurisprudence holds that compelling State interests include constitutionally minor children roaming around, loitering or wandering in the evening are
declared policies.133 This Court has ruled that children's welfare and the the frequent personalities involved in various infractions of city ordinances
State's mandate to protect and care for them as  parenspatriae constitute and national laws;
compelling interests to justify regulations by the State. 134 It is akin to the
paramount interest of the state for which some individual liberties must
[g] it is necessary in the interest of public order and safety to regulate the
give way.135 As explained in Nunez, the Bellotti framework shows that the
movement of minor children during night time by setting disciplinary
State has a compelling interest in imposing greater restrictions on minors
hours, protect them from neglect, abuse or cruelty and exploitation, and
than on adults. The limitations on minors under Philippine laws also
other conditions prejudicial or detrimental to their development;
highlight this compelling interest of the State to protect and care for their
welfare.
[h] to strengthen and support parental control on these minor children,
there is a need to put a restraint on the tendency of growing number of
In this case, respondents have sufficiently established that the ultimate
youth spending their nocturnal activities wastefully, especially in the face
objective of the Curfew Ordinances is to keep unsupervised minors during
of the unabated rise of criminality and to ensure that the dissident
the late hours of night time off of public areas, so as to reduce - if not
elements of society are not provided with potent avenues for furthering
totally eliminate - their exposure to potential harm, and to insulate them
their nefarious activities[.]136
against criminal pressure and influences which may even include
themselves. As denoted in the "whereas clauses" of the Quezon City
The US court's judicial demeanor in Schleifer, 137 as regards the information
Ordinance, the State, in imposing nocturnal curfews on minors, recognizes
gathered by the City Council to support its passage of the curfew ordinance
that:
subject of that case, may serve as a guidepost to our own eatment of the
present case. Significantly, in Schleifer, the US court recognized the
[b] x x x children, particularly the minors, appear to be neglected of their
entitlement of elected bodies to implement policies for a safer community,
proper care and guidance, education, and moral development, which
in relation to the proclivity of children to make dangerous and potentially
235 | J U D I C I A L D E P A R T M E N T C A S E S
life-shaping decisions when left unsupervised during the late hours of
night:
Charlottesville was constitutionally justified in believing that its curfew
would materially assist its first stated interest-that of reducing juvenile
violence and crime. The City Council acted on the basis of information from
many sources, including records from Charlottesville's police department, a
survey of public opinion, news reports, data from the United States
Department of Justice, national crime reports, and police reports from
other localities. On the basis of such evidence, elected bodies are entitled
to conclude that keeping unsupervised juveniles off the streets late at
night will make for a safer community. The same streets may have a
more volatile and less wholesome character at night than during the day.
Alone on the streets at night children face a series of dangerous and
potentially life-shaping decisions. Drug dealers may lure them to use
narcotics or aid in their sale. Gangs may pressure them into membership or
participation in violence. "[D]uring the formative years of childhood and
adolescence, minors often lack the experience, perspective, and judgment
to recognize and avoid choices that could be detrimental to them." Those
who succumb to these criminal influences at an early age may persist in
their criminal conduct as adults. Whether we as judges subscribe to these
theories is beside the point. Those elected officials with their finger on the
pulse of their home community clearly did. In attempting to reduce
through its curfew the opportunities for children to come into contact with
criminal influences, the City was directly advancing its first objective of
reducing juvenile violence and crime. 138 (Emphases and underscoring
supplied; citations omitted)
Similar to the City of Charlottesville in Schleifer, the local governments of
Quezon City and Manila presented statistical data in their respective
pleadings showing the alarming prevalence of crimes involving juveniles,
either as victims or perpetrators, in their respective localities. 139
Based on these findings, their city councils found it necessary to enact
curfew ordinances pursuant to their police power under the general
welfare clause.140 In this light, the Court thus finds that the local
governments have not only conveyed but, in fact, attempted to
substantiate legitimate concerns on public welfare, especially with
respect to minors. As such, a compelling State interest exists for the
enactment and enforcement of the Curfew Ordinances.
With the first requirement of the strict scrutiny test satisfied, the Court
now proceeds to determine if the restrictions set forth in· the Curfew
Ordinances are narrowly tailored or provide the least restrictive means to
address the cited compelling State interest - the second requirement of the
strict scrutiny test.
b. Least Restrictive Means/ Narrowly Drawn.
The second requirement of the strict scrutiny test stems from the
fundamental premise that citizens should not be hampered from pursuing
legitimate activities in the exercise of their constitutional rights. While
rights may be restricted, the restrictions must be minimal or only to the
extent necessary to achieve the purpose or to address the State's
compelling interest. When it is possible for governmental regulations to
be more narrowly drawn to avoid conflicts with constitutional rights,
then they must be so narrowly drawn. 141
Although treated differently from adults, the foregoing standard applies to
regulations on minors as they are still accorded the freedom to participate
in any legitimate activity, whether it be social, religious, or civic. 142 Thus, in
the present case, each of the ordinances must be narrowly tailored as to
ensure minimal constraint not only on the minors' right to travel but also
on their other constitutional rights. 143
In In Re Mosier,144 a US court declared a curfew ordinance unconstitutional
impliedly for not being narrowly drawn, resulting in unnecessary
curtailment of minors' rights to freely exercise their religion and to free
speech.145 It observed that:
The ordinance prohibits the older minor from attending alone Christmas
Eve Midnight Mass at the local Roman Catholic Church or Christmas Eve
services at the various local Protestant Churches. It would likewise
prohibit them from attending the New [Year's] Eve watch services at the
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various churches. Likewise it would prohibit grandparents, uncles, aunts or
adult brothers and sisters from taking their minor relatives of any age to
the above mentioned services. x x x.
xxxx
Under the ordinance, during nine months of the year a minor could not
even attend the city council meetings if they ran past 10:30 (which they
frequently do) to express his views on the necessity to repeal the curfew
ordinance, clearly a deprivation of his First Amendment right to freedom
of speech.
xxxx
[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra
note 52)] was [a] very narrowly drawn ordinance of many pages with
eleven exceptions and was very carefully drafted in an attempt to pass
constitutional muster. It specifically excepted [the] exercise of First
Amendment rights, travel in a motor vehicle and returning home by a
direct route from religious, school, or voluntary association
activities. (Emphases supplied)
After a thorough evaluation of the ordinances' respective provisions, this
Court finds that only the Quezon City Ordinance meets the above-
discussed requirement, while the Manila and Navotas Ordinances do not.
The Manila Ordinance cites only four (4) exemptions from the coverage of
the curfew, namely: (a) minors accompanied by their parents, family
members of legal age, or guardian; (b) those running lawful errands such
as buying of medicines, using of telecommunication facilities for
emergency purposes and the like; (c) night school students and those who,
by virtue of their employment, are required in the streets or outside their
residence after 10:00 p.m.; and (d) those working at night.146
For its part, the Navotas Ordinance provides more exceptions, to wit: (a)
minors with night classes; (b) those working at night; (c) those who
attended a school or church activity, in coordination with a specific
barangay office; (d) those traveling towards home during the curfew hours;
(e) those running errands under the supervision of their parents,
guardians, or persons of legal age having authority over them; (j) those
involved in accidents, calamities, and the like. It also exempts minors from
the curfew during these specific occasions: Christmas eve, Christmas day,
New Year's eve, New Year's day, the night before the barangay fiesta, the
day of the fiesta, All Saints' and All Souls' Day, Holy Thursday, Good Friday,
Black Saturday, and Easter Sunday.147
This Court observes that these two ordinances are not narrowly drawn in
that their exceptions are inadequate and therefore, run the risk of overly
restricting the minors' fundamental freedoms. To be fair, both ordinances
protect the rights to education, to gainful employment, and to travel at
night from school or work.148 However, even with those safeguards, the
Navotas Ordinance and, to a greater extent, the Manila Ordinance still do
not account for the reasonable exercise of the minors' rights of
association, free exercise of religion, rights to peaceably assemble, and of
free expression, among others.
The exceptions under the Manila Ordinance are too limited, and thus,
unduly trample upon protected liberties. The Navotas Ordinance is
apparently more protective of constitutional rights than the Manila
Ordinance; nonetheless, it still provides insufficient safeguards as
discussed in detail below:
First, although it allows minors to engage in school or church activities, it
hinders them from engaging in legitimate non-school or nonchurch
activities in the streets or going to and from such activities; thus, their
freedom of association is effectively curtailed. It bears stressing that
participation in legitimate activities of organizations, other than school or
church, also contributes to the minors' social, emotional, and intellectual
development, yet, such participation is not exempted under the Navotas
Ordinance.
Second, although the Navotas Ordinance does not impose the curfew
during Christmas Eve and Christmas day, it effectively prohibits minors
from attending traditional religious activities (such as simbang gabi) at
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night without accompanying adults, similar to the scenario depicted
in Mosier.149 This legitimate activity done pursuant to the minors' right to
freely exercise their religion is therefore effectively curtailed.
Third, the Navotas Ordinance does not accommodate avenues for minors
to engage in political rallies or attend city council meetings to voice out
their concerns in line with their right to peaceably assemble and to free
expression.
Certainly, minors are allowed under the Navotas Ordinance to engage in
these activities outside curfew hours, but the Court finds no reason to
prohibit them from participating in these legitimate activities during
curfew hours. Such proscription does not advance the State's compelling
interest to protect minors from the dangers of the streets at night, such as
becoming prey or instruments of criminal activity. These legitimate
activities are merely hindered without any reasonable relation to the
State's interest; hence, the Navotas Ordinance is not narrowly drawn.
More so, the Manila Ordinance, with its limited exceptions, is also not
narrowly drawn.
In sum, the Manila and Navotas Ordinances should be completely stricken
down since their exceptions, which are essentially determinative of the
scope and breadth of the curfew regulations, are inadequate to ensure
protection of the above-mentioned fundamental rights. While some
provisions may be valid, the same are merely ancillary thereto; as such,
they cannot subsist independently despite the presence 150 of any
separability clause.151
The Quezon City Ordinance stands in stark contrast to the first two (2)
ordinances as it sufficiently safeguards the minors' constitutional rights. It
provides the following exceptions:
Section 4. EXEMPTIONS - Minor children under the following circumstances
shall not be covered by the provisions of this ordinance;
(a) Those accompanied by their parents or guardian;
(b) Those on their way to or from a party, graduation
ceremony, religious mass, and/or other extra-curricular
activities of their school or organization wherein their
attendance are required or otherwise indispensable, or
when such minors are out and unable to go home early
due to circumstances beyond their control as verified by
the proper authorities concerned; and
(c) Those attending to, or in experience of, an emergency
situation such as conflagration, earthquake,
hospitalization, road accident, law enforcers encounter,
and similar incidents[;]
(d) When the minor is engaged in an authorized
employment activity, or going to or returning home from
the same place of employment activity without any
detour or stop;
(e) When the minor is in [a] motor vehicle or other travel
accompanied by an adult in no violation of this
Ordinance;
(f) When the minor is involved in an emergency;
(g) When the minor is out of his/her residence attending
an official school, religious, recreational, educational,
social, community or other similar private activity
sponsored by the city, barangay, school, or other similar
private civic/religious organization/group (recognized
by the community) that supervises the activity or when
the minor is going to or returning home from such
activity, without any detour or stop; and
(h) When the minor can present papers certifying that
he/she is a student and was dismissed from his/her
class/es in the evening or that he/she is a working
student.152 (Emphases and underscoring supplied)
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As compared to the first two (2) ordinances, the list of exceptions under
the Quezon City Ordinance is more narrowly drawn to sufficiently protect
the minors' rights of association, free exercise of religion, travel, to
peaceably assemble, and of free expression.
Specifically, the inclusion of items (b) and (g) in the list of exceptions
guarantees the protection of these aforementioned rights. These items
uphold the right of association by enabling minors to attend both official
and extra-curricular activities not only of their school or church but also
of other legitimate organizations. The rights to peaceably assemble and
of free expression are also covered by these items given that the minors'
attendance in the official activities of civic or religious organizations are
allowed during the curfew hours. Unlike in the Navotas Ordinance, the
right to the free exercise of religion is sufficiently safeguarded in the
Quezon City Ordinance by exempting attendance at religious masses even
during curfew hours. In relation to their right to ravel, the ordinance allows
the minor-participants to move to and from the places where these
activities are held. Thus, with these numerous exceptions, the Quezon City
Ordinance, in truth, only prohibits unsupervised activities that hardly
contribute to the well-being of minors who publicly loaf and loiter within
the locality at a time where danger is perceivably more prominent.
To note, there is no lack of supervision when a parent duly authorizes
his/her minor child to run lawful errands or engage in legitimate activities
during the night, notwithstanding curfew hours. As astutely observed by
Senior Associate Justice Antonio T. Carpio and Associate Justice Marvic
M.V.F. Leonen during the deliberations on this case, parental permission is
implicitly considered as an exception found in Section 4, item (a) of the
Quezon City Ordinance, i.e., "[t]hose accompanied by their parents or
guardian", as accompaniment should be understood not only in its actual
but also in its constructive sense. As the Court sees it, this should be the
reasonable construction of this exception so as to reconcile the juvenile
curfew measure with the basic premise that State interference is not
superior but only complementary to parental supervision. After all, as the
Constitution itself prescribes, the parents' right to rear their children is not
only natural but primary.
Ultimately, it is important to highlight that this Court, in passing judgment
on these ordinances, is dealing with the welfare of minors who are
presumed by law to be incapable of giving proper consent due to their
incapability to fully understand the import and consequences of their
actions. In one case it was observed that:
A child cannot give consent to a contract under our civil laws. This is on the
rationale that she can easily be the victim of fraud as she is not capable of
fully understanding or knowing the nature or import of her actions. The
State, as parenspatriae, is under the obligation to minimize the risk of
harm to those who, because of their minority, are as yet unable to take
care of themselves fully. Those of tender years deserve its protection. 153
Under our legal system's own recognition of a minor's inherent lack of full
rational capacity, and balancing the same against the State's compelling
interest to promote juvenile safety and prevent juvenile crime, this Court
finds that the curfew imposed under the Quezon City Ordinance is
reasonably justified with its narrowly drawn exceptions and hence,
constitutional. Needless to say, these exceptions are in no way limited or
restricted, as the State, in accordance with the lawful exercise of its police
power, is not precluded from crafting, adding, or modifying exceptions in
similar laws/ordinances for as long as the regulation, overall, passes the
parameters of scrutiny as applied in this case.
D. Penal Provisions of the Manila Ordinance.
Going back to the Manila Ordinance, this Court deems it proper - as it was
raised - to further discuss the validity of its penal provisions in relation to
RA 9344, as amended.
To recount, the Quezon City Ordinance, while penalizing the parent/s or
guardian under Section 8 thereof,154 does not impose any penalty on the
minors. For its part, the Navotas Ordinance requires the minor, along with
his or her parent/s or guardian/s, to render social civic duty and
community service either in lieu of - should the parent/s or guardian/s of
the minor be unable to pay the fine imposed - or in addition to the fine
imposed therein.155 Meanwhile, the Manila Ordinance imposed various
239 | J U D I C I A L D E P A R T M E N T C A S E S
sanctions to the minor based on the age and frequency of violations, to
wit:
SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating
this ordinance shall be sanctioned/punished as follows:
(a) If the offender is Fifteen (15) years of age and
below, the sanction shall consist of a REPRIMAND for
the youth offender and ADMONITION to the offender's
parent, guardian or person exercising parental authority.
(b) If the offender is Fifteen (15) years of age and under
Eighteen (18) years of age, the sanction/penalty shall be:
1. For the FIRST OFFENSE, Reprimand and
Admonition;
2. For the SECOND OFFENSE, Reprimand and
Admonition, and a warning about the legal
impostitions in case of a third and subsequent
violation; and
3. For the THIRD AND SUBSEQUENT
OFFENSES, Imprisonment of one (1) day to ten
(10) days, or a Fine of TWO THOUSAND PESOS
(Php2,000.00), or both at the discretion of the
Court, PROVIDED, That the complaint shall be
filed by the PunongBarangay with the office of
the City Prosecutor.156 (Emphases and
underscoring supplied).
Thus springs the question of whether local governments could validly
impose on minors these sanctions - i.e., (a) community . service; (b)
reprimand and admonition; (c) fine; and (d) imprisonment. Pertinently,
Sections 57 and 57-A of RA 9344, as amended, prohibit the imposition of
penalties on minors for status offenses such as curfew violations, viz.:
SEC. 57. Status Offenses. - Any conduct not considered an offense or not
penalized if committed by an adult shall not be considered an offense
and shall not be punished if committed by a child.
SEC. 57-A. Violations of Local Ordinances. - Ordinances enacted by local
governments concerning juvenile status offenses such as but not limited
to, curfew violations, truancy, parental disobedience, anti-smoking and
anti-drinking laws, as well as light offenses and misdemeanors against
public order or safety such as, but not limited to, disorderly conduct, public
scandal, harassment, drunkenness, public intoxication, criminal nuisance,
vandalism, gambling, mendicancy, littering, public urination, and
trespassing, shall be for the protection of children. No penalty shall be
imposed on children for said violations, and they shall instead be brought
to their residence or to any barangay official at the barangay hall to be
released to the custody of their parents. Appropriate intervention
programs shall be provided for in such ordinances. The child shall also be
recorded as a "child at risk" and not as a "child in conflict with the law."
The ordinance shall also provide for intervention programs, such as
counseling, attendance in group activities for children, and for the parents,
attendance in parenting education seminars. (Emphases and underscoring
supplied.)
To clarify, these provisions do not prohibit the enactment
of regulations that curtail the conduct of minors, when the similar conduct
of adults are not considered as an offense or penalized (i.e., status
offenses). Instead, what they prohibit is the imposition of penalties on
minors for violations of these regulations. Consequently, the enactment of
curfew ordinances on minors, without penalizing them for violations
thereof, is not violative of Section 57-A.
"Penalty"157 is defined as "[p]unishment imposed on a wrongdoer usually in
the form of imprisonment or fine";158 "[p ]unishment imposed by lawful
authority upon a person who commits a deliberate or negligent
act."159 Punishment, in tum, is defined as "[a] sanction - such as fine,
penalty, confinement, or loss of property, right, or privilege - assessed
against a person who has violated the law." 160
240 | J U D I C I A L D E P A R T M E N T C A S E S
The provisions of RA 9344, as amended, should not be read to mean that
all the actions of the minor in violation of the regulations are without legal
consequences. Section 57-A thereof empowers local governments to adopt
appropriate intervention programs, such as community-based
programs161 recognized under Section 54162 of the same law.
In this regard, requiring the minor to perform community service is a valid
form of intervention program that a local government (such as Navotas
City in this case) could appropriately adopt in an ordinance to promote the
welfare of minors. For one, the community service programs provide
minors an alternative mode of rehabilitation as they promote
accountability for their delinquent acts without the moral and social stigma
caused by jail detention.
In the same light, these programs help inculcate discipline and compliance
with the law and legal orders. More importantly, they give them the
opportunity to become productive members of society and thereby
promote their integration to and solidarity with their community.
The sanction of admonition imposed by the City of Manila is likewise
consistent with Sections 57 and 57-A of RA 9344 as it is merely a formal
way of giving warnings and expressing disapproval to the minor's
misdemeanor. Admonition is generally defined as a "gentle or friendly
reproof' or "counsel or warning against fault or oversight." 163 The Black's
Law Dictionary defines admonition as "[a]n authoritatively issued warning
or censure";164 while the Philippine Law Dictionary defines it as a "gentle or
friendly reproof, a mild rebuke, warning or reminder, [counseling], on a
fault, error or oversight, an expression of authoritative advice or
warning."165 Notably, the Revised Rules on Administrative Cases in the Civil
Service (RRACCS) and our jurisprudence in administrative cases explicitly
declare that "a warning or admonition shall not be considered a
penalty."166
In other words, the disciplinary measures of community-based programs
and admonition are clearly not penalties - as they are not punitive in
nature - and are generally less intrusive on the rights and conduct of the
minor. To be clear, their objectives are to formally inform and educate the
minor, and for the latter to understand, what actions must be avoided so
as to aid him in his future conduct.
A different conclusion, however, is reached with regard to reprimand and
fines and/or imprisonment imposed by the City of Manila on the minor.
Reprimand is generally defined as "a severe or formal reproof." 167 The
Black's Law Dictionary defines it as "a mild form of lawyer discipline that
does not restrict the lawyer's ability to practice law"; 168 while the Philippine
Law Dictionary defines it as a "public and formal censure or severe reproof,
administered to a person in fault by his superior officer or body to which
he belongs. It is more than just a warning or admonition." 169 In other
words, reprimand is a formal and public pronouncement made to
denounce the error or violation committed, to sharply criticize and rebuke
the erring individual, and to sternly warn the erring individual including the
public against repeating or committing the same, and thus, may
unwittingly subject the erring individual or violator to unwarranted censure
or sharp disapproval from others. In fact, the RRACCS and our
jurisprudence explicitly indicate that reprimand is a penalty, 170 hence,
prohibited by Section 57-A of RA 9344, as amended.
Fines and/or imprisonment, on the other hand, undeniably constitute
penalties - as provided in our various criminal and administrative laws and
jurisprudence - that Section 57-A of RA 9344, as amended, evidently
prohibits.
As worded, the prohibition in Section 57-A is clear, categorical, and
unambiguous. It states that "[n]o penalty shall be imposed on children for
x x x violations [of] juvenile status offenses]." Thus, for imposing the
sanctions of reprimand, fine, and/or imprisonment on minors for curfew
violations, portions of Section 4 of the Manila Ordinance directly and
irreconcilably conflict with the clear language of Section 57-A of RA 9344,
as amended, and hence, invalid. On the other hand, the impositions of
community service programs and admonition on the minors are allowed as
they do not constitute penalties.
CONCLUSION
241 | J U D I C I A L D E P A R T M E N T C A S E S

In sum, while the Court finds that all three Curfew Ordinances have passed Republic of the Philippines
the first prong of the strict scrutiny test - that is, that the State has SUPREME COURT
sufficiently shown a compelling interest to promote juvenile safety and Manila
prevent juvenile crime in the concerned localities, only the Quezon City
Ordinance has passed the second prong of the strict scrutiny test, as it is EN BANC
the only issuance out of the three which provides for the least restrictive
means to achieve this interest. In particular, the Quezon City Ordinance G.R. No. 202242               July 17, 2012
provides for adequate exceptions that enable minors to freely exercise
their fundamental rights during the prescribed curfew hours, and
FRANCISCO I. CHAVEZ, Petitioner,
therefore, narrowly drawn to achieve the State's purpose. Section 4 (a) of
vs.
the said ordinance, i.e., "[t]hose accompanied by their parents or
JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and
guardian", has also been construed to include parental permission as a
REP. NIEL C. TUPAS, JR., Respondents.
constructive form of accompaniment and hence, an allowable exception to
the curfew measure; the manner of enforcement, however, is left to the
DECISION
discretion of the local government unit.

MENDOZA, J.:
In fine, the Manila and Navotas Ordinances are declared unconstitutional
and thus, null and void, while the Quezon City Ordinance is declared as
constitutional and thus, valid in accordance with this Decision. The issue at hand has been in hibernation until the unexpected departure
of Chief Justice Renato C. Corona on May 29, 2012, and the nomination of
former Solicitor General Francisco I. Chavez (petitioner), as his potential
For another, the Court has determined that the Manila Ordinance's penal
successor, triggered the filing of this case. The issue has constantly been
provisions imposing reprimand and fines/imprisonment on minors conflict
nagging legal minds, yet remained dormant for lack of constitutional
with Section 57-A of RA 9344, as amended. Hence, following the rule that
challenge.
ordinances should always conform with the law, these provisions must be
struck down as invalid.
As the matter is of extreme urgency considering the constitutional
deadline in the process of selecting the nominees for the vacant seat of the
WHEREFORE, the petition is PARTLYGRANTED. The Court hereby declares
Chief Justice, the Court cannot delay the resolution of the issue a day
Ordinance No. 8046, issued by the local government of the City of Manila,
longer. Relegating it in the meantime to the back burner is not an option.
and Pambayang Ordinansa Blg. No. 99-02, as amended by Pambayang
Ordinansa Blg. 2002-13 issued by the local government of Navotas
City, UNCONSTITUTIONAL and, thus, NULL and VOID; while Ordinance No. Does the first paragraph of Section 8, Article VIII of the 1987 Constitution
SP-2301, Series of 2014, issued by the local government of the Quezon City allow more than one (1) member of Congress to sit in the JBC? Is the
is declared CONSTITUTIONAL and, thus, VALID in accordance with this practice of having two (2) representatives from each house of Congress
Decision. with one (1) vote each sanctioned by the Constitution? These are the
pivotal questions to be resolved in this original action for prohibition and
injunction.
SO ORDERED.
242 | J U D I C I A L D E P A R T M E N T C A S E S
Long before the naissance of the present Constitution, the annals of
history bear witness to the fact that the exercise of appointing members of
the Judiciary has always been the exclusive prerogative of the executive
and legislative branches of the government. Like their progenitor of
American origins, both the Malolos Constitution 1 and the 1935
Constitution2 had vested the power to appoint the members of the
Judiciary in the President, subject to confirmation by the Commission on
Appointments. It was during these times that the country became witness
to the deplorable practice of aspirants seeking confirmation of their
appointment in the Judiciary to ingratiate themselves with the members of
the legislative body.3
Then, with the fusion of executive and legislative power under the 1973
Constitution,4 the appointment of judges and justices was no longer subject
to the scrutiny of another body. It was absolute, except that the
appointees must have all the qualifications and none of the
disqualifications.
Prompted by the clamor to rid the process of appointments to the
Judiciary from political pressure and partisan activities, 5 the members of
the Constitutional Commission saw the need to create a separate,
competent and independent body to recommend nominees to the
President. Thus, it conceived of a body representative of all the
stakeholders in the judicial appointment process and called it the Judicial
and Bar Council (JBC). Its composition, term and functions are provided
under Section 8, Article VIII of the Constitution, viz:
Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
(2) The regular members of the Council shall be appointed by the President
for a term of four years with the consent of the Commission on
Appointments. Of the Members first appointed, the representative of the
Integrated Bar shall serve for four years, the professor of law for three
years, the retired Justice for two years, and the representative of the
private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the
Council and shall keep a record of its proceedings.
(4) The regular Members of the Council shall receive such emoluments as
may be determined by the Supreme Court. The Supreme Court shall
provide in its annual budget the appropriations for the Council.
(5) The Council shall have the principal function of recommending
appointees to the Judiciary. It may exercise such other functions and duties
as the Supreme Court may assign to it.
In compliance therewith, Congress, from the moment of the creation of
the JBC, designated one representative to sit in the JBC to act as one of the
ex officio members.6 Perhaps in order to give equal opportunity to both
houses to sit in the exclusive body, the House of Representatives and the
Senate would send alternate representatives to the JBC. In other words,
Congress had only one (1) representative.
In 1994, the composition of the JBC was substantially altered. Instead of
having only seven (7) members, an eighth (8th) member was added to the
JBC as two (2) representatives from Congress began sitting in the JBC - one
from the House of Representatives and one from the Senate, with each
having one-half (1/2) of a vote.7 Then, curiously, the JBC En Banc, in
separate meetings held in 2000 and 2001, decided to allow the
representatives from the Senate and the House of Representatives one full
vote each.8 At present, Senator Francis Joseph G. Escudero and
Congressman Niel C. Tupas, Jr. (respondents) simultaneously sit in the JBC
as representatives of the legislature.
It is this practice that petitioner has questioned in this petition, 9 setting
forth the following
GROUNDS FOR ALLOWANCE OF THE PETITION
243 | J U D I C I A L D E P A R T M E N T C A S E S
I On July 9, 2012, the JBC filed its Comment.11 It, however, abstained from
Article VIII, Section 8, Paragraph 1 is clear, definite and needs no
interpretation in that the JBC shall have only one representative
from Congress.
II
The framers of the Constitution clearly envisioned, contemplated
and decided on a JBC composed of only seven (7) members.
III
Had the framers of the Constitution intended that the JBC
composed of the one member from the Senate and one member
from the House of Representatives, they could have easily said so
as they did in the other provisions of the Constitution.
IV
The composition of the JBC providing for three ex-officio members
is purposely designed for a balanced representation of each of the
three branches of the government.
V the JBC was established, the Framers originally envisioned a unicameral
One of the two (2) members of the JBC from Congress has no right
(not even ½ right) to sit in the said constitutional body and
perform the duties and functions of a member thereof.
VI
The JBC cannot conduct valid proceedings as its composition is
illegal and unconstitutional.10
recommending on how this constitutional issue should be disposed in
gracious deference to the wisdom of the Court. Nonetheless, the JBC was
more than generous enough to offer the insights of various personalities
previously connected with it.12
Through the Office of the Solicitor General (OSG), respondents defended
their position as members of the JBC in their Comment13 filed on July 12,
2012. According to them, the crux of the controversy is the phrase "a
representative of Congress."14 Reverting to the basics, they cite Section 1,
Article VI of the Constitution15 to determine the meaning of the term
"Congress." It is their theory that the two houses, the Senate and the
House of Representatives, are permanent and mandatory components of
"Congress," such that the absence of either divests the term of its
substantive meaning as expressed under the Constitution. In simplistic
terms, the House of Representatives, without the Senate and vice-versa, is
not Congress.16 Bicameralism, as the system of choice by the Framers,
requires that both houses exercise their respective powers in the
performance of its mandated duty which is to legislate. Thus, when Section
8(1), Article VIII of the Constitution speaks of "a representative from
Congress," it should mean one representative each from both Houses
which comprise the entire Congress.17
Tracing the subject provision’s history, the respondents claim that when
legislative body, thereby allocating "a representative of the National
Assembly" to the JBC. The phrase, however, was not modified to
aptly jive with the change to bicameralism, the legislative system finally
adopted by the Constitutional Commission on July 21, 1986. According to
respondents, if the Commissioners were made aware of the consequence
of having a bicameral legislature instead of a unicameral one, they would
have made the corresponding adjustment in the representation of
Congress in the JBC.18
244 | J U D I C I A L D E P A R T M E N T C A S E S
The ambiguity having resulted from a plain case of inadvertence, the
respondents urge the Court to look beyond the letter of the disputed
provision because the literal adherence to its language would produce
absurdity and incongruity to the bicameral nature of Congress. 19 In other
words, placing either of the respondents in the JBC will effectively deprive
a house of Congress of its representation. In the same vein, the electorate
represented by Members of Congress will lose their only opportunity to
participate in the nomination process for the members of the Judiciary,
effectively diminishing the republican nature of the government. 20
The respondents further argue that the allowance of two (2)
representatives of Congress to be members of the JBC does not render the
latter’s purpose nugatory. While they admit that the purpose in creating
the JBC was to insulate appointments to the Judiciary from political
influence, they likewise cautioned the Court that this constitutional vision
did not intend to entirely preclude political factor in said appointments.
Therefore, no evil should be perceived in the current set-up of the JBC
because two (2) members coming from Congress, whose membership to
certain political parties is irrelevant, does not necessarily amplify political
partisanship in the JBC. In fact, the presence of two (2) members from
Congress will most likely provide balance as against the other six (6)
members who are undeniably presidential appointees. 21
The Issues
In resolving the procedural and substantive issues arising from the petition,
as well as the myriad of counter-arguments proffered by the respondents,
the Court synthesized them into two:
(1) Whether or not the conditions sine qua non for the exercise of
the power of judicial review have been met in this case; and
(2) Whether or not the current practice of the JBC to perform its
functions with eight (8) members, two (2) of whom are members
of Congress, runs counter to the letter and spirit of the 1987
Constitution.
The Power of Judicial Review
In its Comment, the JBC submits that petitioner is clothed
with locus standi to file the petition, as a citizen and taxpayer, who has
been nominated to the position of Chief Justice.22
For the respondents, however, petitioner has no "real interest" in
questioning the constitutionality of the JBC’s current composition. 23 As
outlined in jurisprudence, it is well-settled that for locus standi to lie,
petitioner must exhibit that he has been denied, or is about to be denied,
of a personal right or privilege to which he is entitled. Here, petitioner
failed to manifest his acceptance of his recommendation to the position of
Chief Justice, thereby divesting him of a substantial interest in the
controversy. Without his name in the official list of applicants for the post,
the respondents claim that there is no personal stake on the part of
petitioner that would justify his outcry of unconstitutionality. Moreover,
the mere allegation that this case is of transcendental importance does not
excuse the waiver of the rule on locus standi, because, in the first place,
the case lacks the requisites therefor. The respondents also question
petitioner’s belated filing of the petition.24 Being aware that the current
composition of the JBC has been in practice since 1994, petitioner’s silence
for eighteen (18) years show that the constitutional issue being raised
before the Court does not comply with the "earliest possible opportunity"
requirement.
Before addressing the above issues in seriatim, the Court deems it proper
to first ascertain the nature of the petition. Pursuant to the rule that the
nature of an action is determined by the allegations therein and the
character of the relief sought, the Court views the petition as essentially an
action for declaratory relief under Rule 63 of the 1997 Rules of Civil
Procedure.25
The Constitution as the subject matter, and the validity and construction of
Section 8 (1), Article VIII as the issue raised, the petition should properly be
considered as that which would result in the adjudication of rights sans the
execution process because the only relief to be granted is the very
declaration of the rights under the document sought to be construed. It
245 | J U D I C I A L D E P A R T M E N T C A S E S
being so, the original jurisdiction over the petition lies with the appropriate
Regional Trial Court (RTC). Notwithstanding the fact that only questions of
law are raised in the petition, an action for declaratory relief is not among
those within the original jurisdiction of this Court as provided in Section 5,
Article VIII of the Constitution.26
At any rate, due to its serious implications, not only to government
processes involved but also to the sanctity of the Constitution, the Court
deems it more prudent to take cognizance of it. After all, the petition is
also for prohibition under Rule 65 seeking to enjoin Congress from sending
two (2) representatives with one (1) full vote each to the JBC.
The Courts’ power of judicial review, like almost all other powers conferred
by the Constitution, is subject to several limitations, namely: (1) there must
be an actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have "standing" to challenge; he
must have a personal and substantial interest in the case, such that he has
sustained or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest possible
opportunity; and (4) the issue of constitutionality must be the very lis mota
of the case.27 Generally, a party will be allowed to litigate only when these
conditions sine qua non are present, especially when the constitutionality
of an act by a co-equal branch of government is put in issue.
Anent locus standi, the question to be answered is this: does the party
possess a personal stake in the outcome of the controversy as to assure
that there is real, concrete and legal conflict of rights and duties from the
issues presented before the Court? In David v. Macapagal-Arroyo, 28 the
Court summarized the rules on locus standi as culled from jurisprudence.
There, it was held that taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met: (1) cases involve constitutional issues; (2) for
taxpayers, there must be a claim of illegal disbursement of public funds or
that the tax measure is unconstitutional; (3) for voters, there must be a
showing of obvious interest in the validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and (5) for
legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.
In public suits, the plaintiff, representing the general public, asserts a
"public right" in assailing an allegedly illegal official action. The plaintiff
may be a person who is affected no differently from any other person, and
can be suing as a "stranger," or as a "citizen" or "taxpayer." Thus, taxpayers
have been allowed to sue where there is a claim that public funds are
illegally disbursed or that public money is being deflected to any improper
purpose, or that public funds are wasted through the enforcement of an
invalid or unconstitutional law. Of greater import than the damage caused
by the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute. 29
In this case, petitioner seeks judicial intervention as a taxpayer, a
concerned citizen and a nominee to the position of Chief Justice of the
Supreme Court. As a taxpayer, petitioner invokes his right to demand that
the taxes he and the rest of the citizenry have been paying to the
government are spent for lawful purposes. According to petitioner, "since
the JBC derives financial support for its functions, operation and
proceedings from taxes paid, petitioner possesses as taxpayer both right
and legal standing to demand that the JBC’s proceedings are not tainted
with illegality and that its composition and actions do not violate the
Constitution."30
Notably, petitioner takes pains in enumerating past actions that he had
brought before the Court where his legal standing was sustained. Although
this inventory is unnecessary to establish locus standi  because obviously,
not every case before the Court exhibits similar issues and facts, the Court
recognizes the petitioner’s right to sue in this case. Clearly, petitioner has
the legal standing to bring the present action because he has a personal
stake in the outcome of this controversy.
The Court disagrees with the respondents’ contention that petitioner lost
his standing to sue because he is not an official nominee for the post of
Chief Justice. While it is true that a "personal stake" on the case is
imperative to have locus standi, this is not to say that only official
246 | J U D I C I A L D E P A R T M E N T C A S E S
nominees for the post of Chief Justice can come to the Court and question
the JBC composition for being unconstitutional. The JBC likewise screens
and nominates other members of the Judiciary. Albeit heavily publicized in
this regard, the JBC’s duty is not at all limited to the nominations for the
highest magistrate in the land. A vast number of aspirants to judicial posts
all over the country may be affected by the Court’s ruling. More
importantly, the legality of the very process of nominations to the
positions in the Judiciary is the nucleus of the controversy. The Court
considers this a constitutional issue that must be passed upon, lest a
constitutional process be plagued by misgivings, doubts and worse,
mistrust. Hence, a citizen has a right to bring this question to the Court,
clothed with legal standing and at the same time, armed with issues of
transcendental importance to society. The claim that the composition of
the JBC is illegal and unconstitutional is an object of concern, not just for a
nominee to a judicial post, but for all citizens who have the right to seek
judicial intervention for rectification of legal blunders.
With respect to the question of transcendental importance, it is not
difficult to perceive from the opposing arguments of the parties that the
determinants established in jurisprudence are attendant in this case: (1)
the character of the funds or other assets involved in the case; (2) the
presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party with a more direct and
specific interest in the questions being raised.31 The allegations of
constitutional violations in this case are not empty attacks on the wisdom
of the other branches of the government. The allegations are
substantiated by facts and, therefore, deserve an evaluation from the
Court. The Court need not elaborate on the legal and societal ramifications
of the issues raised. It cannot be gainsaid that the JBC is a constitutional
innovation crucial in the selection of the magistrates in our judicial system.
The Composition of the JBC
Central to the resolution of the foregoing petition is an understanding of
the composition of the JBC as stated in the first paragraph of Section 8,
Article VIII of the Constitution. It reads:
Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
From a simple reading of the above-quoted provision, it can readily be
discerned that the provision is clear and unambiguous. The first paragraph
calls for the creation of a JBC and places the same under the supervision of
the Court. Then it goes to its composition where the regular members are
enumerated: a representative of the Integrated Bar, a professor of law, a
retired member of the Court and a representative from the private sector.
On the second part lies the crux of the present controversy. It enumerates
the ex officio or special members of the JBC composed of the Chief Justice,
who shall be its Chairman, the Secretary of Justice and "a representative of
Congress."
As petitioner correctly posits, the use of the singular letter "a" preceding
"representative of Congress" is unequivocal and leaves no room for any
other construction. It is indicative of what the members of the
Constitutional Commission had in mind, that is, Congress may designate
only one (1) representative to the JBC. Had it been the intention that more
than one (1) representative from the legislature would sit in the JBC, the
Framers could have, in no uncertain terms, so provided.
One of the primary and basic rules in statutory construction is that where
the words of a statute are clear, plain, and free from ambiguity, it must be
given its literal meaning and applied without attempted interpretation. 32 It
is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except
where technical terms are employed. As much as possible, the words of
the Constitution should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based
on the postulate that the framers and the people mean what they
247 | J U D I C I A L D E P A R T M E N T C A S E S
say.33 Verba legis non est recedendum – from the words of a statute there
should be no departure.34
The raison d’ être for the rule is essentially two-fold: First, because it is
assumed that the words in which constitutional provisions are couched
express the objective sought to be attained;35 and second, because the
Constitution is not primarily a lawyer’s document but essentially that of
the people, in whose consciousness it should ever be present as an
important condition for the rule of law to prevail. 36
Moreover, under the maxim noscitur a sociis, where a particular word or
phrase is ambiguous in itself or is equally susceptible of various meanings,
its correct construction may be made clear and specific by considering the
company of words in which it is founded or with which it is
associated.37 This is because a word or phrase in a statute is always used in
association with other words or phrases, and its meaning may, thus, be
modified or restricted by the latter.38 The particular words, clauses and
phrases should not be studied as detached and isolated expressions, but
the whole and every part of the statute must be considered in fixing the
meaning of any of its parts and in order to produce a harmonious whole. A
statute must be so construed as to harmonize and give effect to all its
provisions whenever possible.39 In short, every meaning to be given to each
word or phrase must be ascertained from the context of the body of the
statute since a word or phrase in a statute is always used in association
with other words or phrases and its meaning may be modified or restricted
by the latter.
Applying the foregoing principle to this case, it becomes apparent that the
word "Congress" used in Article VIII, Section 8(1) of the Constitution is used
in its generic sense. No particular allusion whatsoever is made on whether
the Senate or the House of Representatives is being referred to, but that,
in either case, only a singular representative may be allowed to sit in the
JBC. The foregoing declaration is but sensible, since, as pointed out by an
esteemed former member of the Court and consultant of the JBC in his
memorandum,40 "from the enumeration of the membership of the JBC, it is
patent that each category of members pertained to a single individual
only."41
Indeed, the spirit and reason of the statute may be passed upon where a
literal meaning would lead to absurdity, contradiction, injustice, or defeat
the clear purpose of the lawmakers.42 Not any of these instances, however,
is present in the case at bench. Considering that the language of the
subject constitutional provision is plain and unambiguous, there is no need
to resort extrinsic aids such as records of the Constitutional Commission.
Nevertheless, even if the Court should proceed to look into the minds of
the members of the Constitutional Commission, it is undeniable from the
records thereof that it was intended that the JBC be composed of seven (7)
members only. Thus:
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about the appointments of
members of the Supreme Court and judges of the lower courts. At present
it is the President who appoints them. If there is a Commission on
Appointments, then it is the President with the confirmation of the
Commission on Appointment. In this proposal, we would like to establish a
new office, a sort of a board composed of seven members called the
Judicial and Bar Council. And while the President will still appoint the
member of the judiciary, he will be limited to the recommendees of this
Council.
x x x           x x x          x x x
MR. RODRIGO. Of the seven members of the Judicial and Bar Council, the
President appoints four of them who are regular members.
x x x           x x x          x x x
MR. CONCEPCION. The only purpose of the Committee is to eliminate
partisan politics.43
x x x           x x x          x x x
248 | J U D I C I A L D E P A R T M E N T C A S E S
MR. RODRIGO. If my amendment is approved, then the provision will be
exactly the same as the provision in the 1935 Constitution, Article VIII,
Section 5.
x x x           x x x          x x x
If we do not remove the proposed amendment on the creation of the
Judicial and Bar Council, this will be a diminution of the appointing power
of the highest magistrate of the land, of the
President of the Philippines elected by all the Filipino people. The
appointing power will be limited by a group of seven people who are not
elected by the people but only appointed.
Mr. Presiding Officer, if this Council is created, there will be no uniformity
in our constitutional provisions on appointments. The members of the
Judiciary will be segregated from the rest of the government. Even a
municipal judge cannot be appointed by the President except upon
recommendation or nomination of the three names by this Committee of
seven people, commissioners of the Commission on Elections, the COA and
the Commission on Civil Service…even ambassadors, generals of the Army
will not come under this restriction. Why are we going to segregate the
Judiciary from the rest of our government in the appointment of high-
ranking officials?
Another reason is that this Council will be ineffective. It will just besmirch
the honor of our President without being effective at all because this
Council will be under the influence of the President. Four out of seven are
appointees of the President and they can be reappointed when their term
ends. Therefore, they would be kowtow the President. A fifth member is
the Minister of Justice, an alter ego of the President. Another member
represents the Legislature. In all probability, the controlling part in the
legislature belongs to the President and, therefore, this representative
form the National Assembly is also under the influence of the President.
And may I say, Mr. Presiding Officer, that event the Chief Justice of the
Supreme Court is an appointee of the President. So it is futile he will be
influence anyway by the President.44 [Emphases supplied]
At this juncture, it is worthy to note that the seven-member composition
of the JBC serves a practical purpose, that is, to provide a solution should
there be a stalemate in voting. This underlying reason leads the Court to
conclude that a single vote may not be divided into half (1/2), between
two representatives of Congress, or among any of the sitting members of
the JBC for that matter. This unsanctioned practice can possibly cause
disorder and eventually muddle the JBC’s voting process, especially in the
event a tie is reached. The aforesaid purpose would then be rendered
illusory, defeating the precise mechanism which the Constitution itself
created. While it would be unreasonable to expect that the Framers
provide for every possible scenario, it is sensible to presume that they
knew that an odd composition is the best means to break a voting
deadlock.
The respondents insist that owing to the bicameral nature of Congress, the
word "Congress" in Section 8(1), Article VIII of the Constitution should be
read as including both the Senate and the House of Representatives. They
theorize that it was so worded because at the time the said provision was
being drafted, the Framers initially intended a unicameral form of
Congress.
Then, when the Constitutional Commission eventually adopted a bicameral
form of Congress, the Framers, through oversight, failed to amend Article
VIII, Section 8 of the Constitution.45 On this score, the Court cites the
insightful analysis of another member of the Court and JBC consultant,
retired Justice Consuelo Ynares-Santiago.46 Thus:
A perusal of the records of the Constitutional Commission reveals that the
composition of the JBC reflects the Commission’s desire "to have in the
Council a representation for the major elements of the
community." xxx The ex-officio members of the Council consist of
representatives from the three main branches of government while the
regular members are composed of various stakeholders in the
judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to
treat each ex-officio member as representing one co-equal branch of
government. xxx Thus, the JBC was designed to have seven voting
249 | J U D I C I A L D E P A R T M E N T C A S E S
members with the three ex-officio members having equal say in the choice
of judicial nominees.
x x x           x x x          x x x
No parallelism can be drawn between the representative of Congress in
the JBC and the exercise by Congress of its legislative powers under
Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of
government, is constitutionally treated as another co-equal branch of in
the matter of its representative in the JBC. On the other hand, the exercise
of legislative and constituent powers requires the Senate and House of
Representatives to coordinate and act as distinct bodies in furtherance of
Congress’ role under our constitutional scheme. While the latter justifies
and, in fact, necessitates the separateness of the two houses of Congress
as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three governmental
branches to assign the same weight to considerations that any of its
representatives may have regarding aspiring nominees to the judiciary.
The representatives of the Senate and the House of Representatives act
as such for one branch and should not have any more quantitative
influence as the other branches in the exercise of prerogatives evenly
bestowed upon the three. Sound reason and principle of equality among
the three branches support this conclusion. [Emphases and underscoring
supplied]
More than the reasoning provided in the above discussed rules of
constitutional construction, the Court finds the above thesis as the
paramount justification of the Court’s conclusion that "Congress," in the
context of JBC representation, should be considered as one body. It is
evident that the definition of "Congress" as a bicameral body refers to its
primary function in government - to legislate. 47 In the passage of laws, the
Constitution is explicit in the distinction of the role of each house in the
process. The same holds true in Congress’ non-legislative powers such
as, inter alia, the power of appropriation,48 the declaration of an existence
of a state of war,49 canvassing of electoral returns for the President and
Vice-President,50 and impeachment.51 In the exercise of these powers, the
Constitution employs precise language in laying down the roles which a
particular house plays, regardless of whether the two houses consummate
an official act by voting jointly or separately. An inter-play between the
two houses is necessary in the realization of these powers causing a vivid
dichotomy that the Court cannot simply discount. Verily, each house is
constitutionally granted with powers and functions peculiar to its nature
and with keen consideration to 1) its relationship with the other chamber;
and 2) in consonance with the principle of checks and balances, to the
other branches of government.
This, however, cannot be said in the case of JBC representation because no
liaison between the two houses exists in the workings of the JBC. No
mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Hence,
the term "Congress" must be taken to mean the entire legislative
department. A fortiori, a pretext of oversight cannot prevail over the more
pragmatic scheme which the Constitution laid with firmness, that is, that
the JBC has a seat for a single representative of Congress, as one of the co-
equal branches of government.
Doubtless, the Framers of our Constitution intended to create a JBC as an
innovative solution in response to the public clamor in favor of eliminating
politics in the appointment of members of the Judiciary. 52 To ensure
judicial independence, they adopted a holistic approach and hoped that, in
creating a JBC, the private sector and the three branches of government
would have an active role and equal voice in the selection of the members
of the Judiciary.
Therefore, to allow the Legislature to have more quantitative influence in
the JBC by having more than one voice speak, whether with one full vote
or one-half (1/2) a vote each, would, as one former congressman and
member of the JBC put it, "negate the principle of equality among the
three branches of government which is enshrined in the Constitution." 53
To quote one former Secretary of Justice:
250 | J U D I C I A L D E P A R T M E N T C A S E S
The present imbalance in voting power between the Legislative and the
other sectors represented in the JBC must be corrected especially when
considered vis-à-vis the avowed purpose for its creation, i.e., to insulate
the appointments in the Judiciary against political influence. By allowing
both houses of Congress to have a representative in the JBC and by giving
each representative one (1) vote in the Council, Congress, as compared to
the other members of the JBC, is accorded greater and unwarranted
influence in the appointment of judges.54 [Emphasis supplied]
It is clear, therefore, that the Constitution mandates that the JBC be
composed of seven (7) members only. Thus, any inclusion of another
member, whether with one whole vote or half (1/2) of it, goes against that
mandate. Section 8(1), Article VIII of the Constitution, providing Congress
with an equal voice with other members of the JBC in recommending
appointees to the Judiciary is explicit. Any circumvention of the
constitutional mandate should not be countenanced for the Constitution is
the supreme law of the land. The Constitution is the basic and paramount
law to which all other laws must conform and to which all persons,
including the highest officials of the land, must defer. Constitutional
doctrines must remain steadfast no matter what may be the tides of time.
It cannot be simply made to sway and accommodate the call of situations
and much more tailor itself to the whims and caprices of the government
and the people who run it.55 Hence, any act of the government or of a
public official or employee which is contrary to the Constitution is illegal,
null and void.
As to the effect of the Court’s finding that the current composition of the
JBC is unconstitutional, it bears mentioning that as a general rule, an
unconstitutional act is not a law; it confers no rights; it imposes no duties;
it affords no protection; it creates no office; it is inoperative as if it has not
been passed at all.56 This rule, however, is not absolute. In the interest of
fair play under the doctrine of operative facts, actions previous to the
declaration of unconstitutionality are legally recognized. They are not
nullified. In Planters Products, Inc. v. Fertiphil Corporation, 57 the Court
explained:
The doctrine of operative fact, as an exception to the general rule, only
applies as a matter of equity and fair play.1âwphi1 It nullifies the effects of
an unconstitutional law by recognizing that the existence of a statute prior
to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be
erased by a new judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality will
impose an undue burden on those who have relied on the invalid law.
Thus, it was applied to a criminal case when a declaration of
unconstitutionality would put the accused in double jeopardy or would put
in limbo the acts done by a municipality in reliance upon a law creating it.
Considering the circumstances, the Court finds the exception applicable in
this case and holds that notwithstanding its finding of unconstitutionality
in the current composition of the JBC, all its prior official actions are
nonetheless valid.
At this point, the Court takes the initiative to clarify that it is not in a
position to determine as to who should remain as the sole representative
of Congress in the JBC. This is a matter beyond the province of the Court
and is best left to the determination of Congress.
Finally, while the Court finds wisdom in respondents' contention that both
the Senate and the House of Representatives should be equally
represented in the JBC, the Court is not in a position to stamp its
imprimatur on such a construction at the risk of expanding the meaning of
the Constitution as currently worded. Needless to state, the remedy lies in
the amendment of this constitutional provision. The courts merely give
effect to the lawgiver's intent. The solemn power and duty of the Court to
interpret and apply the law does not include the power to correct, by
reading into the law what is not written therein.
WHEREFORE, the petition is GRANTED. The current numerical composition
of the Judicial and Bar Council IS declared UNCONSTITUTIONAL. The
Judicial and Bar Council is hereby enjoined to reconstitute itself so that
251 | J U D I C I A L D E P A R T M E N T C A S E S

