G.R. No. 125416 September 26, 1996

SUBIC BAY METROPOLITAN AUTHORITY, petitioner,

vs.
COMMISSION ON ELECTIONS, ENRIQUE T. GARCIA and CATALINO A.
CALIMBAS, respondents.

PANGANIBAN, J.:

The 1987 Constitution is unique in many ways. For one thing, it institutionalized
people power in law-making. Learning from the bitter lesson of completely
surrending to Congress the sole authority to make, amend or repeal laws, the
present Constitution concurrently vested such prerogatives in the electorate by
expressly recognizing their residual and sovereign authority to ordain legislation
directly through the concepts and processes of initiative and of referendum.

In this Decision, this Court distinguishes referendum from initiative and discusses the
practical and legal implications of such differences. It also sets down some guidelines
in the conduct and implementation of these two novel and vital features of popular
democracy, as well as settles some relevant questions on jurisdiction — all with the
purpose of nurturing, protecting and promoting the people's exercise of direct
democracy.

In this action for certiorari and prohibition, petitioner seeks to nullify the respondent

Commission on Elections' Ruling dated April 17, 1996 and Resolution No. 2848
promulgated on June 27, 19961 denying petitioner's plea to stop the holding of a
local initiative and referendum on the proposition to recall Pambayang Kapasyahan
Blg. 10, Serye 1993, of the Sangguniang Bayan of Morong, Bataan.

The Facts

On March 13, 1992, Congress enacted Republic Act No. 7227 (The Bases Conversion
and Development Act of 1992), which among others, provided for the creation of the
Subic Economic Zone, thus:

Sec. 12. Subic Special Economic Zone. — Subject to the concurrence by

resolution of the Sangguniang Panlugnsod of the City of Olongapo and the
Sangguniang Bayan of the Municipalities of Subic. Morong and Hermosa,
there is hereby created a Special Economic and Free-port Zone consisting of
the City of Olongapo and the Municipality of Subic, Province of Zambales, the
lands occupied by the Subic Naval Base and its contiguous extensions as
embraced, covered and defined by the 1947 Military Bases Agreement
between the Philippines and the United States of America as amended, and
within the territorial jurisdiction of the Municipalities of Morong and Hermosa,
Province of Bataan, hereinafter referred to as the Subic Special Economic
Zone whose metes and bounds shall be delineated in a proclamation to be
issued by the President of the Philippines. Within thirty (30) days after the
approval of this Act, each local government unit shall submit its resolution of
 concurrence to join the Subic Special Economic Zone to the Office of the
President. Thereafter, the President of the Philippines shall issue a
proclamation defining the metes and bounds of the zone as provided herein."
(Emphasis supplied)

RA 7227 likewise created petitioner to implement the declared national policy of

converting the Subic military reservation into alternative productive uses.2 Petitioner
was organized with an authorized capital stock of P20 billion which was fully
subscribed and fully paid up by the Republic of the Philippines with, among other
assets, "(a)ll lands embraced, covered and defined in Section 12 hereof, as well as
permanent improvements and fixtures upon proper inventory not otherwise
alienated, conveyed, or transferred to another government agency".3

On November 24, 1992, the American navy turned over the Subic military
reservation to the Philippines government. Immediately, petitioner commenced the
implementation of its task, particularly the preservation of the sea-ports, airport,
buildings, houses and other installations left by the American navy.

In April 1993, the Sangguniang Bayan of Morong, Bataan passed Pambayang

Kapasyahan Bilang 10, Serye 1993, expressing therein its absolute concurrence, as
required by said Sec. 12 of RA 7227, to join the Subic Special Economic Zone. On
September 5, 1993, the Sangguniang Bayan of Morong submitted Pambayang
Kapasyahan Bilang 10, Serye 1993 to the Office of the President.

On May 24, 1993, respondents Garcia, Calimbas and their companions filed a
petition with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan
Blg. 10, Serye 1993. The petition prayed for the following:

I. Bawiin, nulipikahin at pawalang-bisa and Pambayang Kapasyahang Blg. 10,

Serye 1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa SSEFZ na
walang kundisyon.

II. Palitan ito ng isang Pambayang kapasyahan na aanib lamang ang Morong
sa SSEFZ kung ang mga sumusunod na kondisyones ay ipagkakaloob,
ipatutupad at isasagawa para sa kapakanan at interest ng Morong at Bataan:

(A) Ibalik sa Bataan ang "Virgin Forests" — isang bundok na

hindi nagagalaw at punong-puno ng malalaking punong-kahoy
at iba't-ibang halaman.

(B) Ihiwalay ang Grande Island sa SSEFZ at ibalik ito sa

Bataan.

(K) Isama ang mga lupain ng Bataan na nakapaloob sa SBMA

sa pagkukuenta ng salaping ipinagkaloob ng pamahalaang
national o "Internal Revenue Allotment" (IRA) sa Morong,
Hermosa at sa Lalawigan.

(D) Payagang magtatag rin ng sariling "special economic zones"

and bawat bayan ng Morong, Hermosa at Dinalupihan.
 (E) Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng
kikitain ng SBMA.

(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki

ng nasabing mga lupa.

(H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24

na oras at bukod dito sa magbukas pa ng pinto sa hangganan
naman ng Morong at Hermosa upang magkaroon ng
pagkakataong umunlad rin ang mga nasabing bayan, pati na rin
ng iba pang bayan ng Bataan.

(I) Tapusin ang pagkokonkreto ng mga daang Morong-Tala-

Orani at Morong-Tasig-Dinalupihan para sa kabutihan ng mga
taga-Bataan at tuloy makatulong sa pangangalaga ng mga
kabundukan.

(J) Magkakaroon ng sapat na representasyon sa pamunuan ng

SBMA ang Morong, Hermosa at Bataan.

The Sangguniang Bayan ng Morong acted upon the petition of respondents Garcia,

Calimbas, et al. by promulgating Pambayang Kapasyahan Blg. 18, Serye 1993,
requesting Congress of the Philippines so amend certain provisions of RA 7227,
particularly those concerning the matters cited in items (A), (B), (K), (E), and (G) of
private respondent's petition. The Sangguniang Bayan of Morong also informed
respondents that items (D) and (H) had already been referred to and favorably acted
upon by the government agencies concerned, such as the Bases Conversion
Development Authority and the Office of the President.

Not satisfied, and within 30 days from submission of their petition, herein
respondents resorted to their power initiative under the Local Government Code of
1991,4 Sec. 122 paragraph (b) of which provides as follows:

Sec. 122. Procedure in Local Initiative. —

xxx xxx xxx

(b) If no favorable action thereon is taken by the sanggunian concerned, the

proponents, through their duly authorized and registered representatives,
may invoke their power of initiative, giving notice thereof to the sangguniang
concerned.

x x x           x x x          x x x

On July 6, 1993, respondent Commission En Banc in Comelec Resolution No. 93-

1623 denied the petition for local initiative by herein private respondents on the
ground that the subject thereof was merely a resolution (pambayang kapasyahan)
and not an ordinance. On July 13, 1993, public respondent Comelec En Banc (thru
Comelec Resolution no. 93-1676) further directed its Provincial Election Supervisor to
hold action on the authentication of signatures being solicited by private
respondents.
On August 15, 1993, private respondents instituted a petition
for certiorari and mandamus5 before this Court against the Commission on Elections
and the Sangguniang Bayan of Morong, Bataan, to set aside Comelec Resolution No.
93-1623 insofar as it disallowed the conduct of a local initiative to annul Pambayang
Kapasyahan Bilang 10, Serye 1993, and Comelec Resolution No. 93-1676 insofar as
it prevented the Provincial Election Supervisor of Bataan from proceeding with the
authentication of the required number of signatures in support of the initiative and
the gathering of signatures.

On February 1, 1995, pursuant to Sec. 12 of RA 7227, the President of the

Philippines issued Proclamation No. 532 defining the metes and bounds of the SSEZ.
Said proclamation included in the SSEZ all the lands within the former Subic Naval
Base, including Grande Island and that portion of the former naval base within the
territorial jurisdiction of the Municipality of Morong.

On June 18, 19956, respondent Comelec issued Resolution No. 2845, adopting
therein a "Calendar of Activities for local referendum on certain municipal ordinance
passed by the Sangguniang Bayan of Morong, Bataan", and which indicated, among
others, the scheduled Referendum Day (July 27, 1996, Saturday). On June 27, 1996,
the Comelec promulgated the assailed Resolution No. 2848 providing for "the rules
and guidelines to govern the conduct of the referendum proposing to annul or
repeal Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong,
Bataan".

On July 10, 1996, petitioner instituted the present petition for certiorari and

prohibition contesting the validity of Resolution No. 2848 and alleging, inter alia, that
public respondent "is intent on proceeding with a local initiative that proposes an
amendment of a national law. . . .

The Issues

The petition6 presents the following "argument":

Respondent Commission on Elections committed a grave abuse of discretion

amounting to lack of jurisdiction in scheduling a local initiative which seeks
the amendment of a national law.

In his Comment, private respondent Garcia claims that (1) petitioner has failed to
show the existence of an actual case of controversy: (2) . . . petitioner seeks to
overturn a decision/judgment which has long become final and executory; (3) . . .
public respondent has not abused its discretion and has in fact acted within its
jurisdiction; (and) (4) . . . the concurrence of local government units is required for
the establishment of the Subic Special Economic Zone."

Private respondent Calimbas, now the incumbent Mayor of Morong, in his Reply
(should be Comment) joined petitioner's cause because "(a)fter several meetings
with petitioner's Chairman and staff and after consultation with legal counsel,
respondent Calimbas discovered that the demands in the petition for a local
initiative/referendum were not legally feasible." 7
The Solicitor General, as counsel for public respondent, identified two issues, as
follows:

1. Whether or not the Comelec can be enjoined from scheduling/conducting

the local initiative proposing to annul Pambayang Kapasyahan Blg. 10, Serye
1993 of the Sangguniang Bayan of Morong, Bataan.

2. Whether or not the Comelec committed grave abuse of discretion in

denying the request of petitioner SBMA to stop the local initiative.

On July 23, 1996, the Court heard oral argument by the parties, after which, it
issued the following Resolution:

The Court Resolved to: (1) GRANT the Motion to Admit the Attachment
Comment filed by counsel for private respondent Enrique T. Garcia, dated July
22, 1996 and (2) NOTE the: (a) Reply (should be comment) to the petition
for certiorari and prohibition with prayer for temporary restraining order
and/or writ of preliminary injunction, filed by counsel for respondent Catalino
Calimbas, date July 22, 1996; (b) Separate Comments on the petition, filed
by: (b-1) the Solicitor General for respondent Commission on Elections dated
July 19, 1996 and (b-2) counsel for private respondent Enrique T. Garcia,
dated July 22, 1996, all filed in compliance with the resolution of July 16,
1996 and (c) Manifestation filed by counsel for petitioner, dated July 22,
1996.

At the hearing of this case this morning, Atty. Rodolfo O. Reyes appeared and
argued for petitioner Subic Bay Metropolitan Authority (SBMA) while Atty.
Sixto Brillantes for private respondent Enrique T. Garcia, and Atty. Oscar L.
Karaan for respondent Catalino Calimbas. Solicitor General Raul Goco,
Assistant Solicitor General Cecilio O. Estoesta and Solicitor Zenaida
Hernandez-Perez appeared for respondent Commission on Elections with
Solicitor General Goco arguing.

Before the Court adjourned, the Court directed the counsel for both parties to
INFORM this Court by Friday, July 26, 1996, whether or not Commission on
Elections would push through with the initiative/referendum this Saturday,
July 27, 1996.

Thereafter, the case shall be considered SUBMITTED for resolution.

At 2:50 p.m., July 23, 1996, the Court received by facsimile transmission an
Order dated also on July 23, 1996 from the respondent Commission on
Elections En Banc inter alia "to hold in abeyance the scheduled referendum
(initiative) on July 27, 1996 pending resolution of G.R. No. 125416." In view
of this Order, the petitioner's application for a temporary restraining order
and/or writ of preliminary injunction has become moot and academic and will
thus not be passed upon by this Court at this time. Puno, J., no part due to
relationship. Bellosillo, J., is on leave.

After careful study of and judicious deliberation on the submissions and arguments of
the parties, the Court believes that the issues may be restated as follows:
 (1) Whether this petition "seeks to overturn a decision/judgment which has
long become final and executory"; namely, G.R. No. 111230, Enrique Garcia,
et al. vs. Commission on Elections, et al.;

(2) Whether the respondent Comelec committed grave abuse of discretion in

promulgating and implementing its Resolution No. 2848 which "govern(s) the
conduct of the referendum proposing to annul or repeal Pambayang
Kapasyahan Blg. 10, Serye 1993 of the Sangguniang Bayan of Morong,
Bataan;" and

(3) Whether the questioned local initiative covers a subject within the powers
of the people of Morong to enact; i.e., whether such initiative "seeks the
amendment of a national law."

First Issue: Bar by Final Judgment

Respondent Garcia contends that this Court had already ruled with finality in Enrique
T. Garcia, et al. vs. Commission on Elections, et al.8 on "the very issue raised in (the)
petition: whether or not there can be an initiative by the people of Morong, Bataan
on the subject proposition — the very same proposition, it bears emphasizing, the
submission of which to the people of Morong, Bataan is now sought to be enjoined
by petitioner . . .".

We disagree. The only issue resolved in the earlier Garcia case is whether a

municipal resolution as contra-distinguished from an ordinance may be the proper
subject of an initiative and/or referendum. We quote from our said Decision:9

In light of this legal backdrop, the essential issue to be resolved in the case at
bench is whether Pambayang Kapasyahan Blg. 10, serye 1993 of the
Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative.
Respondents take the negative stance as they contend that under the Local
Government Code of 1991 only an ordinance can be the subject of initiative.
They rely on Section 120, Chapter 2, Title XI, Book I of the Local Government
Code of 1991 which provides: "Local Initiative
Defined. — Local initiative is the legal process whereby the registered voters
of a local government until may directly propose, enact, or amend any
ordinance."

We reject respondents' narrow and literal reading of the above provision for it
will collide with the Constitution and will subvert the intent of the lawmakers
in enacting the provisions of the Local Government of 1991 on initiative and
referendum.

The Constitution clearly includes not only ordinance but resolutions as

appropriate subjects of a local initiative. Section 32 of Article VI provides in
luminous language: "The Congress shall, as early as possible, provide for a
system of initiative and referendum, and the exceptions therefrom, whereby
the people can directly propose and enact laws or approve or reject any act or
law or part thereof passed by the Congress, or local legislative body . . .". An
act includes a resolution. Black defines an act as "an expression of will or
purpose . . . it may denote something done . . . as a legislature, including not
merely physical acts, but also decrees, edicts, laws, judgments, resolves,
 awards, and determinations . . .". It is basic that a law should be construed in
harmony with and not in violation of the Constitution. In line with this
postulate, we held in In Re Guarina that "if there is doubt or uncertainty as to
the meaning of the legislative, if the words or provisions are obscure, or if the
enactment is fairly susceptible of two or more constructions, that
interpretation will be adopted which will avoid the effect of unconstitutionality,
even though it may be necessary, for this purpose, to disregard the more
usual or apparent import of the language used."

Moreover, we reviewed our rollo in said G.R. No. 111230 and we found that the sole
issue presented by the pleadings was the question of "whether or not a Sangguniang
Bayan Resolution can be the subject of a valid initiative or referendum".10

In the present case, petitioner is not contesting the propriety of a municipal

resolution as the form by which these two new constitutional prerogatives of the
people may be validly exercised. What is at issue here is whether Pambayang
Kapasyahan Blg. 10, Serye 1993, as worded, is sufficient in form and substance for
submission to the people for their approval; in fine, whether the Comelec acted
properly and juridically in promulgating and implementing Resolution No. 2848.

Second Issue: Sufficiency of Comelec Resolution No. 2848

The main issue in this case may be re-stated thus: Did respondent Comelec commit
grave abuse of discretion in promulgating and implementing Resolution No. 2848?

We answer the question in the affirmative.

To begin with, the process started by private respondents was an INITIATIVE but
respondent Comelec made preparations for a REFERENDUM only. In fact, in the body
of the Resolution 11 as reproduced in the footnote below, the word "referendum" is
repeated at least 27 times, but "initiative" is not mentioned at all. The Comelec
labeled the exercise as a "Referendum"; the counting of votes was entrusted to a
"Referendum Committee"; the documents were called "referendum returns"; the
canvassers, "Referendum Board of Canvassers" and the ballots themselves bore the
description "referendum". To repeat, not once was the word "initiative" used in said
body of Resolution No. 2848. And yet, this exercise is unquestionably an INITIATIVE.

There are statutory and conceptual demarcations between a referendum and an

initiative. In enacting the "Initiative and Referendum Act,12 Congress differentiated
one term from the other, thus:

(a) "Initiative" is the power of the people to propose amendments to the

Constitution or to propose and enact legislations through an election called for
the purpose.

There are three (3) systems of initiative, namely:

a.1. Initiative on the Constitution which refers to

a petition proposing amendments to the
Constitution;
 a.2. Initiative on statutes which refers to a
petition proposing to enact a national legislation;
and

a.3. Initiative on local legislation which refers to

a petition proposing to enact a regional,
provincial, city, municipal, or barangay law,
resolution or ordinance.

(b) "Indirect initiative" is exercise of initiative by the people through a

proposition sent to Congress or the local legislative body for action.

(c) "Referendum" is the power of the electorate to approve or reject a

legislation through an election called for the purpose. It may be of two
classes, namely:

c.1. Referendum on statutes which refers to a

petition to approve or reject an act or law, or
part thereof, passed by Congress; and

c.2 Referendum on local law which refers to a

petition to approve or reject a law, resolution or
ordinance enacted by regional assemblies and
local legislative bodies.