only one ( 1) member of Congress will sit as a representative in its

proceedings, in accordance with Section 8( 1 ), Article
GRIÑO-AQUINO, J.:
VIII of the 1987 Constitution.
This disposition is immediately executory. In this petition for review, Mantruste Systems, Inc. (or MSI seeks the
annulment of the decision dated September 29, 1988 and the resolution
SO ORDERED. dated January 4, 1989 of the Court of Appeals in the consolidated cases
of "Makati Agro-Trading, Inc., et al. vs. Judge Job Madayag, et al." (CA-G.R.
SP No. 13929) and "Asset Privatization Trust vs. Judge Job Madayag, et
al." (CA-G.R. SP No. 14535) which set aside the writ of preliminary
injunction that was issued on December 19, 1987 by Judge Madayag in
Civil Case No. 18319 of the Regional Trial Court of Manila ("Mantruste
Systems, Inc. vs. Development Bank of the Philippines, Asset Privatization
Trust, Makati Agro-Trading, Inc. and La Filipina Uy Gongco Corporation").
Republic of the Philippines Judge Madayag enjoined the defendants in. that case from doing the acts
SUPREME COURT stated in its temporary restraining order of November 13, 1987, namely:
Manila
... from approving the winning bid and awarding the
EN BANC BAYVIEW property, subject matter of this case, in favor of
the winning bidders, the herein defendants, Makati Agro-
Trading, Inc. and La Filipina Uy-Gongco Corporation;
G.R. Nos. 86540-41 November 6, 1989
enjoining the Defendants DBP and APT from taking
MANTRUSTE SYSTEMS, INC., petitioner,
physical possession of the BAYVIEW property, or ejecting
vs.
the plaintiff and its concessionaires, representatives and
THE HON. COURT OF APPEALS, ASSET PRIVATIZATION TRUST, MAKATI
agents, from the leased premises;
AGRO-TRADING, INC., and LA FILIPINA UY GONGCO. CORP., respondents.
from terminating the Contract of Lease (Annex N); and
Antonio F. Navarrette and Francisco A. Lava, Jr. for petitioner.
from disturbing and obstructing the plaintiff, through the
J.N. Borrillo, Jr. Law Offices Co-counsel for petitioner.
defendants' designated security guards, in the pursuit of
its business in the leased premises, until further orders
Alejandro Z. Barin and Balgos & Perez for Makati Agro-Trading, Inc. and La from this Court. (p. 18, Rollo.)
Filipina Uy Gongco Corp.
The facts are stated in the decision of the Court of Appeals as follows:
Ramon T. Garcia and Fiorello E. Azura for respondent Asset Privatization
Trust.
252 | J U D I C I A L D E P A R T M E N T C A S E S
... Herein private respondent Mantruste System, Inc.
(MSI) entered into an 4 "interim lease agreement" dated
August 26, 1986 with Page 139 the Development Bank of
the Philippines — owner of the Bayview Plaza Hotel —
wherein the former would operate the hotel for "a
minimum of three months or until such time that the said
properties are sold to MSI or other third parties by DBP."
On December 8, 1986 the President issued Proclamation
No. 50 entitled "Launching a Program for the Expeditious
Disposition or Privatization of Certain Government
Corporations and/or the (acquired) Assets thereof, and
creating a Committee on Privatization and the Asset
Privatization Trust." The Bayview Hotel properties were
among the government assets Identified for privatization
and were consequently transferred from DBP to APT for
disposition.
To effect the disposition of the property, the DBP notified
MSI that it was terminating the "interim lease
agreement." In a certificate dated September 18, 1987
signed by Ernesto S. Salgado, President and Chairman of
the Board of herein private respondent (Annex D; Exh. 2-
APT) the latter agreed to the termination with the
following terms:
1. Thirty days from today as of the
signing of this Certification, I will
consider the Lease Contract between
MANTRUSTE SYSTEM, INC. and
DEVELOPMENT BANK OF THE
PHILIPPINES terminated.
2. The Bayview Prince Hotel will be
made available for inspection at all
times by other bidders.
3. The Bayview Prince Hotel will be
ready for delivery to any new owners
thirty (30) days from signing of this
Certification.
On October 7, 1987 the APT sent a letter to MSI through
Mr. Salgado granting the latter an extension of thirty
days from October 18 "within which to effect the delivery
of the Bayview Prince Hotel to APT." The extension was
given to "allow (MSI) to wind up (its) affairs and to
facilitate a smooth turn-over of the facilities to its new
owners without necessarily interrupting the hotel's
regular operation." The signature of Mr. Salgado appears
on the lower left hand of the letter under the word
"CONFORME."
However, fifteen days later, or on October 22, 1987, MSI
— through its Executive Vice-President Rolando C.
Cipriano — informed APT of the following points:
xxx xxx xxx
MSI is of the opinion . . . since its lease
on the hotel properties has been for
more than one year now, its lease
status has taken the character of a long
term one. As such MSI as the lessee has
acquired certain rights and privileges
under law and equity.
xxx xxx xxx
. . . it is the company's firm contention
that it has acquired a priority right to
the purchase of Bayview Hotel
properties over and above other
253 | J U D I C I A L D E P A R T M E N T C A S E S
interested parties . . . (Annex F,
petition, SP-14535).
APT's response to this demand was equally firm. It
informed MSI that APT has ". . . not found any stipulation
tending to support your claim that Mantruste System,
Inc., as lessee, has acquired ... priority right to the
purchase of Bayview Hotel . . ." The Trust also pointed
out that the "Pre-Bidding Conference" for the sale of the
hotel has already been conducted such that for APT to
favorably consider your (MSI's) request would not be in
consonance with law, equity and fair play (Annex G,
Idem)
On October 28, Salgado, speaking for MSI, wrote APT
informing the latter of the alleged "legal lien" over the
hotel to the amount of P10,000,000 (should be
P12,000,000). Moreover, he demanded that the Trust
consider MSI a "very preferred" bidder. Nevertheless, on
November 4, 1987 herein private respondent allegedly
prepared to submit its bid to the APT for P95,000,000.00
in cash or P120,000,000 in installment terms.
On the same occasion, however, MSI asked the Trust for
clarification on the following points: (1) whether APT had
a clean title over the property; (2) whether the Trust
knew the hotel had back taxes; (3) who should pay the
tax arrears; and (4) whether MSI'S advances made in
behalf of DBP would be treated as part of the bid offer.
From there, the versions of the MSI and the Trust
differed. According to herein private respondent,
because of the questions it posed to the Trust, it was
"immediately disqualified from the public bidding." The
trust alleged on the other hand that MSI voluntarily
desisted from participating in the bidding. The property
eventually was awarded to herein petitioners Makati-
Agro Trading and La Filipina Uy Gongco Corporation
which submitted a bid for P83,000,000 (should be
P85,000,000).
On November 13, 1981, herein private respondent filed a
complaint with respondent lower court — docketed as
Civil Case No. 18319 — praying among others for: (1) the
issuance of a restraining order enjoining APT from
approving the winning bid and awarding the Bayview
property to private petitioners, and from ejecting MSI
from the property or from terminating the contract of
lease; (2) the award of the Bayview property in favor of
MSI as the highest bidder. On December 15, 1937, the
lower court, as already said, granted the writ of
preliminary injunction. (pp. 247- 250, Rollo.)
The Court of Appeals nullified the lower court's writ of preliminary
injunction for being violative of Section 31 of Proclamation No. 50-A dated
December 15,1986, which provides:
No court or administrative agency shall issue any
restraining order or injunction against the Trust in
connection with the acquisition, sale or disposition of
assets transferred to it . . . Nor shall such order or
injunction be issued against any purchaser of assets sold
by the Trust to prevent such purchaser from taking
possession of any assets purchased by him.
The Court of Appeals rejected Judge Madayag's opinion that the above
provision of Proclamation No. 50-A is unconstitutional because: (1) it
ceased to be operative in view of the 1987 Constitution; (2) it constitutes a
deprivation of property without due process of law; and (3) it impinges
upon the judicial power as defined in Section 1, Article VIII of the 1987
Constitution. The Court of Appeals held that:
254 | J U D I C I A L D E P A R T M E N T C A S E S
(1) Proclamation No. 50-A continued to be operative after the effectivity of
the 1987 Constitution, by virtue of Section 3, Article XVIII (Transitory
Provisions) providing that:
Sec. 3. All existing laws, decrees, executive orders,
proclamations, letters of instructions and other executive
issuances not inconsistent with this Constitution shall
remain operative until amended, repealed, or revoked.
(2) Section 31 of Proclamation No. 50-A does not deprive MSI of its
property  existent, and its belief that DBP had declared it to be the
preferred buyer of the hotel is "illusory." Its only "property right" was its
reimbursable advances allegedly amounting to P12 million (but denied by
DBP in its answer to the complaint) which, it may sue to collect in a
separate action.
(3) In view of Section 31 of Proclamation No. 50-A, the issuance of a writ of
preliminary injunction by the lower court against the APT may not be
justified as a valid exercise of power, i.e., the power to settle actual
controversies involving rights which are legally demandable and
enforceable, for does not have a legally demandable and enforceable right
of retention over the hotel. In any case, judicial power is "not unqualified."
It may be regulated and defined by the Constitution (Sec. 2, Art. VIII, 1987
Constitution) and by law, and the law in this particular case (Sec. 31, Procl.
No. 50-A) provides that judicial power may not be exercised in the form of
an injunction against the acts of the APT in pursuance of its mandate.
The seven grounds of this petition for certiorari may be compressed into
the following propositions:
(1) that the Court of Appeals gravely abused its discretion in substituting its
own discretion for that of the trial court on the propriety of issuing the writ
of preliminary injunction to preserve the status quo and to protect
Mantruste's contractual right to retain possession of the Bayview Hotel
until all its advances are paid; and
(2) that the Court of Appeals erred: (a) in holding that Mantruste's
property rights are non-existent except its right to the refund of its alleged
advances; (b) in not declaring unconstitutional Section 31 of Proclamation
50-A prohibiting the issuance of an injunction against the APT and (c) in
finding that Mantruste is to blame for its failure to participate in the
bidding for the Bayview Hotel
We find no merit in the petition.
While the well-known and basic purpose of a preliminary injunction is to
preserve the status quo  of the property subject of the action to protect the
rights of the plaintiff respecting the same during the pendency of the suit
(Calo vs. Roldan, 76 Phil. 445, 452; Lasala vs. Fernandez, 5 SCRA 79; Rivera
vs. Florendo, 144 SCRA 643), and that generally, the exercise of sound
judicial discretion by the lower court will not be interfered with (Rodulfa
vs. Alfonso, 76 Phil. 225, 232), the Court of Appeals however correctly
found that, under the lease agreement between the DBP and Mantruste,
the latter's claim to a "patent contractual right to retain possession of the
Bayview Hotel until all its advances are paid" is non-existent. As the right of
retention does not exist, neither does the right to the relief (injunction)
demanded (Sec. 3, Rule 58, Rules of Court).
Furthermore, there is Section 31 of Proclamation No. 50-A to be reckoned
with which explicitly prohibits courts and administrative agencies from
issuing "any restraining order or injunction against the Trust APT in
connection with the acquisition, sale or disposition of assets transferred to
it, nor against any purchaser of assets sold by the Trust to prevent such
purchaser from taking possession of any assets purchased by him." While
the petitioner decries the "probable injustice" that it will suffer if it is
ousted from the hotel and possession of the property is delivered to the
private respondents as the winning bidders/purchasers at the public
auction sale, the greater prejudice and injustice to the latter who, after
paying P85 million to purchase the hotel have been deprived of its
possession by the illegal issuance of the writ of injunction, may not be
glossed over. On the other hand, as indicated by the Appellate Court, the
petitioner is not without adequate remedy to recover its alleged P12
million advances on behalf of the DBP to make the hotel operational. It
255 | J U D I C I A L D E P A R T M E N T C A S E S
may sue either the DBP, or its successor-in-interest, the APT for payment
of the claim.
Mantruste's right to reimbursement for those advances (the exact amount
of which remains to be determined) may not be denied. However, its claim
to a right of retention over the hotel pending such reimbursement, is, as
was correctly found by the Court of Appeals, "illusory" and "non-existent."
A mere lessee, like Mantruste, is not a builder in good faith, hence, the
right of retention given to a possessor in good faith under Article 546 of
the Civil Code, pending reimbursement of his advances for necessary
repairs and useful improvements on another's property is not available to
a lessee whose possession is not that of an owner.
A lessee is not entitled to retain possession of the
premises leased until he is reimbursed for alleged
improvements thereon, for a lessee cannot pretend to
act in good faith in making improvements.
A lessee, in order to be entitled to one half the value of
the improvements introduced by him in the leased
premises, or to remove them should lessor refuse to
reimburse the half value thereof, must show that the
same were introduced in good faith; are useful; suitable
to the use for which the lease is intended without
altering the form and substance of the premises.
(Imperial Insurance, Inc. vs. Simon, 14  SCRA 855.)
Petitioner's contention that he is a builder in good faith
for which reason he may not he evicted unless he is
indemnified for the cost of his improvements on the
leased premises, has no merit. Knowing that his right to
occupy the premises was temporary, he is deemed to
have built his house at his own risk. (Lopez, Inc. vs. Phil.
& Eastern Trading Co., Inc., 98 Phil. 348.)
It is a settled rule that lessees are not possessors in good
faith, because they know that their occupancy of the
premises continues only during the life of the lease,
hence they cannot, as a matter of right, recover the value
of their improvements from the lessor, much less retain
the premises until they are reimbursed therefor.
(Bacaling vs. Laguna, et al., 54 SCRA 243.)
Section 31 of Proclamation No. 50-A does not infringe any provision of the
Constitution. It does not impair the inherent power of courts "to settle
actual controversies which are legally demandable and enforceable and to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government" (Sec. 1, Art. VIII, 1987 Constitution).
The power to define, prescribe and apportion the jurisdiction of the
various courts belongs to the legislature, except that it may not deprive the
Supreme Court of its jurisdiction over cases enumerated in Section 5,
Article VIII of the Constitution (Sec. 2, Art. VIII, 1987 Constitution).
The President, in the exercise of her legislative power under the Freedom
Constitution, issued Proclamation No. 50-A prohibiting the courts from
issuing restraining orders and writs of injunction against the APT and the
purchasers of any assets sold by it, to prevent courts from interfering in
the discharge, by this instrumentality of the executive branch of the
Government, of its task of carrying out "the expeditious disposition and
privatization of certain government corporations and/or the assets thereof'
(Proc. No. 50), absent any grave abuse of discretion amounting to excess or
lack of jurisdiction on its part. This proclamation, not being inconsistent
with the Constitution and not having been repealed or revoked by
Congress, has remained operative (Sec. 3, Art. XVIII, 1987 Constitution).
While the judicial power may appear to be pervasive, the truth is that
under the system of separation of powers set up in the Constitution, the
power of the courts over the other branches and instrumentalities of the
Government is limited only to the determination of "whether or not there
has been a grave abuse of discretion (by them) amounting to lack or excess
of jurisdiction" in the exercise of their authority and in the performance of
Page 145 their assigned tasks (Sec. 1, Art. VIII, 1987 Constitution). Courts
may not substitute their judgment for that of the APT, nor block, by an
256 | J U D I C I A L D E P A R T M E N T C A S E S

injunction, the discharge of its functions and the implementation of its may provide a clue. Mantruste may have banked on its alleged advance of
decisions in connection with the acquisition, sale or disposition of assets P12 million to keep it in possession of the hotel for 20 years, without
transferred to it. having to buy it at the APT's auction.

There can be no justification for judicial interference in the business of an WHEREFORE, finding no reversible error in the decision of the Court of
administrative agency, except when it violates a citizen's constitutional Appeals, the petition for review is dismissed for lack of merit. Costs against
rights, or commits a grave abuse of discretion, or acts in excess of, or the petitioner.
without jurisdiction.
SO ORDERED.
The Court of Appeals correctly ruled that paragraph 2 of the Contract of
Lease which provides: Republic of the Philippines
SUPREME COURT
2. The term of the lease is a minimum of three (3) Manila
months or until such time that said properties are sold to
MSI  or other third parties by DBP (p. 1, Annex N of Annex EN BANC
A hereof; Exh. I.)
UDK-15143               January 21, 2015
does not give Mantruste preferred standing or "a right of first refusal" as a
prospective buyer of the Bayview Hotel. That provision of the lease IN THE MATTER OF: SAVE THE SUPREME COURT JUDICIAL INDEPENDENCE
contract gives it only the right, equally with others, to bid for the property. AND FISCAL AUTONOMY MOVEMENT VS. ABOLITION OF JUDICIARY
DEVELOPMENT FUND (JDF) AND REDUCTION OF FISCAL AUTONOMY.
In any event, assuming that Mantruste did have that preferred status (for it
was assured by Estela Ladrido, DBP's officer-in-charge of the Bayview RESOLUTION
Hotel, that "all things equal (sic) DBP would be more inclined to sell the
Bayview property to MSI Mantruste lost that preferential right by failing to
LEONEN, J.:
participate in the bidding for the property. Its allegation that it would have
submitted a higher bid than the winning bidders, is futile, for the fact is
This case involves the proposed bills abolishing the Judiciary Development
that it did not submit a bid. Its excuses for failing to do so are
Fund1 and replacing it with the "Judiciary Support Fund." Funds collected
unconvincing. The real reason is difficult to fathom but the following
from the proposed Judiciary Support Fund shall be remitted to the national
statement in its petition —
treasury and Congress shall determine how the funds will be used. 2
Considering that Mantruste has made capital
Petitioner Rolly Mijares (Mijares) prays for the issuance of a writ of
expenditures of more than P12 million, then this would
mandamus in order to compel this court to exercise its judicial
mean an uninterrupted, peaceful and continued
independence and fiscal autonomy against the perceived hostility of
possession by Mantruste of Bayview for more than
Congress.3
twenty (20) years in order to complete the offsetting
process. (p. 44, Petition.)
257 | J U D I C I A L D E P A R T M E N T C A S E S
This matter was raised to this court through the letter 4 dated August 27,
2014, signed by Mijares and addressed to the Chief Justice and the
Associate Justices of the Supreme Court. The letter is captioned:
Petition for Mandamus with Manifestation to invoke the Judicial
Independence and Fiscal Autonomy as mandated under the Constitution 5
The letter was referred to the Clerk of Court En Banc for appropriate
action.6 It was then docketed as UDK-15143.7
In the letter-petition, Mijares alleges that he is "a Filipino citizen, and a
concerned taxpayer[.]"8 He filed this petition as part of his "continuing
crusade to defend and uphold the Constitution"9 because he believes in
the rule of law.10 He is concerned about the threats against the judiciary
after this court promulgated Priority Development Assistance Fund 11 case
on November 19, 2013 and Disbursement Acceleration Program 12 case on
July 1, 2014.
The complaint implied that certain acts of members of Congress and the
President after the promulgation of these cases show a threat to judicial
independence.
In the first week of July 2014, Ilocos Norte Representative Rodolfo Fariñas
filed House Bill No. 4690, which would require this court to remit its
Judiciary Development Fund collections to the national treasury. 13
A week later, or on July 14, 2014, Iloilo Representative Niel Tupas, Jr., filed
House Bill No. 4738 entitled "The Act Creating the Judicial Support Fund
(JSF) under the National Treasury, repealing for the purpose Presidential
Decree No. 1949."14
On the same day, President Benigno Simeon C. Aquino III addressed the
nation:
My message to the Supreme Court: We do not want two equal branches of
government to go head to head, needing a third branch to step in to
intervene. We find it difficult to understand your decision. You had done
something similar in the past, and you tried to do it again; there are even
those of the opinion that what you attempted to commit was graver, if we
were to base it on your decision. Abiding by the principle of "presumption
of regularity," we assumed that you did the right thing; after all, you are
the ones who should ostensibly have a better understanding of the law.
And now, when we use the same mechanism—which, you yourselves have
admitted, benefit our countrymen—why is it then that we are wrong?
We believe that the majority of you, like us, want only the best for the
Filipino people. To the honorable justices of the Supreme Court: Help us
help our countrymen. We ask that you review your decision, this time
taking into consideration the points I have raised tonight. The nation hopes
for your careful deliberation and response. And I hope that once you’ve
examined the arguments I will submit, regarding the law and about our
economy, solidarity will ensue—thus strengthening the entire
government’s capability to push for the interests of the nation. 15
The issue for resolution is whether petitioner Rolly Mijares has sufficiently
shown grounds for this court to grant the petition and issue a writ of
mandamus.
Petitioner argues that Congress "gravely abused its discretion with a
blatant usurpation of judicial independence and fiscal autonomy of the
Supreme Court."16
Petitioner points out that Congress is exercising its power "in an arbitrary
and despotic manner by reason of passion or personal hostility by
abolishing the ‘Judiciary Development Fund’ (JDF) of the Supreme Court." 17
With regard to his prayer for the issuance of the writ of mandamus,
petitioner avers that Congress should not act as "wreckers of the law" 18 by
threatening "to clip the powers of the High Tribunal[.]" 19 Congress
committed a "blunder of monumental proportions" 20 when it reduced the
judiciary’s 2015 budget.21
Petitioner prays that this court exercise its powers to "REVOKE/ABROGATE
and EXPUNGE whatever irreconcilable contravention of existing laws
258 | J U D I C I A L D E P A R T M E N T C A S E S
affecting the judicial independence and fiscal autonomy as mandated
under the Constitution to better serve public interest and general welfare
of the people."22
This court resolves to deny the petition.
The power of judicial review, like all powers granted by the Constitution, is
subject to certain limitations. Petitioner must comply with all the requisites
for judicial review before this court may take cognizance of the case. The
requisites are:
(1) there must be an actual case or controversy calling for the
exercise of judicial power;
(2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement;
(3) the question of constitutionality must be raised at the earliest
opportunity; and
(4) the issue of constitutionality must be the very lis mota of the
case.23
Petitioner’s failure to comply with the first two requisites warrants the
outright dismissal of this petition.
I legal right, on the one hand, and a denial thereof on the other; that is, it
The petition does not comply with the requisites of judicial review
No actual case or controversy
Article VIII, Section 1 of the Constitution provides that:
ARTICLE VIII
Judicial Department
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government. (Emphasis supplied)
One of the requirements for this court to exercise its power of judicial
review is the existence of an actual controversy. This means that there
must be "an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the
court would amount to an advisory opinion."24 As emphasized by this court
in Information Technology Foundation of the Phils. v. Commission on
Elections:25
It is well-established in this jurisdiction that ". . . for a court to exercise its
power of adjudication, there must be an actual case or controversy — one
which involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial resolution; the case must not be moot or
academic or based on extra-legal or other similar considerations not
cognizable by a court of justice. . . . [C]ourts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however intellectually
challenging." The controversy must be justiciable — definite and concrete,
touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a
must concern a real and not a merely theoretical question or issue. There
ought to be an actual and substantial controversy admitting of specific
relief through a decree conclusive in nature, as distinguished from an
opinion advising what the law would be upon a hypothetical state of
facts.26
259 | J U D I C I A L D E P A R T M E N T C A S E S
For this court to rule on constitutional issues, there must first be a
justiciable controversy. Pleadings before this court must show a violation
of an existing legal right or a controversy that is ripe for judicial
determination. In the concurring opinion in Belgica v. Ochoa:
Basic in litigation raising constitutional issues is the requirement that there
must be an actual case or controversy. This Court cannot render an
advisory opinion. We assume that the Constitution binds all other
constitutional departments, instrumentalities, and organs. We are aware
that in the exercise of their various powers, they do interpret the text of
the Constitution in the light of contemporary needs that they should
address. A policy that reduces this Court to an adviser for official acts by
the other departments that have not yet been done would unnecessarily
tax our resources. It is inconsistent with our role as final arbiter and
adjudicator and weakens the entire system of the Rule of Law. Our power
of judicial review is a duty to make a final and binding construction of law.
This power should generally be reserved when the departments have
exhausted any and all acts that would remedy any perceived violation of
right. The rationale that defines the extent of our doctrines laying down
exceptions to our rules on justiciability are clear: Not only should the
pleadings show a convincing violation of a right, but the impact should be
shown to be so grave, imminent, and irreparable that any delayed exercise
of judicial review or deference would undermine fundamental principles
that should be enjoyed by the party complaining or the constituents that
they legitimately represent.27 (Emphasis supplied)
The reason for this requirement was explained in Angara v. Electoral
Commission:28
Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities. Narrowed as
its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord
the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative
departments of the government.29
Petitioner’s allegations show that he wants this court to strike down the
proposed bills abolishing the Judiciary Development Fund. This court,
however, must act only within its powers granted under the Constitution.
This court is not empowered to review proposed bills because a bill is not a
law.
Montesclaros v. COMELEC30 involved the postponement of the 2002
Sangguniang Kabataan Elections and the lowering of the age requirement
in the Sangguniang Kabataan "to at least 15 but not more than 18 years of
age."31 Montesclaros and other parties filed a petition for certiorari,
prohibition, and mandamus with prayer for the issuance of a temporary
restraining order.32 One of the reliefs prayed for was:
a) To prevent, annul or declare unconstitutional any law, decree,
Comelec resolution/directive and other respondents’ issuances,
orders and actions and the like in postponing the May 6, 2002 SK
elections.33
This court held that:
. . . petitioners instituted this petition to: (1) compel public
respondents to hold the SK elections on May 6, 2002 and should it
be postponed, the SK elections should be held not later than July
15, 2002; (2) prevent public respondents from passing laws and
issuing resolutions and orders that would lower the membership
age in the SK. . . .
....
Petitioners’ prayer to prevent Congress from enacting into law a
proposed bill lowering the membership age in the SK does not
present an actual justiciable controversy. A proposed bill is not
subject to judicial review because it is not a law. A proposed bill
creates no right and imposes no duty legally enforceable by the
260 | J U D I C I A L D E P A R T M E N T C A S E S
Court. A proposed bill, having no legal effect, violates no
constitution alright or duty. The Court has no power to declare a
proposed bill constitutional or unconstitutional because that
would be in the nature of rendering an advisory opinion on a
proposed act of Congress. The power of judicial review cannot be
exercised in vacuo. . . .
....
Thus, there can be no justiciable controversy involving the
constitutionality of a proposed bill. The Court can exercise its
power of judicial review only after a law is enacted, not before.
Under the separation of powers, the Court cannot restrain
Congress from passing any law, or from setting into motion the
legislative mill according to its internal rules. Thus, the following
acts of Congress in the exercise of its legislative powers are not
subject to judicial restraint: the filing of bills by members of
Congress, the approval of bills by each chamber of Congress, the
reconciliation by the Bicameral Committee of approved bills, and
the eventual approval into law of the reconciled bills by each
chamber of Congress. Absent a clear violation of specific
constitutional limitations or of constitutional rights of private
parties, the Court cannot exercise its power of judicial review over
the internal processes or procedures of Congress.
....
. . . To do so would destroy the delicate system of checks and
balances finely crafted by the Constitution for the three co-equal,
coordinate and independent branches of
government.34 (Emphasis supplied, citations omitted)
Similar to Montesclaros, petitioner is asking this court to stop Congress
from passing laws that will abolish the Judiciary Development Fund. This
court has explained that the filing of bills is within the legislative power of
Congress and is "not subject to judicial restraint[.]" 35 A proposed bill
produces no legal effects until it is passed into law. Under the Constitution,
the judiciary is mandated to interpret laws. It cannot speculate on the
constitutionality or unconstitutionality of a bill that Congress may or may
not pass. It cannot rule on mere speculations or issues that are not ripe for
judicial determination.36 The petition, therefore, does not present any
actual case or controversy that is ripe for this court’s determination.
Petitioner has no legal standing
Even assuming that there is an actual case or controversy that this court
must resolve, petitioner has no legal standing to question the validity of
the proposed bill. The rule on legal standing has been discussed in David v.
Macapagal-Arroyo:37
Locus standi is defined as "a right of appearance in a court of justice on a
given question." In private suits, standing is governed by the "real-parties-
in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that "every action must be prosecuted
or defended in the name of the real party in interest." Accordingly, the
"real-party-in interest" is "the party who stands to be benefited or injured
by the judgment in the suit or the party entitled to the avails of the suit."
Succinctly put, the plaintiff’s standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in public suits.
Here, the plaintiff who asserts a "public right" in assailing an allegedly
illegal official action, does so as a representative of the general public. He
may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or
‘taxpayer." In either case, he has to adequately show that he is entitled to
seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a
"citizen" or "taxpayer."
....
261 | J U D I C I A L D E P A R T M E N T C A S E S
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must
have "a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine was
upheld in a litany of cases, such as, Custodio v. President of the Senate,
Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v.
Secretary of Public Works and Anti-Chinese League of the Philippines v.
Felix.38
Petitioner has not shown that he has sustained or will sustain a direct
injury if the proposed bill is passed into law. While his concern for judicial
independence is laudable, it does not, by itself, clothe him with the
requisite standing to question the constitutionality of a proposed bill that
may only affect the judiciary.
This court, however, has occasionally relaxed the rules on standing when
the issues involved are of "transcendental importance" to the public.
Specifically, this court has stated that:
the rule on standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society, or of
paramount public interest.39
Transcendental importance is not defined in our jurisprudence, thus, in
Francisco v. House of Representatives:40
There being no doctrinal definition of transcendental importance, the
following instructive determinants formulated by former Supreme Court
Justice Florentino P. Feliciano are instructive: (1) the character of the funds
or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government; and (3) the lack
of any other party with a more direct and specific interest in raising the
questions being raised.41
A mere invocation of transcendental importance in the pleading is not
enough for this court to set aside procedural rules:
Whether an issue is of transcendental importance is a matter determined
by this court on a case-to-case basis. An allegation of transcendental
importance must be supported by the proper allegations. 42
None of the determinants in Francisco are present in this case. The events
feared by petitioner are merely speculative and conjectural.
In addition to the determinants in Francisco, it must also be shown that
there is a clear or imminent threat to fundamental rights. In an opinion in
Imbong v. Ochoa:43
The Responsible Parenthood and Reproductive Health Act of 2012 should
not be declared unconstitutional in whole or in any of its parts given the
petitions filed in this case.
None of the petitions properly present an "actual case or controversy,"
which deserves the exercise of our awesome power of judicial review. It is
our duty not torule on the abstract and speculative issues barren of actual
facts. These consolidated petitions, which contain bare allegations, do not
provide the proper venue to decide on fundamental issues. The law in
question is needed social legislation.
That we rule on these special civil actions for certiorari and prohibition —
which amounts to a pre-enforcement free-wheeling facial review of the
statute and the implementing rules and regulations — is very bad
precedent. The issues are far from justiciable. Petitioners claim in their
class suits that they entirely represent a whole religion, the Filipino nation
and, worse, all the unborn. The intervenors also claim the same
representation: Filipinos and Catholics. Many of the petitions also sue the
President of the Republic.
We should apply our rules rigorously and dismiss these cases. The
transcendental importance of the issues they want us to decide will be
better served when we wait for the proper cases with the proper parties
262 | J U D I C I A L D E P A R T M E N T C A S E S
suffering real, actual or more imminent injury. There is no showing of an
injury so great and so imminent that we cannot wait for these
cases.44 (Emphasis supplied)
The events feared by petitioner are contingent on the passing of the
proposed bill in Congress. The threat of imminent injury is not yet manifest
since there is no guarantee that the bill will even be passed into law. There
is no transcendental interest in this case to justify the relaxation of
technical rules.
II
Requisites for the issuance of a writ of mandamus not shown Rule 65,
Section 3 of the 1997 Rules of Civil Procedure provides that:
Rule 65
CERTIORARI, PROHIBITION AND MANDAMUS
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.
The petition shall also contain a sworn certification of non-forum shopping
as provided in the third paragraph of section 3, Rule 46.
The writ of mandamus will issue when the act sought to be performed is
ministerial.45 An act is ministerial when it does not require the exercise of
judgment and the act is performed in compliance with a legal
mandate.46 In a petition for mandamus, the burden of proof is on
petitioner to show that one is entitled to the performance of a legal right
and that respondent has a corresponding duty to perform the
act.47 Mandamus will not lie "to compel an official to do anything which is
not his duty to do or which it is his duty not to do, or to give to the
applicant anything to which he is not entitled by law." 48
In this case, petitioner has not shown how he is entitled to the relief
prayed for. Hence, this court cannot be compelled to exercise its power of
judicial review since there is no actual case or controversy.
Final note
The judiciary is the weakest branch of government. It is true that courts
have power to declare what law is given a set of facts, but it does not have
an army to enforce its writs. Courts do not have the power of the purse.
"Except for a constitutional provision that requires that the budget of the
judiciary should not go below the appropriation for the previous year, it is
beholden to the Congress depending on how low the budget is." 49
Despite being the third co-equal branch of the government, the judiciary
enjoys less than 1%50 of the total budget for the national government.
Specifically, it was a mere 0.82% in 2014,51 0.85% in 2013, 52 0.83% in
2012,53 and 0.83% in 2011.54
Maintenance and Other Operating Expenses or MOOE "pays for sundry
matters such as utility payments, paper, gasoline and others." 55 The MOOE
granted to the lower courts in 2014 was ₱1,220,905,000.00. 56 While this
might seem like a large amount, the amount significantly dwindles when
divided among all lower courts in the country. Per the 2014 General
Appropriations Act (GAA), the approximate monthly MOOE for all courts
are estimated as follows:
Type of Court Number of Estimated Monthly
Courts57 MOOE Per Court
Regional Trial Courts 969 ₱46,408.67
 263 | J U D I C I A L D E P A R T M E N T C A S E S

Metropolitan Trial Courts 106 ₱46,071.89 justice in the entire country, including those courts destroyed by Typhoon
Yolanda and the 2013 earthquake.
Municipal Trial Courts in Cities 229 ₱46,206.01
Municipal Circuit Trial Courts 468 ₱46,305.69 The entire budget for the judiciary, however, does not only come from the
national government. The Constitution grants fiscal autonomy to the
Municipal Trial Courts 366 ₱46,423.30 judiciary to maintain its independence.61 In Bengzon v. Drilon:62
Shari’a District Courts 5 ₱40,696.83
The Judiciary, the Constitutional Commissions, and the Ombudsman must
Shari’a Circuit Courts 51 ₱45,883.68 have the independence and flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and utilize the
These amounts were arrived at using the following computation:
funds appropriated for their operations is anathema to fiscal autonomy
and violative not only of the express mandate of the Constitution but
Number of Courts especially as regards the Supreme Court, of the independence and
x MOOE separation of powers upon which the entire fabric of our constitutional
Total Number of Courts system is based.63
/ 12

Number of Courts
In comparison, the 2014 MOOE allocation for the House of Representatives
was ₱3,386,439,000.0058 or about 282.2 million per month for the
maintenance and operation of the House of Representatives compound in
Batasan Hills. Even if this amount was divided equally among the 234
legislative districts, a representative’s office space would still have a
monthly MOOE allocation of approximately ₱1.2 million, which is
significantly higher than the average ₱46,000.00 allocated monthly to each
trial court.
It was only in 2013 that the budget allocated to the judiciary included an
item for the construction, rehabilitation, and repair of the halls of justice in
the capital outlay. The amount allocated was ₱1 million. 59
Courts, therefore, must also be accountable with their own budget. The
Judiciary Development Fund, used to augment the expenses of the
judiciary, is regularly accounted for by this court on a quarterly basis. The
financial reports are readily available at the Supreme Court
website.64 These funds, however, are still not enough to meet the expenses
of lower courts and guarantee credible compensation for their personnel.
The reality is that halls of justice exist because we rely on the generosity of
local government units that provide additional subsidy to our judges. 65 If
not, the budget for the construction, repair, and rehabilitation of halls of
justice is with the Department of Justice. 66
As a result, our fiscal autonomy and judicial independence are often
undermined by low levels of budgetary outlay, the lack of provision for
maintenance and operating expenses, and the reliance on local
government units and the Department of Justice.