Along these statutory definitions, Justice Isagani A. Cruz13 defines initiative as the

"power of the people to propose bills and laws, and to enact or reject them at the
polls independent of the legislative assembly." On the other hand, he explains that
referendum "is the right reserved to the people to adopt or reject any act or measure
which has been passed by a legislative body and which in most cases would without
action on the part of electors become a law." The foregoing definitions, which are
based on Black's14 and other leading American authorities, are echoed in the Local
Government Code (RA 7160) substantially as follows:

Sec. 120. Local Initiative Defined. — Local initiative is the legal process
whereby the registered voters of local government unit may directly propose,
enact, or amend any ordinance.

Sec. 126. Local Referendum Defined. — Local referendum is the legal process
whereby the registered voters of the local government units may approve,
amend or reject any ordinance enacted by the sanggunian.

The local referendum shall be held under the control and direction of the
Comelec within sixty (60) days in case of provinces and cities, forty-five (45)
days in case of municipalities and thirty (30) days in case of baranggays.

The Comelec shall certify and proclaim the results of the said referendum.

Prescinding from these definitions, we gather that initiative is resorted to (or

initiated) by the people directly either because the law-making body fails or refuses
to enact the law, ordinance, resolution or act that they desire or because they want
to amend or modify one already existing. Under Sec. 13 of R.A. 6735, the local
legislative body is given the opportunity to enact the proposal. If it refuses/neglects
to do so within thirty (30) days from its presentation, the proponents through their
duly-authorized and registered representatives may invoke their power of initiative,
giving notice thereof to the local legislative body concerned. Should the proponents
be able to collect the number of signed conformities within the period granted by
said statute, the Commission on Elections "shall then set a date for the initiative (not
referendum) at which the proposition shall be submitted to the registered voters in
the local government unit concerned . . .".

On the other hand, in a local referendum, the law-making body submits to the
registered voters of its territorial jurisdiction, for approval or rejection, any ordinance
or resolution which is duly enacted or approved by such law-making authority. Said
referendum shall be conducted also under the control and direction of the
Commission on Elections.15

In other words, while initiative is entirely the work of the electorate, referendum is
begun and consented to by the law-making body. Initiative is a process of law-
making by the people themselves without the participation and against the wishes of
their elected representatives, while referendum consists merely of the electorate
approving or rejecting what has been drawn up or enacted by a legislative body.
Hence, the process and the voting in an initiative are understandably more complex
than in a referendum where expectedly the voters will simply write either "Yes" of
"No" in the ballot.

[Note: While the above quoted laws variously refer to initiative and referendum as
"powers" or "legal processes", these can be also be "rights", as Justice Cruz terms
them, or "concepts", or "the proposal" itself (in the case of initiative) being referred
to in this Decision.]

From the above differentiation, it follows that there is need for the Comelec to
supervise an initiative more closely, its authority thereon extending not only to the
counting and canvassing of votes but also to seeing to it that the matter or act
submitted to the people is in the proper form and language so it may be easily
understood and voted upon by the electorate. This is especially true where the
proposed legislation is lengthy and complicated, and should thus be broken down
into several autonomous parts, each such part to be voted upon separately. Care
must also be exercised that "(n)o petition embracing more than one subject shall be
submitted to the electorate,"16 although "two or more propositions may be submitted
in an initiative".17

It should be noted that under Sec. 13 (c) of RA 6735, the "Secretary of Local
Government or his designated representative shall extend assistance in the
formulation of the proposition."

In initiative and referendum, the Comelec exercises administration and supervision

of the process itself, akin to its powers over the conduct of elections. These law-
making powers belong to the people, hence the respondent Commission cannot
control or change the substance or the content of legislation. In the exercise of its
authority, it may (in fact it should have done so already) issue relevant and
adequate guidelines and rules for the orderly exercise of these "people-power"
features of our Constitution.
Third Issue: Withdrawal of Adherence and
Imposition of Conditionalities — Ultra Vires?

Petitioner maintains that the proposition sought to be submitted in the plebiscite,

namely, Pambayang Kapasyahan Blg. 10, Serye 1993, is ultra vires or beyond the
powers of the Sangguniang Bayan to enact,18 stressing that under Sec. 124 (b) of RA
7160 (the Local Government Code), "local initiative shall cover only such subjects or
matters as are within the legal powers of the sangguniang to enact." Elsewise stated,
a local initiative may enact only such ordinances or resolutions as the municipal
council itself could, if it decided to so enact. 19 After the Sangguniang Bayan of
Morong and the other municipalities concerned (Olongapo, Subic and Hermosa) gave
their resolutions of concurrence, and by reason of which the SSEZ had been created,
whose metes and bounds had already been delineated by Proclamation No. 532
issued on February 1, 1995 in accordance with Section 12 of R.A. No. 7227, the
power to withdraw such concurrence and/or to substitute therefor a conditional
concurrence is no longer within the authority and competence of the Municipal
Council of Morong to legislate. Furthermore, petitioner adds, the specific
conditionalities included in the questioned municipal resolution are beyond the
powers of the Council to impose. Hence, such withdrawal can no longer be enacted
or conditionalities imposed by initiative. In other words, petitioner insists, the
creation of SSEZ is now a faith accompli for the benefit of the entire nation. Thus,
Morong cannot unilaterally withdraw its concurrence or impose new conditions for
such concurrence as this would effectively render nugatory the creation by (national)
law of the SSEZ and would deprive the entire nation of the benefits to be derived
therefrom. Once created. SSEZ has ceased to be a local concern. It has become a
national project.

On the other hand, private respondent Garcia counters that such argument is
premature and conjectural because at this point, the resolution is just a proposal. If
the people should reject it during the referendum, then there is nothing to declare as
illegal.

Deliberating on this issue, the Court agrees with private respondent Garcia that
indeed, the municipal resolution is still in the proposal stage. It is not yet an
approved law. Should the people reject it, then there would be nothing to contest
and to adjudicate. It is only when the people have voted for it and it has become an
approved ordinance or resolution that rights and obligations can be enforced or
implemented thereunder. At this point, it is merely a proposal and the writ or
prohibition cannot issue upon a mere conjecture or possibility. Constitutionally
speaking, courts may decide only actual controversies, not hypothetical questions or
cases.20

We also note that the Initiative and Referendum Act itself provides21 that "(n)othing
in this Act shall prevent or preclude the proper courts from declaring null and void
any proposition approved pursuant to this Act . . . ."

So too, the Supreme Court is basically a review court.22 It passes upon errors of law
(and sometimes of fact, as in the case of mandatory appeals of capital offenses) of
lower courts as well as determines whether there had been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any "branch or
instrumentality" of government. In the present case, it is quite clear that the Court
has authority to review Comelec Resolution No. 2848 to determine the commission of
grave abuse of discretion. However, it does not have the same authority in regard to
the proposed initiative since it has not been promulgated or approved, or passed
upon by any "branch or instrumentality" or lower court, for that matter. The
Commission on Elections itself has made no reviewable pronouncements about the
issues brought by the pleadings. The Comelec simply included verbatim the proposal
in its questioned Resolution No. 2848. Hence, there is really no decision or action
made by a branch, instrumentality or court which this Court could take cognizance of
and acquire jurisdiction over, in the exercise of its review powers.

Having said that, we are in no wise suggesting that the Commelec itself has no
power to pass upon proposed resolutions in an initiative. Quite the contrary, we are
ruling that these matters are in fact within the initiatory jurisdiction of the
Commission — to which then the herein basic questions ought to have been
addressed, and by which the same should have been decided in the first instance. In
other words, while regular courts may take jurisdiction over "approved propositions"
per said Sec. 18 of R.A. 6735, the Comelec in the exercise of its quasi-judicial and
administrative powers may adjudicate and pass upon such proposals insofar as their
form and language are concerned, as discussed earlier; and it may be added, even
as to content, where the proposals or parts thereof are patently and clearly outside
the "capacity of the local legislative body to enact."23 Accordingly, the question of
whether the subject of this initiative is within the capacity of the Municipal Council of
Morong to enact may be ruled upon by the Comelec upon remand and after hearing
the parties thereon.

While on the subject of capacity of the local lawmaking body, it would be fruitful for
the parties and the Comelec to plead and adjudicate, respectively, the question of
whether Grande Island and the "virgin forest" mentioned in the proposed initiative
belong to the national government and thus cannot be segregated from the Zone
and "returned to Bataan" by the simple expedient of passing a municipal resolution.
We note that Sec. 13 (e) of R.A. 7227 speaks of the full subscription and payment of
the P20 billion authorized capital stock of the Subic Authority by the Republic, with,
aside from cash and other assets, the ". . . lands embraced, covered and defined in
Section 12 hereof, . . ." which includes said island and forests. The ownership of said
lands is question of fact that may be taken up in the proper forum — the Commission
on Elections.

Another question which the parties may wish to submit to the Comelec upon remand
of the initiative is whether the proposal, assuming it is within the capacity of the
Municipal Council to enact, may be divided into several parts for purposes of voting.
Item "I" is a proposal to recall, nullify and render without effect (bawiin, nulipikahin
at pawalangbisa) Municipal Resolution No. 10, Series of 1993. On the other hand,
Item "II" proposes to change or replace (palitan) said resolution with another
municipal resolution of concurrence provided certain conditions enumerated
thereunder would be granted, obeyed and implemented (ipagkakaloob, ipatutupad at
isasagawa) for the benefit and interest of Morong and Bataan. A voter may favor
Item I — i.e., he may want a total dismemberment of Morong from the Authority —
but may not agree with any of the conditions set forth in Item II. Should the
proposal then be divided and be voted upon separately and independently?

All told, we shall not pass upon the third issue of ultra vires on the ground of
prematurity.
Epilogue

In sum, we hold that (i) our decision in the earlier Garcia case is not a bar to the
present controversy as the issue raised and decided therein is different from the
questions involved here; (iii) the respondent Commission should be given an
opportunity to review and correct its errors in promulgating its Resolution No. 2848
and in preparing — if necessary — for the plebiscite; and (iii) that the said
Commission has administrative and initiatory quasi-judicial jurisdiction to pass upon
the question of whether the proposal is sufficient in form and language and whether
such proposal or part or parts thereof are clearly and patently outside the powers of
the municipal council of Morong to enact, and therefore violative of law.

In deciding this case, the Court realizes that initiative and referendum, as concepts
and processes, are new in our country. We are remanding the matter to the Comelec
so that proper corrective measures, as above discussed, may be undertaken, with a
view to helping fulfill our people's aspirations for the actualization of effective direct
sovereignty. Indeed we recognize that "(p)rovisions for initiative and referendum are
liberally construed to effectuate their purposes, to facilitate and not to hamper the
exercise by the voters of the rights granted thereby."24 In his authoritative treatise
on the Constitution, Fr. Joaquin G. Bernas, S. J. treasures these "instruments which
can be used should the legislature show itself indifferent to the needs of the
people."25 Impelled by a sense or urgency, Congress enacted Republic Act No. 6735
to give life and form to the constitutional mandate. Congress also interphased
initiative and referendum into the workings of local governments by including a
chapter on this subject in the Local Government Code of 1991.26 And the Commission
on Elections can do no less by seasonably and judiciously promulgating guidelines
and rules, for both national and local use, in implementation of these laws. For its
part, this Court early on expressly recognized the revolutionary import of reserving
people power in the process of law-making.27

Like elections, initiative and referendum are powerful and valuable modes of
expressing popular sovereignty. And this Court as a matter of policy and doctrine will
exert every effort to nurture, protect and promote their legitimate exercise. For it is
but sound public policy to enable the electorate to express their free and
untrammeled will, not only in the election of their anointed lawmakers and
executives, but also in the formulation of the very rules and laws by which our
society shall be governed and managed.

WHEREFORE the petition is GRANTED. Resolution No. 2848 is ANNULLED and SET
ASIDE. The initiative on Pambayang Kapasyahan Blg. 10, Serye 1993 is REMANDED
to the Commission on Elections for further proceeding consistent with the foregoing
discussion. No costs.

IT IS SO ORDERED
G.R. No. 129093            August 30, 2001

HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA, and HON.

CALIXTO CATAQUIZ, petitioners,
vs.
HON. FRANCISCO DIZON PAÑO and TONY CALVENTO, respondents.

QUISUMBING, J.:

For our resolution is a petition for review on certiorari seeking the reversal of the decision 1
dated February 10, 1997 of the Regional Trial Court of San Pedro, Laguna, Branch 93,
enjoining petitioners from implementing or enforcing Kapasiyahan Bilang 508, Taon 1995, of
the Sangguniang Panlalawigan of Laguna and its subsequent Order 2 dated April 21, 1997
denying petitioners' motion for reconsideration.

On December 29, 1995, respondent Tony Calvento was appointed agent by the Philippine
Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for the operation of lotto. He
asked Mayor Calixto Cataquiz, Mayor of San Pedro, Laguna, for a mayor's permit to open
the lotto outlet. This was denied by Mayor Cataquiz in a letter dated February 19, 1996. The
ground for said denial was an ordinance passed by the Sangguniang Panlalawigan of Laguna
entitled Kapasiyahan Blg. 508, T. 1995 which was issued on September 18, 1995. The
ordinance reads:

ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO NA ANG

LOTTO SA LALAWIGAN NG LAGUNA

SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;

SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit sa

mga kabataan;

KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at Kgg.
Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C. Larano at buong
pagkakaisang sinangayunan ng lahat ng dumalo sa pulong;

IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang uri
ng sugal dito sa lalawigan ng Laguna lalo't higit ang Lotto;

IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno ng

Philippine National Police (PNP) Col. [illegible] na mahigpit na pag-ibayuhin ang
pagsugpo sa lahat ng uri ng illegal na sugal sa buong lalawigan ng Laguna lalo na
ang "Jueteng".3

As a result of this resolution of denial, respondent Calvento filed a complaint for declaratory
relief with prayer for preliminary injunction and temporary restraining order. In the said
complaint, respondent Calvento asked the Regional Trial Court of San Pedro Laguna, Branch
93, for the following reliefs: (1) a preliminary injunction or temporary restraining order,
ordering the defendants to refrain from implementing or enforcing Kapasiyahan Blg. 508, T.
1995; (2) an order requiring Hon. Municipal Mayor Calixto R Cataquiz to issue a business
permit for the operation of a lotto outlet; and (3) an order annulling or declaring as
invalid Kapasiyahan Blg. 508, T. 1995.
On February 10, 1997, the respondent judge, Francisco Dizon Paño, promulgated his
decision enjoining the petitioners from implementing or enforcing resolution or Kapasiyahan
Blg. 508, T. 1995. The dispositive portion of said decision reads:

WHEREFORE, premises considered, defendants, their agents and representatives are

hereby enjoined from implementing or enforcing resolution or kapasiyahan blg. 508,
T. 1995 of the Sangguniang Panlalawigan ng Laguna prohibiting the operation of the
lotto in the province of Laguna.

SO ORDERED.4

Petitioners filed a motion for reconsideration which was subsequently denied in an Order
dated April 21, 1997, which reads:

Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr. and the
Sangguniang Panlalawigan of Laguna, thru counsel, with the opposition filed by
plaintiff's counsel and the comment thereto filed by counsel for the defendants which
were duly noted, the Court hereby denies the motion for lack of merit.

SO ORDERED.5

On May 23, 1997, petitioners filed this petition alleging that the following errors were
committed by the respondent trial court:

THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM IMPLEMENTING

KAPASIYAHAN BLG. 508, T. 1995 OF THE SANGGUNIANG PANLALAWIGAN OF
LAGUNA PROHIBITING THE OPERATION OF THE LOTTO IN THE PROVINCE OF
LAGUNA.

II

THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY THE

PETITIONERS THAT BEFORE ANY GOVERNMENT PROJECT OR PROGRAM MAY BE
IMPLEMENTED BY THE NATIONAL AGENCIES OR OFFICES, PRIOR CONSULTATION
AND APPROVAL BY THE LOCAL GOVERNMENT UNITS CONCERNED AND OTHER
CONCERNED SECTORS IS REQUIRED.

Petitioners contend that the assailed resolution is a valid policy declaration of the Provincial
Government of Laguna of its vehement objection to the operation of lotto and all forms of
gambling. It is likewise a valid exercise of the provincial government's police power under
the General Welfare Clause of Republic Act 7160, otherwise known as the Local Government
Code of 1991.6 They also maintain that respondent's lotto operation is illegal because no
prior consultations and approval by the local government were sought before it was
implemented contrary to the express provisions of Sections 2 (c) and 27 of R.A. 7160.7

For his part, respondent Calvento argues that the questioned resolution is, in effect, a
curtailment of the power of the state since in this case the national legislature itself had
already declared lotto as legal and permitted its operations around the country.8 As for the
allegation that no prior consultations and approval were sought from the sangguniang
panlalawigan of Laguna, respondent Calvento contends this is not mandatory since such a
requirement is merely stated as a declaration of policy and not a self-executing provision of
the Local Government Code of 1991.9 He also states that his operation of the lotto system is
legal because of the authority given to him by the PCSO, which in turn had been granted a
franchise to operate the lotto by Congress.10

The Office of the Solicitor General (OSG), for the State, contends that the Provincial
Government of Laguna has no power to prohibit a form of gambling which has been
authorized by the national government.11 He argues that this is based on the principle that
ordinances should not contravene statutes as municipal governments are merely agents of
the national government. The local councils exercise only delegated legislative powers which
have been conferred on them by Congress. This being the case, these councils, as
delegates, cannot be superior to the principal or exercise powers higher than those of the
latter. The OSG also adds that the question of whether gambling should be permitted is for
Congress to determine, taking into account national and local interests. Since Congress has
allowed the PCSO to operate lotteries which PCSO seeks to conduct in Laguna, pursuant to
its legislative grant of authority, the province's Sangguniang Panlalawigan cannot nullify the
exercise of said authority by preventing something already allowed by Congress.

The issues to be resolved now are the following: (1) whether Kapasiyahan Blg. 508, T. 1995
of the Sangguniang Panlalawigan of Laguna and the denial of a mayor's permit based
thereon are valid; and (2) whether prior consultations and approval by the
concerned Sanggunian are needed before a lotto system can be operated in a given local
government unit.

The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a mayor's
permit for the operation of a lotto outlet in favor of private respondent. According to the
mayor, he based his decision on an existing ordinance prohibiting the operation of lotto in
the province of Laguna. The ordinance, however, merely states the "objection" of the
council to the said game. It is but a mere policy statement on the part of the local council,
which is not self-executing. Nor could it serve as a valid ground to prohibit the operation of
the lotto system in the province of Laguna. Even petitioners admit as much when they
stated in their petition that:

5.7. The terms of the Resolution and the validity thereof are express and clear. The
Resolution is a policy declaration of the Provincial Government of Laguna of its
vehement opposition and/or objection to the operation of and/or all forms of
gambling including the Lotto operation in the Province of Laguna.12

As a policy statement expressing the local government's objection to the lotto, such
resolution is valid. This is part of the local government's autonomy to air its views which
may be contrary to that of the national government's. However, this freedom to exercise
contrary views does not mean that local governments may actually enact ordinances that go
against laws duly enacted by Congress. Given this premise, the assailed resolution in this
case could not and should not be interpreted as a measure or ordinance prohibiting the
operation of lotto.

The game of lotto is a game of chance duly authorized by the national government through
an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42, is the law
which grants a franchise to the PCSO and allows it to operate the lotteries. The pertinent
provision reads:
 SECTION 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity
Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs, medical
assistance and services and charities of national character, and as such shall have
the general powers conferred in section thirteen of Act Numbered One thousand four
hundred fifty-nine, as amended, and shall have the authority:

A. To hold and conduct charity sweepstakes races, lotteries, and other similar
activities, in such frequency and manner, as shall be determined, and subject to such
rules and regulations as shall be promulgated by the Board of Directors.

This statute remains valid today. While lotto is clearly a game of chance, the national
government deems it wise and proper to permit it. Hence, the Sangguniang Panlalawigan of
Laguna, a local government unit, cannot issue a resolution or an ordinance that would seek
to prohibit permits. Stated otherwise, what the national legislature expressly allows by law,
such as lotto, a provincial board may not disallow by ordinance or resolution.

In our system of government, the power of local government units to legislate and enact
ordinances and resolutions is merely a delegated power coming from Congress. As held
in Tatel vs. Virac,13 ordinances should not contravene an existing statute enacted by
Congress. The reasons for this is obvious, as elucidated in Magtajas v. Pryce Properties
Corp.14

Municipal governments are only agents of the national government. Local councils
exercise only delegated legislative powers conferred upon them by Congress as the
national lawmaking body. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter. It is a heresy to suggest that the
local government units can undo the acts of Congress, from which they have derived
their power in the first place, and negate by mere ordinance the mandate of the
statute.

Municipal corporations owe their origin to, and derive their powers and rights wholly
from the legislature. It breathes into them the breath of life, without which they
cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and
control. Unless there is some constitutional limitation on the right, the legislature
might, by a single act, and if we can suppose it capable of so great a folly and so
great a wrong, sweep from existence all of the municipal corporations in the state,
and the corporation could not prevent it. We know of no limitation on the right so far
as the corporation themselves are concerned. They are, so to phrase it, the mere
tenants at will of the legislature (citing Clinton vs. Ceder Rapids, etc. Railroad Co.,
24 Iowa 455).

Nothing in the present constitutional provision enhancing local autonomy dictates a different
conclusion.

The basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening
the policy of local autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units although in
significantly reduced degree now than under our previous Constitutions. The power
to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
 Constitution, like the direct conferment on the local government units of the power
to tax (citing Art. X, Sec. 5, Constitution), which cannot now be withdrawn by mere
statute. By and large, however, the national legislature is still the principal of the
local government units, which cannot defy its will or modify or violate it.15

Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and confined within the
extent allowed by the central authority. Besides, the principle of local autonomy under the
1987 Constitution simply means "decentralization". It does not make local governments
sovereign within the state or an "imperium in imperio".16

To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail
of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification to
prohibit lotto in his municipality. For said resolution is nothing but an expression of the local
legislative unit concerned. The Board's enactment, like spring water, could not rise above its
source of power, the national legislature.

As for the second issue, we hold that petitioners erred in declaring that Sections 2 (c) and
27 of Republic Act 7160, otherwise known as the Local Government Code of 1991, apply
mandatorily in the setting up of lotto outlets around the country. These provisions state:

SECTION 2. Declaration of Policy. — . . .

(c) It is likewise the policy of the State to require all national agencies and offices to
conduct periodic consultations with appropriate local government units, non-
governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective
jurisdictions.

SECTION 27. Prior Consultations Required. — No project or program shall be

implemented by government authorities unless the consultations mentioned in
Section 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian
concerned is obtained; Provided, that occupants in areas where such projects are to
be implemented shall not be evicted unless, appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.

From a careful reading of said provisions, we find that these apply only to national programs
and/or projects which are to be implemented in a particular local community. Lotto is
neither a program nor a project of the national government, but of a charitable institution,
the PCSO. Though sanctioned by the national government, it is far fetched to say that lotto
falls within the contemplation of Sections 2 (c) and 27 of the Local Government Code.

Section 27 of the Code should be read in conjunction with Section 26 thereof.17 Section 26

reads:

SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological

Balance. - It shall be the duty of every national agency or government-owned or
controlled corporation authorizing or involved in the planning and implementation of
any project or program that may cause pollution, climatic change, depletion of non-
renewable resources, loss of crop land, range-land, or forest cover, and extinction of
animal or plant species, to consult with the local government units, nongovernmental
 organizations, and other sectors concerned and explain the goals and objectives of
the project or program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be undertaken to
prevent or minimize the adverse effects thereof.

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose effects are among those enumerated in Section 26 and 27, to
wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may
cause the depletion of non-renewable resources; (4) may result in loss of crop land, range-
land, or forest cover; (5) may eradicate certain animal or plant species from the face of the
planet; and (6) other projects or programs that may call for the eviction of a particular
group of people residing in the locality where these will be implemented. Obviously, none of
these effects will be produced by the introduction of lotto in the province of Laguna.

Moreover, the argument regarding lack of consultation raised by petitioners is clearly an

afterthought on their part. There is no indication in the letter of Mayor Cataquiz that this
was one of the reasons for his refusal to issue a permit. That refusal was predicated solely
but erroneously on the provisions of Kapasiyahan Blg. 508, Taon 1995, of the Sangguniang
Panlalawigan of Laguna.

In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from
enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of the Sangguniang
Panlalawigan of Laguna. That resolution expresses merely a policy statement of the Laguna
provincial board. It possesses no binding legal force nor requires any act of implementation.
It provides no sufficient legal basis for respondent mayor's refusal to issue the permit
sought by private respondent in connection with a legitimate business activity authorized by
a law passed by Congress.

WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional Trial Court
of San Pedro, Laguna enjoining the petitioners from implementing or enforcing Resolution or
Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of Laguna is hereby AFFIRMED. No
costs

The EDSA revolution of 1986 restored the reality that the people's might is not a myth. The
1987 Constitution then included people power as an article of faith and Congress was
mandated to p ass laws for its effective exercise. The Local Government Code of 1991 was
enacted providing for two (2) modes of initiating the recall from office of local elective
officials who appear to have lost the confidence of the electorate. One of these modes is
recall through the initiative of a preparatory recall assembly. In the case at bench,
petitioners assail this mode of initiatory recall as unconstitutional. The challenge cannot
succeed.

We shall first unfurl the facts.

Petitioner Enrique T. Garcia was elected governor of the province of Bataan in the May 11,
1992 elections. In the early evening of July 1993, some mayors, vice-mayors and members
of the Sangguniang Bayan of the twelve (12) municipalities of the province met at the
National Power Corporation compound in Bagac, Bataan. At about 12:30 A.M of the
following day, July 2, 1993, they proceeded to the Bagac town plaza where they constituted
themselves into a Preparatory Recall Assembly to initiate the recall election of petitioner
Garcia. The mayor of Mariveles, Honorable Oscar, de los Reyes, and the mayor of
Dinalupihan, the Honorable Lucila Payumo, were chosen as Presiding Officer and Secretary
of the Assembly, respectively. Thereafter, the Vice-Mayor of Limay, the Honorable Ruben
Roque, was recognized and he moved that a resolution be passed for the recall of the
petitioner on the ground of "loss of confidence."1 The motion was "unanimously
seconded."2 The resolution states:

RESOLUTION NO. 1

Whereas, the majority of all the members of the Preparatory Recall Assembly
in the Province of Bataan have voluntarily constituted themselves for the
purpose of the recall of the incumbent provincial governor of the province of
Bataan, Honorable Enrique T. Garcia pursuant to the provisions of Section 70,
paragraphs (a), (b) and (c) of Republic Act 7160, otherwise known as the
Local Government Code of 1991;

Whereas, the total number of all the members of the Preparatory Recall
Assembly in the province of Bataan is One Hundred and Forty- Six (146)
composed of all mayors, vice-mayors and members of the Sangguniang
Bayan of all the 12 towns of the province of Bataan;

Whereas, the majority of all the members of the Preparatory Recall Assembly,
after a serious and careful deliberation have decided to adopt this resolution
for the recall of the incumbent provincial governor Garcia for loss of
confidence;

Now, therefore, be it resolved, as it is hereby resolved that having lost

confidence on the incumbent governor of Bataan, Enrique T. Garcia, recall
proceedings be immediately initiated against him;

Resolved further, that copy of this resolution be furnished the Honorable

Commission on Elections, Manila and the Provincial Election Supervisor,
Balanga, Bataan.

One hundred forty-six (146) names appeared in Resolution No. 1 but only eighty (80)
carried the signatures of the members of the PRA. Of the eighty (80) signatures, only
seventy-four (74) were found genuine.3 The PRAC of the province had a membership of one
hundred forty-four (144)4 and its majority was seventy-three (73).

On July 7, 1993, petitioners filed with the respondent COMELEC a petition to deny due
course to said Resolution No. 1. Petitioners alleged that the PRAC failed to comply with the
"substantive and procedural requirement" laid down in Section 70 of R.A. 7160, otherwise
known as the Local Government Code of 1991. In a per curiam Resolution promulgated
August 31, 1993, the respondent COMELEC dismissed the petition and scheduled the recall
elections for the position of Governor of Bataan on October 11 , 1993. Petitioners then filed
with Us a petition for certiorari and prohibition with writ of preliminary injunction to annul
the said Resolution of the respondent COMELEC on various grounds. They urged that section
70 of R.A. 7160 allowing recall through the initiative of the PRAC is unconstitutional
because: (1) the people have the sole and exclusive right to decide whether or not to
initiate proceedings, and (2) it violated the right of elected local public officials belonging to
the political minority to equal protection of law. They also argued that the proceedings
followed by the PRAC in passing Resolution No. I suffered from numerous defects, the most
fatal of which was the deliberate failure to send notices of the meeting to sixty-five (65)
members of the assembly. On September 7, 1993, We required the respondents to file their
Comments within a non-extendible period of ten (10) days.5 On September 16, 1993, We
set petition for hearing on September 21, 1993 at 11 A.M. After the hearing, We granted
the petition on ground that the sending of selective notices to members of the PRAC
violated the due process protection of the Constitution and fatally flawed the enactment of
Resolution No. 1. We ruled:

xxx xxx xxx

After deliberation, the Court opts not to resolve the alleged constitutional
infirmity of sec. 70 of R.A. No. 7160 for its resolution is not unavoidable to
decide the merits of the petition. The petition can be decided on the equally
fundamental issues of: (1) whether or not all the members of the Preparatory
Recall Assembly were notified of its meeting; and (2) assuming lack of notice,
whether or not it would vitiate the proceedings of the assembly including its
Resolution No. 1.

The failure to give notice to all members of the assembly, especially to the
members known to be political allies of petitioner Garcia was admitted by
both counsels of the respondents. They did not deny that only those inclined
to agree with the resolution of recall were notified as a matter of political
strategy and security. They justified these selective notices on the ground
that the law does not specifically mandate the giving of notice.

We reject this submission of the respondents. The due process clause of the
Constitution requiring notice as an element of fairness is inviolable and should
always be considered as part and parcel of every law in case of its silence.
The need for notice to all the members of the assembly is also imperative for
these members represent the different sectors of the electorate of Bataan. To
the extent that they are not notified of the meeting of the assembly, to that
extent is the sovereign voice of the people they represent nullified. The
resolution to recall should articulate the majority will of the members of the
assembly but the majority will can be genuinely determined only after all the
members of the assembly have been given a fair opportunity to express the
will of their constituents. Needless to stress, the requirement of notice is
indispensable in determining the collective wisdom of the members of the
Preparatory Recall Assembly. Its non-observance is fatal to the validity of the
resolution to recall petitioner Garcia as Governor of the province of Bataan.

The petition raises other issues that are not only prima impressionis but also
of transcendental importance to the rightful exercise of the sovereign right of
the people to recall their elected officials. The Court shall discuss these issues
in a more extended decision.

In accord with this Resolution, it appears that on September 22, 1993, the Honorable Mayor
of Dinalupihan, Oscar de los Reyes again sent Notice of Session to the members of the PRAC
to "convene in session on September 26, 1993 at the town plaza of Balanga, Bataan at 8:30
o'clock in the morning."6 From news reports, the PRAC convened in session and eighty-
seven (87) of its members once more passed a resolution calling for the recall of petitioner
Garcia.7 On September 27, 1993, petitioners filed with Us a Supplemental Petition and
Reiteration of Extremely Urgent Motion for a resolution of their contention that section 70 of
R.A. 7160 is unconstitutional.

We find the original Petition and the Supplemental Petition assailing the constitutionality of
section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly initiate the recall
of local elective officials as bereft of merit.

Every law enjoys the presumption of validity. The presumption rests on the respect due to
the wisdom, integrity, and the patriotism of the legislative, by which the law is passed, and
the Chief Executive, by whom the law is
approved,8 For upholding the Constitution is not the responsibility of the judiciary alone but
also the duty of the legislative and executive.9 To strike down a law as unconstitutional,
there must be a clear and unequivocal showing that what the fundamental law prohibits, the
statute permits.10 The annulment cannot be decreed on a doubtful, and arguable
implication. The universal rule of legal hermeneutics is that all reasonable doubts should be
resolved in favor of the constitutionality of a law. 11

Recall is a mode of removal of a public officer by the people before the end of his term of
office. The people's prerogative to remove a public officer is an incident of their sovereign
power and in the absence of constitutional restraint, the power is implied in all
governmental operations. Such power has been held to be indispensable for the proper
administration of public affairs. 12 Not undeservedly, it is frequently described as a
fundamental right of the people in a representative democracy. 13

Recall is a mode of removal of elective local officials made its maiden appearance in our
1973 Constitution.14 It was mandated in section 2 of Article XI entitled Local
Government, viz:

Sec. 2. The Batasang Pambansa shall enact a local government code which
may not thereafter be amended except by a majority vote of all its Members,
defining a more responsive and accountable local government structure with
an effective system of recall, allocating among the different local government
units their powers, responsibilities, and resources, and providing for the
qualifications, election and removal, term, salaries, powers, functions, and
duties of local officials, and all other matters relating to the organization and
operation of the local units. However, any change in the existing form of local
government shall not take effect until ratified by a majority of the votes cast
in a plebiscite called for the purpose. (Emphasis supplied)

The Batasang Pambansa then enacted BP 337 entitled "The Local Government Code of

1983." Section 54 of its Chapter 3 provided only one mode of initiating the recall elections
of local elective officials, i.e., by petition of at least twenty-five percent (25%) of the total
number of registered voters in the local government unit concerned, viz:

Sec. 54. By Whom Exercised; Requisites. — (1) The power of recall shall be
exercised by the registered voters of the unit to which the local elective
official subject to such recall belongs.

(2) Recall shall be validly initiated only upon petition of at least twenty-five
percent (25%) of the total number of registered voters in the local
government unit concerned based on the election in which the local official
sought to be recalled was elected.
Our legal history does not reveal any instance when this power of recall as provided by BP
337 was exercised by our people.

In February 1986, however, our people more than exercised their right of recall for they
resorted to revolution and they booted of office the highest elective officials of the land.

The successful use of people power to remove public officials who have forfeited the trust of
the electorate led to its firm institutionalization in the 1987 Constitution. Its Article XIII
expressly recognized the Role and Rights of People's Organizations, viz:

Sec. 15. The State shall respect the role of independent people's
organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means.

People's organizations are bona fide associations of citizens with

demonstrated capacity to promote the public interest and with identifiable
leadership, membership, and structure.

Sec. 16. The right of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged. The State shall, by laws, facilitate the
establishment of adequate consultation mechanisms.

Section 3 of its Article X also reiterated the mandate for Congress to enact a local
government code which "shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative and
referendum. . .," viz :

Sec. 3. The Congress shall enact a local government code which shall provide
for a more responsible and accountable local government structure instituted
through a system of decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local government
units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the
organization and operation of the local units.