In 2014, there was no item for the construction, rehabilitation, and repair "Courts are not constitutionally built to do political lobbying. By
of the halls of justice.60 This allocation would have been used to help fund constitutional design, it is a co-equal department to the Congress and the
the repair of existing halls of justice and the construction of new halls of Executive. By temperament, our arguments are legal, not political. We are
best when we lay down all our premises in the finding of facts,
264 | J U D I C I A L D E P A R T M E N T C A S E S

interpretation of the law and understanding of precedents. We are not x - - - - - - - - - - - - - - - - - - - - - - -x

trained .to produce a political statement or a media release." 67
G.R. No. 191032
"Because of the nature of courts, that is - that it has to decide in favor of
one party, we may not have a political base. Certainly, we should not even JAIME N. SORIANO, Petitioner,
consider building a political base. All we have is an abiding faith that we vs.
should do what we could to ensure that the Rule of Law prevails. It seems JUDICIAL AND BAR COUNCIL (JBC), Respondent.
that we have no champions when it comes to ensuring the material basis
for fiscal autonomy or judicial independence."68 x - - - - - - - - - - - - - - - - - - - - - - -x

For this reason, we appreciate petitioner's concern for the judiciary. It is G.R. No. 191057
often only through the vigilance of private citizens that issues relating to
the judiciary can be discussed in the political sphere. Unfortunately, the
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,
remedy he seeks cannot be granted by this court. But his crusade is not a
vs.
lost cause. Considering that what he seeks to be struck down is a proposed
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
bill, it would be better for him to air his concerns by lobbying in Congress.
There, he may discover the representatives and senators who may have a
x - - - - - - - - - - - - - - - - - - - - - - -x
similar enthusiastic response to truly making the needed investments in
the Rule of Law.
A.M. No. 10-2-5-SC
WHEREFORE, the petition is DISMISSED.
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION
TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P.
SO ORDERED.
MENDOZA, Petitioner,
Republic of the Philippines
x - - - - - - - - - - - - - - - - - - - - - - -x
SUPREME COURT
Baguio City
G.R. No. 191149
EN BANC
JOHN G. PERALTA, Petitioner,
vs.
G.R. No. 191002               April 20, 2010
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN,
ARTURO M. DE CASTRO, Petitioner,
JR.; NATIONAL UNION OF PEOPLE’S LAWYERS; MARLOU B. UBANO;
vs.
INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER,
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL -
represented by its Immediate Past President, ATTY. ISRAELITO P.
ARROYO, Respondents.
TORREON, and the latter in his own personal capacity as a MEMBER of
265 | J U D I C I A L D E P A R T M E N T C A S E S
the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG
BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN
SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT
EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG
DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA
ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN
PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS;
TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO
STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON;
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN
EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP)
CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF
THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;
WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL
LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA
QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA
GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN
STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON; AQUILINO
Q. PIMENTEL, JR.; Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and
ATTY. ROLAND B. INTING (IBP Governor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-
ARROYO, Respondents.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No.
191002 and G.R. No. 191149, and the petition for mandamus in
G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and
G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly,
directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of
candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S. Puno
by May 17, 2010;
(b) To prepare the short list of nominees for the position
of Chief Justice;
(c) To submit to the incumbent President the short list of
nominees for the position of Chief Justice on or before
May 17, 2010; and
(d) To continue its proceedings for the nomination of
candidates to fill other vacancies in the Judiciary and
266 | J U D I C I A L D E P A R T M E N T C A S E S
submit to the President the short list of nominees
corresponding thereto in accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and
Roland B. Inting (G.R. No. 191342), and Philippine Bar Association (G.R. No.
191420), as well as intervenors Integrated Bar of the Philippines-Davao del
Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera;
Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the
Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B.
Ubano; Mitchell John L. Boiser; and Walden F. Bello and Loretta Ann P.
Rosales (Bello, et al.), filed their respective motions for reconsideration.
Also filing a motion for reconsideration was Senator Aquilino Q. Pimentel,
Jr., whose belated intervention was allowed.
We summarize the arguments and submissions of the various motions for
reconsideration, in the aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of
whether or not the power to designate the Chief Justice belonged
to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because it
sought a mere declaratory judgment and did not involve a
justiciable controversy.
3. All Justices of the Court should participate in the next
deliberations. The mere fact that the Chief Justice sits as ex officio
head of the JBC should not prevail over the more compelling state
interest for him to participate as a Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an
interpretation that exempts judicial appointments from the
express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made
distinctions and has created exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII, not
in Article VIII, because it limits an executive, not a judicial, power.
4. Resort to the deliberations of the Constitutional Commission is
superfluous, and is powerless to vary the terms of the clear
prohibition.
5. The Court has given too much credit to the position taken by
Justice Regalado. Thereby, the Court has raised the Constitution
to the level of a venerated text whose intent can only be divined
by its framers as to be outside the realm of understanding by the
sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal
standing to question the illegal composition of the JBC.
Philippine Bar Association
1. The Court’s strained interpretation of the Constitution violates
the basic principle that the Court should not formulate a rule of
constitutional law broader than what is required by the precise
facts of the case.
2. Considering that Section 15, Article VII is clear and
straightforward, the only duty of the Court is to apply it. The
provision expressly and clearly provides a general limitation on
the appointing power of the President in prohibiting the
267 | J U D I C I A L D E P A R T M E N T C A S E S
appointment of any person to any position in the Government
without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the
constitutional safeguard against midnight appointments.
4. The Constitution has installed two constitutional safeguards:-
the prohibition against midnight appointments, and the creation
of the JBC. It is not within the authority of the Court to prefer one
over the other, for the Court’s duty is to apply the safeguards as
they are, not as the Court likes them to be.
5. The Court has erred in failing to apply the basic principles of
statutory construction in interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or
section headings, despite precedents on statutory construction
holding that such headings carried very little weight.
7. The Constitution has provided a general rule on midnight
appointments, and the only exception is that on temporary
appointments to executive positions.
8. The Court has erred in directing the JBC to resume the
proceedings for the nomination of the candidates to fill the
vacancy to be created by the compulsory retirement of Chief
Justice Puno with a view to submitting the list of nominees for
Chief Justice to President Arroyo on or before May 17, 2010. The
Constitution grants the Court only the power of supervision over
the JBC; hence, the Court cannot tell the JBC what to do, how to
do it, or when to do it, especially in the absence of a real and
justiciable case assailing any specific action or inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and
has indulged in speculations.
10. The constitutional ban on appointments being already in
effect, the Court’s directing the JBC to comply with the decision
constitutes a culpable violation of the Constitution and the
commission of an election offense.
11. The Court cannot reverse on the basis of a secondary
authority a doctrine unanimously formulated by the Court en
banc.
12. The practice has been for the most senior Justice to act as
Chief Justice whenever the incumbent is indisposed. Thus, the
appointment of the successor Chief Justice is not urgently
necessary.
13. The principal purpose for the ban on midnight appointments is
to arrest any attempt to prolong the outgoing President’s powers
by means of proxies. The attempt of the incumbent President to
appoint the next Chief Justice is undeniably intended to
perpetuate her power beyond her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of the
Constitution applies to appointments to the Judiciary. Hence, no
cogent reason exists to warrant the reversal of the Valenzuela
pronouncement.
2. Section 16, Article VII of the Constitution provides for
presidential appointments to the Constitutional Commissions and
the JBC with the consent of the Commission on Appointments. Its
phrase "other officers whose appointments are vested in him in
this Constitution" is enough proof that the limitation on the
appointing power of the President extends to appointments to
the Judiciary. Thus, Section 14, Section 15, and Section 16 of
Article VII apply to all presidential appointments in the Executive
and Judicial Branches of the Government.
268 | J U D I C I A L D E P A R T M E N T C A S E S
3. There is no evidence that the framers of the Constitution
abhorred the idea of an Acting Chief Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Court’s
exercise of judicial review.
2. The election ban under Section 15, Article VII applies to
appointments to fill a vacancy in the Court and to other
appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the
safeguard under Section 15 of Article VII against midnight
appointments in the Judiciary.
Corvera
1. The Court’s exclusion of appointments to the Judiciary from the
Constitutional ban on midnight appointments is based on an
interpretation beyond the plain and unequivocal language of the
Constitution.
2. The intent of the ban on midnight appointments is to cover
appointments in both the Executive and Judicial Departments. The
application of the principle of verba legis (ordinary meaning)
would have obviated dwelling on the organization and
arrangement of the provisions of the Constitution. If there is any
ambiguity in Section 15, Article VII, the intent behind the
provision, which is to prevent political partisanship in all branches
of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained
interpretation based on compartmentalization and physical
arrangement, especially considering that the Constitution must be
interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of
the framers of the Constitution should yield to the plain and
unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling
that is reasonable and in accord with the Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC,
because the petition did not present a justiciable controversy. The
issues it raised were not yet ripe for adjudication, considering that
the office of the Chief Justice was not yet vacant and that the JBC
itself has yet to decide whether or not to submit a list of
nominees to the President.
2. The collective wisdom of Valenzuela Court is more important
and compelling than the opinion of Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section
4(1), Article VIII, the Court has violated the principle of ut magis
valeat quam pereat (which mandates that the Constitution should
be interpreted as a whole, such that any conflicting provisions are
to be harmonized as to fully give effect to all). There is no conflict
between the provisions; they complement each other.
4. The form and structure of the Constitution’s titles, chapters,
sections, and draftsmanship carry little weight in statutory
construction. The clear and plain language of Section 15, Article
VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or
controversy. The clash of legal rights and interests in the present
case are merely anticipated. Even if it is anticipated with certainty,
269 | J U D I C I A L D E P A R T M E N T C A S E S
no actual vacancy in the position of the Chief Justice has yet
occurred.
2. The ruling that Section 15, Article VII does not apply to a
vacancy in the Court and the Judiciary runs in conflict with long
standing principles and doctrines of statutory construction. The
provision admits only one exception, temporary appointments in
the Executive Department. Thus, the Court should not distinguish,
because the law itself makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the
Constitution clearly intended the ban on midnight appointments
to cover the members of the Judiciary. Hence, giving more weight
to the opinion of Justice Regalado to reverse the en banc decision
in Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1),
Article VIII. The 90-day mandate to fill any vacancy lasts until
August 15, 2010, or a month and a half after the end of the ban.
The next President has roughly the same time of 45 days as the
incumbent President (i.e., 44 days) within which to scrutinize and
study the qualifications of the next Chief Justice. Thus, the JBC has
more than enough opportunity to examine the nominees without
haste and political uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period
under Section 4(1), Article VIII is suspended.
6. There is no basis to direct the JBC to submit the list of nominees
on or before May 17, 2010. The directive to the JBC sanctions a
culpable violation of the Constitution and constitutes an election
offense.
7. There is no pressing necessity for the appointment of a Chief
Justice, because the Court sits en banc, even when it acts as the
sole judge of all contests relative to the election, returns and
qualifications of the President and Vice-President. Fourteen other
Members of the Court can validly comprise the Presidential
Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to
submit the list of nominees for Chief Justice to the President on or
before May 17, 2010, and to continue its proceedings for the
nomination of the candidates, because it granted a relief not
prayed for; imposed on the JBC a deadline not provided by law or
the Constitution; exercised control instead of mere supervision
over the JBC; and lacked sufficient votes to reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the
basic principle of statutory construction to the effect that the
literal meaning of the law must be applied when it is clear and
unambiguous; and that we should not distinguish where the law
does not distinguish.
3. There is no urgency to appoint the next Chief Justice,
considering that the Judiciary Act of 1948 already provides that
the power and duties of the office devolve on the most senior
Associate Justice in case of a vacancy in the office of the Chief
Justice.
Ubano
1. The language of Section 15, Article VII, being clear and
unequivocal, needs no interpretation
2. The Constitution must be construed in its entirety, not by resort
to the organization and arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section
15, Article VII and the pertinent records of the Constitutional
Commission are clear and unambiguous.
270 | J U D I C I A L D E P A R T M E N T C A S E S
4. The Court has erred in ordering the JBC to submit the list of
nominees to the President by May 17, 2010 at the latest, because
no specific law requires the JBC to submit the list of nominees
even before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban
on midnight appointments is the temporary appointment to an
executive position. The limitation is in keeping with the clear
intent of the framers of the Constitution to place a restriction on
the power of the outgoing Chief Executive to make appointments.
2. To exempt the appointment of the next Chief Justice from the
ban on midnight appointments makes the appointee beholden to
the outgoing Chief Executive, and compromises the independence
of the Chief Justice by having the outgoing President be
continually influential.
3. The Court’s reversal of Valenzuela without stating the sufficient
reason violates the principle of stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of
appointments an outgoing President is prohibited from making
within the prescribed period. Plain textual reading and the records
of the Constitutional Commission support the view that the ban
on midnight appointments extends to judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The
subordinate subject to oversight must first act not in accord with
prescribed rules before the act can be redone to conform to the
prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-SC,
because the petition did not present a justiciable controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable,
rational, and conformable to the general intent of the
Constitution as a limitation to the powers of Government and as a
bastion for the protection of the rights of the people. Thus, in
harmonizing seemingly conflicting provisions of the Constitution,
the interpretation should always be one that protects the
citizenry from an ever expanding grant of authority to its
representatives.
2. The decision expands the constitutional powers of the
President in a manner totally repugnant to republican
constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately represent
in their respective comments, thus:
OSG
1. The JBC may be compelled to submit to the President a short
list of its nominees for the position of Chief Justice.
2. The incumbent President has the power to appoint the next
Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the
exemption of the Judiciary from the ban on midnight
appointments.1awph!1
271 | J U D I C I A L D E P A R T M E N T C A S E S
5. The Court has the duty to consider and resolve all issues raised
by the parties as well as other related matters.
JBC
1. The consolidated petitions should have been dismissed for
prematurity, because the JBC has not yet decided at the time the
petitions were filed whether the incumbent President has the
power to appoint the new Chief Justice, and because the JBC,
having yet to interview the candidates, has not submitted a short
list to the President.
2. The statement in the decision that there is a doubt on whether
a JBC short list is necessary for the President to appoint a Chief
Justice should be struck down as bereft of constitutional and legal
basis. The statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in
accord with its constitutional mandate and its implementing rules
and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits
his comment even if the OSG and the JBC were the only ones the Court has
required to do so. He states that the motions for reconsideration were
directed at the administrative matter he initiated and which the Court
resolved. His comment asserts:
1. The grounds of the motions for reconsideration were already
resolved by the decision and the separate opinion.
2. The administrative matter he brought invoked the Court’s
power of supervision over the JBC as provided by Section 8(1),
Article VIII of the Constitution, as distinguished from the Court’s
adjudicatory power under Section 1, Article VIII. In the former, the
requisites for judicial review are not required, which was
why Valenzuela was docketed as an administrative matter.
Considering that the JBC itself has yet to take a position on when
to submit the short list to the proper appointing authority, it has
effectively solicited the exercise by the Court of its power of
supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9,
Article VIII is to amend the Constitution.
4. The portions of the deliberations of the Constitutional
Commission quoted in the dissent of Justice Carpio Morales, as
well as in some of the motions for reconsideration do not refer to
either Section 15, Article VII or Section 4(1), Article VIII, but to
Section 13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the
matters being thereby raised and argued, not being new, have all been
resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose
of clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is
controlling, and accordingly insist that the Court has erred in disobeying or
abandoning Valenzuela.1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non
quieta movere, i.e., to adhere to precedent and not to unsettle things that
are settled. It simply means that a principle underlying the decision in one
case is deemed of imperative authority, controlling the decisions of like
cases in the same court and in lower courts within the same jurisdiction,
unless and until the decision in question is reversed or overruled by a court
of competent authority. The decisions relied upon as precedents are
commonly those of appellate courts, because the decisions of the trial
272 | J U D I C I A L D E P A R T M E N T C A S E S
courts may be appealed to higher courts and for that reason are probably
not the best evidence of the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those
called upon to abide by them, but also of those duty-bound to enforce
obedience to them.3 In a hierarchical judicial system like ours, the decisions
of the higher courts bind the lower courts, but the courts of co-ordinate
authority do not bind each other. The one highest court does not bind
itself, being invested with the innate authority to rule according to its best
lights.4
The Court, as the highest court of the land, may be guided but is not
controlled by precedent. Thus, the Court, especially with a new
membership, is not obliged to follow blindly a particular decision that it
determines, after re-examination, to call for a rectification. 5 The adherence
to precedents is strict and rigid in a common-law setting like the United
Kingdom, where judges make law as binding as an Act of Parliament. 6 But
ours is not a common-law system; hence, judicial precedents are not
always strictly and rigidly followed. A judicial pronouncement in an earlier
decision may be followed as a precedent in a subsequent case only when
its reasoning and justification are relevant, and the court in the latter case
accepts such reasoning and justification to be applicable to the case. The
application of the precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or
abandoned, or reversed, and that its wisdom should guide, if not control,
the Court in this case is, therefore, devoid of rationality and foundation.
They seem to conveniently forget that the Constitution itself recognizes
the innate authority of the Court en banc to modify or reverse a doctrine
or principle of law laid down in any decision rendered en banc or in
division.7
Second: Some intervenors are grossly misleading the public by their
insistence that the Constitutional Commission extended to the Judiciary
the ban on presidential appointments during the period stated in Section
15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from
the records of the Constitutional Commission did not concern either
Section 15, Article VII or Section 4(1), Article VIII, but only Section 13,
Article VII, a provision on nepotism. The records of the Constitutional
Commission show that Commissioner Hilario G. Davide, Jr. had proposed
to include judges and justices related to the President within the fourth
civil degree of consanguinity or affinity among the persons whom the
President might not appoint during his or her tenure. In the end, however,
Commissioner Davide, Jr. withdrew the proposal to include the Judiciary in
Section 13, Article VII "(t)o avoid any further complication," 8 such that the
final version of the second paragraph of Section 13, Article VII even
completely omits any reference to the Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not during his tenure be appointed as
Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section 15,
Article VII does not apply to appointments in the Judiciary. They aver that
the Court either ignored or refused to apply many principles of statutory
construction.
The movants gravely err in their posture, and are themselves apparently
contravening their avowed reliance on the principles of statutory
construction.
For one, the movants, disregarding the absence from Section 15, Article VII
of the express extension of the ban on appointments to the Judiciary, insist
273 | J U D I C I A L D E P A R T M E N T C A S E S
that the ban applied to the Judiciary under the principle of verba legis. That
is self-contradiction at its worst.
Another instance is the movants’ unhesitating willingness to read into
Section 4(1) and Section 9, both of Article VIII, the express applicability of
the ban under Section 15, Article VII during the period provided therein,
despite the silence of said provisions thereon. Yet, construction cannot
supply the omission, for doing so would generally constitute an
encroachment upon the field of the Constitutional Commission. Rather,
Section 4(1) and Section 9 should be left as they are, given that their
meaning is clear and explicit, and no words can be interpolated in
them.9 Interpolation of words is unnecessary, because the law is more than
likely to fail to express the legislative intent with the interpolation. In other
words, the addition of new words may alter the thought intended to be
conveyed. And, even where the meaning of the law is clear and sensible,
either with or without the omitted word or words, interpolation is
improper, because the primary source of the legislative intent is in the
language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section
15, Article VII to the appointment of Members of the Supreme Court, they
could have explicitly done so. They could not have ignored the meticulous
ordering of the provisions. They would have easily and surely written the
prohibition made explicit in Section 15, Article VII as being equally
applicable to the appointment of Members of the Supreme Court in Article
VIII itself, most likely in Section 4 (1), Article VIII. That such specification
was not done only reveals that the prohibition against the President or
Acting President making appointments within two months before the next
presidential elections and up to the end of the President’s or Acting
President’s term does not refer to the Members of the Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any
unintended point in order to suit the purposes of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy
we are resolving that because all the Members of the present Court were
appointed by the incumbent President, a majority of them are now
granting to her the authority to appoint the successor of the retiring Chief
Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience and
the merits of the issues. Any claim to the contrary proceeds from malice
and condescension. Neither the outgoing President nor the present
Members of the Court had arranged the current situation to happen and to
evolve as it has. None of the Members of the Court could have prevented
the Members composing the Court when she assumed the Presidency
about a decade ago from retiring during her prolonged term and tenure,
for their retirements were mandatory. Yet, she is now left with an
imperative duty under the Constitution to fill up the vacancies created by
such inexorable retirements within 90 days from their occurrence. Her
official duty she must comply with. So must we ours who are tasked by the
Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO RENATO C. CORONA
Associate Justice Associate Justice
274 | J U D I C I A L D E P A R T M E N T C A S E S

CONCHITA CARPIO MORALES
Associate Justice
ANTONIO EDUARDO B.
NACHURA
Associate Justice
ARTURO D. BRION
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
1
 In Re Appointments Dated March 30, 1998 of Hon. Mateo A.
PRESBITERO J. VELASCO, JR. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional
Associate Justice Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan
City, respectively, A.M. No. 98-5-01-SC, November 9, 1998, 298
TERESITA J. LEONARDO-DE SCRA 408.
CASTRO
Associate Justice 2
 Price & Bitner, Effective Legal Research, Little, Brown & Co., New
York (1962), § 9.7.
DIOSDADO M. PERALTA
Associate Justice 3
 Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966,
18 SCRA 247
ROBERTO A. ABAD
Associate Justice 4
 E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth
Edition, p. 127.
JOSE PORTUGAL PEREZ
5
Associate Justice  Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509,
September 5, 1996, 261 SCRA 464.

JOSE CATRAL MENDOZA 6

 See Calabresi, A Common Law for the Age of Statutes, Harvard
Associate Justice
University Press, p. 4 (1982) and endnote 12 of the page, which
essentially recounts that the strict application of the doctrine of
CERTIFICATION stare decisis is true only in a common-law jurisdiction like England
(citing Wise, The Doctrine of Stare Decisis, 21 Wayne Law Review,
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified 1043, 1046-1047 (1975). Calabresi recalls that the English House
that the conclusions in the above Resolution had been reached in of Lords decided in 1898 (London Tramways Co. v. London County
consultation before the case was assigned to the writer of the opinion of Council, A.C. 375) that they could not alter precedents laid down
the Court. by the House of Lords acting as the supreme court in previous
cases, but that such precedents could only be altered by an Act of
REYNATO S. PUNO Parliament, for to do otherwise would mean that the courts
Chief Justice would usurp legislative function; he mentions that in 1966, Lord
Chancellor Gardiner announced in a Practice Statement a kind of
general memorandum from the court that while: "Their Lordships
regard the use of precedent as an indispensable foundation upon
which to decide what is the law," they "nevertheless recognize
Footnotes that too rigid adherence to precedent may lead to injustice in a
particular case and also unduly restrict the proper development of
the law. They propose, therefore, to modify their present practice
275 | J U D I C I A L D E P A R T M E N T C A S E S
and, while treating former decisions of this House as normally
binding, to depart from a previous decision when it appears right
to do so." (Calabresi cites Leach, Revisionism in the House of
Lords: The Bastion of Rigid Stare Decisis Falls, 80 Harvard Law
Review, 797 (1967).
7
 Section 4 (2), Article VIII, provides:
xxx
(3) Cases or matters heard by a division shall be decided
or resolved with the concurrence of a majority of the
Members who actually took part in the deliberations on
the issues in the case and voted thereon, and in no case,
without the concurrence of at least three of such
Members. When the required number is not obtained,
the case shall be decided en banc; Provided, that no
doctrine or principle of law laid down by the court in a
decision rendered en banc or in division may be modified
or reversed except by the court sitting en banc.
8
 Record of the 1986 Constitutional Commission, Vol. 2, July 31,
1986, RCC No. 44. pp. 542-543.
9
 Smith v. State, 66 Md. 215, 7 Atl. 49.
10
 State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a reconsideration of the
assailed Decision. The various motions for reconsideration raise hollering
substantial arguments and legitimately nagging questions which the Court
must meet head on.
If this Court is to deserve or preserve its revered place not just in the
hierarchy but also in history, passion for reason demands the issuance of
an extended and extensive resolution that confronts the ramifications and
repercussions of its assailed Decision. Only then can it offer an illumination
that any self-respecting student of the law clamors and any adherent of
the law deserves. Otherwise, it takes the risk of reeking of an objectionable
air of supreme judicial arrogance.
It is thus imperative to settle the following issues and concerns:
Whether the incumbent President is constitutionally proscribed from
appointing the successor of Chief Justice Reynato S. Puno upon his
retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30,
2010
1. In interpreting the subject constitutional provisions, the
Decision disregarded established canons of statutory
construction. Without explaining the inapplicability of each of the
relevant rules, the Decision immediately placed premium on the
arrangement and ordering of provisions, one of the weakest tools
of construction, to arrive at its conclusion.
2. In reversing Valenzuela, the Decision held that
the Valenzuela dictum did not firmly rest on ConCom
deliberations, yet it did not offer to cite a material ConCom
deliberation. It instead opted to rely on the memory of Justice
Florenz Regalado which incidentally mentioned only the "Court of
Appeals." The Decision’s conclusion must rest on the strength of
its own favorable Concom deliberation, none of which to date has
been cited.
276 | J U D I C I A L D E P A R T M E N T C A S E S
3. Instead of choosing which constitutional provision carves out
an exception from the other provision, the most legally feasible
interpretation (in the limited cases of temporary physical or legal
impossibility of compliance, as expounded in my Dissenting
Opinion) is to consider the appointments ban or other substantial
obstacle as a temporary impossibility which excuses or releases
the constitutional obligation of the Office of the President for the
duration of the ban or obstacle.
In view of the temporary nature of the circumstance causing the
impossibility of performance, the outgoing President is released from non-
fulfillment of the obligation to appoint, and the duty devolves upon the
new President. The delay in the fulfillment of the obligation becomes
excusable, since the law cannot exact compliance with what is impossible.
The 90-day period within which to appoint a member of the Court is thus
suspended and the period could only start or resume to run when the
temporary obstacle disappears (i.e., after the period of the appointments
ban; when there is already a quorum in the JBC; or when there is already at
least three applicants).
Whether the Judicial and Bar Council is obliged to submit to the President
the shortlist of nominees for the position of Chief Justice (or Justice of
this Court) on or before the occurrence of the vacancy.
1. The ruling in the Decision that obligates the JBC to submit the
shortlist to the President on or before the occurrence of the
vacancy in the Court runs counter to the Concom
deliberations which explain that the 90-day period is allotted for
both the nomination by the JBC and the appointment by the
President. In the move to increase the period to 90 days,
Commissioner Romulo stated that "[t]he sense of the Committee
is that 60 days is awfully short and that the [Judicial and Bar]
Council, as well as the President, may have difficulties with that."
2. To require the JBC to submit to the President a shortlist of
nominees on or before the occurrence of vacancy in the
Court leads to preposterous results. It bears reiterating that the
requirement is absurd when, inter alia, the vacancy is occasioned
by the death of a member of the Court, in which case the JBC
could never anticipate the death of a Justice, and could never
submit a list to the President on or before the occurrence of
vacancy.
3. The express allowance in the Constitution of a 90-day period of
vacancy in the membership of the Court rebuts any public policy
argument on avoiding a vacuum of even a single day without a
duly appointed Chief Justice. Moreover, as pointed out in my
Dissenting Opinion, the practice of having an acting Chief Justice
in the interregnum is provided for by law, confirmed by tradition,
and settled by jurisprudence to be an internal matter.
The Resolution of the majority, in denying the present Motions for
Reconsideration, failed to rebut the foregoing crucial matters.
I, therefore, maintain my dissent and vote to GRANT the Motions for
Reconsideration of the Decision of March 17, 2010 insofar as it holds that
the incumbent President is not constitutionally proscribed from appointing
the successor of Chief Justice Reynato S. Puno upon his retirement on May
17, 2010 until the ban ends at 12:00 noon of June 30, 2010 and that the
Judicial and Bar Council is obliged to submit to the President the shortlist
of nominees for the position of Chief Justice on or before May 17, 2010.
CONCHITA CARPIO MORALES
Associate Justice
The Lawphil Project - Arellano Law Foundation
CONCURRING AND DISSENTING OPINION
BRION, J.:
277 | J U D I C I A L D E P A R T M E N T C A S E S
The Motions for Reconsideration
After sifting through the motions for reconsideration, I found that the
arguments are largely the same arguments that we have passed upon, in
one form or another, in the various petitions. Essentially, the issues boil
down to justiciability; the conflict of constitutional provisions; the merits of
the cited constitutional deliberations; and the status and effect of the
Valenzuela1 ruling. Even the motion for reconsideration of the Philippine
Bar Association (G.R. No. 191420), whose petition I did not expressly touch
upon in my Separate Opinion, basically dwells on these issues.
I have addressed most, if not all, of these issues and I submit my Separate
Opinion2 as my basic response to the motions for reconsideration,
supplemented by the discussions below.
As I reflected in my Separate Opinion (which three other Justices
joined),3 the election appointment ban under Article VII, Section 15 of the
Constitution should not apply to the appointment of Members of the
Supreme Court whose period for appointment is separately provided for
under Article VIII, Section 4(1). I shared this conclusion with the Court’s
Decision although our reasons differed on some points.
I diverged fully from the Decision on the question of whether we should
maintain or reverse our ruling in Valenzuela. I maintained that it is still
good law; no reason exists to touch the ruling as its main focus – the
application of the election ban on the appointment of lower court judges
under Article VIII, Section 9 of the Constitution – is not even an issue in the
present case and was discussed only because the petitions incorrectly cited
the ruling as authority on the issue of the Chief Justice’s appointment. The
Decision proposed to reverse Valenzuela but only secured the support of
five (5) votes, while my Separate Opinion in support of Valenzuela had four
(4) votes. Thus, on the whole, the Decision did not prevail in reversing
Valenzuela, as it only had five (5) votes in a field of 12 participating
Members of the Court. Valenzuela should therefore remain, as of the filing
of this Opinion, as a valid precedent.
Acting on the present motions for reconsideration, I join the majority in
denying the motions with respect to the Chief Justice issue, although we
differ in some respects on the reasons supporting the denial. I dissent from
the conclusion that the Valenzuela ruling should be reversed. My
divergence from the majority’s reasons and conclusions compels me to
write this Concurring and Dissenting Opinion.
The Basic Requisites / Justiciability
One marked difference between the Decision and my Separate Opinion is
our approach on the basic requisites/justiciability issues. The Decision
apparently glossed over this aspect of the case, while I fully explained why
the De Castro4 and Peralta5 petitions should be dismissed outright. In my
view, these petitions violated the most basic requirements of their chosen
medium for review – a petition for certiorari and mandamus under Rule 65
of the Rules of Court.
The petitions commonly failed to allege that the Judicial and Bar Council
(JBC) performs judicial or quasi-judicial functions, an allegation that the
petitions could not really make, since the JBC does not really undertake
these functions and, for this reason, cannot be the subject of a petition for
certiorari; hence, the petitions should be dismissed outright. They likewise
failed to facially show any failure or refusal by the JBC to undertake a
constitutional duty to justify the issuance of a writ of mandamus; they
invoked judicial notice that we could not give because there was, and is, no
JBC refusal to act.6 Thus, the mandamus aspects of these petitions should
have also been dismissed outright. The ponencia, unfortunately, failed to
fully discuss these legal infirmities.
The motions for reconsideration lay major emphasis on the alleged lack of
an actual case or controversy that made the Chief Justice’s appointment a
justiciable issue. They claim that the Court cannot exercise the power of
judicial review where there is no clash of legal rights and interests or
where this clash is merely anticipated, although the anticipated event shall
come with certainty.7
278 | J U D I C I A L D E P A R T M E N T C A S E S
What the movants apparently forgot, focused as they were on their
respective petitions, is that the present case is not a single-petition case
that rises or falls on the strength of that single petition. The present case
involves various petitions and interventions,8 not necessarily pulling
towards the same direction, although each one is focused on the issue of
whether the election appointment ban under Article VII, Section 15 of the
Constitution should apply to the appointment of the next Chief Justice of
the Supreme Court.
Among the petitions filed were those of Tolentino (G.R. No. 191342),
Soriano (G.R. No. 191032) and Mendoza (A.M. No. 10-2-5-SC). The first two
are petitions for prohibition under Section 2 of Rule 65 of the Rules of
Court.9 While they commonly share this medium of review, they differ in
their supporting reasons. The Mendoza petition, on the other hand, is
totally different – it is a petition presented as an administrative matter
(A.M.) in the manner that the Valenzuela case was an A.M. case. As I
pointed out in the Separate Opinion, the Court uses the A.M. docket
designation on matters relating to its exercise of supervision over all courts
and their personnel.10 I failed to note then, but I make of record now, that
court rules and regulations – the outputs in the Court’s rulemaking
function – are also docketed as A.M. cases.
That an actual case or controversy involving a clash of rights and interests
exists is immediately and patently obvious in the Tolentino and Soriano
petitions. At the time the petitions were filed, the JBC had started its six-
phase nomination process that would culminate in the submission of a list
of nominees to the President of the Philippines for appointive action.
Tolentino and Soriano – lawyers and citizens with interest in the strict
observance of the election ban – sought to prohibit the JBC from
continuing with this process. The JBC had started to act, without any
prodding from the Court, because of its duty to start the nomination
process but was hampered by the petitions filed and the legal questions
raised that only the Supreme Court can settle with finality. 11 Thus, a clash
of interests based on law existed between the petitioners and the JBC. To
state the obvious, a decision in favor of Tolentino or Soriano would result
in a writ of prohibition that would direct the JBC not to proceed with the
nomination process.
The Mendoza petition cited the effect of a complete election ban on
judicial appointments (in view of the already high level of vacancies and
the backlog of cases) as basis, and submitted the question as an
administrative matter that the Court, in the exercise of its supervisory
authority over the Judiciary and the JBC itself, should act upon. At the
same time, it cited the "public discourse and controversy" now taking place
because of the application of the election ban on the appointment of the
Chief Justice, pointing in this regard to the very same reasons mentioned in
Valenzuela about the need to resolve the issue and avoid the recurrence of
conflict between the Executive and the Judiciary, and the need to "avoid
polemics concerning the matter."12
I recognized in the Separate Opinion that, unlike in Valenzuela where an
outright defiance of the election ban took place, no such obvious triggering
event transpired in the Mendoza petition.13 Rather, the Mendoza petition
looked to the supervisory power of the Court over judicial personnel and
over the JBC as basis to secure a resolution of the election ban issue. The
JBC, at that time, had indicated its intent to look up to the Court’s
supervisory power and role as the final interpreter of the Constitution to
guide it in responding to the challenges it confronts. 14 To me, this was "a
point no less critical, from the point of view of supervision, than the
appointment of the two judges during the election ban period in
Valenzuela."15
In making this conclusion, I pointed out in my Separate Opinion the
unavoidable surrounding realities evident from the confluence of events,
namely: (1) an election to be held on May 10, 2010; (2) the retirement of
the Chief Justice on May 17, 2010; (3) the lapse of the terms of the elective
officials from the President to the congressmen on June 30, 2010; (4) the
delay before the Congress can organize and send its JBC representatives;
and (5) the expiration of the term of a non-elective JBC member in July
2010.16 All these – juxtaposed with the Court’s supervision over the JBC,
the latter’s need for guidance, and the existence of an actual controversy
on the same issues bedeviling the JBC – in my view, were sufficient to save
the Mendoza petition from being a mere request for opinion or a petition
for declaratory relief that falls under the jurisdiction of the lower court.
This recognition is beyond the level of what this Court can do in handling a
moot and academic case – usually, one that no longer presents a judiciable
279 | J U D I C I A L D E P A R T M E N T C A S E S
controversy but one that can still be ruled upon at the discretion of the
court when the constitutional issue is of paramount public interest and
controlling principles are needed to guide the bench, the bar and the
public.17
To be sure, this approach in recognizing when a petition is actionable is
novel. An overriding reason for this approach can be traced to the nature
of the petition, as it rests on the Court’s supervisory authority and relates
to the exercise of the Court’s administrative rather than its judicial
functions (other than these two functions, the Court also has its
rulemaking function under Article VIII, Section 5(5) of the Constitution).
Strictly speaking, the Mendoza petition calls for directions from the Court
in the exercise of its power of supervision over the JBC, 18 not on the basis
of the power of judicial review.19 In this sense, it does not need the actual
clash of interests of the type that a judicial adjudication requires. All that
must be shown is the active need for supervision to justify the Court’s
intervention as supervising authority.
Under these circumstances, the Court’s recognition of the Mendoza
petition was not an undue stretch of its constitutional powers. If the
recognition is unusual at all, it is so only because of its novelty; to my
knowledge, this is the first time ever in Philippine jurisprudence that the
supervisory authority of the Court over an attached agency has been
highlighted in this manner. Novelty, per se, however, is not a ground for
objection nor a mark of infirmity for as long as the novel move is founded
in law. In this case, as in the case of the writ of amparo and habeas data
that were then novel and avowedly activist in character, sufficient legal
basis exists to actively invoke the Court’s supervisory authority – granted
under the Constitution, no less – as basis for action.
To partly quote the wording of the Constitution, Article VIII, Section 8(1)
and (5) provide that "A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court… It may exercise such other functions
and duties as the Supreme Court may assign to it." Supervision, as a legal
concept, more often than not, is defined in relation with the concept of
control.20 In Social Justice Society v. Atienza,21 we defined "supervision" as
follows:
[Supervision] means overseeing or the power or authority of an officer to
see that subordinate officers perform their duties. If the latter fail or
neglect to fulfill them, the former may take such action or step as
prescribed by law to make them perform their duties. Control, on the
other hand, means the power of an officer to alter or modify or nullify or
set aside what a subordinate officer ha[s] done in the performance of his
duties and to substitute the judgment of the former for that of the latter.
Under this definition, the Court cannot dictate on the JBC the results of its
assigned task, i.e., who to recommend or what standards to use to
determine who to recommend. It cannot even direct the JBC on how and
when to do its duty, but it can, under its power of supervision, direct the
JBC to "take such action or step as prescribed by law to make them
perform their duties," if the duties are not being performed because of
JBC’s fault or inaction, or because of extraneous factors affecting
performance. Note in this regard that, constitutionally, the Court can also
assign the JBC other functions and duties – a power that suggests authority
beyond what is purely supervisory.
Where the JBC itself is at a loss on how to proceed in light of disputed
constitutional provisions that require interpretation, 22 the Court is not
legally out of line – as the final authority on the interpretation of the
Constitution and as the entity constitutionally-tasked to supervise the JBC
– in exercising its oversight function by clarifying the interpretation of the
disputed constitutional provision to guide the JBC. In doing this, the Court
is not simply rendering a general legal advisory; it is providing concrete and
specific legal guidance to the JBC in the exercise of its supervisory
authority, after the latter has asked for assistance in this regard. That the
Court does this while concretely resolving actual controversies (the
Tolentino and Soriano petitions) on the same issue immeasurably
strengthens the intrinsic correctness of the Court’s action.
It may be asked: why does the Court have to recognize the Mendoza
petition when it can resolve the conflict between Article VII, Section 15 and
Article VIII, Section 4(1) through the Tolentino and Soriano petitions?
280 | J U D I C I A L D E P A R T M E N T C A S E S
The answer is fairly simple and can be read between the lines of the above
explanation on the relationship between the Court and the JBC. First,
administrative is different from judicial function and providing guidance to
the JBC can only be appropriate in the discharge of the Court’s
administrative function. Second, the resolution of the Tolentino and
Soriano petitions will lead to rulings directly related to the underlying facts
of these petitions, without clear guidelines to the JBC on the proper
parameters to observe vis-à-vis the constitutional dispute along the lines
the JBC needs. In fact, concrete guidelines addressed to the JBC in the
resolution of the Tolentino/Soriano petitions may even lead to accusations
that the Court’s resolution is broader than is required by the facts of the
petitions. The Mendoza petition, because it pertains directly to the
performance of the JBC’s duty and the Court’s supervisory authority,
allows the issuance of precise guidelines that will enable the JBC to fully
and seasonably comply with its constitutional mandate.
I hasten to add that the JBC’s constitutional task is not as simple as some
people think it to be. The process of preparing and submitting a list of
nominees is an arduous and time-consuming task that cannot be done
overnight. It is a six-step process lined with standards requiring the JBC to
attract the best available candidates, to examine and investigate them, to
exhibit transparency in all its actions while ensuring that these actions
conform to constitutional and statutory standards (such as the election
ban on appointments), to submit the required list of nominees on time,
and to ensure as well that all these acts are politically neutral. On the time
element, the JBC list for the Supreme Court has to be submitted on or
before the vacancy occurs given the 90-day deadline that the appointing
President is given in making the appointment. The list will be submitted,
not to the President as an outgoing President, nor to the election winner as
an incoming President, but to the President of the Philippines whoever he
or she may be. If the incumbent President does not act on the JBC list
within the time left in her term, the same list shall be available to the new
President for him to act upon. In all these, the Supreme Court bears the
burden of overseeing that the JBC’s duty is done, unerringly and with
utmost dispatch; the Court cannot undertake this supervision in a manner
consistent with the Constitution’s expectation from the JBC unless it
adopts a pro-active stance within the limits of its supervisory authority.
The Disputed Provisions
The movants present their arguments on the main issue at several levels.
Some argue that the disputed constitutional provisions – Article VII,
Section 15 and Article VIII, Section 4(1) – are clear and speak for
themselves on what the Constitution covers in banning appointments
during the election period.23 One even posits that there is no conflict
because both provisions can be given effect without one detracting against
the full effectiveness of the other,24 although the effect is to deny the
sitting President the option to appoint in favor of a deferment for the
incoming President’s action. Still others, repeating their original
arguments, appeal to the principles of interpretation and latin maxims to
prove their point.25
In my discussions in the Separate Opinion, I stated upfront my views on
how the disputed provisions interact with each other. Read singly and in
isolation, they appear clear (this reading applies the "plain meaning rule"
that Tolentino advocates in his motion for reconsideration, as explained
below). Arrayed side by side with each other and considered in relation
with the other provisions of the Constitution, particularly its structure and
underlying intents, the conflict however becomes obvious and
unavoidable.
Section 15 on its face disallows any appointment in clear negative terms
("shall not make") without specifying the appointments covered by the
prohibition.26 From this literal and isolated reading springs the argument
that no exception is provided (except that found in Section 15 itself) so
that even the Judiciary is covered by the ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its
terms: any vacancy in the Court shall be filled within 90 days from its
occurrence.27 In the way of Section 15, Section 4(1) is also clear and
categorical and provides no exception; the appointment refers solely to
the Members of the Supreme Court and does not mention any period that
would interrupt, hold or postpone the 90-day requirement.
281 | J U D I C I A L D E P A R T M E N T C A S E S
From this perspective, the view that no conflict exists cannot be seriously
made, unless with the mindset that one provision controls and the other
should yield. Many of the petitions in fact advocate this kind of reading,
some of them openly stating that the power of appointment should be
reserved for the incoming President. 28 The question, however, is whether –
from the viewpoint of strict law and devoid of the emotionalism and
political partisanship that permeate the present Philippine political
environment – this kind of mindset can really be adopted in reading and
applying the Constitution.
In my view, this kind of mindset and the conclusion it inevitably leads to
cannot be adopted; the provisions of the Constitution cannot be read in
isolation from what the whole contains. To be exact, the Constitution must
be read and understood as a whole, reconciling and harmonizing
apparently conflicting provisions so that all of them can be given full force
and effect,29 unless the Constitution itself expressly states otherwise.30
Not to be forgotten in reading and understanding the Constitution are the
many established underlying constitutional principles that we have to
observe and respect if we are to be true to the Constitution. These
principles – among them the principles of checks and balances and
separation of powers – are not always expressly stated in the Constitution,
but no one who believes in and who has studied the Constitution can deny
that they are there and deserve utmost attention, respect, and even
priority consideration.
In establishing the structures of government, the ideal that the
Constitution seeks to achieve is one of balance among the three great
departments of government – the Executive, the Legislative and the
Judiciary, with each department undertaking its constitutionally-assigned
task as a check against the exercise of power by the others, while all three
departments move forward in working for the progress of the nation. Thus,
the Legislature makes the laws and is supreme in this regard, in the way
that the Executive is supreme in enforcing and administering the law, while
the Judiciary interprets both the Constitution and the law. Any provision in
each of the Articles on these three departments31 that intrudes into the
other must be closely examined if the provision affects and upsets the
desired balance.
Under the division of powers, the President as Chief Executive is given the
prerogative of making appointments, subject only to the legal qualification
standards, to the checks provided by the Legislature’s Commission on
Appointments (when applicable) and by the JBC for appointments in the
Judiciary, and to the Constitution’s own limitations. Conflict comes in when
the Constitution laid down Article VII, Section 15 limiting the President’s
appointing power during the election period. This limitation of power
would have been all-encompassing and would, thus, have extended to all
government positions the President can fill, had the Constitution not
inserted a provision, also on appointments, in the Article on the Judiciary
with respect to appointments to the Supreme Court. This conflict gives rise
to the questions: which provision should prevail, or should both be given
effect? Or should both provisions yield to a higher concern – the need to
maintain the integrity of our elections?
A holistic reading of the Constitution – a must in constitutional
interpretation – dictates as a general rule that the tasks assigned to each
department and their limitations should be given full effect to fulfill the
constitutional purposes under the check and balance principle, unless the
Constitution itself expressly indicates its preference for one task, concern
or standard over the others,32 or unless this Court, in its role as interpreter
of the Constitution, has spoken on the appropriate interpretation that
should be made.33
In considering the interests of the Executive and the Judiciary, a holistic
approach starts from the premise that the constitutional scheme is to
grant the President the power of appointment, subject to the limitation
provided under Article VII, Section 15. At the same time, the Judiciary is
assured, without qualifications under Article VIII, Section 4(1), of the
immediate appointment of Members of the Supreme Court, i.e., within 90
days from the occurrence of the vacancy. If both provisions would be
allowed to take effect, as I believe they should, the limitation on the
appointment power of the President under Article VII, Section 15 should
itself be limited by the appointment of Members of the Court pursuant to
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Article VIII, Section 4(1), so that the provision applicable to the Judiciary
can be given full effect without detriment to the President’s appointing
authority. This harmonization will result in restoring to the President the
full authority to appoint Members of the Supreme Court pursuant to the
combined operation of Article VII, Section 15 and Article VIII, Section 4(1).
Viewed in this light, there is essentially no conflict, in terms of the
authority to appoint, between the Executive and Judiciary; the President
would effectively be allowed to exercise the Executive’s traditional
presidential power of appointment while respecting the Judiciary’s own
prerogative. In other words, the President retains full powers to appoint
Members of the Court during the election period, and the Judiciary is
assured of a full membership within the time frame given.
Interestingly, the objection to the full application of Article VIII, Section
4(1) comes, not from the current President, but mainly from petitioners
echoing the present presidential candidates, one of whom shall soon be
the incoming President. They do not, of course, cite reasons of power and
the loss of the opportunity to appoint the Chief Justice; many of the
petitioners/intervenors oppose the full application of Article VIII, Section
4(1) based on the need to maintain the integrity of the elections through
the avoidance of a "midnight appointment."
This "integrity" reason is a given in a democracy and can hardly be opposed
on the theoretical plane, as the integrity of the elections must indeed
prevail in a true democracy. The statement, however, begs a lot of
questions, among them the question of whether the appointment of a full
Court under the terms of Article VIII, Section 4(1) will adversely affect or
enhance the integrity of the elections.
In my Separate Opinion, I concluded that the appointment of a Member of
the Court even during the election period per se implies no adverse effect
on the integrity of the election; a full Court is ideal during this period in
light of the Court’s unique role during elections. I maintain this view and
fully concur in this regard with the majority.
During the election period, the court is not only the interpreter of the
Constitution and the election laws; other than the Commission on Elections
and the lower courts to a limited extent, the Court is likewise the highest
impartial recourse available to decisively address any problem or dispute
arising from the election. It is the leader and the highest court in the
Judiciary, the only one of the three departments of government directly
unaffected by the election. The Court is likewise the entity entrusted by
the Constitution, no less, with the gravest election-related responsibilities.
In particular, it is the sole judge of all contests in the election of the
President and the Vice-President, with leadership and participation as well
in the election tribunals that directly address Senate and House of
Representatives electoral disputes. With this grant of responsibilities, the
Constitution itself has spoken on the trust it reposes on the Court on
election matters. This reposed trust, to my mind, renders academic any
question of whether an appointment during the election period will
adversely affect the integrity of the elections – it will not, as the
maintenance of a full Court in fact contributes to the enforcement of the
constitutional scheme to foster a free and orderly election.
In reading the motions for reconsideration against the backdrop of the
partisan political noise of the coming elections, one cannot avoid hearing
echoes from some of the arguments that the objection is related, more
than anything else, to their lack of trust in an appointment to be made by
the incumbent President who will soon be bowing out of office. They label
the incumbent President’s act as a "midnight appointment" – a term that
has acquired a pejorative meaning in contemporary society.
As I intimated in my Separate Opinion, the imputation of distrust can be
made against any appointing authority, whether outgoing or incoming. The
incoming President himself will be before this Court if an election contest
arises; any President, past or future, would also naturally wish favorable
outcomes in legal problems that the Court would resolve. These
possibilities and the potential for continuing influence in the Court,
however, cannot be active considerations in resolving the election ban
issue as they are, in their present form and presentation, all speculative. If
past record is to be the measure, the record of past Chief Justices and of
this Court speaks for itself with respect to the Justices’ relationship with,
and deferral to, the appointing authority in their decisions.
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What should not be forgotten in examining the records of the Court, from
the prism of problems an electoral exercise may bring, is the Court’s
unique and proven capacity to intervene and diffuse situations that are
potentially explosive for the nation. EDSA II particularly comes to mind in
this regard (although it was an event that was not rooted in election
problems) as it is a perfect example of the potential for damage to the
nation that the Court can address and has addressed. When acting in this
role, a vacancy in the Court is not only a vote less, but a significant
contribution less in the Court’s deliberations and capacity for action,
especially if the missing voice is the voice of the Chief Justice.
Be it remembered that if any EDSA-type situation arises in the coming
elections, it will be compounded by the lack of leaders because of the lapse
of the President’s term by June 30, 2010; by a possible failure of succession
if for some reason the election of the new leadership becomes
problematic; and by the similar absence of congressional leadership
because Congress has not yet convened to organize itself.34 In this
scenario, only the Judiciary of the three great departments of government
stands unaffected by the election and should at least therefore be
complete to enable it to discharge its constitutional role to its fullest
potential and capacity. To state the obvious, leaving the Judiciary without
any permanent leader in this scenario may immeasurably complicate the
problem, as all three departments of government will then be leaderless.
To stress what I mentioned on this point in my Separate Opinion, the
absence of a Chief Justice will make a lot of difference in the effectiveness
of the Court as he or she heads the Judiciary, sits as Chair of the JBC and of
the Presidential Electoral Tribunal, presides over impeachment
proceedings, and provides the moral suasion and leadership that only the
permanent mantle of the Chief Justice can bestow. EDSA II is just one of
the many lessons from the past when the weightiest of issues were tackled
and promptly resolved by the Court. Unseen by the general public in all
these was the leadership that was there to ensure that the Court would act
as one, in the spirit of harmony and stability although divergent in their
individual views, as the Justices individually make their contributions to the
collegial result. To some, this leadership may only be symbolic, as the
Court has fully functioned in the past even with an incomplete
membership or under an Acting Chief Justice. But as I said before, an
incomplete Court "is not a whole Supreme Court; it will only be a Court
with 14 members who would act and vote on all matters before it." To fully
recall what I have said on this matter:
The importance of the presence of one Member of the Court can and
should never be underestimated, particularly on issues that may gravely
affect the nation. Many a case has been won or lost on the basis of one
vote. On an issue of the constitutionality of a law, treaty or statute, a tie
vote – which is possible in a 14 member court – means that the
constitutionality is upheld. This was our lesson in Isagani Cruz v. DENR
Secretary.
More than the vote, Court deliberation is the core of the decision-making
process and one voice is less is not only a vote less but a contributed
opinion, an observation, or a cautionary word less for the Court. One voice
can be a big difference if the missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice, the
ascendancy in the Court of a permanent sitting Chief Justice cannot be
equaled. He is the first among equals – a primus inter pares – who sets the
tone for the Court and the Judiciary, and who is looked up to on all
matters, whether administrative or judicial. To the world outside the
Judiciary, he is the personification of the Court and the whole Judiciary.
And this is not surprising since, as Chief Justice, he not only chairs the
Court en banc, but chairs as well the Presidential Electoral Tribunal that
sits in judgment over election disputes affecting the President and the
Vice-President. Outside of his immediate Court duties, he sits as Chair of
the Judicial and Bar Council, the Philippine Judicial Academy and, by
constitutional command, presides over the impeachment of the President.
To be sure, the Acting Chief Justice may be the ablest, but he is not the
Chief Justice without the mantle and permanent title of the Office, and
even his presence as Acting Chief Justice leaves the Court with one
member less. Sadly, this member is the Chief Justice; even with an Acting
Chief Justice, the Judiciary and the Court remains headless. 35
Given these views, I see no point in re-discussing the finer points of
technical interpretation and their supporting latin maxims that I have
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addressed in my Separate Opinion and now feel need no further
elaboration; maxims can be found to serve a pleader’s every need and in
any case are the last interpretative tools in constitutional interpretation.
Nor do I see any point in discussing arguments based on the intent of the
framers of the Constitution now cited by the parties in the contexts that
would serve their own ends. As may be evident in these discussions, other
than the texts of the disputed provisions, I prefer to examine their
purposes and the consequences of their application, understood within the
context of democratic values. Past precedents are equally invaluable for
the lead, order, and stability they contribute, but only if they are in point,
certain, and still alive to current realities, while the history of provisions,
including the intents behind them, are primarily important to ascertain the
purposes the provisions serve.
From these perspectives and without denigrating the framers’ historical
contributions, I say that it is the Constitution that now primarily speaks to
us in this case and what we hear are its direct words, not merely the
recorded isolated debates reflecting the personal intents of the
constitutional commissioners as cited by the parties to fit their respective
theories. The voice speaking the words of the Constitution is our best
guide, as these words will unalterably be there for us to read in the context
of their purposes and the nation’s needs and circumstances. This
Concurring and Dissenting Opinion hears and listens to that voice.
The Valenzuela Decision
The ponencia’s ruling reversing Valenzuela, in my view, is out of place in
the present case, since at issue here is the appointment of the Chief Justice
during the period of the election ban, not the appointment of lower court
judges that Valenzuela resolved. To be perfectly clear, the conflict in the
constitutional provisions is not confined to Article VII, Section 15 and
Article VIII, Section 4(1) with respect to the appointment of Members of
the Supreme Court; even before the Valenzuela ruling, the conflict already
existed between Article VII, Section 15 and Article VIII, Section 9 – the
provision on the appointment of the justices and judges of courts lower
than the Supreme Court. After this Court’s ruling in Valenzuela, no amount
of hairsplitting can result in the conclusion that Article VII, Section 15
applied the election ban over the whole Judiciary, including the Supreme
Court, as the facts and the fallo of Valenzuela plainly spoke of the
objectionable appointment of two Regional Trial Court judges. To reiterate,
Valenzuela only resolved the conflict between Article VII, Section 15 and
appointments to the Judiciary under Article VIII, Section 9.
If Valenzuela did prominently figure at all in the present case, the
prominence can be attributed to the petitioners’ mistaken reading that this
case is primary authority for the dictum that Article VII, Section 15
completely bans all appointments to the Judiciary, including appointments
to the Supreme Court, during the election period up to the end of the
incumbent President’s term.
In reality, this mistaken reading is an obiter dictum in Valenzuela, and
hence, cannot be cited for its primary precedential value. This legal
situation still holds true as Valenzuela was not doctrinally reversed as its
proposed reversal was supported only by five (5) out of the 12
participating Members of the Court. In other words, this ruling on how
Article VII, Section 15 is to be interpreted in relation with Article VIII,
Section 9, should continue to stand unless otherwise expressly reversed by
this Court.
But separately from the mistaken use of an obiter ruling as primary
authority, I believe that I should sound the alarm bell about the Valenzuela
ruling in light of a recent vacancy in the position of Presiding Justice of the
Sandiganbayan resulting from Presiding Justice Norberto Geraldez’s death
soon after we issued the decision in the present case. Reversing the
Valenzuela ruling now, in the absence of a properly filed case addressing
an appointment at this time to the Sandiganbayan or to any other vacancy
in the lower courts, will be an irregular ruling of the first magnitude by this
Court, as it will effectively be a shortcut that lifts the election ban on
appointments to the lower courts without the benefit of a case whose
facts and arguments would directly confront the continued validity of the
Valenzuela ruling. This is especially so after we have placed the Court on
notice that a reversal of Valenzuela is uncalled for because its ruling is not
the litigated issue in this case.
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In any case, let me repeat what I stressed in my Separate Opinion about
Valenzuela which rests on the reasoning that the evils Section 15 seeks to
remedy – vote buying, midnight appointments and partisan reasons to
influence the elections – exist, thus justifying an election appointment ban.
In particular, the "midnight appointment" justification, while fully
applicable to the more numerous vacancies at the lower echelons of the
Judiciary (with an alleged current lower court vacancy level of 537 or a
24.5% vacancy rate), should not apply to the Supreme Court which has
only a total of 15 positions that are not even vacated at the same time. The
most number of vacancies for any one year occurred only last year (2009)
when seven (7) positions were vacated by retirement, but this vacancy rate
is not expected to be replicated at any time within the next decade. Thus
"midnight appointments" to the extent that they were understood in
Aytona36 will not occur in the vacancies of this Court as nominations to its
vacancies are all processed through the JBC under the public’s close
scrutiny. As already discussed above, the institutional integrity of the Court
is hardly an issue. If at all, only objections personal to the individual
Members of the Court or against the individual applicants can be made,
but these are matters addressed in the first place by the JBC before
nominees are submitted. There, too, are specific reasons, likewise
discussed above, explaining why the election ban should not apply to the
Supreme Court. These exempting reasons, of course, have yet to be shown
to apply to the lower courts. Thus, on the whole, the reasons justifying the
election ban in Valenzuela still obtain in so far as the lower courts are
concerned, and have yet to be proven otherwise in a properly filed case.
Until then, Valenzuela, except to the extent that it mentioned Section 4(1),
should remain an authoritative ruling of this Court.
CONCLUSION
In light of these considerations, a writ of prohibition cannot issue to
prevent the JBC from performing its principal function, under the
Constitution, of recommending nominees for the position of Chief Justice.
Thus, I vote to deny with finality the Tolentino and Soriano motions for
reconsideration.
The other motions for reconsideration in so far as they challenge the
conclusion that the President can appoint the Chief Justice even during the
election period are likewise denied with finality for lack of merit, but are
granted in so far as they support the continued validity of the ruling of this
Court in In Re: Valenzuela and Vallarta, A.M. No. 98-5-01-SC, November 9,
1998.
My opinion on the Mendoza petition stands.
ARTURO D. BRION
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G. R. No. 175352               January 18, 2011
DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M.
VIARI, Petitioners,
vs.
RICHARD J. GORDON, Respondent.
PHILIPPINE NATIONAL RED CROSS, Intervenor.
RESOLUTION
LEONARDO-DE CASTRO, J.:
This resolves the Motion for Clarification and/or for Reconsideration 1 filed
on August 10, 2009 by respondent Richard J. Gordon (respondent) of the
Decision promulgated by this Court on July 15, 2009 (the Decision), the
Motion for Partial Reconsideration2 filed on August 27, 2009 by movant-
intervenor Philippine National Red Cross (PNRC), and the latter’s
Manifestation and Motion to Admit Attached Position Paper 3 filed on
December 23, 2009.
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In the Decision,4 the Court held that respondent did not forfeit his seat in In its Motion for Partial Reconsideration, PNRC prays that the Court sustain
the Senate when he accepted the chairmanship of the PNRC Board of the constitutionality of its Charter on the following grounds:
Governors, as "the office of the PNRC Chairman is not a government office
or an office in a government-owned or controlled corporation for purposes A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL REPUBLIC ACT
of the prohibition in Section 13, Article VI of the 1987 Constitution." 5 The NO. 95 AS AMENDED DEPRIVED INTERVENOR PNRC OF ITS
Decision, however, further declared void the PNRC Charter "insofar as it CONSTITUTIONAL RIGHT TO DUE PROCESS.
creates the PNRC as a private corporation" and consequently ruled that
"the PNRC should incorporate under the Corporation Code and register 1. INTERVENOR PNRC WAS NEVER A PARTY TO THE
with the Securities and Exchange Commission if it wants to be a private INSTANT CONTROVERSY.
corporation."6 The dispositive portion of the Decision reads as follows:
2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS
WHEREFORE, we declare that the office of the Chairman of the Philippine AMENDED WAS NEVER AN ISSUE IN THIS CASE.
National Red Cross is not a government office or an office in a government-
owned or controlled corporation for purposes of the prohibition in Section
B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE NO. 1264
13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2,
AND NOT REPUBLIC ACT NO. 95. PRESIDENTIAL DECREE NO. 1264 WAS
3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine
NOT A CREATION OF CONGRESS.
National Red Cross, or Republic Act No. 95, as amended by Presidential
Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a
C. PNRC’S STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN. WHILE IT
private corporation or grant it corporate powers. 7
IS PERFORMING HUMANITARIAN FUNCTIONS AS AN AUXILIARY TO
GOVERNMENT, IT IS A NEUTRAL ENTITY SEPARATE AND INDEPENDENT OF
In his Motion for Clarification and/or for Reconsideration, respondent
GOVERNMENT CONTROL, YET IT DOES NOT QUALIFY AS STRICTLY PRIVATE
raises the following grounds: (1) as the issue of constitutionality of
IN CHARACTER.
Republic Act (R.A.) No. 95 was not raised by the parties, the Court went
beyond the case in deciding such issue; and (2) as the Court decided that
In his Comment and Manifestation10 filed on November 9, 2009,
Petitioners did not have standing to file the instant Petition, the
respondent manifests: (1) that he agrees with the position taken by the
pronouncement of the Court on the validity of R.A. No. 95 should be
PNRC in its Motion for Partial Reconsideration dated August 27, 2009; and
considered obiter.8
(2) as of the writing of said Comment and Manifestation, there was
pending before the Congress of the Philippines a proposed bill entitled "An
Respondent argues that the validity of R.A. No. 95 was a non-issue;
Act Recognizing the PNRC as an Independent, Autonomous, Non-
therefore, it was unnecessary for the Court to decide on that question.
Governmental Organization Auxiliary to the Authorities of the Republic of
Respondent cites Laurel v. Garcia,9 wherein the Court said that it "will not
the Philippines in the Humanitarian Field, to be Known as The Philippine
pass upon a constitutional question although properly presented by the
Red Cross."11
record if the case can be disposed of on some other ground" and goes on
to claim that since this Court, in the Decision, disposed of the petition on
After a thorough study of the arguments and points raised by the
some other ground, i.e., lack of standing of petitioners, there was no need
respondent as well as those of movant-intervenor in their respective
for it to delve into the validity of R.A. No. 95, and the rest of the judgment
motions, we have reconsidered our pronouncements in our Decision dated
should be deemed obiter.
July 15, 2009 with regard to the nature of the PNRC and the
287 | J U D I C I A L D E P A R T M E N T C A S E S
constitutionality of some provisions of the PNRC Charter, R.A. No. 95, as
amended.
As correctly pointed out in respondent’s Motion, the issue of
constitutionality of R.A. No. 95 was not raised by the parties, and was not
among the issues defined in the body of the Decision; thus, it was not the
very lis mota of the case. We have reiterated the rule as to when the Court
will consider the issue of constitutionality in Alvarez v. PICOP Resources,
Inc.,12 thus:
This Court will not touch the issue of unconstitutionality unless it is the
very lis mota. It is a well-established rule that a court should not pass upon
a constitutional question and decide a law to be unconstitutional or invalid,
unless such question is raised by the parties and that when it is raised, if
the record also presents some other ground upon which the court may
[rest] its judgment, that course will be adopted and the constitutional
question will be left for consideration until such question will be
unavoidable.13
Under the rule quoted above, therefore, this Court should not have
declared void certain sections of R.A. No. 95, as amended by Presidential
Decree (P.D.) Nos. 1264 and 1643, the PNRC Charter. Instead, the Court
should have exercised judicial restraint on this matter, especially since
there was some other ground upon which the Court could have based its
judgment. Furthermore, the PNRC, the entity most adversely affected by
this declaration of unconstitutionality, which was not even originally a
party to this case, was being compelled, as a consequence of the Decision,
to suddenly reorganize and incorporate under the Corporation Code, after
more than sixty (60) years of existence in this country.
Its existence as a chartered corporation remained unchallenged on ground
of unconstitutionality notwithstanding that R.A. No. 95 was enacted on
March 22, 1947 during the effectivity of the 1935 Constitution, which
provided for a proscription against the creation of private corporations by
special law, to wit:
SEC. 7. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations, unless such
corporations are owned and controlled by the Government or any
subdivision or instrumentality thereof. (Art. XIV, 1935 Constitution.)
Similar provisions are found in Article XIV, Section 4 of the 1973
Constitution and Article XII, Section 16 of the 1987 Constitution. The latter
reads:
SECTION 16. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations.
Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and
subject to the test of economic viability.
Since its enactment, the PNRC Charter was amended several times,
particularly on June 11, 1953, August 16, 1971, December 15, 1977, and
October 1, 1979, by virtue of R.A. No. 855, R.A. No. 6373, P.D. No. 1264,
and P.D. No. 1643, respectively. The passage of several laws relating to the
PNRC’s corporate existence notwithstanding the effectivity of the
constitutional proscription on the creation of private corporations by law,
is a recognition that the PNRC is not strictly in the nature of a private
corporation contemplated by the aforesaid constitutional ban.
A closer look at the nature of the PNRC would show that there is none like
it not just in terms of structure, but also in terms of history, public service
and official status accorded to it by the State and the international
community. There is merit in PNRC’s contention that its structure is sui
generis.
The PNRC succeeded the chapter of the American Red Cross which was in
existence in the Philippines since 1917. It was created by an Act of
Congress after the Republic of the Philippines became an independent
nation on July 6, 1946 and proclaimed on February 14, 1947 its adherence
to the Convention of Geneva of July 29, 1929 for the Amelioration of the
Condition of the Wounded and Sick of Armies in the Field (the "Geneva
Red Cross Convention"). By that action the Philippines indicated its desire
288 | J U D I C I A L D E P A R T M E N T C A S E S
to participate with the nations of the world in mitigating the suffering
caused by war and to establish in the Philippines a voluntary organization
for that purpose and like other volunteer organizations established in
other countries which have ratified the Geneva Conventions, to promote
the health and welfare of the people in peace and in war. 14
The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and 6373, and
further amended by P.D. Nos. 1264 and 1643, show the historical
background and legal basis of the creation of the PNRC by legislative fiat,
as a voluntary organization impressed with public interest. Pertinently R.A.
No. 95, as amended by P.D. 1264, provides:
WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894,
the nations of the world unanimously agreed to diminish within their
power the evils inherent in war;
WHEREAS, more than one hundred forty nations of the world have ratified
or adhered to the Geneva Conventions of August 12, 1949 for the
Amelioration of the Condition of the Wounded and Sick of Armed Forces in
the Field and at Sea, The Prisoners of War, and The Civilian Population in
Time of War referred to in this Charter as the Geneva Conventions;
WHEREAS, the Republic of the Philippines became an independent nation
on July 4, 1946, and proclaimed on February 14, 1947 its adherence to the
Geneva Conventions of 1929, and by the action, indicated its desire to
participate with the nations of the world in mitigating the suffering caused
by war and to establish in the Philippines a voluntary organization for that
purpose as contemplated by the Geneva Conventions;
WHEREAS, there existed in the Philippines since 1917 a chapter of the
American National Red Cross which was terminated in view of the
independence of the Philippines; and
WHEREAS, the volunteer organizations established in other countries
which have ratified or adhered to the Geneva Conventions assist in
promoting the health and welfare of their people in peace and in war, and
through their mutual assistance and cooperation directly and through their
international organizations promote better understanding and sympathy
among the people of the world;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers vested in me by the Constitution as Commander-
in-Chief of all the Armed Forces of the Philippines and pursuant to
Proclamation No. 1081 dated September 21, 1972, and General Order No.
1 dated September 22, 1972, do hereby decree and order that Republic Act
No. 95, Charter of the Philippine National Red Cross (PNRC) as amended by
Republic Acts No. 855 and 6373, be further amended as follows:
Section 1. There is hereby created in the Republic of the Philippines a body
corporate and politic to be the voluntary organization officially designated
to assist the Republic of the Philippines in discharging the obligations set
forth in the Geneva Conventions and to perform such other duties as are
inherent upon a national Red Cross Society. The national headquarters of
this Corporation shall be located in Metropolitan Manila. (Emphasis
supplied.)
The significant public service rendered by the PNRC can be gleaned from
Section 3 of its Charter, which provides:
Section 3. That the purposes of this Corporation shall be as follows:
(a) To provide volunteer aid to the sick and wounded of armed
forces in time of war, in accordance with the spirit of and under
the conditions prescribed by the Geneva Conventions to which
the Republic of the Philippines proclaimed its adherence;
(b) For the purposes mentioned in the preceding sub-section, to
perform all duties devolving upon the Corporation as a result of
the adherence of the Republic of the Philippines to the said
Convention;
(c) To act in matters of voluntary relief and in accordance with the
authorities of the armed forces as a medium of communication
between people of the Republic of the Philippines and their
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Armed Forces, in time of peace and in time of war, and to act in
such matters between similar national societies of other
governments and the Governments and people and the Armed
Forces of the Republic of the Philippines;
(d) To establish and maintain a system of national and
international relief in time of peace and in time of war and apply
the same in meeting and emergency needs caused by typhoons,
flood, fires, earthquakes, and other natural disasters and to devise
and carry on measures for minimizing the suffering caused by
such disasters;
(e) To devise and promote such other services in time of peace
and in time of war as may be found desirable in improving the
health, safety and welfare of the Filipino people;
(f) To devise such means as to make every citizen and/or resident
of the Philippines a member of the Red Cross.
The PNRC is one of the National Red Cross and Red Crescent Societies,
which, together with the International Committee of the Red Cross (ICRC)
and the IFRC and RCS, make up the International Red Cross and Red
Crescent Movement (the Movement). They constitute a worldwide
humanitarian movement, whose mission is:
[T]o prevent and alleviate human suffering wherever it may be found, to
protect life and health and ensure respect for the human being, in
particular in times of armed conflict and other emergencies, to work for
the prevention of disease and for the promotion of health and social
welfare, to encourage voluntary service and a constant readiness to give
help by the members of the Movement, and a universal sense of solidarity
towards all those in need of its protection and assistance. 15
The PNRC works closely with the ICRC and has been involved in
humanitarian activities in the Philippines since 1982. Among others, these
activities in the country include:
1. Giving protection and assistance to civilians displaced or
otherwise affected by armed clashes between the government
and armed opposition groups, primarily in Mindanao;
2. Working to minimize the effects of armed hostilities and
violence on the population;
3. Visiting detainees; and
4. Promoting awareness of international humanitarian law in the
public and private sectors.16
National Societies such as the PNRC act as auxiliaries to the public
authorities of their own countries in the humanitarian field and provide a
range of services including disaster relief and health and social
programmes.
The International Federation of Red Cross (IFRC) and Red Crescent
Societies (RCS) Position Paper,17 submitted by the PNRC, is instructive with
regard to the elements of the specific nature of the National Societies such
as the PNRC, to wit:
National Societies, such as the Philippine National Red Cross and its sister
Red Cross and Red Crescent Societies, have certain specificities deriving
from the 1949 Geneva Convention and the Statutes of the International
Red Cross and Red Crescent Movement (the Movement). They are also
guided by the seven Fundamental Principles of the Red Cross and Red
Crescent Movement: Humanity, Impartiality, Neutrality, Independence,
Voluntary Service, Unity and Universality.
A National Society partakes of a sui generis character. It is a protected
component of the Red Cross movement under Articles 24 and 26 of the
First Geneva Convention, especially in times of armed conflict. These
provisions require that the staff of a National Society shall be respected
and protected in all circumstances. Such protection is not ordinarily
afforded by an international treaty to ordinary private entities or even non-
governmental organisations (NGOs). This sui generis character is also
290 | J U D I C I A L D E P A R T M E N T C A S E S
emphasized by the Fourth Geneva Convention which holds that an
Occupying Power cannot require any change in the personnel or structure
of a National Society. National societies are therefore organizations that
are directly regulated by international humanitarian law, in contrast to
other ordinary private entities, including NGOs.
xxxx
In addition, National Societies are not only officially recognized by their
public authorities as voluntary aid societies, auxiliary to the public
authorities in the humanitarian field, but also benefit from recognition at
the International level. This is considered to be an element distinguishing
National Societies from other organisations (mainly NGOs) and other forms
of humanitarian response.
x x x. No other organisation belongs to a world-wide Movement in which
all Societies have equal status and share equal responsibilities and duties in
helping each other. This is considered to be the essence of the
Fundamental Principle of Universality.
Furthermore, the National Societies are considered to be auxiliaries to the
public authorities in the humanitarian field. x x x.
The auxiliary status of [a] Red Cross Society means that it is at one and the
same time a private institution and a public service organization because
the very nature of its work implies cooperation with the authorities, a
link with the State. In carrying out their major functions, Red Cross
Societies give their humanitarian support to official bodies, in general
having larger resources than the Societies, working towards comparable
ends in a given sector.
x x x No other organization has a duty to be its government’s humanitarian
partner while remaining independent. 18 (Emphases ours.)
It is in recognition of this sui generis character of the PNRC that R.A. No. 95
has remained valid and effective from the time of its enactment in March
22, 1947 under the 1935 Constitution and during the effectivity of the 1973
Constitution and the 1987 Constitution.
The PNRC Charter and its amendatory laws have not been questioned or
challenged on constitutional grounds, not even in this case before the
Court now.
In the Decision, the Court, citing Feliciano v. Commission on
Audit,19 explained that the purpose of the constitutional provision
prohibiting Congress from creating private corporations was to prevent the
granting of special privileges to certain individuals, families, or groups,
which were denied to other groups. Based on the above discussion, it can
be seen that the PNRC Charter does not come within the spirit of this
constitutional provision, as it does not grant special privileges to a
particular individual, family, or group, but creates an entity that strives to
serve the common good.
Furthermore, a strict and mechanical interpretation of Article XII, Section
16 of the 1987 Constitution will hinder the State in adopting measures that
will serve the public good or national interest. It should be noted that a
special law, R.A. No. 9520, the Philippine Cooperative Code of 2008, and
not the general corporation code, vests corporate power and capacities
upon cooperatives which are private corporations, in order to implement
the State’s avowed policy.
In the Decision of July 15, 2009, the Court recognized the public service
rendered by the PNRC as the government’s partner in the observance of its
international commitments, to wit:
The PNRC is a non-profit, donor-funded, voluntary, humanitarian
organization, whose mission is to bring timely, effective, and
compassionate humanitarian assistance for the most vulnerable without
consideration of nationality, race, religion, gender, social status, or political
affiliation. The PNRC provides six major services: Blood Services, Disaster
Management, Safety Services, Community Health and Nursing, Social
Services and Voluntary Service.
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The Republic of the Philippines, adhering to the Geneva Conventions,
established the PNRC as a voluntary organization for the purpose
contemplated in the Geneva Convention of 27 July 1929. x x x. 20 (Citations
omitted.)
So must this Court recognize too the country’s adherence to the Geneva
Convention and respect the unique status of the PNRC in consonance
with its treaty obligations. The Geneva Convention has the force and
effect of law.21 Under the Constitution, the Philippines adopts the generally
accepted principles of international law as part of the law of the
land.22 This constitutional provision must be reconciled and harmonized
with Article XII, Section 16 of the Constitution, instead of using the latter to
negate the former.
By requiring the PNRC to organize under the Corporation Code just like any
other private corporation, the Decision of July 15, 2009 lost sight of the
PNRC’s special status under international humanitarian law and as an
auxiliary of the State, designated to assist it in discharging its obligations
under the Geneva Conventions. Although the PNRC is called to be
independent under its Fundamental Principles, it interprets such
independence as inclusive of its duty to be the government’s humanitarian
partner. To be recognized in the International Committee, the PNRC must
have an autonomous status, and carry out its humanitarian mission in a
neutral and impartial manner.
However, in accordance with the Fundamental Principle of Voluntary
Service of National Societies of the Movement, the PNRC must be
distinguished from private and profit-making entities. It is the main
characteristic of National Societies that they "are not inspired by the desire
for financial gain but by individual commitment and devotion to a
humanitarian purpose freely chosen or accepted as part of the service that
National Societies through its volunteers and/or members render to the
Community."23
The PNRC, as a National Society of the International Red Cross and Red
Crescent Movement, can neither "be classified as an instrumentality of the
State, so as not to lose its character of neutrality" as well as its
independence, nor strictly as a private corporation since it is regulated by
international humanitarian law and is treated as an auxiliary of the State. 24
Based on the above, the sui generis status of the PNRC is now sufficiently
established.1âwphi1 Although it is neither a subdivision, agency, or
instrumentality of the government, nor a government-owned or
-controlled corporation or a subsidiary thereof, as succinctly explained in
the Decision of July 15, 2009, so much so that respondent, under the
Decision, was correctly allowed to hold his position as Chairman thereof
concurrently while he served as a Senator, such a conclusion does not ipso
facto imply that the PNRC is a "private corporation" within the
contemplation of the provision of the Constitution, that must be organized
under the Corporation Code. As correctly mentioned by Justice Roberto A.
Abad, the sui generis character of PNRC requires us to approach
controversies involving the PNRC on a case-to-case basis.
In sum, the PNRC enjoys a special status as an important ally and auxiliary
of the government in the humanitarian field in accordance with its
commitments under international law. This Court cannot all of a sudden
refuse to recognize its existence, especially since the issue of the
constitutionality of the PNRC Charter was never raised by the parties. It
bears emphasizing that the PNRC has responded to almost all national
disasters since 1947, and is widely known to provide a substantial portion
of the country’s blood requirements. Its humanitarian work is unparalleled.
The Court should not shake its existence to the core in an untimely and
drastic manner that would not only have negative consequences to those
who depend on it in times of disaster and armed hostilities but also have
adverse effects on the image of the Philippines in the international
community. The sections of the PNRC Charter that were declared void
must therefore stay.
WHEREFORE, premises considered, respondent Richard J. Gordon’s Motion
for Clarification and/or for Reconsideration and movant-intervenor PNRC’s
Motion for Partial Reconsideration of the Decision in G.R. No. 175352
dated July 15, 2009 are GRANTED. The constitutionality of R.A. No. 95, as
amended, the charter of the Philippine National Red Cross, was not raised
by the parties as an issue and should not have been passed upon by this
292 | J U D I C I A L D E P A R T M E N T C A S E S

Court. The structure of the PNRC is sui generis¸ being neither strictly
private nor public in nature. R.A. No. 95 remains valid and constitutional in Associate Justice Associate Justice
its entirety. The dispositive portion of the Decision should therefore be
MODIFIED by deleting the second sentence, to now read as follows: See my concurring opinion
MARTIN S. VILLARAMA, JR.
ROBERTO A. ABAD
Associate Justice
WHEREFORE, we declare that the office of the Chairman of the Philippine Associate Justice
National Red Cross is not a government office or an office in a government-
owned or controlled corporation for purposes of the prohibition in Section I join J. Carpio in his dissent
JOSE C. MENDOZA
13, Article VI of the 1987 Constitution. JOSE PORTUGAL PEREZ
Associate Justice
Associate Justice
SO ORDERED.
I agree with the dissent of J. Carpio
TERESITA J. LEONARDO-DE CASTRO MARIA LOURDES P. A. SERENO
Associate Justice Associate Justice

WE CONCUR: CERTIFICATION

No part Pursuant to Section 13, Article VIII of the Constitution, I certify that the
RENATO C. CORONA conclusions in the above Resolution had been reached in consultation
Chief Justice before the case was assigned to the writer of the opinion of the Court.