In response to this constitutional call, Congress enacted R.A. 7160, otherwise known as the
Local Government Code of 1991, which took effect on January 1, 1992. In this Code,
Congress provided for a second mode of initiating the recall process through a preparatory
recall assembly which in the provincial level is composed of all mayors, vice-mayors
and sanggunian members of the municipalities and component cities. We quote the
pertinent provisions of R.A. 7160, viz:

CHAPTER 5 — RECALL

Sec. 69. By Whom Exercised. — The power of recall for loss of confidence
shall be exercised by the registered voters of a local government unit to
which the local elective official subject to such recall belongs.
Sec. 70. Initiation of the Recall Process. (a) Recall may be initiated by a
preparatory recall assembly or by the registered voters of the local
government unit to which the local elective official subject to such recall
belongs.

(b) There shall be a preparatory recall assembly in every province, city,

district, and municipality which shall be composed of the following:

(1) Provincial Level. — all mayors, vice-mayors and sanggunian members of

the municipalities and component cities;

(2) City level. — All punong barangay and sangguniang barangay members in

the city;

(3) Legislative District level. — In cases where sangguniang panlalawigan

members are elected by district, all elective municipal officials in the district;
in cases where sangguniang panglungsod members are elected by district , all
elective barangay officials in the district; and

(4) Municipal level. — All punong barangay and sangguniang barangay

members in the municipality.

(c) A majority of all the preparatory recall assembly members may convene in
session in a public place and initiate a recall proceeding against any elective
official in the local government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a resolution adopted by a
majority of all the members of the preparatory recall assembly concerned
during its session called for the purpose.

(d) Recall of any elective provincial, city, municipal, or barangay official may
be validly initiated upon petition of at least twenty-five (25) percent of the
total number of registered voters in the local government unit concerned
during the election which in the local official sought to be recalled was
elected.

Sec. 71. Election Recall — Upon the filing of a valid resolution petition for with
the appropriate local office of the Comelec, the Commission or its duly
authorized representative shall set the date of the election on recall, which
shall not be later than thirty (30) days after the filing of the resolution or
petition recall in the case of the barangay, city, or municipal officials, forty-
five (45) days in the case of provincial officials. The official or officials sought
to be recalled shall automatically be considered as duly registered candidate
or candidates to the pertinent positions and, like other candidates, shall be
entitled to be voted upon.

Sec. 72. Effectivity of Recall. — The recall of an elective local official shall be

effective only upon the election and proclamation of a successor in the person
of the candidate receiving the highest number of votes cast during the
election on recall. Should the official sought to be recalled receive the highest
number of votes, confidence in him is thereby affirmed, and he shall continue
in office.
 Sec. 73. Prohibition from Resignation. — The elective local official sought to
be recalled shall not be allowed to resign while the recall process is in
progress.

Sec. 74. Limitations on Recall. — (a) Any elective local official may be the
subject of a recall election only once during his term of office for loss of
confidence.

(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding regular election.

A reading of the legislative history of these recall provisions will reveal that the idea of
empowering a preparatory recall assembly to initiate the recall from office of local elective
officials originated from the House of Representatives A reading of the legislative history of
these recall provisions will reveal that the idea of empowering a preparatory recall assembly
to initiate the recall from office of local elective officials, originated from the House of
Representatives and not the Senate. 15 The legislative records reveal there were two (2)
principal reasons why this alternative mode of initiating the recall process thru an assembly
was adopted, viz: (a) to diminish the difficulty of initiating recall thru the direct action of the
people; and (b) to cut down on its expenses. 16 Our lawmakers took note of the undesirable
fact that the mechanism initiating recall by direct action of the electorate was utilized only
once in the City of Angeles, Pampanga, but even this lone attempt to recall the city mayor
failed. Former Congressman Wilfredo Cainglet explained that this initiatory process by direct
action of the people was too cumbersome, too expensive and almost impossible to
implement. 17 Consequently, our legislators added in the a second mode of initiating the
recall of local officials thru a preparatory recall assembly. They brushed aside the argument
that this second mode may cause instability in the local government units due to its
imagined ease.

We have belabored the genesis of our recall law for it can light up many of the unillumined
interstices of the law. In resolving constitutional disputes, We should not be beguiled by
foreign jurisprudence some of which are hardly applicable because they have been dictated
by different constitutional settings and needs. Prescinding from this proposition, We shall
now resolve the contention of petitioners that the alternative mode of allowing a
preparatory recall assembly to initiate the process of recall is unconstitutional.

It is first postulated by the petitioners that "the right to recall does not extend merely to the
prerogative of the electorate to reconfirm or withdraw their confidence on the official sought
to be recalled at a special election. Such prerogative necessarily includes the sole and
exclusive right to decide on whether to initiate a recall proceedings or not." 18

We do not agree. Petitioners cannot point to any specific provision of the Constitution that
will sustain this submission. To be sure, there is nothing in the Constitution that will
remotely suggest that the people have the "sole and exclusive right to decide on whether
to initiate a recall proceeding." The Constitution did not provide for any mode, let alone a
single mode, of initiating recall elections. 19 Neither did it prohibit the adoption of multiple
modes of initiating recall elections. The mandate given by section 3 of Article X of the
Constitution is for Congress to "enact a local government code which shall provide for a
more responsive and accountable local government structure through a system of
decentralization with effective mechanisms of recall, initiative, and referendum . . ." By this
constitutional mandate, Congress was clearly given the power to choose the effective
mechanisms of recall as its discernment dictates. The power given was to select which
among the means and methods of initiating recall elections are effective to carry out the
judgment of the electorate. Congress was not straightjacketed to one particular mechanism
of initiating recall elections. What the Constitution simply required is that the mechanisms of
recall, whether one or many, to be chosen by Congress should be effective. Using its
constitutionally granted discretion, Congress deemed it wise to enact an alternative mode of
initiating recall elections to supplement the former mode of initiation by direct action of the
people. Congress has made its choice as called for by the Constitution and it is not the
prerogative of this Court to supplant this judgment. The choice may be erroneous but even
then, the remedy against a bad law is to seek its amendment or repeal by the legislative. By
the principle of separation of powers, it is the legislative that determines the necessity,
adequacy, wisdom and expediency of any law. 20

Petitioners also positive thesis that in passing Resolution 1, the Bataan Preparatory Recall
Assembly did not only initiate the process of recall but had de facto recalled petitioner
Garcia from office, a power reserved to the people alone. To quote the exact language of
the petitioners: "The initiation of a recall through the PRA effectively shortens and ends the
term of the incumbent local officials. Precisely, in the case of Gov. Garcia, an election was
scheduled by the COMELEC on 11 October 1993 to determine who has the right to assume
the unexpired portion of his term of office which should have been until June 1995. Having
been relegated to the status of a mere candidate for the same position of governor (by
operation of law) he has, therefore, been effectively recalled." 21 In their Extremely Urgent
Clarificatory Manifestation, 22 petitioners put the proposition more bluntly stating that a
"PRA resolution of recall is the re call itself."

Again, the contention cannot command our concurrence. Petitioners have misconstrued the
nature of the initiatory process of recall by the PRAC. They have embraced the view that
initiation by the PRAC is not initiation by the people. This is a misimpression for initiation by
the PRAC is also initiation by the people, albeit done indirectly through their
representatives. It is not constitutionally impermissible for the people to act through their
elected representatives. Nothing less than the paramount task of drafting our Constitution is
delegated by the people to their representatives, elected either to act as a constitutional
convention or as a congressional constituent assembly. The initiation of a recall process is a
lesser act and there is no rhyme or reason why it cannot be entrusted to and exercised by
the elected representatives of the people. More far out is petitioners' stance that a PRA
resolution of recall is the recall itself. It cannot be seriously doubted that a PRA resolution of
recall merely, starts the process. It is part of the process but is not the whole process. This
ought to be self evident for a PRA resolution of recall that is not submitted to the COMELEC
for validation will not recall its subject official. Likewise, a PRA resolution of recall that is
rejected by the people in the election called for the purpose bears no effect whatsoever. The
initiatory resolution merely sets the stage for the official concerned to appear before the
tribunal of the people so he can justify why he should be allowed to continue in office.
Before the people render their sovereign judgment, the official concerned remains in office
but his right to continue in office is subject to question. This is clear in section 72 of the
Local Government Code which states that "the recall of an elective local official shall be
effective only upon the election and proclamation of a successor in the person of the
candidate receiving the highest number of votes cast during the election on recall."

We shall next settle the contention of petitioners that the disputed law infracts the equal
protection clause of the Constitution. Petitioners asseverate:

5.01.2. It denied petitioners the equal protection of the laws for the local
officials constituting the majority party can constitute itself into a PRA and
 initiate the recall of a duly elected provincial official belonging to the minority
party thus rendering ineffectual his election by popular mandate. Relevantly,
the assembly could, to the prejudice of the minority (or even partyless)
incumbent official, effectively declare a local elective position vacant (and
demand the holding of a special election) for purely partisan political ends
regardless of the mandate of the electorate. In the case at bar, 64 of the 74
signatories to the recall resolution have been political opponents of petitioner
Garcia, not only did they not vote for him but they even campaigned against
him in the 1992 elections.

Petitioners' argument does not really assail the law but its possible abuse by the members
of the PRAC while exercising their right to initiate recall proceedings. More specifically, the
fear is expressed that the members of the PRAC may inject political color in their decision as
they may initiate recall proceedings only against their political opponents especially those
belonging to the minority. A careful reading of the law, however, will ineluctably show that it
does not give an asymmetrical treatment to locally elected officials belonging to the political
minority. First to be considered is the politically neutral composition of the preparatory
recall assembly. Sec. 70 (b) of the Code provides:

Sec. 70. Initiation of the Recall Process. (a) Recall may be initiated by a

preparatory recall assembly or by the registered voters of the local
government unit to which the local elective official subject to such recall
belongs.

(b) There shall be a preparatory recall assembly in every province, city,

district, and municipality which shall be composed of the following:

(1) Provincial level. — All mayors, vice-mayors and sanggunian members of

the municipalities and component cities;

(2) City level. — All punong barangay and sangguniang barangay members in

the city;

(3) Legislative District Level. — In cases where sangguniang panlalawigan

members are elected by district, all elective municipal officials in the district;
and in cases where sangguniang panglungsod members are elected by
district, all elective barangay officials in the district; and

(4) Municipal level. — All punong barangay and sangguniang barangay

members in the municipality.

Under the law, all mayors, vice-mayors and sangguniang members of the municipalities and
component cities are made members of the preparatory recall assembly at the provincial
level. Its membership is not apportioned to political parties. No significance is given to the
political affiliation of its members. Secondly, the preparatory recall assembly, at the
provincial level includes all the elected officials in the province concerned. Considering their
number, the greater probability is that no one political party can control its majority.
Thirdly, sec. 69 of the Code provides that the only ground to recall a locally elected public
official is loss of confidence of the people. The members of the PRAC are in the PRAC not in
representation of their political parties but as representatives of the people. By necessary
implication, loss of confidence cannot be premised on mere differences in political party
affiliation. Indeed, our Constitution encourages multi-party system for the existence of
opposition parties is indispensable to the growth and nurture of democratic system. Clearly
then, the law as crafted cannot be faulted for discriminating against local officials belonging
to the minority.

The fear that a preparatory recall assembly may be dominated by a political party and that
it may use its power to initiate the recall of officials of opposite political persuasions,
especially those belonging to the minority, is not a ground to strike down the law as
unconstitutional. To be sure, this argument has long been in disuse for there can be no
escape from the reality that all powers are susceptible of abuse. The mere possibility of
abuse cannot, however, infirm per se the grant of power to an individual or entity. To deny
power simply because it can be abused by the grantee is to render government powerless
and no people need an impotent government. There is no democratic government that can
operate on the basis of fear and distrust of its officials, especially those elected by the
people themselves. On the contrary, all our laws assume that officials, whether appointed or
elected, will act in good faith and will perform the duties of their office. Such presumption
follows the solemn oath that they took after assumption of office, to faithfully execute all
our laws.

Moreover, the law instituted safeguards to assure that the initiation of the recall process by
a preparatory recall assembly will not be corrupted by extraneous influences. As explained
above, the diverse and distinct composition of the membership of a preparatory recall
assembly guarantees that all the sectors of the electorate province shall be heard. It is for
this reason that in Our Resolution of September 21, 1993, We held that notice to all the
members of the recall assembly is a condition sine qua non to the validity of its
proceedings. The law also requires a qualified majority of all the preparatory recall assembly
members to convene in session and in a public place. It also requires that the recall
resolution by the said majority must be adopted during its session called for the purpose.
The underscored words carry distinct legal meanings and purvey some of the parameters
limiting the power of the members of a preparatory recall assembly to initiate recall
proceedings. Needless to state, compliance with these requirements is necessary,
otherwise, there will be no valid resolution of recall which can be given due course by the
COMELEC.

Furthermore, it cannot be asserted with certitude that the members of the Bataan
preparatory recall assembly voted strictly along narrow political lines. Neither the
respondent COMELEC nor this Court made a judicial inquiry as to the reasons that led the
members of the said recall assembly to cast a vote of lack of confidence against petitioner
Garcia. That inquiry was not undertaken for to do so would require crossing the forbidden
borders of the political thicket. Former Senator Aquilino Pimentel, Jr., a major author of the
subject law in his book The Local Government Code of 1991: The Key to National
Development, stressed the same reason why the substantive content of a vote of lack of
confidence is beyond any inquiry, thus:

There is only one ground for the recall of local government officials: loss of
confidence. This means that the people may petition or the Preparatory Recall
Assembly may resolve to recall any local elective officials without specifying
any particular ground except loss of confidence. There is no need for them to
bring up any charge of abuse or corruption against the local elective officials
who are the subject of any recall petition.

In the case of Evardone vs. Commission on Elections, et al., 204 SCRA 464,

472 (1991), the Court ruled that "loss of confidence" as a ground for recall is
 a political question. In the words of the Court, "whether or not the electorate
of the municipality of Sulat has lost confidence in the incumbent mayor is a
political question.

Any assertion therefore that the members of the Bataan preparatory recall assembly voted
due to their political aversion to petitioner Garcia is at best a surmise.

Petitioners also contend that the resolution of the members of the preparatory recall
assembly subverted the will of the electorate of the province of Bataan who elected
petitioner Garcia with a majority of 12,500 votes. Again, the contention proceeds from the
erroneous premise that the resolution of recall is the recall itself. It refuses to recognize the
reality that the resolution of recall is a mere proposal to the electorate of Bataan to subject
petitioner to a new test of faith. The proposal will still be passed upon by the sovereign
electorate of Bataan. As this judgment has yet to be expressed, it is premature to conclude
that the sovereign will of the electorate of Bataan has been subverted. The electorate of
Bataan may or may not recall petitioner Garcia in an appropriate election. If the electorate
re-elects petitioner Garcia, then the proposal to recall him made by the preparatory recall
assembly is rejected. On the other hand, if the electorate does not re-elect petitioner
Garcia, then he has lost the confidence of the people which he once enjoyed. The judgment
will write finis to the political controversy. For more than judgments of courts of law, the
judgment of the tribunal of the people is final for "sovereignty resides in the people and all
government authority emanates from them."

In sum, the petition at bench appears to champion the sovereignty of the people,
particularly their direct right to initiate and remove elective local officials thru recall
elections. If the petition would succeed, the result will be a return to the previous system of
recall elections which Congress found should be improved. The alternative mode of initiating
recall proceedings thru a preparatory recall assembly is, however, an innovative attempt by
Congress to remove impediments to the effective exercise by the people of their sovereign
power to check the performance of their elected officials. The power to determine this mode
was specifically given to Congress and is not proscribed by the Constitution.

IN VIEW WHEREOF, the original Petition and the Supplemental Petition assailing the
constitutionality of section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly
to initiate the recall process are dismissed for lack of merit. This decision is immediately
executory.

SO ORDERED.

EVARDONE

These two (2) consolidated petitions have their origin in en banc Resolution No. 90-0557
issued by the respondent Commission on Elections (COMELEC) dated 20 June 1990 which
approved the recommendation of the Election Registrar of Sulat, Eastern Samar to hold and
conduct the signing of the petition for recall of the incumbent Mayor of Sulat, Eastern
Samar, on 14 July 1990.
G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance of
a restraining order and/or writ of preliminary injunction to restrain the holding of the signing
of the petition for recall on 14 July 1990.

G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc
Resolution No. 90-0660 of the respondent COMELEC nullifying the signing process held on
14 July 1990 in Sulat, Eastern Samar for the recall of Mayor Evardone of said municipality
and en banc Resolution No. 90-0777 denying petitioners' motion for reconsideration, on the
basis of the temporary restraining order issued by this Court on 12 July 1990 in G.R. No.
94010.

Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of

Sulat, Eastern Samar, having been elected to the position during the 1988 local elections.
He assumed office immediately after proclamation.

On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival

(hereinafter referred to as Apelado, et al.) filed a petition for the recall of Evardone with the
Office of the Local Election Registrar, Municipality of Sulat.

In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No. 90-
0557, approving the recommendation of Mr. Vedasto B. Sumbilla, Election Registrar of
Sulat, Eastern Samar, to hold on 14 July 1990 the signing of the petition for recall against
incumbent Mayor Evardone of the said Municipality.

On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent
prayer for immediate issuance of restraining order and/or writ of preliminary injunction,
which was docketed as G.R. No. 94010.

On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO), effective
immediately and continuing until further orders from the Court, ordering the respondents to
cease and desist from holding the signing of the petition for recall on 14 July 1990, pursuant
to respondent COMELEC's Resolution No. 2272 dated 23 May 1990.

On the same day (12 July 1990), the notice of TRO was received by the Central Office of the
respondent COMELEC. But it was only on 15 July 1990 that the field agent of the respondent
COMELEC received the telegraphic notice of the TRO—a day after the completion of the
signing process sought to be temporarily stopped by the TRO.