I join the dissent of J. RENATO C. CORONA

See dissenting opinion Chief Justice
CarpioCONCHITA CARPIO
ANTONIO T. CARPIO
MORALES
Associate Justice
Associate Justice

ANTONIO EDUARDO B.
PRESBITERO J. VELASCO, JR.
NACHURA Footnotes
Associate Justice
Associate Justice
1
 Rollo, pp. 256-264.
I join the dissent of J. Carpio
DIOSDADO M. PERALTA 2
ARTURO D. BRION  Id. at 397-418.
Associate Justice
Associate Justice
3
 Id. at 434-439.
LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
4
 Liban v. Gordon, G.R. No. 175352, July 15, 2009, 593 SCRA 68.
293 | J U D I C I A L D E P A R T M E N T C A S E S

5 17
 Section 13, Article VI of the Constitution reads:  Rollo, pp. 440-442.

SEC. 13. No Senator or Member of the House of
Representatives may 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, during his term without forfeiting his seat.
Neither shall he be appointed to any office which may
have been created or the emoluments thereof increased
during the term for which he was elected.
6  1935 Constitution, ARTICLE II, SECTION 3. The Philippines
 Liban v. Gordon, supra note 4 at 97-98.
7
 Id. at 98.
8
 Rollo, p. 256.
9
 G.R. Nos. 92013 and 92047, July 25, 1990, 187 SCRA 797, 813.
10
 Rollo, pp. 421-431.
11
 Id. at 421.
12
 G.R. No. 162243, November 29, 2006, 508 SCRA 498.
13
 Id. at 552, citing Sotto v. Commission on Elections, 76 Phil. 516,
522 (1946).
14
 Whereas clause, Republic Act No. 95 (1947).
15
 Pamphlet entitled "The Fundamental Principles of the Red Cross
and Red Crescent Movement" (April 2009), available with the
ICRC, http://www.icrc.org.
18
 Id. at 440-441.
19
 464 Phil. 439 (2004).
20
 Liban v. Gordon, supra note 4 at 77.
21
 Ebro III v. National Labor Relations Commission, 330 Phil. 93,
101 (1996).
22
renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the
law of the Nation.
1973 CONSTITUTION, ARTICLE II, SECTION 3. The
Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of
international law as part of the law of the land, and
adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
1987 CONSTITUTION, ARTICLE II, SECTION 2. The
Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of
international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
23
 Supra note 15.
24
 Rollo, p. 433.

16
 Id. The Lawphil Project - Arellano Law Foundation
294 | J U D I C I A L D E P A R T M E N T C A S E S

In the assailed Decision, this Court held that the PNRC is a private
organization performing public functions. The Philippine government does
not own or control the PNRC and neither the President nor the head of any
department, agency, commission or board appoints the PNRC Chairman.
DISSENTING OPINION Thus, the prohibition in Section 13, Article VI of the 1987 Constitution is
not applicable to the office of the PNRC Chairman, which is not a
government office or an office in a government-owned or controlled
CARPIO, J.:
corporation.

I vote to deny the motions for reconsideration filed by Respondent Richard

Since the PNRC is a private corporation, the creation of the PNRC through a
J. Gordon (respondent Gordon) and movant-intervenor Philippine National
special charter is violative of the constitutional proscription against the
Red Cross (PNRC).
creation of private corporations by special law. The creation of the PNRC
by special charter on 22 March 1947 through RA 95 contravenes Section 7,
Respondent Gordon and the PNRC seek partial reconsideration of the Article XIV of the 1935 Constitution, as amended, which reads:
Court’s Decision dated 15 July 2009, declaring that Republic Act No. 95 (RA
95), insofar as it creates the PNRC as a private corporation and grants it
SEC. 7. The Congress shall not, except by general law, provide for the
corporate powers, is void for being unconstitutional. The Decision also
formation, organization, or regulation of private corporations, unless such
declared that the Office of the Chairman of the PNRC is not a government
corporations are owned or controlled by the Government or any
office or an office in a government-owned or controlled corporation for
subdivision or instrumentality thereof.
purposes of the prohibition in Section 13, Article VI of the 1987
Constitution, which reads:
This provision prohibiting Congress from creating private corporations,
except by general law, is reiterated in the 1973 1 and 19872 Constitutions.
SEC. 13. No Senator or Member of the House of Representatives may hold
any other office or employment in the Government, or any subdivision,
agency, or instrumentality thereof, including government-owned or In its Motion for Partial Reconsideration, the PNRC maintains that the
controlled corporations or their subsidiaries, during his term without decision declaring unconstitutional certain provisions of RA 95 deprived
forfeiting his seat. Neither shall he be appointed to any office which may the PNRC of its right to due process considering that the PNRC was not a
have been created or the emoluments thereof increased during the term party to the case. Furthermore, the PNRC states that the constitutionality
for which he was elected. of RA 95 was never an issue in the case. Similarly, respondent Gordon
posits in his Motion for Clarification and Reconsideration that the Court
should not have passed upon the constitutionality of RA 95 since such issue
Respondent Gordon and the PNRC are seeking reconsideration of the
was not raised by the parties.
portion of the Decision relating to the unconstitutionality of certain
provisions of RA 95.
Generally, the Court will not pass upon a constitutional question unless
such question is raised by the parties.3 However, as explained by the Court
This case originated from a petition filed by petitioners, seeking to declare
in Fabian v. Hon. Desierto,4 the rule that a challenge on constitutional
respondent Gordon as having forfeited his seat in the Senate when he
grounds must be raised by a party to the case is not an inflexible rule. In
accepted the chairmanship of the PNRC Board of Governors.
the Fabian case, the issue of the constitutionality of Section 27 of Republic
295 | J U D I C I A L D E P A R T M E N T C A S E S
Act No. 67705 (RA 6770) was not presented as an issue by the parties.
Nevertheless, the Court ruled that Section 27 of RA 6770, which provides
for appeals in administrative disciplinary cases from the Office of the
Ombudsman to the Supreme Court, infringes on the constitutional
proscription against laws increasing the appellate jurisdiction of the
Supreme Court without its advice and consent.
In this case, the constitutional issue was inevitably thrust upon the Court
upon its finding that the PNRC is a private corporation, whose creation by a
special charter is proscribed by the Constitution. In view of the Court’s
finding that the PNRC is a private corporation, it was imperative for the
Court to address the issue of the creation of the PNRC through a special
charter. The Constitution prohibits the creation of a private corporation
through a special law. The Court could not declare the PNRC a private
corporation created by the special law RA 95 without running afoul of
Section 16, Article XII of the 1987 Constitution. To declare the PNRC a
private corporation necessarily meant declaring RA 95 unconstitutional. To
declare the PNRC, a creation of RA 95, a private corporation without
declaring RA 95 unconstitutional would mean that Congress can create a
private corporation through a special law. This the Court could not do.
The fact that the constitutionality of RA 95 has not been questioned for
more than sixty (60) years does not mean that it could no longer be
declared unconstitutional. One is not estopped from assailing the validity
of a law just because such law has been relied upon in the past and all that
time has not been attacked as unconstitutional. 6 Indeed, there is no
prescription to declare a law unconstitutional. Thus, in the case of Moldex
Realty, Inc. v. Housing and Land Use Regulatory Board,7 this Court held that
constitutional challenge can be made anytime:
That the question of constitutionality has not been raised before is not a
valid reason for refusing to allow it to be raised later. A contrary rule
would mean that a law, otherwise unconstitutional, would lapse into
constitutionality by the mere failure of the proper party to promptly file a
case to challenge the same. (Emphasis supplied)
More importantly, the Court granted the PNRC’s motion to intervene and
the PNRC then filed its Motion for Partial Reconsideration, in which the
PNRC argued that its charter is valid and constitutional. Thus, the PNRC,
the entity that is directly affected by the issue of the constitutionality of
RA 95, is in law and in fact a party to this case, raising specifically the
issue that its charter is valid and constitutional. Moreover, although the
original parties did not raise as an issue the constitutionality of RA 95, they
were still afforded the opportunity to be heard on this constitutional issue
when they filed their respective motions for reconsideration.
In its Motion for Partial Reconsideration, the PNRC claims that the
constitutional proscription against the creation of private corporations by
special law is not applicable in this case since the PNRC was not created by
Congress but by then President Ferdinand Marcos, who issued Presidential
Decree No. 12648 (PD 1264) which repealed RA 95. The PNRC insists that
PD 1264 repealed and superseded RA 95. The PNRC maintains that since
PD 1264 was issued by President Marcos in the exercise of his legislative
power during the martial law period pursuant to Proclamation 1081, then
the constitutional prohibition does not apply. Respondent Gordon agrees
with the position taken by the PNRC.
I disagree. Even if the PNRC derived its existence from PD 1264, still the
constitutional prohibition will apply. President Marcos issued PD 1264 on 5
December 1977 during martial law period when the President assumed
extensive legislative power. Such assumption of legislative power did not
place President Marcos above the Constitution. President Marcos could
not issue decrees or orders contrary to the provisions of the Constitution.
The exercise of legislative power by President Marcos under martial law
must still be in accordance with the Constitution because legislative power
cannot be exercised in violation of the Constitution from which legislative
power draws its existence. The limits on legislative power is explained by
the Court in Government v. Springer,9 thus:
Someone has said that the powers of the legislative department of the
Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments acting
under delegated authority, the powers of each of the departments of the
296 | J U D I C I A L D E P A R T M E N T C A S E S
same are limited and confined within the four wall of the constitution or
the charter, and each department can only exercise such powers as are
expressly given and such other powers as are necessarily implied from
the given powers. The constitution is the shore of legislative authority
against which the waves of legislative enactment may dash, but over
which it cannot leap. (Emphasis supplied)
The 1973 Constitution, as amended, was in force when President Marcos
issued PD 1264. Under Section 1, Article VIII of the 1973 Constitution,
legislative power is vested in the National Assembly. By virtue of
Amendment No. 610 of the 1973 Constitution, the President was granted
legislative power. Thus, under Amendment No. 6, President Marcos was
granted concurrent legislative authority with the interim Batasang
Pambansa.11 Considering that the legislative power of the interim Batasang
Pambansa and the regular National Assembly is subject to the limitations
imposed by the Constitution, then more so for the emergency legislative
power granted to the President during the period of martial law. In fact,
the Court has declared void several Presidential Decrees or provisions
thereof for being unconstitutional.
In Demetria v. Alba,12 the Court declared void Paragraph 1 of Section 44 of
PD 1177 for being unconstitutional since it empowers the President to
indiscriminately transfer funds and unduly extends the privilege granted
under Section 16(5), Article VIII of the 1973 Constitution. In Export
Processing Zone Authority v. Judge Dulay,13 the Court held that PD 1533 is
unconstitutional because it deprives the courts of their function of
determining just compensation in eminent domain cases and eliminates
the courts’ discretion to appoint commissioners pursuant to Rule 67 of the
Rules of Court. In subsequent cases, similar provisions on just
compensation found in expropriation laws such as PD 42, 76, 464, 794,
1224, 1259, 1313, and 1517 were also declared void and unconstitutional
for the same reason and for being violative of due process. 14 In Tuason v.
Register of Deeds, Caloocan City,15 PD 293 was declared void and
unconstitutional since it allows the President to exercise judicial function
and to take property without due process and without compensation.
In Manotok v. National Housing Authority,16 the Court held that PD 1669
and 1670, which expropriated certain properties, were void and
unconstitutional for violating due process of law.
In this case, PD 1264 contravenes Section 4, Article XIV of the 1973
Constitution which provides that " the National Assembly shall not, except
by general law, provide for the formation, organization, or regulation of
private corporations, unless such corporations are owned or controlled by
the government or any subdivision or instrumentality thereof." This same
prohibition is found in Section 16, Article XII of the present Constitution.
Thus, just like RA 95, PD 1264 is also void insofar as it creates the PNRC as a
private corporation.
The PNRC further submits that "due to its peculiar nature, it should be
considered as a private, neutral and separate entity independent of
government control and supervision, but acting as an auxiliary to
government when performing humanitarian functions, and specially
created pursuant to the treaty obligations of the Philippines to the Geneva
Conventions."17 Thus, the PNRC maintains that its structure is sui
generis and that it is not strictly private in character since it performs
certain governmental functions. The PNRC posits that its argument is
reinforced by the Position Paper18 dated 7 December 2009 of the
International Federation of Red Cross and Red Crescent Societies
("International Federation"), which reads in part:
A National Society PARTAKES OF A SUI GENERIS  CHARACTER. It is a
protected component of the Red Cross Movement under Articles 24 and
26 of the First Geneva Convention, especially in times of armed conflict.
These provisions require that the staff of a National Society shall be
respected and protected in all circumstances. Such protection is not
ordinarily afforded by an international treaty to ordinary private entities or
even non-governmental organizations (NGOs). This sui generis character is
also emphasized by the Fourth Geneva Convention which holds that an
Occupying Property cannot require any change in the personnel or
structure of a National Society. National Societies are therefore
organizations that are directly regulated by international humanitarian law,
in contrast to other ordinary private entities, including NGOs.
xxx
297 | J U D I C I A L D E P A R T M E N T C A S E S
Once recognized by its Government as an independent National Society
auxiliary to the public authorities in humanitarian field, a National Society,
if it fulfills the ten (10) conditions for recognition, can be recognized by the
International Committee of the Red Cross and be admitted as member of
the International Federation of the Red Cross and Red Crescent Societies.
No other organization belongs to a world-wide Movement in which all
Societies have equal status and share equal responsibilities and duties in
helping each other. This is considered to be the essence of the
Fundamental Principle of Universality.
Furthermore, the National Societies are considered to be auxiliaries to the
public authorities in the humanitarian field. The concept of National
Societies auxiliary to the public authorities was reaffirmed in Resolution 3
of the 30th International Conference of the Red Cross and Red Crescent, on
26-30 November 2007. This status, as you may see, is not only a positive
and distinct feature of any organization, but it is a precondition of its
existence and functioning as a member of the International Red Cross and
Red Crescent Movement.
The auxiliary status of Red Cross Society means that it is at one and the
same time a private institution and a public service organization because
the very nature of its work implies cooperation with the authorities, a
link with the State. In carrying out their major functions, Red Cross
Societies give their humanitarian support to official bodies, in general
having larger resources than the Societies, working towards comparable
ends in a given sector.
This is also the essence of the Fundamental Principle of Independence. No
other humanitarian organization gives such interpretation to its
independence, although many claim that they are independent. No other
organization has a duty to be its government’s humanitarian partner
while remaining independent.
The Movement places much importance on the Principle of
Independence and the duty of the States Parties to the Geneva
Conventions to respect the adherence by all the components of the
Movement to the Fundamental Principles. Before it can be recognized by
the International Committee, a National Society must have autonomous
status which allows it to operate in conformity with the Fundamental
Principles of the Movement.
Thus, in protecting the independence of the National Society in carrying
out its humanitarian mission in a neutral and impartial manner, it is
crucial that it must be free from any form of intervention from the
government at the level of the internal organization of the National
Society mainly its governance and management structure. (Boldfacing
supplied. Underscoring in the original.)
All private charitable organizations are doing public service or activities
that also constitute governmental functions.19 Hence, the PNRC cannot
claim that it is sui generis just because it is a private organization
performing certain public or governmental functions. That the PNRC is
rendering public service does not exempt it from the constitutional
prohibition against the creation of a private corporation through a special
law since the PNRC is, admittedly, still a private organization. The express
prohibition against the creation of private corporations by special charter
under Section 16, Article XII of the 1987 Constitution cannot be
disregarded just because a private corporation claims to be sui generis. The
constitutional prohibition admits of no exception.
Even the International Federation specifies the nature of the National Red
Cross Society as a "private institution and a public service organization."
Furthermore, it emphasizes the importance of maintaining and protecting
the independence of the National Society, free from any form of
intervention from the government particularly concerning its governance
and management structure. Full independence means that the National
Societies are prohibited from being owned or controlled by their host
government or from becoming government instrumentalities as this would
undermine their independence, neutrality, and autonomy.
Indeed, the PNRC, as a member National Society of the International Red
Cross and Red Crescent Movement (Movement) must meet the stringent
requirement of independence, autonomy, and neutrality in order to be
recognized as a National Society by the International Committee of the Red
298 | J U D I C I A L D E P A R T M E N T C A S E S
Cross (ICRC). The conditions for recognition of National Societies are
enumerated in Article 4 of the Statutes of the Movement, thus:
Article 4
Conditions for Recognition of National Societies
In order to be recognized in terms of Article 5, paragraph 2 b) 20 as a
National Society, the Society shall meet the following conditions:
1. Be constituted on the territory of an independent State where
the Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field is in force.
2. Be the only National Red Cross or Red Crescent Society of the
said State and be directed by a central body which shall alone be
competent to represent it in its dealings with other components
of the Movement.
3. Be duly recognized by the legal government of its country on
the basis of the Geneva Conventions and of the national
legislation as a voluntary aid society, auxiliary to the public
authorities in the humanitarian field.
4. Have an autonomous status which allows it to operate in
conformity with the Fundamental Principles of the Movement.
5. Use a name and distinctive emblem in conformity with the
Geneva Conventions and their Additional Protocols.
6. Be so organized as to be able to fulfil the tasks defined in its
own statutes, including the preparation in peace time for its
statutory tasks in case of armed conflict.
7. Extend its activities to the entire territory of the State.
8. Recruit its voluntary members and its staff without
consideration of race, sex, class, religion or political opinions.
9. Adhere to the present Statutes, share in the fellowship which
unites the components of the Movement and cooperate with
them.
10. Respect the Fundamental Principles of the Movement and be
guided in its work by the principles of international humanitarian
law.21
The conditions for recognition of National Societies do not require that
the State itself create the National Society through a special charter. The
absence of such requirement is proper and necessary considering the
Movement’s emphasis on the importance of maintaining the
independence of the National Society, free from any form of intervention
from the government. However, it is required that the National Society be
officially recognized by the government of its country as auxiliary to the
public authorities in the humanitarian field.
A decree granting official recognition to the National Society is essential in
order to distinguish it from other charitable organizations in the country
and to be entitled to the protection of the Geneva Conventions in the
event of armed conflict.22 The content of the decree of recognition may
vary from one country to another but it should explicitly specify:
1. That the National Society is the country’s only Red Cross or Red
Crescent organization;
2. That it is autonomous in relation to the State;
3. That it performs its activities in conformity with the
Fundamental Principles; and
4. The conditions governing the use of the emblem. 23
299 | J U D I C I A L D E P A R T M E N T C A S E S
Thus, there is no specific requirement for the creation of the National
Society through a special charter. The State does not have the obligation
to create the National Society, in our case, the PNRC. What is important is
that the National Society is officially recognized by the government as
auxiliary to the public authorities in the humanitarian services of the
government. This the Philippine government can accomplish even without
creating the PNRC through a special charter.
Besides, as auxiliaries in the humanitarian services of their host
governments, the National Societies are subject to the laws of their
respective countries.24 Thus, the National Societies are bound by the laws
of their host countries and must submit to the Constitution of their
respective host countries.
The Philippine Constitution prohibits Congress from creating private
corporations except by general law. I agree with the PNRC that it is a
private organization performing public functions. Precisely because it is a
private organization, the PNRC charter – whether it be RA 95 or PD 1264 –
is violative of the constitutional proscription against the creation of private
corporations by special law. Nevertheless, keeping in mind the treaty
obligations of the Philippines under the Geneva Conventions, the assailed
Decision only held void those provisions of the PNRC charter which create
PNRC as a private corporation or grant it corporate powers. The other
provisions respecting the government’s treaty obligations remain valid,
thus:
The other provisions25 of the PNRC Charter remain valid as they can be
considered as a recognition by the State that the unincorporated PNRC is
the local National Society of the International Red Cross and Red
Crescent Movement, and thus entitled to the benefits, exemptions and
privileges set forth in the PNRC Charter. The other provisions of the PNRC
Charter implement the Philippine Government’s treaty obligations under
Article 4(5) of the Statutes of the International Red Cross and Red Crescent
Movement, which provides that to be recognized as a National Society, the
Society must be "duly recognized by the legal government of its country on
the basis of the Geneva Conventions and of the national legislation as a
voluntary aid society, auxiliary to the public authorities in the humanitarian
field."26 (Emphasis supplied)
This Court’s paramount duty is to faithfully apply the provisions of the
Constitution to the present case. The Constitutional prohibition under
Section 16, Article XII of the 1987 Constitution is clear, categorical, and
absolute:
SEC. 16. The Congress, shall not, except by general law, provide for the
formation, organization, or regulation of private corporations.
Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and
subject to the test of economic viability. (Emphasis supplied)
Since the constitutional prohibition admits of no exception, this Court has
no recourse but to apply the prohibition to the present case. This Court has
no power to make PNRC an exception to Section 16, Article XII of the 1987
Constitution.
The PNRC could either choose to remain unincorporated or it could adopt
its own articles of incorporation and by-laws and incorporate under the
Corporation Code and register with the Securities and Exchange
Commission if it wants to be a private corporation.
Accordingly, I vote to DENY the Motions for Reconsideration.
ANTONIO T. CARPIO
Associate Justice
EN BANC
300 | J U D I C I A L D E P A R T M E N T C A S E S
G.R. No. 200903, July 22, 2014
KALIPUNAN NG DAMAYANG MAHIHIRAP, INC., REPRESENTED BY ITS
VICE-PRESIDENT, CARLITO BADION, CORAZON DE JESUS HOMEOWNERS
ASSOCIATION, REPRESENTED BY ITS PRESIDENT, ARNOLD REPIQUE,
FERNANDO SEVILLA AS PRESIDENT OF SAMAHANG PAMATA SA
KAPATIRANG KRISTIYANO, ESTRELIETA BAGASBAS, JOCY LOPEZ, ELVIRA
VIDOL, AND DELIA FRAYRES, Petitioners, v. JESSIE ROBREDO, IN HIS
CAPACITY AS SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, HON. GUIA GOMEZ, IN HER CAPACITY AS MAYOR OF THE
CITY OF SAN JUAN, HON. HERBERT BAUTISTA, IN HIS CAPACITY AS THE
MAYOR OF QUEZON CITY, HON. JOHN REY TIANGCO, IN HIS CAPACITY AS
MAYOR OF NAVOTAS CITY, AND THE GENERAL MANAGER OF THE
NATIONAL HOUSING AUTHORITY, Respondents.
DECISION
BRION, J.:
This is a petition for prohibition and mandamus to enjoin the public
respondents from evicting the individual petitioners as well as the
petitioner-associations’ members from their dwellings in the cities of San
Juan, Navotas and Quezon without any court order, and to compel the
respondents to afford them judicial process prior to evictions and
demolitions. The petition primarily seeks to declare as unconstitutional
Section 28 (a) and (b) of Republic Act No. 7279 (RA 7279), otherwise
known as Urban Development Housing Act, which authorizes evictions and
demolitions under certain circumstances without any court order.
The Factual Antecedents
The members of petitioners Kalipunan ng Damayang Mahihirap, Inc. and
Corazon de Jesus Homeowners’ Association as well as the individual
petitioners, Fernando Sevilla, Estrelieta Bagasbas, Jocy Lopez, Elvira Vidol
and Delia Frayres, were/are occupying parcels of land owned by and
located in the cities of San Juan, Navotas and Quezon (collectively, the
LGUs1). These LGUs sent the petitioners notices of eviction and demolition
pursuant to Section 28 (a) and (b) of RA 7279 in order to give way to the
implementation and construction of infrastructure projects 2 in the areas
illegally occupied by the petitioners.3
Section 28 (a) and (b) of RA 7279 authorize evictions and demolitions
without any court order when: (1) persons or entities occupy danger areas
such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines,
waterways, and other public places such as sidewalks, roads, parks, and
playgrounds; and (2) persons or entities occupy areas where government
infrastructure projects with available funding are about to be
implemented.
The Petition
On March 23, 2012, the petitioners directly filed a petition for prohibition
and mandamus before the Court, seeking to compel the Secretary of
Interior and Local Government, et al. (the public respondents) to first
secure an eviction and/or demolition order from the court prior to their
implementation of Section 28 (a) and (b) of RA 7279.
The petitioners justify their direct recourse before this Court by generally
averring that they have no plain, speedy and adequate remedy in the
ordinary course of law.4 They also posit that the respondents gravely
abused their discretion in implementing Section 28 (a) and (b) of RA 7279
which are patently unconstitutional. They likewise insist that they stand to
be directly injured by the respondents’ threats of evictions and
demolitions. In the alternative, they contend that the transcendental
public importance of the issues raised in this case clothes them with legal
standing.5
The petitioners argue that Section 28 (a) and (b) of RA 7279 offend their
constitutional right to due process because they warrant evictions and
demolitions without any court order. They point out that Section 6, Article
3 of the 1987 Constitution expressly prohibits the impairment of liberty of
abode unless there is a court order. Moreover, Section 28 (a) and (b) of RA
7279 violate their right to adequate housing, a universal right recognized in
Article 25 of Universal Declaration of Human Rights and Section 2 (a) of RA
7279. The petitioners further complain that the respondents had
301 | J U D I C I A L D E P A R T M E N T C A S E S
previously conducted evictions and demolitions in a violent manner,
contrary to Section 10, Article 13 of the 1987 Constitution. 6
The Respondents’ Case
A. The Position of the Mayor of Navotas
The Mayor of Navotas prays for the outright dismissal of the petition for its
serious procedural defects. First, the petitioners ignored the hierarchy of
courts when they directly filed a Rule 65 petition before the Court. 7Second,
the petitioners incorrectly availed themselves of a petition for prohibition
and mandamus in assailing the constitutionality of Section 28 (a) and (b) of
RA 7279. According to the Mayor of Navotas, the office of a writ of
prohibition is merely to prevent the public respondent’s usurpation of
power or improper assumption of jurisdiction. On the other hand, a writ of
mandamus only commands the public respondent to perform his
ministerial functions. Third, the petitioners failed to particularly state the
grave abuse of discretion that the Mayor of Navotas allegedly committed.
Fourth, the petition does not present any justiciable controversy since the
City of Navotas had already successfully evicted the petitioners in San
Roque, Navotas  on November 28, 2011. Fifth, the petition was filed out of
time since the petitioners were personally notified of the intended eviction
and demolition on September 23, 2011. 8
The Mayor argues that Section 10, Article 13 of the 1987 Constitution
allows evictions and demolitions to be conducted even without a court
order provided they are done in accordance with the law and in a just and
humane manner. According to him, RA 7279 is precisely the law referred to
by Section 10, Article 13 of the 1987 Constitution. The Mayor also disputes
the petitioners’ claim that RA 7279 does not afford the informal settlers
procedural due process prior to evictions and demolitions. He points out
that Section 28 of RA 7279 and its implementing rules and
regulations (IRR) mandate that the affected persons or entities shall be
given notice at least thirty (30) days prior to the date of eviction or
demolition. The respondents are likewise required to consult with the duly
designated representatives of the affected families and communities with
respect to their relocation. He further asserts that his faithful
implementation of Section 28 (a) and (b) of RA 7279, which are presumed
to be constitutional, cannot be equated to grave abuse of discretion.
Lastly, the Mayor of Navotas insists that the petitioners’ invocation of their
right to freely choose their abode is misplaced since they have no vested
right to occupy properties that they do not own. 9
B. The Position of the Mayor of San Juan
The Mayor of San Juan similarly argues that the petitioners improperly
availed themselves of a petition for prohibition and mandamus before the
Court. She contends that she performed neither judicial nor ministerial
functions in implementing RA 7279, the enabling law of Section 10, Article
13 of the 1987 Constitution. She also maintains that the petition has been
rendered moot and academic by the successful eviction of some of the
petitioners in Pinaglabanan, Corazon de Jesus, San Juan. The Mayor of San
Juan further stresses that Section 28 (a) and (b) of RA 7279 already lay
down the procedure in evicting informal settlers in a just and humane
manner.10
C. The Position of the Mayor of  Quezon
The Mayor of Quezon City holds that the petitioners’ premature invocation
of the Court’s power of judicial review and their violation of the principle
of hierarchy of courts are fatal to their cause of action. Moreover, the
petitioners failed to substantiate the material allegations in the petition.
He additionally argues that his faithful implementation of RA 7279, which
the legislature enacted in the exercise of police power, does not amount to
grave abuse of discretion.11
D. The Position of the Secretary of Interior and Local Government and the
General Manager of the National Housing Authority
The Secretary of Interior and Local Government and the National Housing
Authority (NHA) General Manager adopt the Mayor of Navotas’ position
that the petition is procedurally infirm. They further argue that the liberty
of abode is not illimitable and does not include the right to encroach upon
other person properties. They also reiterate that Section 28 of RA 7279
provides sufficient safeguards in ensuring that evictions and demolitions
are carried out in a just and humane manner.12
302 | J U D I C I A L D E P A R T M E N T C A S E S
The Issues
This case presents to us the following issues:
(1) Whether the petition should be dismissed for serious procedural
defects; and
(a) Whether the petitioners violated the principle of hierarchy of
courts;
(b) Whether the petitioners correctly availed themselves of a petition
for prohibition and mandamus;
(2) Whether Section 28 (a) and (b) of RA 7279 are violative of Sections 1
and 6, Article 3 of the 1987 Constitution.
The Court’s Ruling
We dismiss the petition.
The petitioners violated the principle
of hierarchy of courts when they directly
filed the petition before the Court.
The petitioners have unduly disregarded the hierarchy of courts by coming
directly to the Court with their petition for prohibition and mandamus. The
petitioners appear to have forgotten that the Supreme Court is a court of
last resort, not a court of first instance. The hierarchy of courts should
serve as a general determinant of the appropriate forum for Rule 65
petitions. The concurrence of jurisdiction among the Supreme Court, Court
of Appeals and the Regional Trial Courts to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction does
not give the petitioners the unrestricted freedom of choice of forum.  By
directly filing Rule 65 petitions before us, the petitioners have unduly taxed
the Court’s time and attention which are better devoted to matters within
our exclusive jurisdiction. Worse, the petitioners only contributed to the
overcrowding of the Court's docket. We also wish to emphasize that the
trial court is better equipped to resolve cases of this nature since this Court
is not a trier of facts and does not normally undertake an examination of
the contending parties’ evidence.13
The petitioners wrongly availed
themselves of a petition for prohibition
and mandamus.
We cannot also ignore the petitioners’ glaring error in using a petition for
prohibition and mandamus in the current case.
The petitioners seem to have forgotten that a writ of prohibition only lies
against the tribunal, corporation, board, officer or person’s exercise
of judicial, quasi-judicial or ministerial functions.14 We issue a writ of
prohibition to afford the aggrieved party a relief against the respondent’s
usurpation or grave abuse of jurisdiction or power. 15
On the other hand, a petition for mandamus is merely directed against the
tribunal, corporation, board, officer, or person who unlawfully neglects the
performance of an act which the law enjoins as a duty resulting from an
office, trust or station or who unlawfully excludes another from the use
and enjoyment of a right or office to which such other is entitled. 16 Thus, a
writ of mandamus will only issue to compel an officer to perform
a ministerial duty. It will not control a public officer’s exercise of discretion
as where the law imposes upon him the duty to exercise his judgment in
reference to any manner in which he is required to act precisely because it
is his judgment that is to be exercised, not that of the court. 17
In the present case, the petitioners seek to prohibit the respondents from
implementing Section 28 (a) and (b) of RA 7279 without a prior court order
of eviction and/or demolition. In relation to this, paragraph 1, Section 28 of
RA 7279 provides:chanroblesvirtuallawlibrary
Sec.  28. Eviction and Demolition. — Eviction or demolition as a practice
shall be discouraged. Eviction or demolition, however, may be allowed
under the following situations:
(a) When persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways,
and other public places such as sidewalks, roads, parks, and
playgrounds;
(b) When government infrastructure projects with available funding are
303 | J U D I C I A L D E P A R T M E N T C A S E S
about to be implemented; or
(c) When there is a court order for eviction and demolition. (emphasis and
underline ours)
A reading of this provision clearly shows that the acts complained of are
beyond the scope of a petition for prohibition and mandamus. The use of
the permissive word “may” implies that the public respondents have
discretion when their duty to execute evictions and/or demolitions shall be
performed. Where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without
attempted interpretation.18
Consequently, the time when the public respondents shall carry out
evictions and/or demolitions under Section 28 (a), (b), and (c) of RA 7279 is
merely discretionary, and not ministerial, judicial or quasi-judicial. The duty
is discretionary if the law imposes a duty upon a public officer and gives
him the right to decide when the duty shall be performed.
In contrast, a ministerial duty is one which an officer or tribunal performs  in the principle of separation of powers and is thus merely an offshoot of
in  a  given  state  of  facts,  in  a  prescribed  manner, in obedience to the
mandate of a legal authority, without regard to or the exercise of his own
judgment upon the propriety or impropriety of the act done. 19
On the other hand, both judicial and quasi-judicial functions involve the
determination of what the law is, and what the legal rights of the
contending parties are, with respect to the matter in controversy and, on
the basis thereof and the facts obtaining, the adjudication of their
respective rights.20
The resolution of the constitutionality
of Section 28 (a) and (b) of RA 7279
is not the lis mota of the case.
Even if we treat the present petition as one for certiorari since it assails the
constitutionality of Section 28 (a) and (b) of RA 7279, the petition must
necessarily fail for failure to show the essential requisites that would
warrant the Court’s exercise of judicial review. It is a rule firmly entrenched
in our jurisprudence that the courts will not determine the
constitutionality of a law unless  the following requisites are present: (1)
the existence of an actual case or controversy involving a conflict of legal
rights susceptible of judicial determination; (2) the existence of personal
and substantial interest on the part of the party raising the constitutional
question; (3) recourse to judicial review is made at the earliest
opportunity; and (4) the resolution of the constitutional question must be
necessary to the decision of the case.21
Save for the petition pertaining to the City of Quezon’s threat of eviction
and demolition, this case no longer presents a justiciable controversy with
respect to the Mayors of Navotas and San Juan. We take note of
the Comments of these Mayors who alleged that they had already
successfully evicted the concerned petitioners in their respective cities at
the time of the filing of the petition.
What further constrains this Court from touching on the issue of
constitutionality is the fact that this issue is not the lis mota of this
case. Lis mota literally means “the cause of the suit or action”; it is rooted
the presumption of validity accorded the executive and legislative acts of
our co-equal branches of the government.
This means that the petitioner who claims the unconstitutionality of a law
has the burden of showing first that the case cannot be resolved unless the
disposition of the constitutional question that he raised is unavoidable. If
there is some other ground upon which the court may rest its judgment,
that course will be adopted and the question of constitutionality should be
avoided.22  Thus, to justify the nullification of a law, there must be a clear
and unequivocal breach of the Constitution, and not one that is doubtful,
speculative or argumentative.23
We carefully read the petitions and we conclude that they fail to
compellingly show the necessity of examining the constitutionality of
Section 28 (a) and (b) of RA 7279 in the light of Sections 1 and 6, Article 3
of the 1987 Constitution.24 In Magkalas v. NHA,25 this Court had already
ruled on the validity of evictions and demolitions without any court order.
In that case, we affirmed the validity of Section 2 of Presidential Decree
No. 1472 which authorizes the NHA to summarily eject all informal settlers’
304 | J U D I C I A L D E P A R T M E N T C A S E S
colonies on government resettlement projects as well as any illegal
occupant in any homelot, apartment or dwelling unit owned or
administered by the NHA. In that case, we held that Caridad Magkalas’
illegal possession of the property should not hinder the NHA’s
development of Bagong Barrio Urban Bliss Project. We further stated that
demolitions and evictions may be validly carried out even without a judicial
order in the following instances:chanroblesvirtuallawlibrary
(1) when the property involved is an expropriated property xxx pursuant
to Section 1 of P.D. No. 1315;
(2) when there are squatters on government resettlement projects and
illegal occupants in any homelot, apartment or dwelling unit owned or
administered by the NHA pursuant to Section 2 of P.D. No. 1472;
(3) when persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways
and other public places such as sidewalks, roads, parks and
playgrounds, pursuant to Section 28(a) of R.A. No. 7279;
(4) when government infrastructure projects with available funding are
about to be implemented pursuant to Section 28(b) of R.A. No.
7279.26 (emphasis ours)
We note that Section 10, Article 13 of the 1987 Constitution provides that
urban or rural poor dwellers shall not be evicted nor their dwelling
demolished, except in accordance with law and in a just and humane
manner. Paragraph 1, Section 28 of RA 7279 allows summary evictions and
demolition in cases where  persons or entities occupy danger areas and
when persons or entities occupy areas where government infrastructure
projects with available funding are about to be implemented.
To ensure that evictions and demolitions are conducted in a just and
humane manner, paragraph 2, Section 28 of RA 7279 commands the public
respondents to comply with the following prescribed procedure in
executing eviction and/or demolition orders:chanroblesvirtuallawlibrary
In the execution of eviction or demolition orders involving underprivileged
and homeless citizens, the following shall be mandatory:
(1) Notice upon the effected persons or entities at least thirty (30) days
prior to the date of eviction or demolition;
(2) Adequate consultations on the matter of settlement with the duly
designated representatives of the families to be resettled and the
affected communities in the areas where they are to be relocated;
(3) Presence of local government officials or their representatives during
eviction or demolition;
(4) Proper identification of all persons taking part in the demolition;
(5) Execution of eviction or demolition only during regular office hours
from Mondays to Fridays and during good weather, unless the affected
families consent otherwise;
(6) No use of heavy equipment for demolition except for structures that
are permanent and of concrete materials;
(7) Proper uniforms for members of the Philippine National Police who
shall occupy the first line of law enforcement and observe proper
disturbance control procedures; and
(8) Adequate relocation, whether temporary or permanent: Provided,
however, That in cases of eviction and demolition pursuant to a court
order involving underprivileged and homeless citizens, relocation shall
be undertaken by the local government unit concerned and the
National Housing Authority with the assistance of other government
agencies within forty-five (45) days from service of notice of final
judgment by the court, after which period the said order shall be
executed: Provided, further, That should relocation not be possible
within the said period, financial assistance in the amount equivalent to
the prevailing minimum daily wage multiplied by sixty (60) days shall
be extended to the affected families by the local government unit
concerned.
This Department of the Interior and Local Government and the Housing
and Urban Development Coordinating Council shall jointly promulgate the
necessary rules and regulations to carry out the above provision.
Lastly, the petitioners failed to substantiate their allegations that the public
respondents gravely abused their discretion in implementing Section 28 (a)
and (b) of RA 7279. Instead, they merely imputed jurisdictional abuse to
the public respondents through general averments in their pleading, but
without any basis to support their claim.
305 | J U D I C I A L D E P A R T M E N T C A S E S
This is precisely the reason why we frown upon the direct filing of Rule 65
petitions before the Court. To the point of being repetitive, we emphasize
that we are not trier of facts and this applies with greater force to Rule 65
petitions which are original and independent actions. To justify judicial
intrusion into what is fundamentally the domain of the executive
department, the petitioners must establish facts that are necessarily linked
to the jurisdictional problem they presented in this case, i.e., whether the
public respondents exercised their power in an arbitrary and despotic
manner by reason of passion or personal hostility in implementing Section
28 (a) and (b) of RA 7279.
Since the petitioners failed to establish that the public respondents’
alleged abuse of discretion was so patent and gross as to amount to an
evasion or to a unilateral refusal to perform the duty enjoined or to act in
contemplation of law, this petition must necessarily fail. 27
WHEREFORE, premises considered, we hereby DISMISS the petition for its
serious procedural defects. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 12-2-03-0               March 13, 2012
RE: IN THE MATTER OF CLARIFICATION OF EXEMPTION FROM PAYMENT
OF ALL COURT AND SHERIFF'S FEES OF COOPERATIVES DULY REGISTERED
IN ACCORDANCE WITH REPUBLIC ACT NO. 9520 OTHERWISE KNOWN AS
THE PHILIPPINE COOPERATIVE CODE OF 2008,
PERPETUAL HELP COMMUNITY COOPERATIVE (PHCCI), Petitioner,
RESOLUTION
PEREZ, J.:
In a Petition1 dated 24 October 2011, Perpetual Help Community
Cooperative (PHCCI), through counsel, requests for the issuance of a court
order to clarify and implement the exemption of cooperatives from the
payment of court and sheriff’s fees pursuant to Republic Act No. 6938, as
amended by Republic Act No. 9520, otherwise known as the Philippine
Cooperative Act of 2008.
PHCCI contends that as a cooperative it enjoys the exemption provided for
under Section 6, Article 61 of Republic Act No. 9520, which states:
(6) Cooperatives shall be exempt from the payment of all court and
sheriff’s fees payable to the Philippine Government for and in connection
with all actions brought under this Code, or where such actions is brought
by the Authority before the court, to enforce the payment of obligations
contracted in favor of the cooperative.
It claims that this was a reiteration of Section 62, paragraph 6 of Republic
Act No. 6938, An Act to Ordain a Cooperative Code of the Philippines, 2 and
was made basis for the Court’s Resolution in A.M. No. 03-4-01-0, as well as
of Office of the Court Administrator (OCA) Circular No. 44-2007. 3
It avers that despite the exemptions granted by the aforesaid laws and
issuances, PHCCI had been continuously assessed and required to pay legal
and other fees whenever it files cases in court.
PHCCI reports that it filed with the Office of the Executive Judge of the
Municipal Trial Court in Cities (MTCC), Dumaguete City, Negros Oriental, a
Motion to implement the exemption of cooperatives from the payment of
court and sheriff’s fees in cases filed before the courts in his jurisdiction,
but the Executive Judge ruled that the matter is of national concern and
306 | J U D I C I A L D E P A R T M E N T C A S E S
should be brought to the attention of the Supreme Court for it to come up
with a straight policy and uniform system of collection. In the meantime,
the MTCC has continued the assessment of filing fees against cooperatives.
Records reveal that on 21 September 2011, Executive Judge Antonio
Estoconing (Executive Judge Estoconing), MTCC, Dumaguete City, Negros
Oriental, issued an Order treating the motion filed by PHCCI as a mere
consulta considering that no main action was filed in his court. Executive
Judge Estoconing submits that he had second thoughts in considering the
exemption in view of the guidelines laid down in the Rules. He reported
that many cases filed by PHCCI are small claims cases and under Section 8
of the Rule on Small Claims, the plaintiff is required to pay docket fees and
other related costs unless he is allowed to litigate the case as an indigent.
Hence, this Petition.
Before this Court is the issue on whether cooperatives are exempt from
the payment of court and sheriff’s fees. The fees referred to are those
provided for under Rule 141 (Legal Fees) of the Rules of Court.
The term "all court fees" under Section 6, Article 61 of Republic Act No.
9520 refers to the totality of "legal fees" imposed under Rule 141 of the
Rules of Court as an incident of instituting an action in court. 4 These fees
include filing or docket fees, appeal fees, fees for issuance of provisional
remedies, mediation fees, sheriff’s fees, stenographer’s fees and
commissioner’s fees.5
With regard to the term "sheriff’s fees," this Court, in an extended minute
Resolution dated 1 September 2009, held that the exemptions granted to
cooperatives under Section 2, paragraph 6 of Republic Act No. 6938;
Section 6, Article 61 of Republic Act No. 9520; and OCA Circular No. 44-
2007 clearly do not cover the amount required "to defray the actual travel
expenses of the sheriff, process server or other court-authorized person in
the service of summons, subpoena and other court processes issued
relative to the trial of the case,"6 which are neither considered as court and
sheriff’s fees nor are amounts payable to the Philippine Government. 7
In fine, the 1 September 2009 Resolution exempted the cooperatives from
court fees but not from sheriff’s fees/expenses.
On 11 February 2010, however, the Supreme Court En Banc issued a
Resolution in A.M. No. 08-2-01-0,8 which denied the petition of the
Government Service Insurance System (GSIS) for recognition of its
exemption from payment of legal fees imposed under Section 22 of Rule
141 of the Rules of Court. In the GSIS case, the Court citing Echegaray v.
Secretary of Justice,9 stressed that the 1987 Constitution molded an even
stronger and more independent judiciary; took away the power of
Congress to repeal, alter, or supplement rules concerning pleading,
practice and procedure; and held that the power to promulgate these
Rules is no longer shared by the Court with Congress, more so, with the
Executive,10 thus:
Since the payment of legal fees is a vital component of the rules
promulgated by this Court concerning pleading, practice and procedure, it
cannot be validly annulled, changed or modified by Congress. As one of the
safeguards of this Court’s institutional independence, the power to
promulgate rules of pleading, practice and procedure is now the Court’s
exclusive domain. That power is no longer shared by this Court with
Congress, much less with the Executive.11
xxxx
The separation of powers among the three co-equal branches of our
government has erected an impregnable wall that keeps the power to
promulgate rules of pleading, practice and procedure within the sole
province of this Court. The other branches trespass upon this prerogative if
they enact laws or issue orders that effectively repeal, alter or modify any
of the procedural rules promulgated by this Court. Viewed from this
perspective, the claim of a legislative grant of exemption from the
payment of legal fees under Section 39 of R.A. 8291 necessarily fails.
Congress could not have carved out an exemption for the GSIS from the
payment of legal fees without transgressing another equally important
institutional safeguard of the Court’s independence - fiscal
307 | J U D I C I A L D E P A R T M E N T C A S E S

autonomy.12 Fiscal autonomy recognizes the power and authority of the The Office of the Court Administrator is DIRECTED to issue a circular
Court to levy, assess and collect fees,13 including legal fees. Moreover, legal clarifying that cooperatives are not exempt from the payment of the legal
fees under Rule 141 have two basic components, the Judiciary fees provided for under Rule 141 of the Rules of Court.
Development Fund (JDF) and the Special Allowance for the Judiciary Fund
(SAJF).14 The laws which established the JDF and SAJF15 expressly declare SO ORDERED.
the identical purpose of these funds to guarantee the independence of the
Judiciary as mandated by the Constitution and public policy. 16 Legal fees
therefore do not only constitute a vital source of the Court’s financial
resources but also comprise an essential element of the Court’s fiscal
independence. Any exemption from the payment of legal fees granted by
Congress to government-owned or controlled corporations and local
government units will necessarily reduce the JDF and the SAJF.
Undoubtedly, such situation is constitutionally infirm for it impairs the
EN BANC
Court’s guaranteed fiscal autonomy and erodes its independence. 17
G.R. No. 224302, November 29, 2016
In a decision dated 26 February 2010 in Baguio Market Vendors Multi-
Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes, 18 this Court
reiterated its ruling in the GSIS case when it denied the petition of the HON. PHILIP A. AGUINALDO, HON. REYNALDO A. ALHAMBRA, HON.
cooperative to be exempted from the payment of legal fees under Section DANILO S. CRUZ, HON. BENJAMIN T. POZON, HON. SALVADOR V.
7(c) of Rule 141 of the Rules of Court relative to fees in petitions for extra- TIMBANG, JR., AND THE INTEGRATED BAR OF THE PHILIPPINES
judicial foreclosure. (IBP), Petitioners, v. HIS EXCELLENCY PRESIDENT BENIGNO SIMEON C.
AQUINO III, HON. EXECUTIVE SECRETARY PAQUITO N. OCHOA, HON.
MICHAEL FREDERICK L. MUSNGI, HON. MA. GERALDINE FAITH A. ECONG,
On 10 March 2010, relying again on the GSIS ruling, the Court En Banc
HON. DANILO S. SANDOVAL, HON. WILHELMINA B. JORGE-WAGAN, HON.
issued a resolution clarifying that the National Power Corporation is not
ROSANA FE ROMERO-MAGLAYA, HON. MERIANTHE PACITA M. ZURAEK,
exempt from the payment of legal fees. 19
HON. ELMO M. ALAMEDA, AND HON. VICTORIA C. FERNANDEZ-
BERNARDO, Respondent.
With the foregoing categorical pronouncements of the Supreme Court, it is
evident that the exemption of cooperatives from payment of court and
DECISION
sheriff’s fees no longer stands. Cooperatives can no longer invoke Republic
Act No. 6938, as amended by Republic Act No. 9520, as basis for
exemption from the payment of legal fees. LEONARDO-DE CASTRO, J.:

WHEREFORE, in the light of the foregoing premises, the petition of PHCCI
requesting for this Court to issue an order clarifying and implementing the
exemption of cooperatives from the payment of court and sheriff’s fees is
hereby DENIED.1âwphi1
Before this Court is a Petition for Quo Warranto under Rule 66
and Certiorari and Prohibition under Rule 65 with Application for Issuance
of Injunctive Writs1 filed by petitioners Judge Philip A. Aguinaldo
(Aguinaldo) of the Regional Trial Court (RTC), Muntinlupa City, Branch 207;
Judge Reynaldo A. Alhambra (Alhambra) of RTC, Manila, Branch 53; Judge
Danilo S. Cruz (D. Cruz) of RTC, Pasig City, Branch 152; Judge Benjamin T.
308 | J U D I C I A L D E P A R T M E N T C A S E S

Pozon (Pozon) of RTC, Makati City, Branch 139; Judge Salvador V. Timbang, newly created positions of Associate Justice of the Sandiganbayan. 8 After
Jr. (Timbang) of RTC, Las Piñas City, Branch 253; and the Integrated Bar of screening and selection of applicants, the JBC submitted to President
the Philippines (IBP), against respondents former President Benigno Aquino six shortlists contained in six separate letters, all dated October 26,
Simeon C. Aquino III (Aquino), Executive Secretary Paquito N. Ochoa 2015, which read:ChanRoblesVirtualawlibrary
(Ochoa), Sandiganbayan Associate Justice Michael Frederick L. Musngi 1) For the 16th Sandiganbayan Associate Justice:
(Musngi), Sandiganbayan Associate Justice Ma. Geraldine Faith A. Econg
(Econg), Atty. Danilo S. Sandoval (Sandoval), Atty. Wilhelmina B. Jorge- chanRoblesvirtualLawlibraryYour Excellency:
Wagan (Jorge-Wagan), Atty. Rosana Fe Romero-Maglaya (Romero
Maglaya), Atty. Merianthe Pacita M. Zuraek (Zuraek), Atty. Elmo M. chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the
Alameda (Alameda), and Atty. Victoria C. Fernandez-Bernardo (Fernandez- Constitution, the Judicial and Bar Council (JBC) has the honor to submit the
Bernardo). The Petition assails President Aquino's appointment of following nominations for the vacancy for the SIXTEENTH ASSOCIATE
respondents Musngi and Econg as Associate Justices of the JUSTICE of the SANDIGANBAYAN, with their respective votes:
Sandiganbayan.2chanrobleslaw
chanRoblesvirtualLawlibrary
I 1. AGUINALDO, PHILIP A. - 5 votes  
FACTUAL ANTECEDENTS
2. ALHAMBRA, REYNALDO A. - 5 votes  
On June 11, 1978, then President Ferdinand E. Marcos (Marcos) issued
3. CRUZ, DANILO S. - 5 votes  
Presidential Decree No. 1486, creating a special court called the
Sandiganbayan, composed of a Presiding Judge and eight Associate Judges 4. POZON, BENJAMIN T. - 5 votes  
to be appointed by the President, which shall have jurisdiction over
criminal and civil cases involving graft and corrupt practices and such other 5. SANDOVAL, DANILO S. - 5 votes  
offenses committed by public officers and employees, including those in 6. TIMBANG, SALVADOR JR. - 5 votes9  
government owned or controlled corporations.3 A few months later, on
December 10, 1978, President Marcos also issued Presidential Decree No.
1606,4 which elevated the rank of the members of the Sandiganbayan from 2) For the 17th Sandiganbayan Associate Justice:
Judges to Justices, co-equal in rank with the Justices of the Court of
Appeals; and provided that the Sandiganbayan shall sit in three divisions of chanRoblesvirtualLawlibraryYour Excellency:
three Justices each.5 Republic Act No. 79756 was approved into law on
March 30, 1995 and it increased the composition of the Sandiganbayan chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the
from nine to fifteen Justices who would sit in five divisions of three Constitution, the Judicial and Bar Council (JBC) has the honor to submit the
members each. Republic Act No. 10660,7 recently enacted on April 16, following nominations for the vacancy for the SEVENTEENTH ASSOCIATE
2015, created two more divisions of the Sandiganbayan with three Justices JUSTICE of the SANDIGANBAYAN, with their respective votes:
each, thereby resulting in six vacant positions.
chanRoblesvirtualLawlibrary
On July 20, 2015, the Judicial and Bar Council (JBC) published in the 1. CORPUS-MAÑALAC, MARYANN E. - 6 votes  
Philippine Star and Philippine Daily Inquirer and posted on the JBC website
an announcement calling for applications or recommendations for the six 2. MENDOZA-ARCEGA, MARIA THERESA V. - 6 votes  
309 | J U D I C I A L D E P A R T M E N T C A S E S

3. QUIMBO, RODOLFO NOEL S. - 6 votes   2. MACARAIG-GUILLEN, MARISSA - 6 votes

4. DIZON, MA. ANTONIA EDITA CLARIDADES - 5 votes   3. CRUZ, REYNALDO P. - 5 votes
5. SORIANO, ANDRES BARTOLOME - 5 votes10   4. PAUIG, VILMA T. - 5 votes
5. RAMOS, RENAN E. - 5 votes
3) For the 18th Sandiganbayan Associate Justice:
6. ROXAS, RUBEN REYNALDO G. - 5 votes12
chanRoblesvirtualLawlibraryYour Excellency:
5) For the 20th Sandiganbayan Associate Justice:
chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the
Constitution, the Judicial and Bar Council (JBC) has the honor to submit the chanRoblesvirtualLawlibraryYour Excellency:
following nominations for the vacancy for the EIGHTEENTH ASSOCIATE
JUSTICE of the SANDIGANBAYAN, with their respective votes: chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the
Constitution, the Judicial and Bar Council (JBC) has the honor to submit the
chanRoblesvirtualLawlibrary following nominations for the vacancy for the TWENTIETH ASSOCIATE
1. BAGUIO, CELSO O. - 5 votes   JUSTICE of the SANDIGANBAYAN, with their respective votes.

2. DE GUZMAN-ALVAREZ, MA. TERESA E. - 5 votes  

1. MIRANDA, KARL B. - 6 votes
3. FERNANDEZ, BERNELITO R. - 5 votes  
2. ATAL-PAÑO, PERPETUA - 5 votes
4. PANGANIBAN, ELVIRA DE CASTRO - 5 votes  
3. BUNYI-MEDINA, THELMA - 5 votes
5. SAGUN, FERNANDO JR. T. - 5 votes  
4. CORTEZ, LUISITO G. - 5 votes
6. TRESPESES, ZALDY V. - 5 votes11  
5. FIEL-MACARAIG, GERALDINE C. - 5 votes

4) For the 19th Sandiganbayan Associate Justice: 6. QUIMPO-SALE, ANGELENE MARY W. - 5 votes

7. JACINTO, BAYANI H. - 4 votes13
chanRoblesvirtualLawlibraryYour Excellency:

chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the
Constitution, the Judicial and Bar Council (JBC) has the honor to submit the
following nominations for the vacancy for the NINETEENTH ASSOCIATE
JUSTICE of the SANDIGANBAYAN, with their respective votes:
chanRoblesvirtualLawlibrary
1. GUANZON, FRANCES V. - 6 votes
6) For the 21st Sandiganbayan Associate Justice:
chanRoblesvirtualLawlibraryYour Excellency:
chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the
Constitution, the Judicial and Bar Council (JBC) has the honor to submit the
following nominations for the vacancy for the TWENTY-FIRST ASSOCIATE
JUSTICE of the SANDIGANBAYAN, with their respective votes:
310 | J U D I C I A L D E P A R T M E N T C A S E S
chanRoblesvirtualLawlibrary
1. JORGE-WAGAN, WILHELMINA B. - 6 votes
2. ECONG, GERALDINE FAITH A. - 5 votes
3. ROMERO-MAGLAYA, ROSANNA FE - 5 votes
4. ZURAEK, MERIANTHE PACITA M. - 5 votes
5. ALAMEDA, ELMO M. - 4 votes
6. FERNANDEZ-BERNARDO, VICTORIA C. - 4 votes
14
7. MUSNGI, MICHAEL FREDERICK L. - 4 votes
President Aquino issued on January 20, 2015 the appointment papers for
the six new Sandiganbayan Associate Justices, namely: (1) respondent
Musngi; (2) Justice Reynaldo P. Cruz (R. Cruz); (3) respondent Econg; (4)
Justice Maria Theresa V. Mendoza-Arcega (Mendoza-Arcega); (5) Justice
Karl B. Miranda (Miranda); and (6) Justice Zaldy V. Trespeses (Trespeses).
The appointment papers were transmitted on January 25, 2016 to the six
new Sandiganbayan Associate Justices, who took their oaths of office on
the same day all at the Supreme Court Dignitaries Lounge. Respondent
Econg, with Justices Mendoza-Arcega and Trespeses, took their oaths of
office before Supreme Court Chief Justice Maria Lourdes P. A. Sereno
(Sereno); while respondent Musngi, with Justices R. Cruz and Miranda,
took their oaths of office before Supreme Court Associate Justice Francis H.
Jardeleza (Jardeleza).15chanrobleslaw
Arguments of the Petitioners
Petitioners Aguinaldo, Alhambra, D. Cruz, Pozon, and Timbang
(Aguinaldo, et al.), were all nominees in the shortlist for the
16th Sandiganbayan Associate Justice. They assert that they possess the
legal standing or locus standi to file the instant Petition since they suffered
a direct injury from President Aquino's failure to appoint any of them as
the 16th Sandiganbayan Associate Justice.
Petitioner IBP avers that it comes before this Court through a taxpayer's
suit, by which taxpayers may assail an alleged illegal official action where
there is a claim that public funds are illegally disbursed, deflected to an
improper use, or wasted through the enforcement of an invalid or
unconstitutional law. Petitioner IBP also maintains that it has locus
standi considering that the present Petition involves an issue of
transcendental importance to the people as a whole, an assertion of a
public right, and a subject matter of public interest. Lastly, petitioner IBP
contends that as the association of all lawyers in the country, with the
fundamental purpose of safeguarding the administration of justice, it has a
direct interest in the validity of the appointments of the members of the
Judiciary.
Petitioners base their instant Petition on the following
arguments:ChanRoblesVirtualawlibrary
PRESIDENT AQUINO VIOLATED SECTION 9, ARTICLE VIII OF THE 1987
CONSTITUTION IN THAT:
chanRoblesvirtualLawlibrary(A) HE DID NOT APPOINT ANYONE FROM THE
SHORTLIST SUBMITTED BY THE JBC FOR THE VACANCY FOR POSITION OF
THE 16TH ASSOCIATE JUSTICE OF THE SANDIGANBAYAN; AND
(B) HE APPOINTED UNDERSECRETARY MUSNGI AND JUDGE ECONG AS
ASSOCIATE JUSTICES OF THE SANDIGANBAYAN TO THE VACANCY FOR THE
POSITION OF 21ST ASSOCIATE JUSTICE OF THE SANDIGANBAYAN.
(C) THE APPOINTMENTS MADE WERE NOT IN ACCORDANCE WITH THE
SHORTLISTS SUBMITTED BY THE JUDICIAL AND BAR COUNCIL FOR EACH
VACANCY, THUS AFFECTING THE ORDER OF SENIORITY OF THE ASSOCIATE
JUSTICES.16chanroblesvirtuallawlibrary
According to petitioners, the JBC was created under the 1987 Constitution
to reduce the politicization of the appointments to the Judiciary, i.e., "to
rid the process of appointments to the Judiciary from the political pressure
and partisan activities."17chanrobleslaw
Article VIII, Section 9 of the 1987 Constitution contains the mandate of the
JBC, as well as the limitation on the President's appointing power to the
Judiciary, thus:ChanRoblesVirtualawlibrary
Sec. 9. The Members of the Supreme Court and judges of lower courts shall
be appointed by the President from a list of at least three nominees
311 | J U D I C I A L D E P A R T M E N T C A S E S

prepared by the Judicial and Bar Council for every vacancy. Such Mendoza-Arcega Justice
appointments need no confirmation.
20th Associate
20th Associate Justice Karl B. Miranda PNOY019449
For the lower courts, the President shall issue the appointments within Justice
ninety days from the submission of the list.
Zaldy V. 18th Associate
It is the function of the JBC to search, screen, and select nominees 21st Associate Justice PNOY019450
Trespeses Justice
recommended for appointment to the Judiciary. It shall prepare a list with
at least three qualified nominees for a particular vacancy in the Judiciary to Petitioners observe the following infirmities in President Aquino's
be submitted to the President, who, in turn, shall appoint from the shortlist appointments:ChanRoblesVirtualawlibrary
for said specific vacancy. Petitioners emphasize that Article VIII, Section 9
of the 1987 Constitution is clear and unambiguous as to the mandate of a. Michael Frederick L. Musngi, nominated for the vacancy of the
the JBC to submit a shortlist of nominees to the President for "every 21st Associate Justice, was appointed as the 16th Associate Justice;
vacancy" to the Judiciary, as well as the limitation on the President's
authority to appoint members of the Judiciary from among the nominees b. Reynaldo P. Cruz, nominated for the vacancy of the 19 th Associate
named in the shortlist submitted by the JBC. Justice, was appointed as the 17th Associate Justice;

In this case, the JBC submitted six separate lists, with five to seven c. Geraldine Faith A. Econg, also nominated for the vacancy of the
nominees each, for the six vacancies in the Sandiganbayan, particularly, for 21st Associate Justice, but was appointed as the 18 th Associate
the 16th, 17th, 18th, 19th, 20th and 21st Associate Justices. Petitioners contend Justice;
that only nominees for the position of the 16th Sandiganbayan Associate
Justice may be appointed as the 16th Sandiganbayan Associate Justice, and d. Maria Theresa V. Mendoza[-Arcega], nominated for the vacancy
the same goes for the nominees for each of the vacancies for the 17 th, 18th, of the 17th Associate Justice, but was appointed as the
19th, 20th, and 21st Sandiganbayan Associate Justices. However, on January 19th Associate Justice;
20, 2016, President Aquino issued the appointment papers for the six new
Sandiganbayan Associate Justices, to wit:ChanRoblesVirtualawlibrary e. Zaldy V. Trespeses, nominated for the vacancy of the
VACANCY IN THE PERSON BAR CODE SHORTLISTED 18th Associate Justice, but was appointed as the 21 st Associate
SANDIGANBAYAN APPOINTED NO. FOR Justice.