In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC
nullified the signing process held in Sulat, Eastern Samar for being violative of the order
(the TRO) of this Court in G.R. No. 94010. Apelado, et al., filed a motion for reconsideration
and on 29 August 1990, the respondent COMELEC denied said motion holding that:

. . . The critical date to consider is the service or notice of the Restraining Order on 12 July
1990 upon the principal i.e. the Commission on Election, and not upon its agent in the field.
1

Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to set
aside en banc Resolution No. 90-0660 of respondent COMELEC.
 In G.R. No. 94010, Evardone contends that:

I. The COMELEC committed grave abuse of discretion in approving the recommendation of

the Election Registrar of Sulat, Eastern Samar to hold the signing of the petition for recall
without giving petitioner his day in court.

II. The COMELEC likewise committed grave abuse of discretion amounting to lack or excess
of jurisdiction in promulgating Resolution No. 2272 on May 22, 1990 which is null and void
for being unconstitutional. 2

In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing process of
the petition for recall held on 14 July 1990 has been rendered nugatory by the TRO issued
by this court in G.R. No. 94010 dated 12 July 1990 but received by the COMELEC field agent
only on 15 July 1990.

The principal issue for resolution by the Court is the constitutionality of Resolution No. 2272
promulgated by respondent COMELEC on 23 May 1990 by virtue of its powers under the
Constitution and Batas Pambansa Blg. 337 (Local Government Code). The resolution
embodies the general rules and regulations on the recall of elective provincial, city and
municipal officials.

Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas
Pambansa Blg. 337 in favor of one to be enacted by Congress. Said Section 3 provides:

Sec. 3. The Congress shall enact a local government code shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities and resources, and
provide for the qualifications, election, appointment and removal, term, salaries, powers
and functions and duties local officials, and all other matters relating to the organization
operation of the local units.

Since there was, during the period material to this case, no local government code enacted
by Congress after the effectivity of the 1987 Constitution nor any law for that matter on the
subject of recall of elected government officials, Evardone contends that there is no basis
for COMELEC Resolution No. 2272 and that the recall proceedings in the case at bar is
premature.

The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:

The constitutional provision does not refer only to a local government code which is in
futurum but also in esse. It merely sets forth the guidelines which Congress will consider in
amending the provisions of the present Local Government Code. Pending the enactment of
the amendatory law, the existing Local Government Code remains operative. The adoption
of the 1987 Constitution did not abrogate the provisions of BP No. 337, unless a certain
provision thereof is clearly irreconciliable with the provisions of the 1987 Constitution. In
this case, Sections 54 to 59 of Batas Pambansa No. 337 are not inconsistent with the
provisions of the Constitution. Hence, they are operative. 3

We find the contention of the respondent COMELEC meritorious.

Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws not
inconsistent with the 1987 Constitution shall remain operative, until amended, repealed or
revoked. Republic Act No. 7160 providing for the Local Government Code of 1991, approved
by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec.
534, Title Four of said Act. But the Local Government Code of 1991 will take effect only on 1
January 1992 and therefore the old Local Government Code (B.P. Blg. 337) is still the law
applicable to the present case. Prior to the enactment of the new Local Government Code,
the effectiveness of B.P. Blg. 337 was expressly recognized in the proceedings of the 1986
Constitutional Commission. Thus—

MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code under the
report of the Committee on Amendments and Transitory Provisions, the former Local
Government Code, which is Batas Pambansa Blg. 337 shall continue to be effective until
repealed by the Congress of the Philippines. 4

Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local
elective officials. Section 59 expressly authorizes the respondent COMELEC to conduct and
supervise the process of and election on recall and in the exercise of such powers,
promulgate the necessary rules and regulations.

The Election Code contains no special provisions on the manner of conducting elections for
the recall of a local official. Any such election shall be conducted in the manner and under
the rules on special elections, unless otherwise provided by law or rule of the COMELEC. 5
Thus, pursuant to the rule-making power vested in respondent COMELEC, it promulgated
Resolution No. 2272 on 23 May 1990.

We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid
and constitutional. Consequently, the respondent COMELEC had the authority to approve
the petition for recall and set the date for the signing of said petition.

The next issue for resolution is whether or not the TRO issued by this Court rendered
nugatory the signing process of the petition for recall held pursuant to Resolution No. 2272.

In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the
Philippines, et al., 6 this Court held:

. . What is sought in this suit is to enjoin respondents particularly respondent Commission

from implementing Batas Pambansa Blg. 86, specifically "from conducting, holding and
undertaking the plebiscite provided for in said act." The petition was filed on December 5,
1980. There was a plea for a restraining order, but Proclamation No. 2034 fixing the date
for such plebiscite on December 6, 1980 had been issued as far as back as November 11,
1980. Due this delay in to this suit, attributable solely to petitioners, there was no time
even to consider such a plea. The plebiscite was duly held. The certificate of canvass and
proclamation of the result disclosed that out of 2,409 total votes cast in such plebiscite,
2,368 votes were cast in favor of the creation of the new municipality, which, according to
the statute, will be named municipality of Aguinaldo. There were only 40 votes cast against.
As a result, such municipality was created. There is no turning back the clock. The moot and
academic character of this petition is thus apparent.
In the present case, the records show that Evardone knew of the Notice of Recall filed by
Apelado, et al. on or about 21 February 1990 as evidenced by the Registry Return Receipt;
yet, he was not vigilant in following up and determining the outcome of such notice.
Evardone alleges that it was only on or about 3 July 1990 that he came to know about the
Resolution of respondent COMELEC setting the signing of the petition for recall on 14 July
1990. But despite his urgent prayer for the issuance of a TRO, Evardone filed the petition
for prohibition only on 10 July 1990.

Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for
recall took place just the same on the scheduled date through no fault of the
respondent COMELEC and Apelado, et al. The signing process was undertaken by the
constituents of the Municipality of Sulat and its Election Registrar in good faith and
without knowledge of the TRO earlier issued by this Court. As attested by Election
Registrar Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern
Samar or about 34% signed the petition for recall. As held in Parades vs. Executive
Secretary 7 there is no turning back the clock.

The right to recall is complementary to the right to elect or appoint. It is included in the
right of suffrage. It is based on the theory that the electorate must maintain a direct and
elastic control over public functionaries. It is also predicated upon the idea that a public
office is "burdened" with public interests and that the representatives of the people holding
public offices are simply agents or servants of the people with definite powers and specific
duties to perform and to follow if they wish to remain in their respective offices. 8

Whether or not the electorate of the Municipality of Sulat has lost confidence in the
incumbent mayor is a political question. It belongs to the realm of politics where only the
people are the judge. 9 "Loss of confidence is the formal withdrawal by an electorate of
their trust in a person's ability to discharge his office previously bestowed on him by the
same electorate. 10 The constituents have made a judgment and their will to recall the
incumbent mayor (Evardone) has already been ascertained and must be afforded the
highest respect. Thus, the signing process held last 14 July 1990 in Sulat, Eastern Samar,
for the recall of Mayor Felipe P. Evardone of said municipality is valid and has legal effect.

However, recall at this time is no longer possible because of the limitation provided in Sec.
55 (2) of B.P. Blg, 337, which states:

Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held.— . . .

(2) No recall shall take place within two years from the date of the official's assumption of
office or one year immediately preceding a regular local election.

The Constitution has mandated a synchronized national and local election prior to 30 June
1992, or more specifically, as provided for in Article XVIII, Sec. 5 — on the second Monday
of May, 1992. 11 Thus, to hold an election on recall approximately seven (7) months before
the regular local election will be violative of the above provisions of the applicable Local
Government Code (B.P. Blg. 337)

ACCORDINGLY, both petitions are DISMISSED for having become moot and academic. SO
ORDERED.
Partido Manggawa vs. Comelec, 484 SCRA 671 (’06)

With prior leave of court,[1] petitioner Professional Services, Inc. (PSI) filed a second
motion for reconsideration[2] urging referral thereof to the Court en banc and seeking
modification of the decision dated January 31, 2007 and resolution dated February 11, 2008
which affirmed its vicarious and direct liability for damages to respondents Enrique Agana
and the heirs of Natividad Agana (Aganas).

Manila Medical Services, Inc. (MMSI),[3] Asian Hospital, Inc. (AHI),[4] and Private Hospital
Association of the Philippines (PHAP)[5] all sought to intervene in these cases invoking the
common ground that, unless modified, the assailed decision and resolution will jeopardize
the financial viability of private hospitals and jack up the cost of health care.

The Special First Division of the Court granted the motions for intervention of MMSI, AHI
and PHAP (hereafter intervenors),[6] and referred en consulta to the Court en banc the
motion for prior leave of court and the second motion for reconsideration of PSI.[7]

Due to paramount public interest, the Court en banc accepted the referral[8] and heard the
parties on oral arguments on one particular issue: whether a hospital may be held liable for
the negligence of physicians-consultants allowed to practice in its premises.[9]

To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan
Fuentes (Dr. Fuentes), was impleaded by Enrique Agana and Natividad Agana (later
substituted by her heirs), in a complaint[10] for damages filed in the Regional Trial Court
(RTC) of Quezon City, Branch 96, for the injuries suffered by Natividad when Dr. Ampil and
Dr. Fuentes neglected to remove from her body two gauzes[11] which were used in the
surgery they performed on her on April 11, 1984 at the Medical City General Hospital. PSI
was impleaded as owner, operator and manager of the hospital.

In a decision[12] dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil
and Dr. Fuentes for damages.[13] On appeal, the Court of Appeals (CA), absolved Dr.
Fuentes but affirmed the liability of Dr. Ampil and PSI, subject to the right of PSI to claim
reimbursement from Dr. Ampil.[14]

On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA decision.
[15] PSI filed a motion for reconsideration[16] but the Court denied it in a resolution dated
February 11, 2008.[17]

The Court premised the direct liability of PSI to the Aganas on the following facts and law:

First, there existed between PSI and Dr. Ampil an employer-employee relationship as
contemplated in the December 29, 1999 decision in Ramos v. Court of Appeals[18] that "for
purposes of allocating responsibility in medical negligence cases, an employer-employee
relationship exists between hospitals and their consultants."[19] Although the Court in
Ramos later issued a Resolution dated April 11, 2002[20] reversing its earlier finding on the
existence of an employment relationship between hospital and doctor, a similar reversal was
not warranted in the present case because the defense raised by PSI consisted of a mere
general denial of control or responsibility over the actions of Dr. Ampil.[21]
Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the public
impression that he was its agent.[22] Enrique testified that it was on account of Dr. Ampil's
accreditation with PSI that he conferred with said doctor about his wife's (Natividad's)
condition.[23] After his meeting with Dr. Ampil, Enrique asked Natividad to personally
consult Dr. Ampil.[24] In effect, when Enrigue and Natividad engaged the services of Dr.
Ampil, at the back of their minds was that the latter was a staff member of a prestigious
hospital. Thus, under the doctrine of apparent authority applied in Nogales, et al. v. Capitol
Medical Center, et al.,[25] PSI was liable for the negligence of Dr. Ampil.

Finally, as owner and operator of Medical City General Hospital, PSI was bound by its duty
to provide comprehensive medical services to Natividad Agana, to exercise reasonable care
to protect her from harm,[26] to oversee or supervise all persons who practiced medicine
within its walls, and to take active steps in fixing any form of negligence committed within
its premises.[27] PSI committed a serious breach of its corporate duty when it failed to
conduct an immediate investigation into the reported missing gauzes.[28]

PSI is now asking this Court to reconsider the foregoing rulings for these reasons:

The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009 Resolution
that the ruling in Ramos vs. Court of Appeals (G.R. No. 134354, December 29, 1999) that
"an employer-employee relations exists between hospital and their consultants" stays
should be set aside for being inconsistent with or contrary to the import of the resolution
granting the hospital's motion for reconsideration in Ramos vs. Court of Appeals (G.R. No.
134354, April 11, 2002), which is applicable to PSI since the Aganas failed to prove an
employer-employee relationship between PSI and Dr. Ampil and PSI proved that it has no
control over Dr. Ampil. In fact, the trial court has found that there is no employer-employee
relationship in this case and that the doctor's are independent contractors.

II Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily and
specifically look to the Medical City Hospital (PSI) for medical care and support; otherwise
stated, respondents Aganas did not select Medical City Hospital (PSI) to provide medical
care because of any apparent authority of Dr. Miguel Ampil as its agent since the latter was
chosen primarily and specifically based on his qualifications and being friend and neighbor.

III PSI cannot be liable under doctrine of corporate negligence since the proximate cause of
Mrs. Agana's injury was the negligence of Dr. Ampil, which is an element of the principle of
corporate negligence.[29]

In their respective memoranda, intervenors raise parallel arguments that the Court's ruling
on the existence of an employer-employee relationship between private hospitals and
consultants will force a drastic and complex alteration in the long-established and currently
prevailing relationships among patient, physician and hospital, with burdensome operational
and financial consequences and adverse effects on all three parties.[30]

The Aganas comment that the arguments of PSI need no longer be entertained for they
have all been traversed in the assailed decision and resolution.[31]
After gathering its thoughts on the issues, this Court holds that PSI is liable to the Aganas,
not under the principle of respondeat superior for lack of evidence of an employment
relationship with Dr. Ampil but under the principle of ostensible agency for the negligence of
Dr. Ampil and, pro hac vice, under the principle of corporate negligence for its failure to
perform its duties as a hospital.

While in theory a hospital as a juridical entity cannot practice medicine,[32] in reality it

utilizes doctors, surgeons and medical practitioners in the conduct of its business of
facilitating medical and surgical treatment.[33] Within that reality, three legal relationships
crisscross: (1) between the hospital and the doctor practicing within its premises; (2)
between the hospital and the patient being treated or examined within its premises and (3)
between the patient and the doctor. The exact nature of each relationship determines the
basis and extent of the liability of the hospital for the negligence of the doctor.

Where an employment relationship exists, the hospital may be held vicariously liable under
Article 2176[34] in relation to Article 2180[35] of the Civil Code or the principle of
respondeat superior. Even when no employment relationship exists but it is shown that the
hospital holds out to the patient that the doctor is its agent, the hospital may still be
vicariously liable under Article 2176 in relation to Article 1431[36] and Article 1869[37] of
the Civil Code or the principle of apparent authority.[38] Moreover, regardless of its
relationship with the doctor, the hospital may be held directly liable to the patient for its
own negligence or failure to follow established standard of conduct to which it should
conform as a corporation.[39]

This Court still employs the "control test" to determine the existence of an employer-
employee relationship between hospital and doctor. In Calamba Medical Center, Inc. v.
National Labor Relations Commission, et al.[40] it held:

Under the "control test", an employment relationship exists between a physician and a
hospital if the hospital controls both the means and the details of the process by which the
physician is to accomplish his task.

xx xx xx

As priorly stated, private respondents maintained specific work-schedules, as determined by

petitioner through its medical director, which consisted of 24-hour shifts totaling forty-eight
hours each week and which were strictly to be observed under pain of administrative
sanctions.

That petitioner exercised control over respondents gains light from the undisputed fact that
in the emergency room, the operating room, or any department or ward for that matter,
respondents' work is monitored through its nursing supervisors, charge nurses and
orderlies. Without the approval or consent of petitioner or its medical director, no operations
can be undertaken in those areas. For control test to apply, it is not essential for the
employer to actually supervise the performance of duties of the employee, it being enough
that it has the right to wield the power. (emphasis supplied)

Even in its December 29, 1999 decision[41] and April 11, 2002 resolution[42] in Ramos, the
Court found the control test decisive.
In the present case, it appears to have escaped the Court's attention that both the RTC and
the CA found no employment relationship between PSI and Dr. Ampil, and that the Aganas
did not question such finding. In its March 17, 1993 decision, the RTC found "that defendant
doctors were not employees of PSI in its hospital, they being merely consultants without
any employer-employee relationship and in the capacity of independent contractors."[43]
The Aganas never questioned such finding.

PSI, Dr. Ampil and Dr. Fuentes appealed[44] from the RTC decision but only on the issues
of negligence, agency and corporate liability. In its September 6, 1996 decision, the CA
mistakenly referred to PSI and Dr. Ampil as employer-employee, but it was clear in its
discussion on the matter that it viewed their relationship as one of mere apparent agency.
[45]

The Aganas appealed from the CA decision, but only to question the exoneration of Dr.
Fuentes.[46] PSI also appealed from the CA decision, and it was then that the issue of
employment, though long settled, was unwittingly resurrected.

In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no
employer-employee relationship, such finding became final and conclusive even to this
Court.[47] There was no reason for PSI to have raised it as an issue in its petition. Thus,
whatever discussion on the matter that may have ensued was purely academic.

Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this particular
instance, the concurrent finding of the RTC and the CA that PSI was not the employer of Dr.
Ampil is correct. Control as a determinative factor in testing the employer-employee
relationship between doctor and hospital under which the hospital could be held vicariously
liable to a patient in medical negligence cases is a requisite fact to be established by
preponderance of evidence. Here, there was insufficient evidence that PSI exercised the
power of control or wielded such power over the means and the details of the specific
process by which Dr. Ampil applied his skills in the treatment of Natividad. Consequently,
PSI cannot be held vicariously liable for the negligence of Dr. Ampil under the principle of
respondeat superior.

There is, however, ample evidence that the hospital (PSI) held out to the patient
(Natividad)[48] that the doctor (Dr. Ampil) was its agent. Present are the two factors that
determine apparent authority: first, the hospital's implied manifestation to the patient which
led the latter to conclude that the doctor was the hospital's agent; and second, the patient's
reliance upon the conduct of the hospital and the doctor, consistent with ordinary care and
prudence.[49]

Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the condition of his
wife; that after the meeting and as advised by Dr. Ampil, he "asked [his] wife to go to
Medical City to be examined by [Dr. Ampil]"; and that the next day, April 3, he told his
daughter to take her mother to Dr. Ampil.[50] This timeline indicates that it was Enrique
who actually made the decision on whom Natividad should consult and where, and that the
latter merely acceded to it. It explains the testimony of Natividad that she consulted Dr.
Ampil at the instigation of her daughter.[51]

Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:
Atty. Agcaoili

On that particular occasion, April 2, 1984, what was your reason for choosing Dr. Ampil to
contact with in connection with your wife's illness?