Michael 60. Only the appointment of Karl B. Miranda as the 20 th Associate

21st Associate
16th Associate Justice Frederick L. PNOY019445 Justice is in accordance with his nomination.18
Justice
Musngi
19th Associate Petitioners insist that President Aquino could only choose one nominee
17th Associate Justice Reynaldo P. Cruz PNOY019446 from each of the six separate shortlists submitted by the JBC for each
Justice
specific vacancy, and no other; and any appointment made in deviation of
Geraldine Faith 21st Associate this procedure is a violation of the Constitution. Hence, petitioners pray,
18th Associate Justice PNOY019447
A. Econg Justice among other reliefs, that the appointments of respondents Musngi and
Econg, who belonged to the same shortlist for the position of 21 st Associate
19th Associate Justice Maria Theresa V. PNOY019448 17th Associate
Justice, be declared null and void for these were made in violation of
312 | J U D I C I A L D E P A R T M E N T C A S E S
Article VIII, Section 9 of the 1987 Constitution.
Arguments of the Respondents
The Office of the Solicitor General (OSG), on behalf of the Office of the
President (OP), filed a Comment,19 seeking the dismissal of the Petition on
procedural and substantive grounds.
On matters of procedure, the OSG argues, as follows:
chanRoblesvirtualLawlibraryFirst, President Aquino should be dropped as a
respondent m the instant case on the ground of his immunity from suit.
Second, petitioners Aguinaldo, et al. cannot institute an action for quo
warranto because usurpation of public office, position, or franchise is a
public wrong, and not a private injury. Hence, only the State can file such
an action through the Solicitor General or public prosecutor, under
Sections 2 and 3, Rule 6620 of the Rules of Court. As an exception, an
individual may commence an action for quo warranto in accordance with
Section 5, Rule 6621 of the Rules of Court if he/she claims entitlement to a
public office or position. However, for said individual's action for quo
warranto to prosper, he/she must prove that he/she suffered a direct
injury as a result of the usurpation of public office or position; and that
he/she has a clear right, and not merely a preferential right, to the
contested office or position. Herein petitioners Aguinaldo, et al. have failed
to show that they are entitled to the positions now being held by
respondents Musngi and Econg, as the inclusion of petitioners
Aguinaldo, et al. in the shortlist for the 16th Sandiganbayan Associate
Justice had only given them the possibility, not the certainty, of
appointment to the Sandiganbayan. Petitioners Aguinaldo, et al., as
nominees, only had an expectant right because their appointment to the
Sandiganbayan would still be dependent upon the President's
discretionary appointing power.
Third, petitioner IBP can only institute the certiorari and prohibition case,
but not the action for quo warranto against respondents Musngi and Econg
because it cannot comply with the direct injury requirement for the latter.
Petitioner IBP justifies its locus standi to file the petition for certiorari and
prohibition by invoking the exercise by this Court of its expanded power of
judicial review and seeking to oust respondents Musngi and Econg as
Sandiganbayan Associate Justices based on the alleged unconstitutionality
of their appointments, and not on a claim of usurpation of a public office.
Yet, based on Topacio v. Ong,22 a petition for certiorari or prohibition is a
collateral attack on a public officer's title, which cannot be permitted. Title
to a public office can only be contested directly in a quo
warranto proceeding.
Moreover, it is the JBC, not petitioner IBP, which has legal standing to file
the present suit, as the dispute here is between the JBC and the OP. The
fundamental question in this case is "whether the JBC can corral the
discretion of the President to appoint, a core constitutional prerogative, by
designating qualified nominees within specific, artificial numerical
categories and forcing the President to appoint in accordance with those
artificial numerical categories." The Court, though, is barred from deciding
said question because the JBC is not a party herein.
Fourth, petitioners have erroneously included Jorge-Wagan, Romero
Maglaya, Zuraek, Alameda, and Fernandez-Bernardo (Jorge-Wagan, et al.)
as unwilling co-petitioners in the Petition at bar. Apart from the fact that
Jorge-Wagan, et al. do not claim entitlement to the positions occupied by
respondents Musngi and Econg, non-appointed nominees for the positions
of 16th and 21st Associate Justices of the Sandiganbayan cannot
simultaneously claim right to assume two vacancies in said special court.
And fifth, petitioners disregarded the hierarchy of courts by directly filing
the instant Petition for Quo warranto and Certiorari and Prohibition before
this Court. Even in cases where the Court is vested with original concurrent
jurisdiction, it remains a court of last resort, not a court of first instance.
The OSG next addresses the substantive issues.
The OSG submits that the core argument of petitioners stems from their
erroneous premise that there are existing numerical positions in the
Sandiganbayan: the 1st being the Presiding Justice, and the succeeding
2nd to the 21st being the Associate Justices. It is the assertion of the OSG
that the Sandiganbayan is composed of a Presiding Justice and 20
313 | J U D I C I A L D E P A R T M E N T C A S E S
Associate Justices, without any numerical designations. Presidential Decree
No. 1606 and its amendments do not mention vacancies for the positions
of "2nd Associate Justice," "3rd Associate Justice," etc. There are no such
items in the Judiciary because such numerical designations are only used
to refer to the seniority or order of precedence of Associate Justices in
collegiate courts such as the Supreme Court, Court of Appeals, Court of Tax
Appeals, and Sandiganbayan.
The OSG further contends that the power to determine the order of
precedence of the Associate Justices of the Sandiganbayan is reposed in
the President, as part of his constitutional power to appoint. Citing Section
1, third paragraph of Presidential Decree No. 1606 23 and Rule II, Section 1
of the Revised Internal Rules of the Sandiganbayan, 24 the OSG explains that
the order of precedence of the Associate Justices of the Sandiganbayan
shall be according to the order of their appointments, that is, according to
the dates of their respective commissions, or, when two or more
commissions bear the same date, according to the order in which their
commissions had been issued by the President. It is the averment of the
OSG that the constitutional power of the JBC to recommend nominees for
appointment to the Judiciary does not include the power to determine
their seniority. President Aquino correctly disregarded the order of
precedence in the shortlists submitted by the JBC and exercised his
statutory power to determine the seniority of the appointed
Sandiganbayan Associate Justices.
The OSG interprets Article VIII, Section 9 of the 1987 Constitution
differently from petitioners. According to the OSG, said provision neither
requires nor allows the JBC to cluster nominees for every vacancy in the
Judiciary; it only mandates that for every vacancy, the JBC shall present at
least three nominees, among whom the President shall appoint a member
of the Judiciary. As a result, if there are six vacancies for Sandiganbayan
Associate Justice, the JBC shall present, for the President's consideration,
at least 18 nominees for said vacancies. In the case at bar, the JBC
submitted 37 nominees for the six vacancies in the Sandiganbayan; and
from said pool of 37 nominees, the President appointed the six
Sandiganbayan Associate Justices, in faithful compliance with the
Constitution.
It is also the position of the OSG that the President has the absolute
discretion to determine who is best suited for appointment among all the
qualified nominees. The very narrow reading of Article VIII, Section 9 of the
1987 Constitution proposed by petitioners unreasonably restricts the
President's choices to only a few nominees even when the JBC recognized
37 nominees qualified for the position of Sandiganbayan Associate Justice.
This gives the JBC, apart from its power to recommend qualified nominees,
the power to dictate upon the President which among the qualified
nominees should be contending for a particular vacancy. By dividing
nominees into groups and artificially designating each group a numerical
value, the JBC creates a substantive qualification to various judicial posts,
which potentially impairs the President's prerogatives in appointing
members of the Judiciary.
The OSG additionally points out that the JBC made a categorical finding
that respondents Musngi and Econg were "suitably best" for appointment
as Sandiganbayan Associate Justice. The functions of the
16th Sandiganbayan Associate Justice are no different from those of the
17th, 18th, 19th, 20th, or 21st Sandiganbayan Associate Justice. Since
respondents Musngi and Econg were indubitably qualified and obtained
sufficient votes, it was the ministerial duty of the JBC to include them as
nominees for any of the six vacancies in the Sandiganbayan presented for
the President's final consideration.
Furthermore, the OSG alleges that it is highly unjust to remove
respondents Musngi and Econg from their current positions on the sole
ground that the nominees were divided into six groups. The JBC
announced "the opening/reopening, for application or recommendation"
of "[s]ix (6) newly-created positions of Associate Justice of the
Sandiganbayan." Respondents Musngi and Econg applied for the vacancy
of "Associate Justice of the Sandiganbayan." In its announcements for
interview, the JBC stated that it would be interviewing applicants for "six
(6) newly created positions of Associate Justice of the Sandiganbayan." It
was only on October 26, 2015, the date of submission of the shortlists,
when the nominees had been clustered into six groups. The OSG notes that
there are no JBC rules on the division of nominees in cases where there are
several vacancies in a collegiate court. In this case, the OSG observes that
there were no measurable standards or parameters for dividing the 37
314 | J U D I C I A L D E P A R T M E N T C A S E S
nominees into the six groups. The clustering of nominees was not based on
the number of votes the nominees had garnered. The nominees were not
evenly distributed among the six groups, i.e., there were five nominees for
17th Sandiganbayan Associate Justice; six nominees for 16 th, 18th, and
19th Sandiganbayan Associate Justices; and seven nominees for the
20th and 21st Sandiganbayan Associate Justices.
The OSG then refers to several examples demonstrating that the previous
practice of the JBC was to submit only one shortlist for several vacancies in
a collegiate court.
The other respondents had likewise filed their respective Comments or
Manifestations:
chanRoblesvirtualLawlibrary1) In respondent Fernandez-Bernardo's
Comment,25cralawred she recognizes the legal, substantial, and paramount
significance of the ruling of the Court on the interpretation and application
of Article VIII, Section 9 of the 1987 Constitution, which will serve as a
judicial precedent for the guidance of the Executive and Legislative
Departments, the JBC, the Bench, and the Bar.
2) Respondent Musngi states in his Manifestation 26 that he will no longer
file a separate Comment and that he adopts all the averments, issues,
arguments, discussions, and reliefs in the Comment of the OSG.
3) In her Comment,27 respondent Jorge-Wagan maintains that she is not
the proper party to assail the validity of the appointment of the
16th Sandiganbayan Associate Justice as she was nominated for the
21st Sandiganbayan Associate Justice; and that she is also not the proper
party to seek the nullification of the appointments of respondents Musngi
and Econg as Sandiganbayan Associate Justices. Not being a proper party-
in-interest, respondent Jorge-Wagan argues that she cannot be considered
an "unwilling co-plaintiff."
4) Respondent Romero-Maglaya makes the following averments in her
Manifestation/Comment28: that she should not have been impleaded as a
respondent or an unwilling co-plaintiff in the instant Petition because her
rights as a nominee for judicial appointment were not violated; that she
had no claim of entitlement to the position of Sandiganbayan Associate
Justice; and that she had no participation in the alleged violation of the
Constitution or exercise of grave abuse of discretion amounting to lack or
excess of jurisdiction.
5) Respondent Econg manifests in her Comment 29 that while she is
adopting in toto the arguments in the Comment of the OSG, she is also
making certain factual clarifications and additional procedural and
substantive averments.
Respondent Econg clarifies that her real name is Geraldine Faith A. Econg,
and not Ma. Geraldine Faith A. Econg.
Respondent Econg believes that the present Petition is really for quo
warranto because it seeks to declare null and void the respective
appointments of respondents Musngi and Econg. Respondent Econg,
however, asseverates that petitioners Aguinaldo, et al. have no clear,
unquestionable franchise to the Office of Associate Justice of the
Sandiganbayan simply because they had been included in the shortlist
submitted for the President's consideration. Nomination is not equivalent
to appointment and the removal of respondents Musngi and Econg will not
automatically grant petitioners Aguinaldo, et al. the right to the Office of
Associate Justice of the Sandiganbayan. Petitioners Aguinaldo, et al.,
except for petitioner Alhambra, are even uncertain about their right to the
position/s of 16th and/or 21st Sandiganbayan Associate Justice/s as they
have also applied for the position of Sandiganbayan Associate Justice in
lieu of Sandiganbayan Associate Justice Teresita V. Diaz-Baldos, who
eventually retired on July 22, 2016. Even assuming for the sake of
argument that petitioners' alternative remedy of certiorari is proper,
respondent Econg contends that petitioners only had 60 days to file such a
petition from January 20, 2016, the date she and respondent Musngi were
appointed. Petitioners belatedly filed their Petition before the Court on
May 17, 2016.
Respondent Econg also raises the concern that if the Court affirms the
petitioners' position that there are no valid appointments for the 16 th and
21st Sandiganbayan Associate Justices, the seniority or order of precedence
among the Sandiganbayan Associate Justices will be adversely affected.
315 | J U D I C I A L D E P A R T M E N T C A S E S
Respondent Econg avers that there was only one list of nominees for the
six vacant positions of Sandiganbayan Associate Justice, considering that:
(a) the announcement of the opening for application/recommendation
was for the six newly-created positions of Sandiganbayan Associate Justice;
(b) respondent Econg's application was for the six newly-created positions
of Sandiganbayan Associate Justice; and (c) the announcement of the
public interview of candidates was for the six newly-created positions of
Sandiganbayan Associate Justice.
Thus, respondent Econg prays for, among other reliefs, the dismissal of the
instant Petition for Quo Warranto and Certiorari and Prohibition for lack of
merit, and the declaration that the appointments of respondents Musngi
and Econg as Sandiganbayan Associate Justices are valid.
6) In respondent Sandoval's Comment,30 he avows that he opts not to join
the petitioners as he subscribes to the principle that the heart and core of
the President's power to appoint is the freedom to choose. The power to
appoint rests on the President and the President alone. Respondent
Sandoval has already accepted the fact that he was not appointed despite
being nominated by the JBC for the position of Sandiganbayan Associate
Justice and he is looking forward to another opportunity to apply for a
higher position in the Judiciary.
Respondents Zuraek and Almeda have not filed their comments despite
notice and are deemed to have waived their right to do so.
On November 26, 2016, the JBC belatedly filed a Motion for Intervention in
the Petition at bar, or more than six months from the filing of the herein
Petition on May 17, 2016 and after Chief Justice Sereno, the Chairperson of
the JBC herself, administered the oath of office of respondent Econg,
whose appointment is now being questioned for having been done in
disregard of the clustering of nominees by the JBC.
II
The Ruling of the Court
The Court takes cognizance of the present Petition despite several
procedural infirmities given the transcendental importance of the
constitutional issue raised herein.
The Petition at bar is for (a) Quo Warranto under Rule 66 of the Revised
Rules of Court; and (b) Certiorari and Prohibition under Rule 65 of the
same Rules.
Rule 66 of the Revised Rules of Court particularly identifies who can file a
special civil action of Quo Warranto, to wit:ChanRoblesVirtualawlibrary
RULE 66
Quo Warranto
Sec. 1. Action by Government against individuals. - An action for the
usurpation of a public office, position or franchise may be commenced by a
verified petition brought in the name of the Republic of the Philippines
against:
chanRoblesvirtualLawlibrary(a) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of
law, constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines
without being legally incorporated or without lawful authority so to act
Sec. 2. When Solicitor General or public prosecutor must commence action.
- The Solicitor General or a public prosecutor, when directed by the
President of the Philippines, or when upon complaint or otherwise he has
good reason to believe that any case specified in the preceding section can
be established by proof, must commence such action.
Sec. 3. When Solicitor General or public prosecutor may commence action
with permission of court. - The Solicitor General or a public prosecutor
may, with the permission of the court in which the action is to be
commenced, bring such an action at the request and upon the relation of
another person; but in such case the officer bringing it may first require an
indemnity for the expenses and costs of the action in an amount approved
by and to be deposited in the court by the person at whose request and
316 | J U D I C I A L D E P A R T M E N T C A S E S
upon whose relation the same is brought.
xxxx
Sec. 5. When an individual may commence such an action. - A person
claiming to be entitled to a public office or position usurped or unlawfully
held or exercised by another may bring an action therefor in his own name.
In Topacio v. Ong,31 the Court pronounced that:ChanRoblesVirtualawlibrary
A quo warranto proceeding is the proper legal remedy to determine the
right or title to the contested public office and to oust the holder from its
enjoyment. It is brought against the person who is alleged to have
usurped, intruded into, or unlawfully held or exercised the public office,
and may be commenced by the Solicitor General or a public prosecutor, as
the case may be, or by any person claiming to be entitled to the public
office or position usurped or unlawfully held or exercised by another.
Nothing is more settled than the principle, which goes back to the 1905
case of Acosta v. Flor, reiterated in the recent 2008 case of Feliciano v.
Villasin, that for a quo warranto petition to be successful, the private
person suing must show a clear right to the contested office. In fact, not
even a mere preferential right to be appointed thereto can lend a
modicum of legal ground to proceed with the action. (Emphasis supplied,
citations omitted.)
Petitioners Aguinaldo, et al., as nominees for the 16th Saridiganbayan
Associate Justice, did not have a clear right to said position, and therefore
not proper parties to a quo warranto proceeding. Being included in the list
of nominees had given them only the possibility, but not the certainty, of
being appointed to the position, given the discretionary power of the
President in making judicial appointments. It is for this same reason that
respondents Jorge-Wagan, et al., nominees for the 21st Sandiganbayan
Associate Justice, may not be impleaded as respondents or unwilling
plaintiffs in a quo warranto proceeding. Neither can the IBP initiate a quo
warranto proceeding to oust respondents Musngi and Econg from their
currents posts as Sandiganbayan Associate Justices for the IBP does not
qualify under Rule 66, Section 5 of the Revised Rules of Court as an
individual claiming to be entitled to the positions in question.
Nevertheless, the Court takes in consideration the fact that the present
Petition is also for Certiorari and Prohibition under Rule 65 of the Revised
Rules of Court, which alleges that President Aquino violated Article VIII,
Section 9 of the 1987 Constitution and committed grave abuse of
discretion amounting to lack or excess of jurisdiction in his appointment of
respondents Musngi and Econg as Sandiganbayan Associate Justices.
Article VIII, Section 1 of the 1987 Constitution vests upon the Court the
expanded power of judicial review, thus:ChanRoblesVirtualawlibrary
Article VIII
Sec. 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.
The Court recognized in Jardeleza v. Sereno (Jardeleza Decision)32 that a
"petition for certiorari is a proper remedy to question the act of any branch
or instrumentality of the government on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the government, even if the latter does not exercise
judicial, quasi-judicial or ministerial functions."
In opposing the instant Petition for Certiorari and Prohibition, the OSG
cites Topacio in which the Court declares that title to a public office may
not be contested except directly, by quo warranto proceedings; and it
cannot be assailed collaterally, such as by certiorari and
prohibition.33chanrobleslaw
However, Topacio is not on all fours with the instant case. In Topacio, the
writs of certiorari and prohibition were sought against Sandiganbayan
Associate Justice Gregory S. Ong on the ground that he lacked the
qualification of Filipino citizenship for said position. In contrast, the present
Petition for Certiorari and Prohibition puts under scrutiny, not any
disqualification on the part of respondents Musngi and Econg, but the act
of President Aquino in appointing respondents Musngi and Econg as
317 | J U D I C I A L D E P A R T M E N T C A S E S
Sandiganbayan Associate Justices without regard for the clustering of
nominees into six separate shortlists by the JBC, which allegedly violated
the Constitution and constituted grave abuse of discretion amounting to
lack or excess of jurisdiction. This would not be the first time that the
Court, in the exercise of its expanded power of judicial review, takes
cognizance of a petition for certiorari that challenges a presidential
appointment for being unconstitutional or for having been done in grave
abuse of discretion. As the Court held in Funa v.
Villar34:ChanRoblesVirtualawlibrary
Anent the aforestated posture of the OSG, there is no serious
disagreement as to the propriety of the availment of certiorari as a
medium to inquire on whether the assailed appointment of respondent
Villar as COA Chairman infringed the constitution or was infected with
grave abuse of discretion. For under the expanded concept of judicial
review under the 1987 Constitution, the corrective hand of certiorari may
be invoked not only "to settle actual controversies involving rights which
are legally demandable and enforceable," but also "to determine whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government." "Grave abuse of discretion"
denotes:ChanRoblesVirtualawlibrary
such capricious and whimsical exercise of judgment as is equivalent to lack
of jurisdiction, or, in other words, where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and
it must be so patent and gross as to amount to an evasion of positive duty
or to a virtual refusal to perform the duty enjoined or to act in
contemplation of law.
We find the remedy of certiorari applicable to the instant case in view of
the allegation that then President Macapagal-Arroyo exercised her
appointing power in a manner constituting grave abuse of discretion.
(Citations omitted.)
Even so, the Court finds it proper to drop President Aquino as respondent
taking into account that when this Petition was filed on May 17, 2016, he
was still then the incumbent President who enjoyed immunity from suit.
The presidential immunity from suit remains preserved in the system of
government of this country, even though not expressly reserved in the
1987 Constitution.35 The President is granted the privilege of immunity
from suit "to assure the exercise of Presidential duties and functions free
from any hindrance or distraction, considering that being the Chief
Executive of the Government is a job that, aside from requiring all of the
office-holder's time, also demands undivided attention." 36 It is sufficient
that former Executive Secretary Ochoa is named as respondent herein as
he was then the head of the OP and was in-charge of releasing presidential
appointments, including those to the Judiciary.37chanrobleslaw
Since the Petition at bar involves a question of constitutionality, the Court
must determine the locus standi or legal standing of petitioners to file the
same. The Court will exercise its power of judicial review only if the case is
brought before it by a party who has the legal standing to raise the
constitutional or legal question. "Legal standing" means a personal and
substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged; while "interest" refers to material interest, an interest in issue
and to be affected by the decree or act assailed, as distinguished from
mere interest in the question involved, or a mere incidental interest. The
interest of the plaintiff must be personal and not one based on a desire to
vindicate the constitutional right of some third and unrelated
party.38chanrobleslaw
In David v. Macapagal-Arroyo,39 the Court acknowledged exceptional
circumstances which justified liberality and relaxation of the rules on legal
standing:ChanRoblesVirtualawlibrary
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a "stranger," or in the category of a "citizen," or "taxpayer." In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or
"taxpayer."
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down
in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer's suit
is in a different category from the plaintiff in a citizen's suit. In the former,
318 | J U D I C I A L D E P A R T M E N T C A S E S
the plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by the
New York Supreme Court in People ex rel Case v. Collins: "In matter of
mere public right, however ... the people are the real parties... It is at least
the right, if not the duty, of every citizen to interfere and see that a public
offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer's suits, Terr v. Jordan held that "the
right of a citizen and a taxpayer to maintain an action in courts to restrain
the unlawful use of public funds to his injury cannot be denied."
xxxx
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This
was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,
where the "transcendental importance" of the cases prompted the Court
to act liberally. Such liberality was neither a rarity nor accidental. In Aquino
v. Comelec, this Court resolved to pass upon the issues raised due to the
"far-reaching implications" of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity
of laws, regulations and rulings.
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of "transcendental importance." Pertinent are the following
cases:ChanRoblesVirtualawlibrary
(1) Chavez v. Public Estates Authority, where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance
which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora, wherein the Court held that
"given the transcendental importance of the issues involved, the Court
may relax the standing requirements and allow the suit to prosper despite
the lack of direct injury to the parties seeking judicial review" of the
Visiting Forces Agreement;
(3) Lim v. Executive Secretary, while the Court noted that the petitioners
may not file suit in their capacity as taxpayers absent a showing that
"Balikatan 02-01" involves the exercise of Congress' taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,
that in cases of transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and legislators
may be accorded standing to sue, provided that the following
requirements are met:ChanRoblesVirtualawlibrary
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity
of the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
While neither petitioners Aguinaldo, et al. nor petitioner IBP have legal
standing to file a petition for quo warranto, they have legal standing to
institute a petition for certiorari.
The clustering of nominees by the JBC, which the President, for justifiable
reasons, did not follow, could have caused all nominees direct injury, thus,
vesting them with personal and substantial interest, as the clustering
limited their opportunity to be considered for appointment to only one of
the six vacant positions for Sandiganbayan Associate Justice instead of all
the six vacant positions to which the JBC found them as qualified for
appointment. This is the far-reaching adverse consequence to petitioners
Aguinaldo, et al. that they have missed. More importantly, for a complete
resolution of this Petition, the Court must inevitably address the issue of
the validity of the clustering of nominees by the JBC for simultaneous
319 | J U D I C I A L D E P A R T M E N T C A S E S
vacancies in collegiate courts, insofar as it seriously impacts on the
constitutional power of the President to appoint members of the Judiciary,
which will be explained below.
One of the fundamental purposes of the IBP is to improve the
administration of justice.40 As the association of all lawyers in the country,
petitioner IBP has an interest in ensuring the validity of the appointments
to the Judiciary. It is recognized that the administration of justice is
primarily a joint responsibility of the judge and the lawyer. 41 Definitely,
lawyers cannot effectively discharge their duties if they entertain doubts,
or worse, had lost their faith in judges and/or justices. It is clearly
imperative for the IBP to prevent that situation from happening by
exercising vigilance and ensurmg that the judicial appointment process
remains transparent and credible.
Given that the constitutional issue in the Petition at bar is of
transcendental importance and of public interest, and for the above
mentioned reasons, the Court shall accord petitioners the legal standing to
sue.
The instant Petition fundamentally challenges President Aquino's
appointment of respondents Musngi and Econg as the 16 th and
18th Sandiganbayan Associate Justices. Petitioners contend that only one of
them should have been appointed as both of them were included in one
cluster of nominees for the 21st Sandiganbayan Associate Justice. The
Petition presents for resolution of the Court the issue of whether President
Aquino violated Article VIII, Section 9 of the 1987 Constitution and gravely
abused his discretionary power to appoint members of the Judiciary when
he disregarded the clustering by the JBC of the nominees for each specific
vacant position of Sandiganbayan Associate Justice. The issue is of
paramount importance for it affects the validity of appointments to
collegiate courts and, ultimately, the administration of justice, for if there
are questions as to the right of the appointee to his position as
judge/justice, then doubts shall likewise shadow all his acts as such. This
will indubitably undermine the faith of the public in the judicial system.
Since at hand is a constitutional issue of first impression, which will likely
arise again when there are simultaneous vacancies in collegiate courts, it is
imperative for the Court to already resolve the same for the guidance of
the Bench and Bar, and the general public as well.
The OSG also prays for the dismissal of this Petition on the additional
ground that petitioners, by coming directly before this Court, violated the
hierarchy of courts. Relevant to this matter are the following
pronouncements of the Court in Querubin v. Commission on
Elections42:ChanRoblesVirtualawlibrary
Notwithstanding the non-exclusivity of the original jurisdiction over
applications for the issuance of writs of certiorari, however, the doctrine of
hierarchy of courts dictates that recourse must first be made to the lower-
ranked court exercising concurrent jurisdiction with a higher court. The
rationale behind the principle is explained in Bañez, Jr. v. Concepcion in the
following wise:ChanRoblesVirtualawlibrary
The Court must enjoin the observance of the policy on the hierarchy of
courts, and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court
from having to deal with causes that are also well within the competence
of the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned
to it. The Court may act on petitions for the extraordinary writs
of certiorari, prohibition and mandamus only when absolutely necessary or
when serious and important reasons exist to justify an exception to the
policy.
Petitioners do not have the absolute and unrestrained freedom of choice
of the court to which an application for certiorari will be directed. Indeed,
referral to the Supreme Court as the court of last resort will simply be
empty rhetoric if party-litigants are able to flout judicial hierarchy at will.
The Court reserves the direct invocation of its jurisdiction only when there
are special and important reasons clearly and especially set out in the
petition that would justify the same.
In the leading case of The Diocese of Bacolod v. Comelec, the Court
enumerated the specific instances when direct resort to this Court is
allowed, to wit:ChanRoblesVirtualawlibrary
(a) When there are genuine issues of constitutionality that must be
addressed at the most immediate time;
(b) When the issues involved are of transcendental importance;
 320 | J U D I C I A L D E P A R T M E N T C A S E S
(c) Cases of first impression;
(d) When the constitutional issues raised are best decided by this Court;
(e) When the time element presented in this case cannot be ignored;
(f) When the petition reviews the act of a constitutional organ;
(g) When there is no other plain, speedy, and adequate remedy in the
ordinary course of law;
(h) When public welfare and the advancement of public policy so dictates,
or when demanded by the broader interest of justice;
(i) When the orders complained of are patent nullities; and
(j) When appeal is considered as clearly an inappropriate remedy.
(Citations omitted.)
Inasmuch as the Petition at bar involves a constitutional question of
transcendental importance and of first impression and demanded by the
broader interest of justice, the Court, in the exercise of its discretion,
resolves to exercise primary jurisdiction over the same.
Lastly, respondent Econg opposes the Petition at bar for being filed out of
time. According to respondent Econg, the 60-day period for petitioners to
file this Petition commenced on January 20, 2016, the date she and her co-
respondent Musngi were appointed by President Aquino. Based on
respondent Econg's argument, the 60-day period ended on March 20,
2016, Sunday, so petitioners only had until March 21, 2016, Monday, to
timely file the Petition. For their part, petitioners aver that after learning of
the appointments of respondents Musngi and Econg as Sandiganbayan
Associate Justices from the media, they obtained copies of the shortlists
for the vacancies for the 16th to the 21st Sandiganbayan Associate Justices
on March 22, 2016. Counting the 60-day period from March 22, 2016,
petitioners allege that they had until May 21, 2016 to file their Petition.
Rule 65, Section 4 of the Revised Rules of Court explicitly states
that certiorari should be instituted within a period of 60 days from notice
of the judgment, order, or resolution sought to be assailed. The 60-day
period is inextendible to avoid any unreasonable delay that would violate
the constitutional rights of parties to a speedy disposition of their case. The
question though is when said 60-day period began to run in this case. The
Court refers to its ruling in Velicaria-Garafil v. Office of the President.43 In
said case, the Court declared that appointment is a process. For an
appointment to be valid, complete, and effective, four elements must
always concur, to wit: "(1) authority to appoint and evidence of the
exercise of authority, (2) transmittal of the appointment paper and
evidence of the transmittal, (3) a vacant position at the time of
appointment, and (4) receipt of the appointment paper and acceptance of
the appointment by the appointee who possesses all the qualifications and
none of the disqualifications." The Court expounded on the importance of
the last element as follows:ChanRoblesVirtualawlibrary
Acceptance is indispensable to complete an appointment. Assuming office
and taking the oath amount to acceptance of the appointment. An oath of
office is a qualifying requirement for a public office, a prerequisite to the
full investiture of the office.
Javier v. Reyes is instructive in showing how acceptance is indispensable to
complete an appointment. On 7 November 1967, petitioner Isidro M.
Javier (Javier) was appointed by then Mayor Victorino B. Aldaba as the
Chief of Police of Malolos, Bulacan. The Municipal Council confirmed and
approved Javier's appointment on the same date. Javier took his oath of
office on 8 November 1967, and subsequently discharged the rights,
prerogatives, and duties of the office. On 3 January 1968, while the
approval of Javier's appointment was pending with the CSC, respondent
Purificacion C. Reyes (Reyes), as the new mayor of Malolos, sent to the CSC
a letter to recall Javier's appointment. Reyes also designated Police Lt.
Romualdo F. Clemente as Officer-in-Charge of the police department. The
CSC approved Javier's appointment as permanent on 2 May 1968, and
even directed Reyes to reinstate Javier. Reyes, on the other hand, pointed
to the appointment of Bayani Bernardo as Chief of Police of Malolos,
Bulacan on 4 September 1967. This Court ruled that Javier's appointment
prevailed over that of Bernardo. It cannot be said that Bernardo accepted
his appointment because he never assumed office or took his oath.
Excluding the act of acceptance from the appointment process leads us to
the very evil which we seek to avoid (i.e., antedating of appointments).
Excluding the act of acceptance will only provide more occasions to honor
321 | J U D I C I A L D E P A R T M E N T C A S E S
the Constitutional provision in the breach. The inclusion of acceptance by
the appointee as an integral part of the entire appointment process
prevents the abuse of the Presidential power to appoint. It is relatively
easy to antedate appointment papers and make it appear that they were
issued prior to the appointment ban, but it is more difficult to simulate the
entire appointment process up until acceptance by the
appointee.44 (Citations omitted.)
The records show that on January 25, 2016, the appointment papers were
transmitted to and received by the six newly-appointed Sandiganbayan
Associate Justices, including respondents Musngi and Econg, who, on the
same day, already took their oaths of office. Therefore, pursuant
to Velicaria-Garafil, the appointment process became complete and
effective on January 25, 2016. If the Court is to count the 60-day
reglementary period for filing a petition for certiorari from January 25,
2016, it expired on March 25, 2016. The present Petition for Certiorari and
Prohibition was filed on May 17, 2016.
Just like any rule, however, there are recognized exceptions to the strict
observance of the 60-day period for filing a petition for certiorari, viz.: (1)
most persuasive and weighty reasons; (2) to relieve a litigant from an
injustice not commensurate with his failure to comply with the prescribed
procedure; (3) good faith of the defaulting party by immediately paying
within a reasonable time from the time of the default; (4) the existence of
special or compelling circumstances; (5) the merits of the case; (6) a cause
not entirely attributable to the fault or negligence of the party favored by
the suspension of the rules; (7) a lack of any showing that the review
sought is merely frivolous and dilatory; (8) the other party will not be
unjustly prejudiced thereby; (9) fraud, accident, mistake, or excusable
negligence without appellant's fault; (10) peculiar legal and equitable
circumstances attendant to each case; (11) in the name of substantial
justice and fair play; (12) importance of the issues involved; and (13)
exercise of sound discretion by the judge guided by all the attendant
circumstances. There should be an effort, though, on the part of the party
invoking liberality to advance a reasonable or meritorious explanation for
his/her failure to comply with the rules. 45chanrobleslaw
The peculiar circumstances of this case, plus the importance of the issues
involved herein, justify the relaxation of the 60-day period for the filing of
this Petition for Certiorari and Prohibition. Indeed, the official act assailed
by petitioners is the appointment by President Aquino of respondents
Musngi and Econg as Sandiganbayan Associate Justices, which was
completed on January 25, 2016 when said respondents took their oaths of
office. Yet, petitioners could not have sought remedy from the Court at
that point. As basis for petitioners' opposition to the said appointments,
they needed to see and secure copies of the shortlists for the 16 th to the
21st Sandiganbayan Associate Justices. It was only after petitioners
obtained copies of all six shortlists on March 22, 2016 that petitioners
would have been able to confirm that no one from the shortlist for the
16th Sandiganbayan Associate Justice was appointed to any of the six
vacancies for Sandiganbayan Associate Justice; and that respondents
Musngi and Econg, both in the shortlist for the 21 st Sandiganbayan
Associate Justice, were appointed as the 16th and 18th Sandiganbayan
Associate Justices, respectively. In addition, respondent Econg is not
unjustly prejudiced by the delay, but will even benefit from the Court
resolving once and for all the questions on her right to the position of
Sandiganbayan Associate Justice.
The Court reiterates that there can be no valid objection to its discretion to
waive one or some procedural requirements if only to remove any
impediment to address and resolve the constitutional question of
transcendental importance raised in this Petition, the same having far-
reaching implications insofar as the administration of justice is
concemed.46chanrobleslaw
President Aquino did not violate the Constitution or commit grave abuse
of discretion in disregarding the clustering of nominees into six separate
shortlists for the six vacancies for Sandiganbayan Associate Justice.
Article VIII, Section 9 of the 1987 Constitution provides that "[t]he
Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy."
The appointment process for the Judiciary seems simple enough if there is
only one vacancy to consider at a time. The power of the President to
appoint members of the Judiciary is beyond question, subject to the
322 | J U D I C I A L D E P A R T M E N T C A S E S
limitation that the President can only appoint from a list of at least three
nominees submitted by the JBC for every vacancy. However, the
controversy in this case arose because by virtue of Republic Act No. 10660,
creating two new divisions of the Sandiganbayan with three members
each, there were six simultaneous vacancies for Associate Justice of said
collegiate court; and that the JBC submitted six separate shortlists for the
vacancies for the 16th to the 21st Sandiganbayan Associate Justices.
On one hand, petitioners assert that President Aquino's power to appoint
is limited to each shortlist submitted by the JBC. President Aquino should
have appointed the 16th Sandiganbayan Associate Justice from the
nominees in the shortlist for the 16th Sandiganbayan Associate Justice, the
17th Sandiganbayan Associate Justice from the nominees in the shortlist for
the 17th Sandiganbayan Associate Justice, and so on and so forth. By totally
overlooking the nominees for the 16th Sandiganbayan Associate Justice and
appointing respondents Musngi and Econg, who were both nominees for
the 21st Sandiganbayan Associate Justice, as the 16th and
18th Sandiganbayan Associate Justices, respectively, President Aquino
violated the 1987 Constitution and committed grave abuse of discretion
amounting to lack or excess of jurisdiction.
Respondents, on the other hand, maintain that President Aquino acted in
accordance with the 1987 Constitution and well-within his discretionary
power to appoint members of the Judiciary when he disregarded the
clustering of nominees by the JBC into six separate shortlists and
collectively considered all 37 nominees named in said shortlists for the six
vacancies for Sandiganbayan Associate Justice.
The primordial question then for resolution of the Court is whether
President Aquino, under the circumstances, was limited to appoint only
from the nominees in the shortlist submitted by the JBC for each specific
vacancy.
The Court answers in the negative.
The JBC was created under the 1987 Constitution with the principal
function of recommending appointees to the Judiciary. 47 It is a body,
representative of all the stakeholders in the judicial appointment process,
intended to rid the process of appointments to the Judiciary of the evils of
political pressure and partisan activities.48 The extent of the role of the JBC
in recommending appointees vis-a-vis the power of the President to
appoint members of the Judiciary was discussed during the deliberations
of the Constitutional Commission (CONCOM) on July 10, 1986,
thus:ChanRoblesVirtualawlibrary
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about appointments of
members of the Supreme Court and of judges of lower courts. At present it
is the President who appoints them. If there is a Commission on
Appointments, then it is the President with the confirmation of the
Commission on Appointments. In this proposal, we would like to establish
a new office, a sort of a board composed of seven members, called the
Judicial and Bar Council. And while the President will still appoint the
members of the judiciary, he will be limited to the recommendees of this
Council.
MR. CONCEPCION: That is correct.
MR. RODRIGO: And the Council will, whenever there is a vacancy,
recommend three.
MR. CONCEPCION: At least three for every vacancy.
MR. RODRIGO: And the President cannot appoint anybody outside of the
three recommendees.
MR. CONCEPCION: Nomination by the Council would be one of the
qualifications for appointment.49chanroblesvirtuallawlibrary
It is apparent from the aforequoted CONCOM deliberations that
nomination by the JBC shall be a qualification for appointment to the
Judiciary, but this only means that the President cannot appoint an
individual who is not nominated by the JBC. It cannot be disputed herein
that respondents Musngi and Econg were indeed nominated by the JBC
and, hence, qualified to be appointed as Sandiganbayan Associate Justices.
It should be stressed that the power to recommend of the JBC cannot be
323 | J U D I C I A L D E P A R T M E N T C A S E S
used to restrict or limit the President's power to appoint as the latter's
prerogative to choose someone whom he/she considers worth appointing
to the vacancy in the Judiciary is still paramount. As long as in the end, the
President appoints someone nominated by the JBC, the appointment is
valid. On this score, the Court finds herein that President Aquino was not
obliged to appoint one new Sandiganbayan Associate Justice from each of
the six shortlists submitted by the JBC, especially when the clustering of
nominees into the six shortlists encroached on President Aquino's power
to appoint members of the Judiciary from all those whom the JBC had
considered to be qualified for the same positions of Sandiganbayan
Associate Justice.
Moreover, in the case at bar, there were six simultaneous vacancies for the
position of Sandiganbayan Associate Justice, and the JBC cannot, by
clustering of the nominees, designate a numerical order of seniority of the
prospective appointees. The Sandiganbayan, a collegiate court, is
composed of a Presiding Justice and 20 Associate Justices divided into
seven divisions, with three members each. The numerical order of the
seniority or order of preference of the 20 Associate Justices is determined
pursuant to law by the date and order of their commission or appointment
by the President.
This is clear under Section 1, paragraph 3 of Presidential Decree No. 1606,
which reads:ChanRoblesVirtualawlibrary
Sec. 1. Sandiganbayan; composition; qualifications; tenure; removal and
compensation. - x x x
xxxx
The Presiding Justice shall be so designated in his commission and the
other Justices shall have precedence according to the dates of their
respective commissions, or, when the commissions of two or more of them
shall bear the same date, according to the order in which their
commissions have been issued by the President.
Consistent with the foregoing, Rule II, Section 1(b) of the Revised Internal
Rules of the Sandiganbayan similarly provides:ChanRoblesVirtualawlibrary
Sec. 1. Composition of the Court and Rule on Precedence.-
xxxx
(b) Rule on Precedence - The Presiding Justice shall enjoy precedence over
the other members of the Sandiganbayan in all official functions. The
Associate Justices shall have precedence according to the order of their
appointments.
Apropos herein is the following ruling of the Court in Re: Seniority Among
the Four (4) Most Recent Appointments to the Position of Associate Justices
of the Court of Appeals,50 which involved the Court of Appeals, another
collegiate court:ChanRoblesVirtualawlibrary
For purposes of appointments to the judiciary, therefore, the date the
commission has been signed by the President (which is the date appearing
on the face of such document) is the date of the appointment. Such date
will determine the seniority of the members of the Court of Appeals in
connection with Section 3, Chapter I of BP 129, as amended by RA 8246. In
other words, the earlier the date of the commission of an appointee, the
more senior he/she is over the other subsequent appointees. It is only
when the appointments of two or more appointees bear the same date
that the order of issuance of the appointments by the President becomes
material. This provision of statutory law (Section 3, Chapter I of BP 129, as
amended by RA 8246) controls over the provisions of the 2009 IRCA which
gives premium to the order of appointments as transmitted to this Court.
Rules implementing a particular law cannot override but must give way to
the law they seek to implement. (Emphasis supplied.)
Evidently, based on law, rules, and jurisprudence, the numerical order of
the Sandiganbayan Associate Justices cannot be determined until their
actual appointment by the President.
It bears to point out that part of the President's power to appoint
members of a collegiate court, such as the Sandiganbayan, is the power to
determine the seniority or order of preference of such newly appointed
members by controlling the date and order of issuance of said members'
appointment or commission papers. By already designating the numerical
order of the vacancies, the JBC would be establishing the seniority or order
of preference of the new Sandiganbayan Associate Justices even before
their appointment by the President and, thus, unduly arrogating unto itself
a vital part of the President's power of appointment.
324 | J U D I C I A L D E P A R T M E N T C A S E S
There is also a legal ground why the simultaneous vacant positions of
Sandiganbayan Associate Justice should not each be assigned a specific
number by the JBC. The Sandiganbayan Associate Justice positions were
created without any distinction as to rank in seniority or order of
preference in the collegiate court. The President appoints his choice
nominee to the post of Sandiganbayan Associate Justice, but not to a
Sandiganbayan Associate Justice position with an identified rank, which is
automatically determined by the order of issuance of appointment by the
President. The appointment does not specifically pertain to the 16 th, 17th,
18th, 19th, 20th, or 21st Sandiganbayan Associate Justice, because the
Sandiganbayan Associate Justice's ranking is temporary and changes every
time a vacancy occurs in said collegiate court. In fact, by the end of 2016,
there will be two more vacancies for Sandiganbayan Associate
Justice.51 These vacancies will surely cause movement in the ranking within
the Sandiganbayan. At the time of his/her appointment, a Sandiganbayan
Associate Justice might be ranked 16th, but because of the two vacancies
occurring in the court, the same Sandiganbayan Associate Justice may
eventually be higher ranked.
Furthermore, the JBC, in sorting the qualified nominees into six clusters,
one for every vacancy, could influence the appointment process beyond its
constitutional mandate of recommending qualified nominees to the
President. Clustering impinges upon the President's power of
appointment, as well as restricts the chances for appointment of the
qualified nominees, because (1) the President's option for every vacancy is
limited to the five to seven nominees in the cluster; and (2) once the
President has appointed from one cluster, then he is proscribed from
considering the other nominees in the same cluster for the other
vacancies. The said limitations are utterly without legal basis and in
contravention of the President's appointing power.
To recall, the JBC invited applications and recommendations and
conducted interviews for the "six newly created positions of Associate
Justice of the Sandiganbayan." Applicants, including respondents Musngi
and Econg, applied for the vacancy for "Associate Justice of the
Sandiganbayan." Throughout the application process before the JBC, the
six newly-created positions of Sandiganbayan Associate Justice were not
specifically identified and differentiated from one another for the simple
reason that there was really no legal justification to do so. The
requirements and qualifications, as well as the power, duties, and
responsibilities are the same for all the Sandiganbayan Associate Justices. If
an individual is found to be qualified for one vacancy, then he/she is also
qualified for all the other vacancies. It was only at the end of the process
that the JBC precipitously clustered the 37 qualified nominees into six
separate shortlists for each of the six vacant positions.
The Court notes that the clustering of nominees is a totally new practice of
the JBC. Previously, the JBC submitted only one shortlist for two or more
vacancies in a collegiate court. Worth reproducing below are the examples
cited by the OSG:ChanRoblesVirtualawlibrary
77. For instance, in June 2011, there were 2 vacancies for Associate Justice
of the Supreme Court. Out of 30 candidates, the JBC submitted to the
President only 1 short list of 6 nominees. Based on this short list, President
Aquino appointed Associate Justices Bienvenido L. Reyes, and Estela
Perlas-Bernabe.
78. In January 2012, there were 3 vacancies for Associate Justice of the CA.
Out of sixty-three (63) candidates, the JBC prepared only 1 short list of 13
nominees for these 3 vacancies. Based on this short list, President Aquino
appointed Associate Justices Ma. Luisa C. QuijanoPadilla, Renate C.
Francisco, and Jhosep Y. Lopez.
79. In June 2012, there were 3 vacancies for Associate Justice of the CA.
Out of 53 candidates, the JBC submitted to the President only 1 short list of
14 nominees who obtained the required number of votes. Based on this
short list, President Aquino appointed Associate Justices Henri Jean Paul B.
Inting, Oscar V. Badelies, and Marie Christine Azcarraga
Jacob.52chanroblesvirtuallawlibrary
Additionally, in 1995, when Republic Act No. 7975 increased the divisions
in the Sandiganbayan from three to five, which similarly created six
simultaneous vacant positions of Sandiganbayan Associate Justice, the JBC,
with then Supreme Court Chief Justice Andres R. Narvasa as Chairman,
submitted a single list of nominees from which former President Fidel V.
Ramos subsequently chose his six appointees. Reproduced in full below
was the nomination submitted by the JBC on said occasion:   
325 | J U D I C I A L D E P A R T M E N T C A S E S

July 17, 1997 26. Sultan, Justo M.

27. Umali, Mariano M.
HIS EXCELLENCY Their respective curriculum vitae are hereto attached.
PRESIDENT FIDEL V. RAMOS Once more, on November 23, 2009, the JBC, then headed by Supreme
Malacañan, Manila Court Chief Justice Reynato S. Puno (Puno), submitted to former President
Gloria Macapagal-Arroyo (Macapagal-Arroyo) a single list of nominees for
Dear Mr. President: two vacant positions of Supreme Court Associate Justice, from which
President Macapagal-Arroyo ultimately appointed Associate Justices Jose
chanRoblesvirtualLawlibraryPursuant to the provisions of Article VIII, P. Perez and Jose C. Mendoza. The letter of nomination of the JBC reads:   
Section 9 of the Constitution, the Judicial and Bar Council has the honor to November 23, 2009
submit the nominations (in alphabetical order) for six (6) positions of
Associate Justice of the Sandiganbayan, per the JBC Minutes of July 9 and Her Excellency
16, 1997:ChanRoblesVirtualawlibrary President Gloria Macapagal Arroyo
1. Asuncion, Elvi John S. Malacañang Palace
2. Badoy Jr., Anacleto D. Manila
3. Castañeda Jr., Catalina D.
4. De Castro, Teresita Leonardo Your Excellency:
5. Fineza, Antonio J.
6. Flores, Alfredo C. chanRoblesvirtualLawlibraryPursuant to Section 9, Article VIII of the
7. Gustilo, Alfredo J. Constitution, the Judicial and Bar Council has the honor to submit
8. Hernandez, Jose R. nominations for two (2) positions of Associate Justice of the Supreme
9. Ilarde, Ricardo M. Court (vice Hon. Leonardo A. Quisumbing and Hon. Minita V. Chico-
10. Laggui, Pedro N. Nazario), per the JBC Minutes of even date, to
11. Lee Jr., German G. wit:ChanRoblesVirtualawlibrary
12. Legaspi, Godofredo L. 1. Abdulwahid, Hakim S. - 6 votes  
13. Makasiar, Ramon P.
14. Mallillin, Hesiquio R. 2. Mendoza, Jose C. - 6 votes  
15. Martinez, Wilfredo C.
3. Perez, Jose P. - 5 votes  
16. Mirasol, Teodulo E.
17. Nario, Narciso S. 4. Villaruz, Francisco, Jr. H. - 5 votes  
18. Navarro, Flordelis Ozaeta
19. Ortile, Senecio D. 5. De Leon, Magdangal M. - 4 votes  
20. Pineda, Ernesto L. 6. Tijam, Noel G. - 4 votes  
21. Ponferrada, Bernardo T.
22. Quimsing, Godofredo P. Their respective curriculum vitae are hereto attached.
23. Rivera, Candido V. And, as mentioned by the OSG, the JBC, during the Chairmanship of
24. Rosario Jr., Eriberto U. Supreme Court Chief Justice Renato C. Corona, submitted to President
25. Salonga, Josefina Guevara Aquino on June 21, 2011 just one list of nominees for two vacant positions
326 | J U D I C I A L D E P A R T M E N T C A S E S

of Supreme Court Associate Justice, from which President Aquino disregarded the clustering of nominees into six separate shortlists for the
eventually appointed Associate Justices Bienvenido L. Reyes and Estela M. vacancies for the 16th, 17th, 18th, 19th, 20th and 21st Sandiganbayan Associate
Perlas-Bernabe. Such list is fully quoted hereunder:    Justices. President Aquino merely maintained the well-established
June 21, 2011 practice, consistent with the paramount Presidential constitutional
prerogative, to appoint the six new Sandiganbayan Associate Justices from
His Excellency the 37 qualified nominees, as if embodied in one JBC list. This does not
President Benigno Simeon C. Aquino III violate Article VIII, Section 9 of the 1987 Constitution which requires the
Malacañang Palace President to appoint from a list of at least three nominees submitted by
Manila the JBC for every vacancy. To meet the minimum requirement under said
constitutional provision of three nominees per vacancy, there should at
Your Excellency: least be 18 nominees from the JBC for the six vacancies for Sandiganbayan
Associate Justice; but the minimum requirement was even exceeded
chanRoblesvirtualLawlibraryPursuant to Article VIII, Section 9 of the herein because the JBC submitted for the President's consideration a total
Constitution, the Judicial and Bar Council has the honor to submit of 37 qualified nominees. All the six newly appointed Sandiganbayan
nominations for the two (2) positions of ASSOCIATE JUSTICE of the Associate Justices met the requirement of nomination by the JBC under
SUPREME COURT, per the JBC Minutes of even date, as Article VIII, Section 9 of the 1987 Constitution. Hence, the appointments of
follows:ChanRoblesVirtualawlibrary respondents Musngi and Econg, as well as the other four new
1. Reyes, Jose, Jr. C. - 7 votes   Sandiganbayan Associate Justices, are valid and do not suffer from any
constitutional infirmity.
2. Robles, Rodolfo D. - 7 votes  
The ruling of the Court in this case shall similarly apply to the situation
3. De Leon, Magdangal M. - 6 votes  
wherein there are closely successive vacancies in a collegiate court, to
4. Reyes, Bienvenido L. - 6 votes   which the President shall make appointments on the same occasion,
regardless of whether the JBC carried out combined or separate
5. Bernabe, Estela Perlas - 5 votes   application process/es for the vacancies. The President is not bound by the
6. Dimaampao, Japar B. - 5 votes   clustering of nominees by the JBC and may consider as one the separate
shortlists of nominees concurrently submitted by the JBC. As the Court
Their respective curriculum vitae are hereto attached. already ratiocinated herein, the requirements and qualifications, as well as
There is no explanation for the shift in practice by the JBC, which impaired the power, duties, and responsibilities are the same for all the vacant posts
the power of the President to appoint under the 1987 Constitution and his in a collegiate court; and if an individual is found to be qualified for one
statutory authority to determine seniority in a collegiate court. The vacancy, then he/she is also qualified for all the other vacancies. It is
clustering by the JBC of the qualified nominees for the six vacancies for worthy of note that the JBC, in previous instances of closely successive
Sandiganbayan Associate Justice appears to have been done arbitrarily, vacancies in collegiate courts, such as the Court of Appeals and the
there being no clear basis, standards, or guidelines for the same. The Supreme Court, faithfully observed the practice of submitting only a single
number of nominees was not even equally distributed among the clusters. list of nominees for all the available vacancies, with at least three
nominees for every vacancy, from which the President made his
In view of the foregoing, President Aquino validly exercised his appointments on the same occasion. This is in keeping with the
discretionary power to appoint members of the Judiciary when he constitutional provisions on the President's exclusive power to appoint
327 | J U D I C I A L D E P A R T M E N T C A S E S
members of the Judiciary and the mandate of the JBC to recommend
qualified nominees for appointment to the Judiciary.
The Court denies the Motion for Intervention of the JBC in this Petition.
In its Motion for Intervention, the JBC echoes the arguments of the OSG in
the latter's Comment that the dispute is between the JBC and the OP and it
cannot be decided by the Court since the JBC is not a party, much less, a
complaining party in this case. The JBC asserts that it has legal interest in
the matter of litigation because it will be adversely affected by the
judgment or decision in the present case, having submitted the
controverted shortlists of nominees to the OP. The JBC likewise claims that
its intervention will not unduly delay or prejudice the adjudication of the
rights of the original parties in the case. The JBC, thus, prays that it be
allowed to intervene in the instant case and to submit its complaint-in-
intervention within 30 days from receipt of notice allowing its intervention.
Intervening in a case is not a matter of right but of sound discretion of the
Court.53 The allowance or disallowance of a motion for intervention rests
on the sound discretion of the court after consideration of the appropriate
circumstances. It is not an absolute right. The statutory rules or conditions
for the right of intervention must be shown. The procedure to secure the
right to intervene is to a great extent fixed by the statute or rule, and
intervention can, as a rule, be secured only in accordance with the terms of
the applicable provision.54chanrobleslaw
It bears to point out that petitioners did not name the JBC as a respondent
in this case because petitioners precisely wanted the shortlists submitted
by the JBC upheld; they were on the same side. Petitioners already
presented the arguments for the constitutionality of and strict adherence
by the President to the separate shortlists submitted by the JBC for the six
simultaneous vacancies for Sandiganbayan Associate Justice. Significantly,
not one of the parties moved, and not even the Court motu
proprio ordered, to implead the JBC as an indispensable party herein.
The JBC avers in its Motion for Intervention that it has a legal interest in
the Petition at bar and its intervention will not unduly delay or prejudice
the adjudication of the rights of the original parties in the case.
The Court is unconvinced.
The instant Petition was filed before this Court on May 17, 2016, yet, the
JBC filed its Motion for Intervention only on November 26, 2016, more
than six months later, and even praying for an additional 30-day period
from notice to submit its complaint-in-intervention. Therefore, allowing
the intervention will undoubtedly delay the resolution of the case; and
further delay in the resolution of this case will only perpetuate the doubts
on the legitimacy of the appointments of respondents Musngi and Econg
as Sandiganbayan Associate Justices, to the detriment of said court, in
particular, and the entire justice system, in general. What is more, unless
promptly resolved by the Court, the instant case is capable of repetition
given the forthcoming vacancies in collegiate courts, particularly, the
Supreme Court.
Even if the intervention of the JBC will evidently cause delay in the
resolution of this case and prejudice to the original parties herein, are
there compelling substantive grounds to still allow the intervention of the
JBC? The JBC, through its own fault, did not provide the Court with a way
to make such a determination. The Revised Rules of Court explicitly
requires that the pleading-in-intervention already be attached to the
motion for intervention.55 The JBC could have already argued the merits of
its case in its complaint-in-intervention. However, the JBC not only failed to
attach its complaint-in-intervention to its Motion for Intervention, but it
also did not provide any explanation for such failure.
The Court can reasonably assume, as well, that the JBC is well-aware of
President Aquino's appointment of the six Sandiganbayan Associate
Justices, including respondents Musngi and Econg, on January 20, 2015.
The six newly-appointed Sandiganbayan Associate Justices all took their
oaths of office on January 25, 2016 at the Supreme Court Dignitaries
Lounge. Respondent Econg, with Justices Mendoza-Arcega and Trespeses,
took their oaths of office before Chief Justice Sereno, who is also the
Chairperson of the JBC; while respondent Musngi, with Justices R. Cruz and
Miranda, took their oaths of office before Supreme Court Associate Justice
Jardeleza on the same occasion and at the same venue. Despite its
knowledge of the appointment and assumption of office of respondents
328 | J U D I C I A L D E P A R T M E N T C A S E S
Musngi and Econg in January 2016, the JBC did not take any action to
challenge the same on the ground that President Aquino appointed
respondents Musngi and Econg in disregard of the clustering of nominees
by the JBC through the separate shortlists for the six vacancies for
Sandiganbayan Associate Justice. The silence of the JBC all this while, for a
period of eleven (11) months, can already be deemed as acquiescence to
President Aquino's appointment of respondents Musngi and Econg.
For the foregoing reasons, the Court denies the Motion for Intervention of
the JBC.
There are several other new rules and practices adopted by the JBC which
the Court takes cognizance of as a separate administrative matter.
The Court takes cognizance of several other matters covered by the new
rules and practices adopted by the JBC.
Item No. 1: The Court takes judicial notice of the fact that the JBC
promulgated on September 20, 2016 JBC No. 2016-1, "The Revised Rules of
the Judicial and Bar Council" (Revised JBC Rules), to take effect on October
24, 2016. Notably, the Revised JBC Rules explicitly states among its
Whereas clauses:ChanRoblesVirtualawlibrary
WHEREAS, the President of the Philippines may appoint only one from the
list of at least three nominees for every vacancy officially transmitted by
the Council to the Office of the President[.]
This is an obvious attempt by the JBC to institutionalize through the
Revised JBC Rules its newly-introduced practice of clustering nominees for
simultaneous vacancies in collegiate courts. The timing likewise is
disturbing as the instant case is pending resolution by this Court and with
existing and upcoming vacancies in several collegiate courts, i.e., the
Sandiganbayan, the Court of Appeals, and even this Court. As the Court has
categorically declared herein, the clustering by the JBC of nominees for
simultaneous vacancies in collegiate courts constitute undue limitation on
and impairment of the power of the President to appoint members of the
Judiciary under the 1987 Constitution. It also deprives qualified nominees
equal opportunity to be considered for all vacancies, not just a specific
one. Incorporating such Whereas clause into the Revised JBC Rules will not
serve to legitimize an unconstitutional and unfair practice. Accordingly,
such Whereas clause shall not bind the President pursuant to the
pronouncements of the Court in the present Petition.
Item No. 2: The same Revised JBC Rules deleted a significant part of JBC-
009, the former JBC Rules, specifically, Rule 8, Section 1, which
provided:ChanRoblesVirtualawlibrary
Sec. 1. Due weight and regard to the recommendees of the Supreme Court.
- In every case involving an appointment to a seat in the Supreme Court,
the Council shall give due weight and regard to the recommendees of the
Supreme Court. For this purpose, the Council shall submit to the Court a
list of candidates for any vacancy in the Court with an executive summary
of its evaluation and assessment of each of them, together with all
relevant records concerning the candidates from whom the Court may
base the selection of its recommendees.
The deletion of this provision will likewise institutionalize the elimination
by Chief Justice Sereno of the voting by the Supreme Court Justices on who
among the applicants to the Supreme Court they believe are most
deserving.
Through Rule 8, Section 1 of JBC-009, the JBC had accorded through the
years due weight and regard to the recommendees of the Supreme Court
for the vacancies in said Court. The JBC had consistently complied with said
rule and furnished the Court in prior years with the list of candidates for
vacancies in the Court, together with an executive summary of the
evaluation and assessment of each candidate by the JBC and all relevant
documents concerning the candidates, for the incumbent Justices'
consideration, but stopped doing so ever since Chief Justice Sereno
became the Chairperson of the JBC. Although the JBC was not bound by
the list of recommendees of the Court, the JBC at least took the list under
advisement. The deletion of the foregoing provision from the Revised JBC
Rules formally institutionalizes Chief Justice Sereno's unilateral decision to
abandon a well-established rule, procedure, and practice observed by the
Court, and completely precludes the incumbent Supreme Court Justices
from expressing their views on the qualifications of the applicants to the
vacancies in the Supreme Court.
The Court calls attention to the fact that the JBC, in JBC-009 and the
Revised JBC Rules, invites the public to give any comment or opposition
329 | J U D I C I A L D E P A R T M E N T C A S E S

against the applicants to the Judiciary. failed to name anyone. As a result, applicants who could have been
recommended by the Court (Jardeleza, among them), missed their chance
According to Rule 1, Section 9 of JBC-009:ChanRoblesVirtualawlibrary to be nominees.]57chanroblesvirtuallawlibrary
Sec. 9. Publication of list of applicants. The list of applicants or The Supreme Court Justices were also not given the opportunity to know
recommendees which the Council shall consider in a given time shall be the applicants to the succeeding vacant position in the Court (to which
published once in a newspaper of general circulation in the Philippines and Associate Justice Alfredo Benjamin S. Caguioa was eventually appointed) as
once in a newspaper of local circulation in the province or city where the Rule 8, Section 1 of JBC-009 was again not followed.
vacancy is located. The publication shall invite the public to inform the
Council within the period fixed therein of any complaint or derogatory Item No. 3: The JBC currently has no incumbent Supreme Court Associate
information against the applicant. x x x (Emphasis supplied.) Justice as consultant. By practice, since the creation of the JBC, the two (2)
A similar provision can be found in the Revised JBC Rules as Rule 1, Section most senior Supreme Court Associate Justices had acted as consultants of
8:ChanRoblesVirtualawlibrary the JBC. From 1987 until 2016, the following Associate Justices of this
Sec. 8. Publication of List of Applicants. The list of applicants who meet the Court, during their incumbency, served as JBC
minimum qualifications and the Council's evaluative criteria prescribed in consultants:ChanRoblesVirtualawlibrary
Sections 2 and 3 of Rule 3 of these Rules, which the Council shall consider Supreme Court Associate Justices as JBC
in a given time, shall be published once in two newspapers of general Period
Consultants
circulation in the Philippines.
December 10, 1987 to April 13,
Pedro L. Yap+
The publication shall inform the public that any complaint or opposition 1988
against applicants may be filed with the secretariat of the Council. A copy
Marcelo B. Fernan+ January 5, 1988 to June 29, 1988
of the list shall likewise be posted in the JBC website. (Emphasis supplied.)
Yet, Chief Justice Sereno, without consulting the Court en banc, has done May 6, 1988 to December 5,
away with the settled practice of seeking the views of the incumbent Andres R. Narvasa
1991
Justices on the applicants to the vacant positions in the Supreme Court.
July 21, 1988 to November 4,
Leo M. Medialdea+
To recall, Chief Justice Sereno had previously disregarded Rule 8, Section 1 1992
of JBC-009, during the nomination process for the vacancy of Supreme January 16, 1992 to March 30,
Court Associate Justice following the retirement of Associate Justice Ameurfina M. Herrera
1992
Roberto A. Abad on May 22, 2014. As Associate Justice Arturo D. Brion
narrated in his Separate Concurring Opinion in the Jardeleza December 21, 1993 to November
Josue N. Bellosillo
Decision56:ChanRoblesVirtualawlibrary 13, 2003
[Of particular note in this regard is this Court's own experience when it
failed to vote for its recornmendees for the position vacated by retired November 20, 2003 to July 14,
Jose C. Vitug
Associate Justice Roberto A. Abad, because of a letter dated May 29, 2014 2004
from the Chief Justice representing to the Court that "several Justices" July 21, 2004 to December 19,
requested that the Court do away with the voting for Court Artemio V. Panganiban
2005
recornmendees, as provided in Section 1, Rule 8 of JBC-009. When
subsequently confronted on who these Justices were, the Chief Justice Leonardo A. Quisumbing January 1, 2006 to November 5,
 330 | J U D I C I A L D E P A R T M E N T C A S E S