A. First, before that, I have known him to be a specialist on that part of the body as a
surgeon, second, I have known him to be a staff member of the Medical City which is a
prominent and known hospital. And third, because he is a neighbor, I expect more than the
usual medical service to be given to us, than his ordinary patients.[52] (emphasis supplied)

Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly
influenced by the impression that Dr. Ampil was a staff member of Medical City General
Hospital, and that said hospital was well known and prominent. Enrique looked upon Dr.
Ampil not as independent of but as integrally related to Medical City.

PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is of
record that PSI required a "consent for hospital care"[53] to be signed preparatory to the
surgery of Natividad. The form reads:

Permission is hereby given to the medical, nursing and laboratory staff of the Medical City
General Hospital to perform such diagnostic procedures and to administer such medications
and treatments as may be deemed necessary or advisable by the physicians of this hospital
for and during the confinement of xxx. (emphasis supplied)

By such statement, PSI virtually reinforced the public impression that Dr. Ampil was a
physician of its hospital, rather than one independently practicing in it; that the medications
and treatments he prescribed were necessary and desirable; and that the hospital staff was
prepared to carry them out.

PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the exclusive
basis of the Aganas' decision to have Natividad treated in Medical City General Hospital,
meaning that, had Dr. Ampil been affiliated with another hospital, he would still have been
chosen by the Aganas as Natividad's surgeon.[54]

The Court cannot speculate on what could have been behind the Aganas' decision but would
rather adhere strictly to the fact that, under the circumstances at that time, Enrique decided
to consult Dr. Ampil for he believed him to be a staff member of a prominent and known
hospital. After his meeting with Dr. Ampil, Enrique advised his wife Natividad to go to the
Medical City General Hospital to be examined by said doctor, and the hospital acted in a
way that fortified Enrique's belief.

This Court must therefore maintain the ruling that PSI is vicariously liable for the negligence
of Dr. Ampil as its ostensible agent.

Moving on to the next issue, the Court notes that PSI made the following admission in its
Motion for Reconsideration:

51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for Dr.
Ampil's acts during the operation. Considering further that Dr. Ampil was personally
engaged as a doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as "Captain of the
Ship", and as the Agana's doctor to advise her on what to do with her situation vis-a-vis the
two missing gauzes. In addition to noting the missing gauzes, regular check-ups were made
and no signs of complications were exhibited during her stay at the hospital, which could
have alerted petitioner PSI's hospital to render and provide post-operation services to and
tread on Dr. Ampil's role as the doctor of Mrs. Agana. The absence of negligence of PSI from
the patient's admission up to her discharge is borne by the finding of facts in this case.
Likewise evident therefrom is the absence of any complaint from Mrs. Agana after her
discharge from the hospital which had she brought to the hospital's attention, could have
alerted petitioner PSI to act accordingly and bring the matter to Dr. Ampil's attention. But
this was not the case. Ms. Agana complained ONLY to Drs. Ampil and Fuentes, not the
hospital. How then could PSI possibly do something to fix the negligence committed by Dr.
Ampil when it was not informed about it at all.[55](emphasis supplied)

PSI reiterated its admission when it stated that had Natividad Agana "informed the hospital
of her discomfort and pain, the hospital would have been obliged to act on it."[56]

The significance of the foregoing statements is critical.

First, they constitute judicial admission by PSI that while it had no power to control the
means or method by which Dr. Ampil conducted the surgery on Natividad Agana, it had the
power to review or cause the review of what may have irregularly transpired within its walls
strictly for the purpose of determining whether some form of negligence may have attended
any procedure done inside its premises, with the ultimate end of protecting its patients.

Second, it is a judicial admission that, by virtue of the nature of its business as well as its
prominence[57] in the hospital industry, it assumed a duty to "tread on" the "captain of the
ship" role of any doctor rendering services within its premises for the purpose of ensuring
the safety of the patients availing themselves of its services and facilities.

Third, by such admission, PSI defined the standards of its corporate conduct under the
circumstances of this case, specifically: (a) that it had a corporate duty to Natividad even
after her operation to ensure her safety as a patient; (b) that its corporate duty was not
limited to having its nursing staff note or record the two missing gauzes and (c) that its
corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his
attention, and correcting his negligence.

And finally, by such admission, PSI barred itself from arguing in its second motion for
reconsideration that the concept of corporate responsibility was not yet in existence at the
time Natividad underwent treatment;[58] and that if it had any corporate responsibility, the
same was limited to reporting the missing gauzes and did not include "taking an active step
in fixing the negligence committed."[59] An admission made in the pleading cannot be
controverted by the party making such admission and is conclusive as to him, and all proofs
submitted by him contrary thereto or inconsistent therewith should be ignored, whether or
not objection is interposed by a party.[60]
Given the standard of conduct that PSI defined for itself, the next relevant inquiry is
whether the hospital measured up to it.

PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed
the personal responsibility of informing Natividad about the two missing gauzes.[61] Dr.
Ricardo Jocson, who was part of the group of doctors that attended to Natividad, testified
that toward the end of the surgery, their group talked about the missing gauzes but Dr.
Ampil assured them that he would personally notify the patient about it.[62] Furthermore,
PSI claimed that there was no reason for it to act on the report on the two missing gauzes
because Natividad Agana showed no signs of complications. She did not even inform the
hospital about her discomfort.[63]

The excuses proffered by PSI are totally unacceptable.

To begin with, PSI could not simply wave off the problem and nonchalantly delegate to Dr.
Ampil the duty to review what transpired during the operation. The purpose of such review
would have been to pinpoint when, how and by whom two surgical gauzes were mislaid so
that necessary remedial measures could be taken to avert any jeopardy to Natividad's
recovery. Certainly, PSI could not have expected that purpose to be achieved by merely
hoping that the person likely to have mislaid the gauzes might be able to retrace his own
steps. By its own standard of corporate conduct, PSI's duty to initiate the review was non-
delegable.

While Dr. Ampil may have had the primary responsibility of notifying Natividad about the
missing gauzes, PSI imposed upon itself the separate and independent responsibility of
initiating the inquiry into the missing gauzes. The purpose of the first would have been to
apprise Natividad of what transpired during her surgery, while the purpose of the second
would have been to pinpoint any lapse in procedure that led to the gauze count discrepancy,
so as to prevent a recurrence thereof and to determine corrective measures that would
ensure the safety of Natividad. That Dr. Ampil negligently failed to notify Natividad did not
release PSI from its self-imposed separate responsibility.

Corollary to its non-delegable undertaking to review potential incidents of negligence

committed within its premises, PSI had the duty to take notice of medical records prepared
by its own staff and submitted to its custody, especially when these bear earmarks of a
surgery gone awry. Thus, the record taken during the operation of Natividad which reported
a gauze count discrepancy should have given PSI sufficient reason to initiate a review. It
should not have waited for Natividad to complain.

As it happened, PSI took no heed of the record of operation and consequently did not
initiate a review of what transpired during Natividad's operation. Rather, it shirked its
responsibility and passed it on to others - to Dr. Ampil whom it expected to inform
Natividad, and to Natividad herself to complain before it took any meaningful step. By its
inaction, therefore, PSI failed its own standard of hospital care. It committed corporate
negligence.

It should be borne in mind that the corporate negligence ascribed to PSI is different from
the medical negligence attributed to Dr. Ampil. The duties of the hospital are distinct from
those of the doctor-consultant practicing within its premises in relation to the patient;
hence, the failure of PSI to fulfill its duties as a hospital corporation gave rise to a direct
liability to the Aganas distinct from that of Dr. Ampil.
All this notwithstanding, we make it clear that PSI's hospital liability based on ostensible
agency and corporate negligence applies only to this case, pro hac vice. It is not intended to
set a precedent and should not serve as a basis to hold hospitals liable for every form of
negligence of their doctors-consultants under any and all circumstances. The ruling is
unique to this case, for the liability of PSI arose from an implied agency with Dr. Ampil and
an admitted corporate duty to Natividad.[64]

Other circumstances peculiar to this case warrant this ruling,[65] not the least of which
being that the agony wrought upon the Aganas has gone on for 26 long years, with
Natividad coming to the end of her days racked in pain and agony. Such wretchedness could
have been avoided had PSI simply done what was logical: heed the report of a guaze count
discrepancy, initiate a review of what went wrong and take corrective measures to ensure
the safety of Nativad. Rather, for 26 years, PSI hemmed and hawed at every turn,
disowning any such responsibility to its patient. Meanwhile, the options left to the Aganas
have all but dwindled, for the status of Dr. Ampil can no longer be ascertained.[66]

Therefore, taking all the equities of this case into consideration, this Court believes P15
million would be a fair and reasonable liability of PSI, subject to 12% p.a. interest from the
finality of this resolution to full satisfaction.WHEREFORE, the second motion for
reconsideration is DENIED and the motions for intervention are NOTED. Professional
Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her children
Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund
Agana) and Enrique Agana the total amount of P15 million, subject to 12% p.a. interest
from the finality of this resolution to full satisfaction.

No further pleadings by any party shall be entertained in this case.

Let the long-delayed entry of judgment be made in this case upon receipt by all concerned
parties of this resolution.

CIBAC vs. Comelec- G.R. No. 172103, April 13, 2007

Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court assailing the March
7, 2006 Commission on Elections (COMELEC) Resolution No. 06-0248,2 which rejected the
Motion for Proclamation of the Second Nominees of Citizens’ Battle Against Corruption
(CIBAC), et al. under the party-list system in connection with the May 2004 National and
Local Elections.

The Facts

The COMELEC, sitting en banc as the National Board of Canvassers for the Party-List
System, issued Resolution No. NBC 04-0043 promulgated on June 2, 2004, which
proclaimed petitioner CIBAC as one of those which qualified to occupy a seat in Congress
having received the required two percent (2%) of the total votes cast for the party-list
representatives. Based on Party-List Canvass Report No. 19,4 CIBAC received a total
number of 493,546 votes out of the 12,627,852 votes cast for all the party-list participants,
which, by applying the formula adopted by the Supreme Court in Veterans Federation Party
v. COMELEC,5 resulted in a percentage of 3.9084.6 In the computation for additional seats
for the parties, the COMELEC adopted a simplified formula of one additional seat per
additional 2%, thereby foreclosing the chances of CIBAC to gain an additional seat under
the party-list system for having received less than what was prescribed by the poll body.7

On June 22, 2004, petitioner CIBAC, together with Luzon Farmers Party (BUTIL) and Partido
ng Manggagawa (PM), filed a Joint Motion for Immediate Proclamation8 entreating the
COMELEC en banc to recognize their entitlement to an additional seat and that their second
nominees be immediately proclaimed. They based their claim on Ang Bagong Bayani-OFW
Labor Party v. COMELEC (Ang Bagong Bayani and Bayan Muna), applying the following
Veterans formula:

1awphi1.nét
Votes Cast for Qualified Party
Additional Seats
x Allotted Seats
= 9
Votes Cast for First Party for First Party

On March 7, 2006, the COMELEC en banc issued the challenged Resolution No. 06-0248
contained in the Excerpt from the Minutes of the Regular En Banc Meeting of the
COMELEC,10 which adopted the March 6, 2006 Memorandum of the Supervisory Committee
relative to the Urgent Motion to Resolve the Motion for Proclamation of the Second
Nominees of CIBAC, BUTIL, and PM party-lists, in connection with the May 2004 elections
for party-list representatives. The pertinent portion reads:

"On 01 May 2004, Commissioner Mehol K. Sadain, then CIC on Party-List Concerns, acting
on queries from several party-list candidates regarding the formula to be used by the
Commission in determining the additional seats for party list winners in the 10 May 2004
elections, issued a memorandum on the matter to the Commission en-banc. As a result, on
the [sic] 08 May 2004, the Commission en banc promulgated Resolution No. 6835 (Annex
‘A’) the resolutory portion of which reads… ‘RESOLVES, to adopt the simplified formula of
one additional seat per additional two percent (underscoring supplied) of the total party-list
votes in the proclamation of the party-list winners in the coming 10 May 2004 National and
Local Elections.’

The Party List Canvass Report No. 22 of the National Board of Canvassers, (Annex ‘B’)
shows that CIBAC, BUTIL and PM have the following percentage of total votes garnered:

CIBAC - 3.8638

BUTIL - 3.3479

PM - 3.4947

Following the simplified formula of the Commission, after the first 2% is deducted from the
percentage of votes of the above-named party-lists, they are no longer entitled to an
additional seat. It is worth mentioning that the Commission, consistent with its formula,
denied the petition for a seat of ABA-AKO and ANAD after garnering a percentage of votes
of 1.9900 and 1.9099 respectively.

For consideration."
Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to adopt
the recommendation of the Supervisory Committee to deny the foregoing Motion of CIBAC,
BUTIL and PM party-lists for proclamation of second nominees, following the simplified
formula of the Commission on the matter per Comelec Resolution No. 6835 promulgated 08
May 2004.

The Issues

Undeterred, CIBAC filed the instant Petition for Certiorari11 before this Court, raising two
issues, viz:1^vvphi1.net

A.

WHETHER OR NOT THE COMMISSION ON ELECTIONS, IN ADOPTING THE SIMPLIFIED

FORMULA OF ONE ADDITIONAL SEAT PER ADDITIONAL TWO PERCENT OF THE TOTAL
PARTY-LIST VOTES IN THE PROCLAMATION OF THE PARTY-LIST WINNERS IN THE MAY 10,
2004 NATIONAL AND LOCAL ELECTION, THUS, ADJUDGING THE PETITIONER HEREIN AS
ENTITLED ONLY TO ONE (1) SEAT, ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION.

B.

WHETHER OR NOT PETITIONER CIBAC, AND OTHER PARTY-LIST GROUPS SIMILARLY

SITUATED, ARE ENTITLED TO ONE (1) ADDITIONAL SEAT BASED ON THE FORMULA
CRAFTED BY THE SUPREME COURT IN THE CASES OF ANG BAGONG BAYANI AND BAYAN
MUNA.12

In gist, the core issue is whether or not the COMELEC gravely abused its discretion when it
denied petitioner CIBAC an additional seat in the House of Representatives under the party-
list system by using the simplified formula instead of the claimed Ang Bagong Bayani and
Bayan Muna formula.

Petitioner CIBAC asseverates that the COMELEC committed a serious departure from settled
jurisprudence amounting to grave abuse of discretion when it mistakenly relied on the
"simplified formula" as the basis for its resolution. Moreover, it stressed that the COMELEC
simplified formula runs counter to the Ang Bagong Bayani and Bayan Muna formula which
used the "number of allotted seats for the first party" as multiplier. If the Ang Bagong
Bayani and Bayan Muna formula were applied, CIBAC would be entitled to one additional
seat, thus:

495,193 x 3
Additional seats
= 1.2345
=
1,203,305

Lastly, petitioner faults the COMELEC for its failure to act on and so dismiss the petitions for
disqualification filed by the other party-list groups which could have enabled the COMELEC
to "make an accurate determination of the votes that each party-list group has actually
obtained." It therefore asks the Court to set aside the assailed COMELEC Resolution No. 06-
0248; and direct the COMELEC to declare CIBAC as entitled to one (1) additional seat and to
immediately proclaim Ma. Blanca Kim Bernardo-Lokin, its second nominee, as member of
the House of Representatives.
The Court’s Ruling

Entitlement to an additional seat

In deciding the controversy at hand, a second look at the enabling law, Republic Act No.
(R.A.) 7941, "An Act Providing for the Election of Party-List Representatives through the
Party-List System, and Appropriating Funds Therefor," is in order. The objective of the law
was made clear in Section 2, thus:

Declaration of Policy.––The State shall promote proportional representation in the election

of representatives to the House of Representatives through a party-list system of registered
national, regional and sectoral parties or organizations or coalitions thereof, which will
enable Filipino citizens belonging to the marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will benefit the
nation as a whole, to become members of the House of Representatives. Towards this end,
the State shall develop and guarantee a full, free and open party system in order to attain
the broadest possible representation of party, sectoral or group interests in the House of
Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible. (Emphasis supplied.)

In determining the number of seats a party-list is entitled to, Sec. 11 prescribes that:

The parties, organizations, and coalitions receiving at least two percent (2%) of the total
votes cast for the party-list system shall be entitled to one seat each: provided, that those
garnering more than two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes: provided, finally, that each party, organization, or
coalition shall be entitled to not more than three (3) seats (emphasis supplied).

The Court, in the leading case of Veterans, listed the four (4) inviolable parameters to
determine the winners in a Philippine-style party-list election mandated by the Constitution
and R.A. 7941, as follows:

First, the twenty percent allocation––the combined number of all party-list congressmen
shall not exceed twenty percent of the total membership of the House of Representatives,
including those elected under the party list.

Second, the two percent threshold––only those parties garnering a minimum of two percent
of the total valid votes cast for the party-list system are "qualified" to have a seat in the
House of Representatives.

Third, the three-seat limit––each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two
additional seats.

Fourth, proportional representation––the additional seats which a qualified party is entitled

to shall be computed "in proportion to their total number of votes."13 (Emphasis supplied.)

In determining the number of additional seats for each party-list that has met the 2%
threshold, "proportional representation" is the touchstone to ascertain entitlement to extra
seats.
The correct formula in ascertaining the entitlement to additional seats of the first party and
other qualified party-list groups was clearly explicated in Veterans:

[H]ow do we determine the number of seats the first party is entitled to? The only basis
given by the law is that a party receiving at least two percent of the total votes shall be
entitled to one seat. Proportionally, if the first party were to receive twice the number of
votes of the second party, it should be entitled to twice the latter’s number of seats and so
on. The formula, therefore, for computing the number of seats to which the first party is
entitled is as follows:

Number of votes of first party

Proportion of votes of first party relative to
=
Total votes for party-list total votes for party-list system
system

If the proportion of votes received by the first party without rounding it off is equal to at
least six percent of the total valid votes cast for all the party list groups, then the first party
shall be entitled to two additional seats or a total of three seats overall. If the proportion of
votes without a rounding off is equal to or greater than four percent, but less than six
percent, then the first party shall have one additional or a total of two seats. And if the
proportion is less than four percent, then the first party shall not be entitled to any
additional seat.

We adopted the six percent bench mark, because the first party is not always entitled to the
maximum number of additional seats. Likewise, it would prevent the allotment of more than
the total number of available seats, such as in an extreme case wherein 18 or more parties
tie for the highest rank and are thus entitled to three seats each. In such scenario, the
number of seats to which all the parties are entitled may exceed the maximum number of
party-list seats reserved in the House of Representatives.

xxxx

Formula for Additional Seats of Other Qualified Parties

The next step is to solve for the number of additional seats that the other qualified parties
are entitled to, based on proportional representation. x x x

xxxx

In simplified form, it is written as follows:

1ªvvphi1.nét
No. of votes of
concerned
Additional seats No. of additional seats allocated to first
party
for concerned = x party
party (Emphasis supplied.)
No. of votes of
the first party

xxxx
The above formula does not give an exact mathematical representation of the number of
additional seats to be awarded since, in order to be entitled to one additional seat, an exact
whole number is necessary. In fact, most of the actual mathematical proportions are not
whole numbers and are not rounded off for the reasons explained earlier. To repeat,
rounding off may result in the awarding of a number of seats in excess of that provided by
the law. Furthermore, obtaining absolute proportional representation is restricted by the
three-seat-per-party limit to a maximum of two additional slots. An increase in the
maximum number of additional representatives a party may be entitled to would result in a
more accurate proportional representation. But the law itself has set the limit: only two
additional seats. Hence, we need to work within such extant parameter.14 (Emphasis
supplied.)

On June 25, 2003, the formula was put to test in Ang Bagong Bayani and Bayan
Muna.1ªvvphi1.nét In determining the additional seats for the other qualified parties—
BUHAY, AMIN, ABA, COCOFED, PM, SANLAKAS, and ABANSE! PINAY––the following
computation was made:

Applying the relevant formula in Veterans to BUHAY, we arrive at 0.51:

Votes Cast for

Qualified Party
Additional Seats = x Allotted Seats for First Party
Votes Cast for
First Party
290,760
= x3
1,708,253
= 0.51

Since 0.51 is less than one, BUHAY is not entitled to any additional seat.15

From a scrutiny of the Veterans and Ang Bagong Bayani and Bayan Muna formulae in
determining the additional seats for party-list representatives, it is readily apparent that the
Veterans formula is materially different from the one used in Ang Bagong Bayani and Bayan
Muna. In Veterans, the multiplier used was "the [number] of additional seats allocated to
the first party," while in the Ang Bagong Bayani and Bayan Muna formula, the multiplier
"allotted seats for first party" was applied. The dissimilarity in the multiplier used spells out
a big difference in the outcome of the equation. This divergence on the multiplier was
pointed out and stressed by respondent COMELEC. Nevertheless, petitioner insists that the
correct multiplier is the ALLOTTED seats for the first party referring to the three (3) seats
won by Bayan Muna which emerged as the winning first party, as allegedly prescribed in
Ang Bagong Bayani and Bayan Muna. On this issue, petitioner ratiocinates this way:

It cannot be emphasized enough that the formula in the Ang Bagong Bayani and Bayan
Muna cases rendered in 2003, effectively modified the earlier Veterans formula, with the
clear and explicit use of the "allotted seats for the first party". Considering that the first
party, Bayan Muna, was allotted to the maximum three (3) seats under the law, it is
therefore clear that the multiplier to be used is three (3), the allotted seats for the first
party.16
However, this postulation is bereft of merit and basis.1awphi1.nét

A careful perusal of the four corners of Ang Bagong Bayani and Bayan Muna betrays
petitioner’s claim as it did not mention any revision or reshaping of the Veterans formula. As
a matter of fact, the Court had in mind the application of the original Veterans formula in
Ang Bagong Bayani and Bayan Muna. This conclusion is based on the aforequoted formula in
Ang Bagong Bayani and Bayan Muna, as follows:

Applying the relevant formula in Veterans to BUHAY, we arrive at 0.51:

Votes Cast for Qualified Party

Additional
= x Allotted Seats for First Party
Seats
Votes Cast for First Party
290,760
= x 3
1,708,253
= 0.51

The phrase "applying the relevant formula in Veterans to BUHAY" admits of no other
conclusion than that the Court merely applied the Veterans formula to Ang Bagong Bayani
and Bayan Muna in resolving the additional seats by the other qualified party-list groups.
However, it appears that there was an inaccurate presentation of the Veterans formula as
the Court used the multiplier "allotted seats for the first party" in Ang Bagong Bayani and
Bayan Muna instead of the "[number] of additional seats allocated to the first party"
prescribed in the Veterans formula. It is apparent that the phrase "[number] of additional"
was omitted, possibly by inadvertence from the phrase "allotted seats for First Party." The
disparity is material, substantial, and significant since the multiplier "[number] of additional
seats allocated to the First Party" prescribed in the Veterans formula pertains to a multiplier
of two (2) seats, while the multiplier "allotted seats for the first party" in Ang Bagong
Bayani and Bayan Muna formula can mean a multiplier of maximum three (3) seats, since
the first party can garner a maximum of three (3) seats.

Moreover, footnote 37 of Ang Bagong Bayani and Bayan Muna states that "for a discussion
of how to compute additional nominees for parties other than the first, see Veterans x x x."
It clarifies the confusion created by the imprecise formula expressed in Ang Bagong Bayani
and Bayan Muna. Thus, the Court rules that the claimed Ang Bagong Bayani and Bayan
Muna formula has not modified the Veterans formula. As a matter of fact, there was really
no other formula approved by the Court other than the Veterans formula in fixing the
number of additional seats for the other qualified party-list groups. Also, in Partido ng
Manggagawa v. COMELEC, the Court found that the confusion in the computation of
additional seats for the other qualified party-list groups arose "[from] the way the Veterans
formula was cited in the June 25, 2003 Resolution of the Court in Ang Bagong Bayani." We
reiterated that "the prevailing formula for the computation of additional seats for party-list
winners is the formula stated in the landmark case of Veterans x x x."17

Applying the Veterans formula in petitioner’s case, we reach the conclusion that CIBAC is
not entitled to an additional seat. Party-List Canvass Report No. 2018 contained in the
petition shows that the first party, Bayan Muna, garnered the highest number of votes, that
is, a total of 1,203,305 votes. Petitioner CIBAC, on the other hand, received a total of
495,190 votes. It was proclaimed that the first party, Bayan Muna, was entitled to a
maximum of three (3) seats19 based on June 2, 2004 Resolution No. NBC 04-004 of the
COMELEC. A computation using the Veterans formula would therefore lead us to the
following result:

1awphi1.nét
No. of additional
No. of votes of concerned
seats allocated
party
to Additional Seats for concerned
x =
the first party party
No. of votes of the first
(Emphasis
party
supplied.)
Applying this formula, the result is as follows:
495,190
x 2 =
1,203,305
0.41152493 x 2 = 0.82304986

This is a far cry from the claimed Ang Bagong Bayani and Bayan Muna formula which used
the multiplier "allotted seats for the first party," viz:

Votes Cast for

Qualified Party
Additional Seats = x Allotted Seats for First Party
Votes Cast for
First Party
Applying the Ang Bagong Bayani and Bayan Muna formula to CIBAC, it yields the
following result:
495,190
Additional seats = x 3 = 1.2345
1,203,305

Unfortunately, it is the Veterans formula that is sanctioned by the Court and not the Ang
Bagong Bayani and Bayan Muna formula that petitioner alleges.

Since petitioner CIBAC got a result of 0.82304986 only, which is less than one (1), then it
did not obtain or reach a whole number. Petitioner has not convinced us to deviate from our
ruling in Veterans that "in order to be entitled to one additional seat, an exact whole
number is necessary." Clearly, petitioner is not entitled to an additional seat.

COMELEC’s application of Ang Bagong Bayani and Bayan Muna is incorrect

The Court laments the fact that the COMELEC insisted in using a simplified formula when it
is fully aware of the ruling in the Veterans case. The COMELEC explained that it "merely
based its judgment on Comelec Resolution No. 6835 which cited Supreme Court
Resolution20 dated 20 November 2003 granting BUHAY’s Motion for Reconsideration and
entitling it to one additional seat for having garnered more than four percent (4%) of the
total number of votes validly cast for the party-list system, thus recognizing once again the
simplified formula." However, in said Resolution, the Court, in granting BUHAY an additional
seat, meant to apply it on that specific case alone, not being a precedent––pro hac vice (for
this one particular occasion); thus, this Resolution cannot be applied as a precedent to
future cases. The simplified formula having already been abandoned, the COMELEC should
have used and adhered to the Veterans formula.

The Court has consistently reminded the COMELEC of its "function to enforce and administer
all laws and regulations relative to the conduct of an election." As judicial decisions form
part of the law of the land, the COMELEC cannot just ignore or be oblivious to the rulings
issued by the Court. Basic is the rule that lower courts and quasi-judicial tribunals must bow
to the decisions and resolutions of the highest court of the land. The COMELEC is not an
exception. It cannot do otherwise.

WHEREFORE, the petition is DENIED for lack of merit. The assailed March 7, 2006 Comelec
Resolution No. 06-0248 is hereby AFFIRMED only insofar as it denied petitioner CIBAC’s
motion for the proclamation of its second nominee to an additional seat under the 2004
party-list elections. The portion of Comelec Resolution No. 06-0248, which adopted and
applied the "simplified formula of the Commission on the matter per Comelec Resolution No.
6835 promulgated 08 May 2004," is annulled and set aside. Respondent Comelec is ordered
to strictly apply the Veterans formula in determining the entitlement of qualified party-list
groups to additional seats in the party-list system. No costs.

SO ORDERED.

Banat vs. Comelec, GR. No. 179271, April 21, 2009

The Case

Petitioner in G.R. No. 179271 — Barangay Association for National Advancement and
Transparency (BANAT) — in a petition for certiorari and mandamus,1 assails the
Resolution2 promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in
NBC No. 07-041 (PL). The COMELEC’s resolution in NBC No. 07-041 (PL) approved the
recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC)
Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the
COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution.

The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals
(ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines,
Inc. (Senior Citizens).

Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy for Teacher
Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A
Teacher) — in a petition for certiorari with mandamus and prohibition,3 assails NBC
Resolution No. 07-604 promulgated on 9 July 2007. NBC No. 07-60 made a partial
proclamation of parties, organizations and coalitions that obtained at least two percent of
the total votes cast under the Party-List System. The COMELEC announced that, upon
completion of the canvass of the party-list results, it would determine the total number of
seats of each winning party, organization, or coalition in accordance with Veterans
Federation Party v. COMELEC5 (Veterans).

Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom
Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295.

The Facts

The 14 May 2007 elections included the elections for the party-list representatives. The
COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.6

On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the
NBC. BANAT filed its petition because "[t]he Chairman and the Members of the [COMELEC]
have recently been quoted in the national papers that the [COMELEC] is duty bound to and
shall implement the Veterans ruling, that is, would apply the Panganiban formula in
allocating party-list seats."7 There were no intervenors in BANAT’s petition before the NBC.
BANAT filed a memorandum on 19 July 2007.

On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60.
NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list
elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens’ Battle Against
Corruption (CIBAC), Gabriela’s Women Party (Gabriela), Association of Philippine Electric
Cooperatives (APEC), A Teacher, Akbayan! Citizen’s Action Party (AKBAYAN), Alagad, Luzon
Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis,
Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its
entirety below:

WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers,

thru its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open
and public proceedings, a total of fifteen million two hundred eighty three thousand
six hundred fifty-nine (15,283,659) votes under the Party-List System of
Representation, in connection with the National and Local Elections conducted last 14 May
2007;

WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of
Canvassers reveals that the projected/maximum total party-list votes cannot go any higher
than sixteen million seven hundred twenty three thousand one hundred twenty-
one (16,723,121) votes given the following statistical data:

Projected/Maximum Party-List Votes for May 2007 Elections

i. Total party-list votes already 15,283,659

canvassed/tabulated
ii. Total party-list votes remaining 1,337,032
uncanvassed/ untabulated (i.e.
canvass deferred)
iii. Maximum party-list votes (based on 102,430
100% outcome) from areas not yet
 submitted for canvass (Bogo, Cebu;
Bais City; Pantar, Lanao del Norte;
and Pagalungan, Maguindanao)
Maximum Total Party-List Votes 16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part:

The parties, organizations, and coalitions receiving at least two percent (2%) of the total
votes cast for the party-list system shall be entitled to one seat each: provided, that those
garnering more than two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes: provided, finally, that each party, organization, or
coalition shall be entitled to not more than three (3) seats.

WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the
presumptive two percent (2%) threshold can be pegged at three hundred thirty four
thousand four hundred sixty-two (334,462) votes;

WHEREAS, the Supreme Court, in Citizen’s Battle Against Corruption (CIBAC) versus
COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC adopting a
formula for the additional seats of each party, organization or coalition receving more than
the required two percent (2%) votes, stating that the same shall be determined only after
all party-list ballots have been completely canvassed;

WHEREAS, the parties, organizations, and coalitions that have thus far garnered at
least three hundred thirty four thousand four hundred sixty-two (334,462) votes
are as follows:

RANK PARTY/ORGANIZATION/ VOTES

COALITION RECEIVED
1 BUHAY 1,163,218
2 BAYAN MUNA 972,730
3 CIBAC 760,260
4 GABRIELA 610,451
5 APEC 538,971
6 A TEACHER 476,036
7 AKBAYAN 470,872
8 ALAGAD 423,076
9 BUTIL 405,052
10 COOP-NATCO 390,029
11 BATAS 386,361
12 ANAK PAWIS 376,036
13 ARC 338,194
 14 ABONO 337,046

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan

(BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF
REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the
Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No.
07-250, all the parties, organizations and coalitions included in the aforementioned list are
therefore entitled to at least one seat under the party-list system of representation in the
meantime.

NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus
Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other
election laws, the Commission on Elections, sitting en banc as the National Board of
Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set
forth below, the following parties, organizations and coalitions participating under the Party-
List System:

1 Buhay Hayaan Yumabong BUHAY

2 Bayan Muna BAYAN MUNA
3 Citizens Battle Against CIBAC
Corruption
4 Gabriela Women’s Party GABRIELA
5 Association of Philippine APEC
Electric Cooperatives
6 Advocacy for Teacher A TEACHER
Empowerment Through Action,
Cooperation and Harmony
Towards Educational Reforms,
Inc.
7 Akbayan! Citizen’s Action Party AKBAYAN
8 Alagad ALAGAD
9 Luzon Farmers Party BUTIL
10 Cooperative-Natco Network COOP-NATCCO
Party
11 Anak Pawis ANAKPAWIS
12 Alliance of Rural Concerns ARC
13 Abono ABONO

This is without prejudice to the proclamation of other parties, organizations, or coalitions

which may later on be established to have obtained at least two percent (2%) of the total
actual votes cast under the Party-List System.
The total number of seats of each winning party, organization or coalition shall be
determined pursuant to Veterans Federation Party versus COMELEC formula upon
completion of the canvass of the party-list results.

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS)

is hereby deferred until final resolution of SPC No. 07-250, in order not to render the
proceedings therein moot and academic.

Finally, all proclamation of the nominees of concerned parties, organizations and coalitions
with pending disputes shall likewise be held in abeyance until final resolution of their
respective cases.

Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the
Speaker of the House of Representatives of the Philippines.

SO ORDERED.8 (Emphasis in the original)

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC
Resolution No. 07-72, which declared the additional seats allocated to the appropriate
parties. We quote from the COMELEC’s interpretation of the Veterans formula as found in
NBC Resolution No. 07-72:

WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National
Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and
coalitions based on the presumptive two percent (2%) threshold of 334,462 votes from the
projected maximum total number of party-list votes of 16,723,121, and were thus given
one (1) guaranteed party-list seat each;

WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National
Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007,
based on the votes actually canvassed, votes canvassed but not included in Report No. 29,
votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte,
is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified
parties, organizations and coalition[s] are as follows:

  Party-List Projected total number of votes

1 BUHAY 1,178,747
2 BAYAN MUNA 977,476
3 CIBAC 755,964
4 GABRIELA 621,718
5 APEC 622,489
6 A TEACHER 492,369
7 AKBAYAN 462,674
8 ALAGAD 423,190
9 BUTIL 409,298
 10 COOP-NATCO 412,920
11 ANAKPAWIS 370,165
12 ARC 375,846
13 ABONO 340,151

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the

highest number of votes among the thirteen (13) qualified parties, organizations and
coalitions, making it the "first party" in accordance with Veterans Federation Party versus
COMELEC, reiterated in Citizen’s Battle Against Corruption (CIBAC) versus COMELEC;

WHEREAS, qualified parties, organizations and coalitions participating under the party-list
system of representation that have obtained one guaranteed (1) seat may be entitled to an
additional seat or seats based on the formula prescribed by the Supreme Court in Veterans;

WHEREAS, in determining the additional seats for the "first party", the correct formula as
expressed in Veterans, is:

Number of votes of first party Proportion of votes of first

= party relative to total votes for
Total votes for party-list system party-list system

wherein the proportion of votes received by the first party (without rounding off) shall
entitle it to additional seats:

Proportion of votes received Additional seats

by the first party
Equal to or at least 6% Two (2) additional
seats
Equal to or greater than 4% but One (1) additional
less than 6% seat
Less than 4% No additional seat

WHEREAS, applying the above formula, Buhay obtained the following percentage:

1,178,747
= 0.07248 or 7.2%
16,261,369

which entitles it to two (2) additional seats.