2009 Sec. 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice
December 11, 2006 to October 4, as Chairman, the Secretary of Justice, and a representative of the Congress
Consuelo Y. Santiago
2009 as Members, a representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of the private
November 6, 2009 to May 16,
Renato C. Corona sector. (Emphasis supplied.)
2010
These changes in settled rules and practices recently adopted by the JBC
Antonio T. Carpio October 5, 2009 to May 16, 2010 under Chief Justice Sereno are disconcerting. There appears to be a
September 10, 2012 to January systematic move by the JBC, under Chief Justice Sereno to arrogate to itself
28, 2014 more power and influence than it is actually granted by the Constitution
and this Court, and at the same time, to ease out the Court from any
Presbiterio J. Velasco, Jr. June 4, 2012 to August 23, 2012 legitimate participation in the nomination process for vacancies in the
September 10, 2012 to [August Judiciary, specifically, in the Supreme Court. This behooves the Court,
2016] through the exercise of its power of supervision over the JBC, to take a
Teresita J. Leonardo-De Castro June 4, 2012 to August 23, 2012 closer look into the new rules and practices of the JBC and ensure that
[February 1, 2014] to [August these are in accord with the 1987 Constitution, the pertinent laws, and the
2016]58 governmental policies of transparency and accountability in the
nomination process for vacancies in the Judiciary.
Without notice, warning, or explanation to the Supreme Court En Banc,
Chief Justice Sereno recently unceremoniously relieved Supreme Court Article VIII, Section 8 of the 1987 Constitution gives the JBC the principal
Associate Justices Presbiterio J. Velasco, Jr. and Teresita J. Leonardo De function of "recommending appointees to the Judiciary," but it also
Castro as JBC consultants, and in their stead, the Chief Justice appointed explicitly states that the JBC shall be "under the supervision of the Court"
retired Chief Justices Hilario G. Davide, Jr., Artemio V. Panganiban, and and that "[i]t may exercise such other functions and duties as the Supreme
Reynato S. Puno as JBC consultants. The experience and wisdom of the Court may assign to it."
three retired Chief Justices are undisputed. However, practicality and
prudence also dictate that incumbent Associate Justices of the Court Book IV, Chapter 7, Section 38(2) of Executive Order No. 292, otherwise
should be retained as JBC consultants since their interest in the Judiciary is known as The Administrative Code of the Philippines, defines supervision
real, actual, and direct. Incumbent Associate Justices of the Court are as follows:ChanRoblesVirtualawlibrary
aware of the present state, needs, and concerns of the Judiciary, and Sec. 38. Definition of Administrative Relationship. - Unless otherwise
consultants from the Court, even if they have no right to vote, have served, expressly stated in the Code or in other laws defining the special
from the organization of the JBC, as the only link to the supervisory relationships of particular agencies, administrative relationships shall be
authority of the Court over the JBC under the 1987 Constitution. categorized and defmed as follows:
Moreover, Hon. Angelina Sandoval-Gutierrez already sits as a regular
member of the JBC representing the Retired Supreme Court Justices, chanRoblesvirtualLawlibraryx x x x
pursuant to Article VIII, Section 8(1) of the 1987 Constitution, which
expressly describes the composition of the JBC, as (2) Administrative Supervision. - (a) Administrative supervlSlon which shall
follows:ChanRoblesVirtualawlibrary govern the administrative relationship between a department or its
equivalent and regulatory agencies or other agencies as may be provided
331 | J U D I C I A L D E P A R T M E N T C A S E S
by law, shall be limited to the authority of the department or its equivalent
to generally oversee the operations of such agencies and to insure that
they are managed effectively, efficiently and economically but without
interference with day-to-day activities; or require the submission of
reports and cause the conduct of management audit, performance
evaluation and inspection to determine compliance with policies,
standards and guidelines of the department; to take such action as may be
necessary for the proper performance of official functions, including
rectification of violations, abuses and other forms of maladministration;
and to review and pass upon budget proposals of such agencies but may
not increase or add to them;
(b) Such authority shall not, however, extend to: (1) appointments and
other personnel actions in accordance with the decentralization of
personnel functions under the Code, except when appeal is made from an
action of the appointing authority, in which case the appeal shall be
initially sent to the department or its equivalent, subject to appeal in
accordance with law; (2) contracts entered into by the agency in the
pursuit of its objectives, the review of which and other procedures related
thereto shall be governed by appropriate laws, rules and regulations; and
(3) the power to review, reverse, revise, or modify the decisions of
regulatory agencies in the exercise of their regulatory or quasi-judicial
functions; and cralawlawlibrary
(c) Unless a different meaning is explicitly provided in the specific law
governing the relationship of particular agencies, the word "supervision"
shall encompass administrative supervision as defined in this paragraph.
The Court also provided the following definition of supervision in
the Jardeleza Decision59:ChanRoblesVirtualawlibrary
As a meaningful guidepost, jurisprudence provides the definition and scope
of supervision. It is the power of oversight, or the authority to see that
subordinate officers perform their duties. It ensures that the laws and the
rules governing the conduct of a government entity are observed and
complied with. Supervising officials see to it that rules are followed, but
they themselves do not lay down such rules, nor do they have the
discretion to modify or replace them. If the rules are not observed, they
may order the work done or redone, but only to conform to such rules.
They may not prescribe their own manner of execution of the act. They
have no discretion on this matter except to see to it that the rules are
followed. (Citation omitted.)
"Supervision" is differentiated from "control,"
thus:ChanRoblesVirtualawlibrary
Supervisory power, when contrasted with control, is the power of mere
oversight over an inferior body; it does not include any restraining
authority over such body. Officers in control lay down the rules in the
doing of an act. If they are not followed, it is discretionary on his part to
order the act undone or re-done by his subordinate or he may even decide
to do it himself. Supervision does not cover such authority. Supervising
officers merely sees to it that the rules are followed, but he himself does
not lay down such rules, nor does he have the discretion to modify or
replace them. If the rules are not observed, he may order the work done or
re-done to conform to the prescribed rules. He cannot prescribe his own
manner for the doing of the act.60 (Citations omitted.)
The Court had recognized that "[s]upervision is not a meaningless thing. It
is an active power. It is certainly not without limitation, but it at least
implies authority to inquire into facts and conditions in order to render the
power real and effective."61chanrobleslaw
In the exercise of its power of supervision over the JBC, the Court shall take
up the aforementioned Item Nos. 2 and 3 as a separate administrative
matter and direct the JBC to file its comment on the same.
WHEREFORE, premises considered, the Court DISMISSES the instant
Petition for Quo Warranto and Certiorari and Prohibition for lack of merit.
The Court DECLARES the clustering of nominees by the Judicial and Bar
Council UNCONSTITUTIONAL, and the appointments of respondents
Associate Justices Michael Frederick L. Musngi and Geraldine Faith A.
Econg, together with the four other newly-appointed Associate Justices of
the Sandiganbayan, as VALID. The Court further DENIES the Motion for
Intervention of the Judicial and Bar Council in the present Petition,
but ORDERS the Clerk of Court En Banc to docket as a separate
administrative matter the new rules and practices of the Judicial and Bar
Council which the Court took cognizance of in the preceding discussion
as Item No.2: the deletion or non-inclusion in JBC No. 2016-1, or the
Revised Rules of the Judicial and Bar Council, of Rule 8, Section 1 of JBC-
009; and Item No. 3: the removal of incumbent Senior Associate Justices of
332 | J U D I C I A L D E P A R T M E N T C A S E S

the Supreme Court as consultants of the Judicial and Bar Council, referred Complainants Sps. Marcelo were the plaintiffs in Civil Case No. 2004-286
to in pages 35 to 40 of this Decision. The Court finally DIRECTS the Judicial for unlawful detainer before the Metropolitan Trial Court of Parañaque
and Bar Council to file its comment on said Item Nos. 2 and 3 within thirty City, Branch 78 (MeTC). By virtue of a Joint Decision 2 dated September 5,
(30) days from notice. 2005 (subject decision), the defendants therein, Sps. Magopoy, were
ordered by the MeTC to vacate and surrender the possession of the
SO ORDERED.chanroblesvirtuallawlibrary property located at Marcelo Compound, Philip Street Extension, Barangay
Moonwalk, Parañaque City (subject property) to Sps. Marcelo. 3 On April
14, 2006, a writ of execution4 was issued, and later implemented by Branch
Sheriff Hildo D. Epres (Sheriff Epres) on July 27, 2006. 5 Thus, Sps. Marcelo
obtained the possession of the subject property on the said date, as shown
Republic of the Philippines in the Certificate of Turn-over of Possession. However, at around 6 o’clock
SUPREME COURT in the evening of the same day, Sps. Magopoy successfully re-entered the
Manila subject property and regained its possession.6

SECOND DIVISION
A.M. No. MTJ-13-1838               March 12, 2014
[Formerly A.M. OCA IPI NO. 10-2260-MTJ]
SPOUSES RICARDO and EVELYN MARCELO, Complainants,
vs.
JUDGE RAMSEY DOMINGO G. PICHAY, METROPOLITAN TRIAL COURT,
BRANCH 78, PARANAQUE CITY, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court is an administrative complaint 1 filed against respondent
Judge Ramsey Domingo G. Pichay (Judge Pichay) for delay in the
disposition of the pending incidents relative to Civil Case No. 2004-286
entitled "Spouses Ricardo S. Marcelo and Evelyn Beato-Marcelo ([Sps.
Marcelo]) v. Spouses Vilma Magopoy and Florentino Magopoy ([Sps.
Magopoy]).
The Facts
On August 3, 2007, Sps. Marcelo moved7 to cite Sps. Magopoy in contempt
for disobedience/resistance to lawful court processes. While finding the
act of re-entry by Sps. Magopoy as a clear defiance of a lawful writ, (i.e.,
the April 14, 2006 writ of execution) which is a form of indirect contempt
punishable under Rule 71 of the Rules of Court, the MeTC, in an
Order8 dated February 25, 2009, did not cite them in contempt but,
instead, ordered them to surrender the subject property to Sps. Marcelo
within ten (10) days from receipt of the order. 9
On June 5, 2009, Sps. Marcelo filed an Ex-Parte Constancia in view of the
continued refusal of Sps. Magopoy to surrender the subject
property.10 This prompted Judge Pichay to issue an Order11 dated August 7,
2009, giving Sheriff Epres12 three (3) days within which to effect Sps.
Magopoy’s eviction from the subject property. Consequently, Sps.
Magopoy filed a motion for reconsideration 13 on August 26, 2009, which
was opposed14 by Sps. Marcelo on September 8, 2009.15
The hearing on the aforesaid motion was conducted on September 11,
2009, wherein Sps. Magopoy were directed to file their reply. In
compliance, Sps. Magopoy filed their Supplemental Motion and Reply on
September 24, 2009 (supplemental motion),16 alleging that the
miscellaneous sales application of Sps. Marcelo over the subject property
had been denied by the Department of Environment and Natural
333 | J U D I C I A L D E P A R T M E N T C A S E S
Resources.17 The following day, Sps. Marcelo filed a motion submitting all
incidents for resolution.18
Instead of resolving the pending incidents, Judge Pichay, in an
Order19 dated October 1, 2009 (October 1, 2009 Order), directed Sps.
Marcelo to file their comment and/or opposition to Sps. Magopoy’s
supplemental motion within five (5) days from receipt of the order, with a
warning that upon the expiration of said period, the court will resolve the
pending incidents. The pertinent portions of the October 1, 2009 Order
read as follows:
With respect to the Supplemental Motion and Reply, and in the interest of
justice, the Court directs [Sps. Marcelo] to file their Comment and/or
Opposition to said Supplemental Motion and Reply within five (5) days
from receipt of this Order with copy furnished the [Sps. Magopoy]. The
latter is given three (3) days from the Comment and/or Opposition within
which to file their Reply if necessary.
Considering the Ex-Parte Constancia, the Court makes it clear to the parties
that the only pleading left to be received by this Court is the Comment
and/or Opposition of [Sps. Marcelo] on the Supplemental Motion and
Reply of [Sps. Magopoy] and the Reply of [Sps. Magopoy] to said [Sps.
Marcelo’s] Comment and/or Opposition.
The Court will no longer conduct a hearing on the pending incidents.
Hence, upon the expiration of the periods given above, the Court will
resolve the pending incidents.20 (Emphases supplied)
Despite the directive of the court a quo, Sps. Marcelo failed to file their
comment and/or opposition. Nonetheless, Judge Pichay, set Sps.
Magopoy’s previous motion for reconsideration as well as their
supplemental motion for hearing on February 12, 2010, 21 March 16,
201022 and June 15, 2010.23
Disconcerted with Judge Pichay’s continuous inaction, Sps. Marcelo filed an
administrative complaint24 on March 10, 2010 before the Office of the
Court Administrator (OCA), charging him and Sheriff Epres with inordinate
delay in the disposition of the pending incidents in Civil Case No. 2004-286
relating to the implementation of the writ of execution of the subject
decision.
In his Comment dated September 8, 2010,25 Judge Pichay attributed the
delay to the new arguments raised in Sps. Magopoy’s supplemental
motion. In particular, he considered the denial of the sales application of
Sps. Marcelo over the subject property, as brought to his attention by Sps.
Magopoy, as a supervening event that may materially change the situation
of the parties26 and, thus, render the execution of the subject decision
inequitable.27 Therefore, in the interest of justice and equity, he scheduled
the supplemental motion for hearing in order to be better apprised of the
situation of the parties. Unfortunately, the hearing dates therefor were
further reset due to the requests of Sps. Marcelo, 28 and because he went
on sick leave from June 8 to 29, 2010.29
The Action and Recommendation of the OCA
In a Memorandum30 dated July 22, 2013, the OCA recommended31 that
Judge Pichay be held administratively liable for undue delay in the
resolution of the pending incidents relative to the execution of the subject
decision in Civil Case No. 2004-286, and that a fine in the amount of
₱10,000.00 be imposed for the infraction.32 The OCA found that Judge
Pichay entertained dilatory machinations that resulted in the delay in the
implementation of the writ of execution issued as early as in 2006 for the
eviction of Sps. Magopoy from the subject property. 33
Separately, however, the OCA did not recommend that Sheriff Epres be
held administratively liable, considering the dearth of evidence showing
that the delay in the implementation of the subject writ of execution was
attributable to him or that he acted with bad faith or any corrupt motive. 34
Thereafter, the Court, in its Resolution dated November 13, 2013,
dismissed the administrative complaint against Sheriff Epres. 35
The Issue Before the Court
334 | J U D I C I A L D E P A R T M E N T C A S E S
The essential issue in this case is whether or not Judge Pichay should be
held administratively liable for undue delay in the resolution of the
pending incidents in Civil Case No. 2004-286.
The Court’s Ruling
The Court concurs with the OCA’s recommendations, subject to the
modification of the recommended penalty to be imposed against Judge
Pichay.
The Constitution requires our courts to conscientiously observe the time
periods in deciding cases and resolving matters brought to their
adjudication, which, for lower courts, is three (3) months from the date
they are deemed submitted for decision or resolution. Section 15, Article
VIII of the 1987 Philippine Constitution (1987 Constitution) states this rule,
viz.:
Section 15. (1) All cases or matters filed after the effectivity of this
Constitution must be decided or resolved within twenty-four months from
date of submission for the Supreme Court, and, unless reduced by the
Supreme Court, twelve months for all lower collegiate courts, and three
months for all other lower courts.
In consonance with the foregoing, Section 5, Canon 6 of the New Code of
Judicial Conduct For the Philippine Judiciary 36 states that:
Sec. 5. Judges shall perform all judicial duties, including the delivery of
reserved decisions, efficiently fairly and with reasonable promptness.
(Emphasis supplied)
In furtherance of the foregoing mandate, the Court issued Administrative
Circular No. 13-8737 [dated July 1, 1987], which states:
The reorganized judiciary is tasked with the tremendous responsibility of
assisting parties litigants in obtaining just, speedy and inexpensive
determination of their cases and proceedings as directed in Rule 1, Section
2 of the Rules of Court.38 Delay is a recurring complaint of every litigant.
The main objective of every judge, particularly trial judges, should be to
avoid delays, or if it cannot be totally avoided, to hold them to the
minimum and to repudiate manifestly dilatory tactics.
GENERAL GUIDELINES
For all members of the judiciary, the following guidelines are hereby
issued:
xxxx
3. Judges shall observe scrupulously the periods prescribed by Article VIII,
Section 15 of the Constitution for the adjudication and resolution of all
cases or matters submitted in their courts. Thus, all cases or matters must
be decided or resolved within twelve months from date of submission by
all lower collegiate courts while all other lower courts are given a period of
three months to do so. x x x x
Also, [the] Court's Administrative Circular No. 1-88 39 [dated January 28,
1988] states that:
Pursuant to Sec. 12, Art. XVIII of the 1987 Constitution mandating the
adoption of a systematic plan to expedite the decision or resolution of
cases or matters pending in the Supreme Court and the lower courts prior
to the effectivity of the Constitution on February 2, 1987, the following
directives must be complied with strictly by all concerned.
x x x x40
In Re: Cases Submitted for Decision before Hon. Teofilo D. Baluma, Former
Judge, Branch 1, Tagbilaran City Bohol,41 the Court held that non-
compliance with the periods prescribed under Section 15, Article VIII of the
1987 Constitution constitutes gross inefficiency, and, perforce, warrants
the imposition of administrative sanctions against the defaulting judge,
viz.:
335 | J U D I C I A L D E P A R T M E N T C A S E S
The Court has consistently impressed upon judges the need to decide
cases promptly and expeditiously under the time-honored precept that
justice delayed is justice denied. Every judge should decide cases with
dispatch and should be careful, punctual, and observant in the
performance of his functions for delay in the disposition of cases erodes
the faith and confidence of our people in the judiciary, lowers its standards
and brings it into disrepute. Failure to decide a case within the
reglementary period is not excusable and constitutes gross inefficiency
warranting the imposition of administrative sanctions on the defaulting
judge. (Emphasis supplied)
While trial court judges are often burdened with heavy case loads which, in
turn, preclude the expeditious resolution of disputes, they are given the
option to, for good reasons, ask for an extension of the period within
which to resolve a particular case or any pending incident therein. In Re:
Report on the Judicial Audit conducted in the Regional Trial Court,
Branches 72 And 22, Narvacan, Ilocos Sur,42 citing the case of Office of the
Court Administrator v. Judge Javellana, the Court thus remarked: 43
x x x [A] judge cannot choose his deadline for deciding cases pending
before him. Without an extension granted by the Court, the failure to
decide even a single case within the required period constitutes gross
inefficiency that merits administrative sanction. If a judge is unable to
comply with the period for deciding cases or matters, he can, for good
reasons, ask for an extension.
An inexcusable failure to decide a case within the prescribed 90-day period
constitutes gross inefficiency, warranting the imposition of administrative
sanctions such as suspension from office without pay or fine on the
defaulting judge. The fines imposed vary in each case, depending chiefly on
the number of cases not decided within the reglementary period and other
factors, such as the presence of aggravating or mitigating circumstances,
the damage suffered by the parties as a result of the delay, the health and
age of the judge, and other analogous circumstances. (Emphasis supplied;
citations omitted)
As correctly observed by the OCA in this case, Judge Pichay failed to
resolve the subject motions, namely the motion for reconsideration and
supplemental motion, within the three (3) month-period prescribed
therefor. Records show that Sps. Marcelo’s period to file their
comment/opposition to the supplemental motion and/ or rejoinder to the
reply lapsed on October 18, 2009,44 at which time, the pending incidents
were, as stated in the Order dated October 1, 2009, already deemed
submitted for resolution. This is concordant with Section 15(2), Article VIII
of the 1987 Constitution which states that "[a] case or matter shall be
deemed submitted for decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the Rules of Court or by the
court itself."
Notwithstanding that the matter had already been submitted for
resolution, Judge Pichay continued with the proceedings by setting the
motions for hearing to the effect of unreasonably delaying the execution of
the subject decision. Indeed, while it has been held that a presiding judge
shall at all times remain in firm control of the proceedings, he is
nevertheless mandated to adopt a policy against unwarranted delays. 45 In
this case, Judge Pichay did not sufficiently explain the reasons as to why he
failed to resolve the pending incidents on time, as well as to why he still
had to set the same for hearing and repeatedly grant postponements
therefor, either motu proprio or by motion, despite the summary nature of
ejectment proceedings and the ministerial nature of the subsequent
issuance of a writ of execution. These considerations he should have been
fully aware of. As case law instructs, "[e]jectment cases are summary
proceedings intended to provide an expeditious means of protecting actual
possession or right of possession of property," 46 and that "it becomes
mandatory or ministerial duty of the court to issue a writ of execution to
enforce the judgment which has become executory," 47 as in Civil Case No.
2004-286. To add, the fact that Judge Pichay required medical attention on
June 7, 2010 is no excuse for his default, considering that on such date, the
subject motions were already due for resolution.48 Thus, without having
duly applied for any extension before the Court, Judge Pichay was bound
to resolve the pending incidents in the said case within the three (3)
month-period prescribed by the Constitution. This, he, however, failed to
do, and, as such, the imposition of administrative sanctions against him
remains in order.
336 | J U D I C I A L D E P A R T M E N T C A S E S
Pursuant to Section 9, Rule 140 of the Rules of Court, undue delay in
rendering a decision or order is considered as a less serious offense which
is punishable49 by either: (a) suspension from office without salary and
other benefits for not less than one (1) nor more than three (3) months; or
(b) a fine of more than ₱10,000.00 but not exceeding ₱20,000.00.
Considering, however, that Judge Pichay was held administratively liable
for the same offense in A.M. No. MTJ-10-1763 (formerly OCA IPI No. 09-
2209-MTJ),50 and hitherto warned that a repetition of a similar infraction
would warrant a more severe penalty, the Court deems it apt to increase
the fine recommended by the OCA from ₱10,000.00 to ₱12,000.00.
WHEREFORE, respondent Judge Ramsey Domingo G. Pichay is found
GUILTY of violating Section 9, Rule 140 of the Rules of Court for undue
delay in resolving the pending incidents relative to Civil Case No. 2004-286
and is thus FINED in the amount of ₱12,000.00. He is STERNLY WARNED
that a repetition of the same or similar offense will be dealt with more
severely.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Baguio City
FIRST DIVISION
A.M. No. MTJ-12-1806               April 7, 2014
(Formerly A.M. No. 11-4-36-MTCC)
OFFICE OF THE COURT ADMINISTRATOR, Complainant,
vs.
JUDGE BORROMEO R. BUSTAMANTE, MUNICIPAL TRIAL COURT IN CITIES,
ALAMINOS CITY, PANGASINAN, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
The present administrative matter arose from the judicial audit of the
Municipal Trial Court in Cities (MTCC) of Alaminos City, Pangasinan, then
presided by Judge Borromeo R. Bustamante (Bustamante). Judge
Bustamante retired on November 6, 2010.
Considering the impending retirement of Judge Bustamante, a judicial
audit of the MTCC was conducted on September 21, 2010 by a team from
the Office of the Court Administrator (OCA). In a Memorandum 1 dated
October 6, 2010, Deputy Court Administrator (DCA) Raul Bautista
Villanueva (Villanueva) informed Judge Bustamante of the initial audit
findings that, as of audit date, there were 35 cases for decision (21 of
which were already beyond the reglementary period) and 23 cases with
pending incidents for resolution (19 of which were already beyond the
reglementary period) in Judge Bustamante’s court. At the end of his
Memorandum, DCA Villanueva gave Judge Bustamante the following
directives:
1. EXPLAIN in writing within fifteen (15) days from receipt hereof
your failure to: [a] decide within the reglementary period Civil
Case Nos. 1847, 1870, 1937, 1978, 2056 and 2205, LRC Nos. 28, 65
and 70, and Criminal Case Nos. 5428, 6468, 6469, 6558, 7222,
7721, 8163, 8390, 8395, 8654, 9022 and 9288; and, [b] resolve the
incidents in Civil Case Nos. 1668 and 2132, Criminal Case Nos.
8004, 8005, 8006, 8580, 9015, 9016, 9190, 9191, 9196, 9232 and
9235;
2. DECIDE with dispatch the cases enumerated in item (I) above,
and to SUBMIT copies of the decisions to this Office within three
(3) days after your compulsory retirement; and
3. RESOLVE with dispatch the incidents for resolution in the cases
enumerated in item (II) above, and to SUBMIT copies of the
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resolution to this Office within the same period indicated in the
immediately preceding paragraph.2
Judge Bustamante submitted a letter3 dated November 8, 2010,4 addressed
to DCA Villanueva, in which he explained:
I have the honor to inform you that I have decided all the cases, Civil, LRC
and Criminal Cases submitted before my last day in office on November 5,
2010 except Civil Cases Nos. 1937 (Bustillo vs. Sps. Rabago) and 2056 (Cale
vs. Pader, et al.) because of lack of TSN taken when I was not yet the
Presiding Judge. I found out that there is [a] need to retake the testimonies
of the witness concerned so as to attain substantial justice.
As to why I failed to decide the said cases within the reglementary period,
it was because of the volume of work in this court. As it was noticed by the
Auditors when they came over to audit, I have already started deciding
with drafts attached to the records but I was overtaken by more pressing
matters that I have to take immediate attention, like urgent motions,
motions to dismiss, motions to quash, approval of bails. All of these are in
addition to my trial duties.
I have to work as early as 7:30 o’clock in the morning, and sometimes at
7:00 o’clock, with the desire to finish everything on time. I burned my
candle at night just [to] comply with my duties within the time frame but
because of human frailties, I failed to do so on time because as I said[,] of
the volume of work in this court. But nonetheless I have decided all the
cases submitted for decision before I retired except, as above stated, Civil
Cases Nos. 1737 and 2056 because of the reasons already stated.
Judge Bustamante further accounted for the cases with incidents for
resolution, as follows:
In Civil Cases, I have resolved the demurrer to evidence in Civil Cases Nos.
1668 and 2132. However, the motion to dismiss by defendant Celeste in
Civil Case No. 2222, considering the opposition of the plaintiff because of
their counterclaim, I believed the motion needs further hearing, hence, the
motion was not resolved. Similarly, the motion to dismiss in Civil Case No.
2254 needs further hearing, and if no order setting the motion for hearing,
it may be an oversight because of the submission of several cases for
decision almost at the same time.
In Criminal Cases, I have resolved the demurrer to evidence in Crim. Cases
Nos. 9015 & 9016 (People vs. Paltep vda. De Perio) and Crim. Cases Nos.
9148 & 9149 (People vs. Anselmo, Jr.) while Crim. Case No. 9196 was set
for further hearing.
On the motion to suspend proceedings in Crim. Cases Nos. 9190 & 9191, it
may have been an oversight because these cases are the off-shoots of Civil
Case No. 2222 and pre-trial conference for the marking of documentary
evidence has been subsequently set but the counsel for the accused failed
to appear.
The motion to dismiss in Crim. Cases Nos. 8615, 8616 & 8617, was not
resolved because of the prayer of the parties in open court for them to
await the resolution of the civil cases they filed before the Regional Trial
Court, as they are working for the settlement of these civil cases, which
may have [an] effect in these cases.
The other incidents were set for hearing so that the court could judiciously
resolve the matter.5
In support of his compliance, Judge Bustamante submitted to the OCA
copies of the decisions and resolutions he referred to in his letter.
The OCA submitted to the Court its Memorandum6 dated March 24, 2011,
reporting viz:
(1) Judge Bustamante had decided 33 out of the 35 cases for
decision in his court. Of the 33 cases decided by Judge
Bustamante, 13 were still within the reglementary period while 20
were already beyond the reglementary period. Of the 20 cases
Judge Bustamante had decided beyond the reglementary period,
10 were decided more than a year after their respective due dates
(ranging from 1 year and 8 days to 4 years and 7 months beyond
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the due dates) and 10 were decided within a year after their
respective due dates (ranging from 5 days to 6 months beyond
the due dates).
(2) Judge Bustamante had also resolved 6 out of the 23 cases with
pending incidents in his court, all of which were resolved beyond
their respective reglementary periods (ranging from 5 days to 3
years, 8 months, and 16 days after the due dates). As for the 17
other cases with pending incidents in his court, Judge Bustamante
reasoned that (a) the motions require further hearing; (b) there is
a need to await the resolution of other cases pending before
other courts; and (c) oversight. The OCA noted, though, that
Judge Bustamante failed to submit any order setting the pending
incidents for hearing or holding in abeyance the resolution of the
same until the related cases before other courts have already
been decided.
Unconvinced by Judge Bustamante’s explanations/reasons for his delay in
deciding cases and resolving pending incidents, the OCA recommended
that:
PREMISES CONSIDERED, we respectfully recommend that retired Judge
Borromeo R. Bustamante, formerly of the Municipal Trial Court in Cities,
Alaminos City, Pangasinan, be FINED in the amount of ₱20,000.00 for gross
inefficiency.
In a Resolution7 dated February 8, 2012, the case was re-docketed as a
regular administrative matter.
Judge Bustamante wrote the Court a letter dated July 3, 2013, stating that
although he already retired from the service on November 6, 2010, he has
yet to receive his retirement benefits (except for his accumulated leave
credits), because of the pendency of the instant administrative matter
against him. Consequently, Judge Bustamante prayed that the
administrative matter be resolved soonest so he could already receive his
retirement benefits or that his retirement benefits be released but a
certain amount commensurate to the fine that the Court might impose be
withheld.
The Court agrees with the findings and recommendation of the OCA.
Decision-making, among other duties, is the primordial and most
important duty of a member of the bench. The speedy disposition of cases
in the courts is a primary aim of the judiciary so the ends of justice may not
be compromised and the judiciary will be true to its commitment to
provide litigants their constitutional right to a speedy trial and a speedy
disposition of their cases.8
The Constitution, Code of Judicial Conduct, and jurisprudence consistently
mandate that a judge must decide cases within 90 days from submission.
As the Court summed up in Re: Report on the Judicial Audit Conducted in
the RTC, Br. 4, Dolores, Eastern Samar9:
Section 15, Article VIII of the Constitution states that judges must decide all
cases within three months from the date of submission. In Re: Report on
the Judicial Audit Conducted at the Municipal Trial Court in Cities (Branch
1), Surigao City, the Court held that:
A judge is mandated to render a decision not more than 90 days from the
time a case is submitted for decision. Judges are to dispose of the court’s
business promptly and decide cases within the period specified in the
Constitution, that is, 3 months from the filing of the last pleading, brief or
memorandum. Failure to observe said rule constitutes a ground for
administrative sanction against the defaulting judge, absent sufficient
justification for his non-compliance therewith.
Rule 1.02, Canon 1 of the Code of Judicial Conduct states that judges
should administer justice without delay. Rule 3.05 of Canon 3 states that
judges shall dispose of the court's business promptly and decide cases
within the required periods. In Office of the Court Administrator v.
Javellana, the Court held that:
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A judge cannot choose his deadline for deciding cases pending before him.
Without an extension granted by this Court, the failure to decide even a
single case within the required period constitutes gross inefficiency that
merits administrative sanction.
The Code of Judicial Conduct, specifically Canon 3, Rule 3.05 mandates
judges to attend promptly to the business of the court and decide cases
within the periods prescribed by law and the Rules. Under the 1987
Constitution, lower court judges are also mandated to decide cases within
90 days from submission.
Judges must closely adhere to the Code of Judicial Conduct in order to
preserve the integrity, competence and independence of the judiciary and
make the administration of justice more efficient. Time and again, we have
stressed the need to strictly observe this duty so as not to negate our
efforts to minimize, if not totally eradicate, the twin problems of
congestion and delay that have long plagued our courts.
In Office of the Court Administrator v. Garcia-Blanco, the Court held that
the 90-day reglementary period is mandatory. Failure to decide cases
within the reglementary period constitutes a ground for administrative
liability except when there are valid reasons for the delay. (Citation
omitted.)
This Court has always emphasized the need for judges to decide cases
within the constitutionally prescribed 90-day period. Any delay in the
administration of justice, no matter how brief, deprives the litigant of his
right to a speedy disposition of his case. Not only does it magnify the cost
of seeking justice, it undermines the people’s faith and confidence in the
judiciary, lowers its standards, and brings it to disrepute. 10
A member of the bench cannot pay mere lip service to the 90-day
requirement; he/she should instead persevere in its
implementation.11 Heavy caseload and demanding workload are not valid
reasons to fall behind the mandatory period for disposition of cases. 12 The
Court usually allows reasonable extensions of time to decide cases in view
of the heavy caseload of the trial courts. If a judge is unable to comply with
the 90-day reglementary period for deciding cases or matters, he/she can,
for good reasons, ask for an extension and such request is generally
granted.13 But Judge Bustamante did not ask for an extension in any of
these cases. Having failed to decide a case within the required period,
without any order of extension granted by the Court, Judge Bustamante is
liable for undue delay that merits administrative sanction.1âwphi1
Equally unacceptable for the Court is Judge Bustamante’s explanation that
he failed to decide Civil Case Nos. 1937 and 2056 because of the lack of
Transcript of Stenographic Notes (TSN). These two cases were allegedly
heard when he was not yet the presiding judge of the MTCC. Relevant
herein is the ruling of the Court in Re: Problem of Delays in Cases Before
the Sandiganbayan14:
The Constitution provides that a case shall be deemed submitted for
decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the Rules of Court or by the court itself. In
Administrative Circular No. 28, dated July 3, 1989, the Supreme Court
provided that "A case is considered submitted for decision upon the
admission of the evidence of the parties at the termination of the trial. The
ninety (90) days period for deciding the case shall commence to run from
submission of the case for decision without memoranda; in case the court
requires or allows its filing, the case shall be considered submitted for
decision upon the filing of the last memorandum or the expiration of the
period to do so, whichever is earlier. Lack of transcript of stenographic
notes shall not be a valid reason to interrupt or suspend the period for
deciding the case unless the case was previously heard by another judge
not the deciding judge in which case the latter shall have the full period of
ninety (90) days from the completion of the transcripts within which to
decide the same." x x x (Emphasis supplied, citations omitted.)
The OCA reported that contrary to his claim, Judge Bustamante
substantially heard Civil Case Nos. 1937 and 2056, until the two cases were
submitted for decision on November 20, 2009 and February 27, 2010,
respectively. Even if it were true that the two cases were heard by the
previous presiding judge of the MTCC, there is no showing that from the
time the cases had been submitted for decision until Judge Bustamante’s
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retirement on November 6, 2010, Judge Bustamante made an effort to
have the TSN completed. Although technically, the 90-day period would
have started to run only upon the completion of the TSN, the Court finds
Judge Bustamante’s lack of effort to have the TSN completed as the root
cause for the delay in deciding the two cases.
The Court is likewise unconvinced that the pending incidents in several
cases were left unresolved because of the need for further hearings in the
same. The incidents were already submitted for resolution and, as the OCA
observed, Judge Bustamante only saw the need for further hearings in said
cases after the conduct of the judicial audit. In addition, Judge Bustamante
did not submit any order setting the cases for hearing.
had already retired and can no longer be dismissed or suspended, it is
appropriate to impose upon him a penalty of a fine amounting to
₱20,000.00, to be deducted from his retirement benefits.
WHEREFORE, the Court finds retired Judge Borromeo R. Bustamante,
former Presiding Judge of the Municipal Trial Court in Cities, Alaminos City,
Pangasinan, GUILTY of undue delay in rendering decisions and orders, and
imposes upon him a FINE of ₱20,000.00, to be deducted from his
retirement benefits.
SO ORDERED.

Least acceptable of Judge Bustamante’s explanations for his delay in

deciding cases and/or resolving pending incidents was oversight. A judge is
responsible, not only for the dispensation of justice but also for managing
his court efficiently to ensure the prompt delivery of court services. Since
he is the one directly responsible for the proper discharge of his official
functions, he should know the cases submitted to him for decision or
resolution, especially those pending for more than 90 days. 15

There is no dispute that Judge Bustamante failed to decide cases and

resolve pending incidents within the reglementary period, and without
authorized extension from the Court and valid reason for such failure,
Judge Bustamante is administratively liable for undue delay in rendering a
decision or order.

Under the amendments to Rule 14016 of the Rules of Court, undue delay in
rendering a decision or order is a less serious charge, for which the
respondent judge shall be penalized with either (a) suspension from office
without salary and other benefits for not less than one nor more than
three months; or (b) a fine of more than ₱10,000.00, but not more than
₱20,000.00.

Considering the significant number of cases and pending incidents left

undecided/unresolved or decided/resolved beyond the reglementary
period by Judge Bustamante; as well as the fact that Judge Bustamante