WHEREAS, in determining the additional seats for the other qualified parties, organizations
and coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as
follows:
 No. of votes of
concerned party No. of additional
Additional seats for
= x seats allocated
a concerned party
No. of votes of to first party
first party

WHEREAS, applying the above formula, the results are as follows:

Party List Percentage Additional Seat

BAYAN MUNA 1.65 1
CIBAC 1.28 1
GABRIELA 1.05 1
APEC 1.05 1
A TEACHER 0.83 0
AKBAYAN 0.78 0
ALAGAD 0.71 0
BUTIL 0.69 0
COOP-NATCO 0.69 0
ANAKPAWIS 0.62 0
ARC 0.63 0
ABONO 0.57 0

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election
Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections
laws, the Commission on Elections en banc sitting as the National Board of Canvassers,
hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations
or coalitions as entitled to additional seats, to wit:

Party List Additional Seats

BUHAY 2
BAYAN MUNA 1
CIBAC 1
GABRIELA 1
APEC 1

This is without prejudice to the proclamation of other parties, organizations or coalitions

which may later on be established to have obtained at least two per cent (2%) of the total
votes cast under the party-list system to entitle them to one (1) guaranteed seat, or to the
appropriate percentage of votes to entitle them to one (1) additional seat.
Finally, all proclamation of the nominees of concerned parties, organizations and coalitions
with pending disputes shall likewise be held in abeyance until final resolution of their
respective cases.

Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a
copy hereof to the Speaker of the House of Representatives of the Philippines.

SO ORDERED.9

Acting on BANAT’s petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August
2007, which reads as follows:

This pertains to the Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution filed by the Barangay Association for National Advancement
and Transparency (BANAT).

Acting on the foregoing Petition of the Barangay Association for National Advancement and
Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of
Canvassers Legal Group submitted his comments/observations and recommendation
thereon [NBC 07-041 (PL)], which reads:

COMMENTS / OBSERVATIONS:

Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its
Petition to Proclaim the Full Number of Party-List Representatives Provided by the
Constitution prayed for the following reliefs, to wit:

1. That the full number -- twenty percent (20%) -- of Party-List representatives as

mandated by Section 5, Article VI of the Constitution shall be proclaimed.

2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes,

should be harmonized with Section 5, Article VI of the Constitution and with Section
12 of the same RA 7941 in that it should be applicable only to the first party-list
representative seats to be allotted on the basis of their initial/first ranking.

3. The 3-seat limit prescribed by RA 7941 shall be applied; and

4. Initially, all party-list groups shall be given the number of seats corresponding to
every 2% of the votes they received and the additional seats shall be allocated in
accordance with Section 12 of RA 7941, that is, in proportion to the percentage of
votes obtained by each party-list group in relation to the total nationwide votes cast
in the party-list election, after deducting the corresponding votes of those which
were allotted seats under the 2% threshold rule. In fine, the formula/procedure
prescribed in the "ALLOCATION OF PARTY-LIST SEATS, ANNEX "A" of COMELEC
RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of
determining how many seats shall be proclaimed, which party-list groups are entitled
to representative seats and how many of their nominees shall seat [sic].

5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No.

7941 and that the procedure in allocating seats for party-list representative
prescribed by Section 12 of RA 7941 shall be followed.
R E C O M M E N D A T I O N:

The petition of BANAT is now moot and academic.

The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re "In the
Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and
Coalitions Participating Under the Party-List System During the May 14, 2007 National and
Local Elections" resolved among others that the total number of seats of each winning
party, organization or coalition shall be determined pursuant to the Veterans Federation
Party versus COMELEC formula upon completion of the canvass of the party-list
results."1awphi1

WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it

hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig,
Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic.

Let the Supervisory Committee implement this resolution.

SO ORDERED.10

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution
No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to
reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-
60 because the Veterans formula is violative of the Constitution and of Republic Act No.
7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the
proceedings of the NBC.11

Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC
proclaimed three other party-list organizations as qualified parties entitled to one
guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines,
Inc. (AGAP),12 Anak Mindanao (AMIN),13 and An Waray.14 Per the certification15 by COMELEC,
the following party-list organizations have been proclaimed as of 19 May 2008:

Party-List No. of Seat(s)

1.1 Buhay 3
1.2 Bayan Muna 2
1.3 CIBAC 2
1.4 Gabriela 2
1.5 APEC 2
1.6 A Teacher 1
1.7 Akbayan 1
1.8 Alagad 1
1.9 Butil 1
1.1 Coop-Natco [sic] 1
 0
1.1
Anak Pawis 1
1
1.1
ARC 1
2
1.1
Abono 1
3
1.1
AGAP 1
4
1.1
AMIN 1
5

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan

(BATAS), against which an Urgent Petition for Cancellation/Removal of Registration and
Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has
been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250.

Issues

BANAT brought the following issues before this Court:

1. Is the twenty percent allocation for party-list representatives provided in Section

5(2), Article VI of the Constitution mandatory or is it merely a ceiling?

2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold and "qualifier" votes prescribed by the same Section
11(b) of RA 7941 constitutional?

4. How shall the party-list representatives be allocated?16

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their
petition:

I. Respondent Commission on Elections, acting as National Board of Canvassers,

committed grave abuse of discretion amounting to lack or excess of jurisdiction when
it promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in the
allocation of seats to qualified party-list organizations as said rule:

A. Violates the constitutional principle of proportional representation.

B. Violates the provisions of RA 7941 particularly:

1. The 2-4-6 Formula used by the First Party Rule in allocating

additional seats for the "First Party" violates the principle of
proportional representation under RA 7941.
 2. The use of two formulas in the allocation of additional seats, one for
the "First Party" and another for the qualifying parties, violates Section
11(b) of RA 7941.

3. The proportional relationships under the First Party Rule are

different from those required under RA 7941;

C. Violates the "Four Inviolable Parameters" of the Philippine party-list system

as provided for under the same case of Veterans Federation Party, et al. v.
COMELEC.

II. Presuming that the Commission on Elections did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction when it implemented the First-
Party Rule in the allocation of seats to qualified party-list organizations, the same
being merely in consonance with the ruling in Veterans Federations Party, et al. v.
COMELEC, the instant Petition is a justiciable case as the issues involved herein are
constitutional in nature, involving the correct interpretation and implementation of
RA 7941, and are of transcendental importance to our nation.17

Considering the allegations in the petitions and the comments of the parties in these
cases, we defined the following issues in our advisory for the oral arguments set on
22 April 2008:

1. Is the twenty percent allocation for party-list representatives in Section

5(2), Article VI of the Constitution mandatory or merely a ceiling?

2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to

qualify for one seat constitutional?

4. How shall the party-list representative seats be allocated?

5. Does the Constitution prohibit the major political parties from participating
in the party-list elections? If not, can the major political parties be barred
from participating in the party-list elections?18

The Ruling of the Court

The petitions have partial merit. We maintain that a Philippine-style party-list election has at
least four inviolable parameters as clearly stated in Veterans. For easy reference, these are:

First, the twenty percent allocation — the combined number of all party-list

congressmen shall not exceed twenty percent of the total membership of the House
of Representatives, including those elected under the party list;

Second, the two percent threshold — only those parties garnering a minimum of two
percent of the total valid votes cast for the party-list system are "qualified" to have a
seat in the House of Representatives;
 Third, the three-seat limit — each qualified party, regardless of the number of votes
it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying"
and two additional seats;

Fourth, proportional representation— the additional seats which a qualified party is

entitled to shall be computed "in proportion to their total number of votes."19

However, because the formula in Veterans has flaws in its mathematical interpretation of

the term "proportional representation," this Court is compelled to revisit the formula for the
allocation of additional seats to party-list organizations.

Number of Party-List Representatives:

The Formula Mandated by the Constitution

Section 5, Article VI of the Constitution provides:

Section 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan Manila
area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected through
a party-list system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party-list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be
provided by law, except the religious sector.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List Representatives. — The party-list representatives shall

constitute twenty per centum (20%) of the total number of the members of the House of
Representatives including those under the party-list.

xxx

Section 5(1), Article VI of the Constitution states that the "House of Representatives shall
be composed of not more than two hundred and fifty members, unless otherwise fixed by
law." The House of Representatives shall be composed of district representatives and party-
list representatives. The Constitution allows the legislature to modify the number of the
members of the House of Representatives.1avvphi1.zw+

Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list
representatives to the total number of representatives. We compute the number of seats
available to party-list representatives from the number of legislative districts. On this point,
we do not deviate from the first formula in Veterans, thus:

Number of seats Number of seats available to

available to legislative districts x .20 = party-list representatives
 .80

This formula allows for the corresponding increase in the number of seats available for
party-list representatives whenever a legislative district is created by law. Since the 14th
Congress of the Philippines has 220 district representatives, there are 55 seats available to
party-list representatives.

22
0
x .20 = 55
.80

After prescribing the ratio of the number of party-list representatives to the total number of
representatives, the Constitution left the manner of allocating the seats available to
party-list representatives to the wisdom of the legislature.

Allocation of Seats for Party-List Representatives:

The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap

All parties agree on the formula to determine the maximum number of seats reserved under
the Party-List System, as well as on the formula to determine the guaranteed seats to
party-list candidates garnering at least two-percent of the total party-list votes. However,
there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation
of "additional seats" under the Party-List System. Veterans produced the First Party
Rule,20 and Justice Vicente V. Mendoza’s dissent in Veterans presented Germany’s Niemeyer
formula21 as an alternative.

The Constitution left to Congress the determination of the manner of allocating the seats for
party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of
Section 11 and Section 12 of which provide:

Section 11. Number of Party-List Representatives. — x x x

In determining the allocation of seats for the second vote,22 the following procedure shall be
observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one seat
each: Provided, That those garnering more than two percent (2%) of the
votes shall be entitled to additional seats in proportion to their total number
of votes: Provided, finally, That each party, organization, or coalition shall be
entitled to not more than three (3) seats.

Section 12. Procedure in Allocating Seats for Party-List Representatives. — The COMELEC

shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis,
rank them according to the number of votes received and allocate party-list representatives
proportionately according to the percentage of votes obtained by each party, organization,
or coalition as against the total nationwide votes cast for the party-list system. (Emphasis
supplied)

In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate
party-list representative seats.

The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2%
requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as follows:

(a) The party-list representatives shall constitute twenty percent (20%) of the total
Members of the House of Representatives including those from the party-list groups
as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA
7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220
District Representatives in the 14th Congress, there shall be 55 Party-List
Representatives. All seats shall have to be proclaimed.

(b) All party-list groups shall initially be allotted one (1) seat for every two per
centum (2%) of the total party-list votes they obtained; provided, that no party-list
groups shall have more than three (3) seats (Section 11, RA 7941).

(c) The remaining seats shall, after deducting the seats obtained by the party-list
groups under the immediately preceding paragraph and after deducting from their
total the votes corresponding to those seats, the remaining seats shall be allotted
proportionately to all the party-list groups which have not secured the maximum
three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA
7941.23

Forty-four (44) party-list seats will be awarded under BANAT’s first interpretation.

The second interpretation presented by BANAT assumes that the 2% vote requirement is
declared unconstitutional, and apportions the seats for party-list representatives by
following Section 12 of R.A. No. 7941. BANAT states that the COMELEC:

(a) shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis;

(b) rank them according to the number of votes received; and,

(c) allocate party-list representatives proportionately according to the percentage of

votes obtained by each party, organization or coalition as against the total
nationwide votes cast for the party-list system.24

BANAT used two formulas to obtain the same results: one is based on the proportional
percentage of the votes received by each party as against the total nationwide party-list
votes, and the other is "by making the votes of a party-list with a median percentage of
votes as the divisor in computing the allocation of seats."25 Thirty-four (34) party-list seats
will be awarded under BANAT’s second interpretation.
In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELEC’s
original 2-4-6 formula and the Veterans formula for systematically preventing all the party-
list seats from being filled up. They claim that both formulas do not factor in the total
number of seats alloted for the entire Party-List System. Bayan Muna, Abono, and A
Teacher reject the three-seat cap, but accept the 2% threshold. After determining the
qualified parties, a second percentage is generated by dividing the votes of a qualified party
by the total votes of all qualified parties only. The number of seats allocated to a qualified
party is computed by multiplying the total party-list seats available with the second
percentage. There will be a first round of seat allocation, limited to using the whole integers
as the equivalent of the number of seats allocated to the concerned party-list. After all the
qualified parties are given their seats, a second round of seat allocation is conducted. The
fractions, or remainders, from the whole integers are ranked from highest to lowest and the
remaining seats on the basis of this ranking are allocated until all the seats are filled up.26

We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives.

Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the
highest to the lowest based on the number of votes they garnered during the elections.

Table 1. Ranking of the participating parties from the highest to the lowest based on the
number of votes garnered during the elections.27

Votes Votes
Rank Party Rank Party
Garnered Garnered
1 BUHAY 1,169,234 48 KALAHI 88,868
2 BAYAN MUNA 979,039 49 APOI 79,386
3 CIBAC 755,686 50 BP 78,541
4 GABRIELA 621,171 51 AHONBAYAN 78,424
5 APEC 619,657 52 BIGKIS 77,327
6 A TEACHER 490,379 53 PMAP 75,200
7 AKBAYAN 466,112 54 AKAPIN 74,686
8 ALAGAD 423,149 55 PBA 71,544
9 COOP- 409,883 56 GRECON 62,220
NATCCO
10 BUTIL 409,160 57 BTM 60,993
11 BATAS 385,810 58 A SMILE 58,717
12 ARC 374,288 59 NELFFI 57,872
13 ANAKPAWIS 370,261 60 AKSA 57,012
14 ABONO 339,990 61 BAGO 55,846
15 AMIN 338,185 62 BANDILA 54,751
16 AGAP 328,724 63 AHON 54,522
17 AN WARAY 321,503 64 ASAHAN MO 51,722
18 YACAP 310,889 65 AGBIAG! 50,837
19 FPJPM 300,923 66 SPI 50,478
20 UNI-MAD 245,382 67 BAHANDI 46,612
21 ABS 235,086 68 ADD 45,624
22 KAKUSA 228,999 69 AMANG 43,062
23 KABATAAN 228,637 70 ABAY PARAK 42,282
24 ABA-AKO 218,818 71 BABAE KA 36,512
25 ALIF 217,822 72 SB 34,835
26 SENIOR 213,058 73 ASAP 34,098
CITIZENS
27 AT 197,872 74 PEP 33,938
28 VFP 196,266 75 ABA ILONGGO 33,903
29 ANAD 188,521 76 VENDORS 33,691
30 BANAT 177,028 77 ADD-TRIBAL 32,896
31 ANG 170,531 78 ALMANA 32,255
KASANGGA
32 BANTAY 169,801 79 AANGAT KA 29,130
PILIPINO
33 ABAKADA 166,747 80 AAPS 26,271
34 1-UTAK 164,980 81 HAPI 25,781
35 TUCP 162,647 82 AAWAS 22,946
36 COCOFED 155,920 83 SM 20,744
37 AGHAM 146,032 84 AG 16,916
38 ANAK 141,817 85 AGING PINOY 16,729
39 ABANSE! 130,356 86 APO 16,421
PINAY
40 PM 119,054 87 BIYAYANG 16,241
BUKID
41 AVE 110,769 88 ATS 14,161
42 SUARA 110,732 89 UMDJ 9,445
43 ASSALAM 110,440 90 BUKLOD 8,915
FILIPINA
44 DIWA 107,021 91 LYPAD 8,471
45 ANC 99,636 92 AA-KASOSYO 8,406
 46 SANLAKAS 97,375 93 KASAPI 6,221
47 ABC 90,058 TOTAL 15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that "parties, organizations, and
coalitions receiving at least two percent (2%) of the total votes cast for the party-list
system shall be entitled to one seat each." This clause guarantees a seat to the two-
percenters. In Table 2 below, we use the first 20 party-list candidates for illustration
purposes. The percentage of votes garnered by each party is arrived at by dividing the
number of votes garnered by each party by 15,950,900, the total number of votes cast for
all party-list candidates.

Table 2. The first 20 party-list candidates and their respective percentage of votes garnered
over the total votes for the party-list.28

Votes
Garnered over
Votes Guaranteed
Rank Party Total Votes for
Garnered Seat
Party-List, in
%
1 BUHAY 1,169,234 7.33% 1
2 BAYAN MUNA 979,039 6.14% 1
3 CIBAC 755,686 4.74% 1
4 GABRIELA 621,171 3.89% 1
5 APEC 619,657 3.88% 1
6 A TEACHER 490,379 3.07% 1
7 AKBAYAN 466,112 2.92% 1
8 ALAGAD 423,149 2.65% 1
9 COOP-NATCCO 409,883 2.57% 1
10 BUTIL 409,160 2.57% 1
29
11 BATAS 385,810 2.42% 1
12 ARC 374,288 2.35% 1
13 ANAKPAWIS 370,261 2.32% 1
14 ABONO 339,990 2.13% 1
15 AMIN 338,185 2.12% 1
16 AGAP 328,724 2.06% 1
17 AN WARAY 321,503 2.02% 1
  Total     17
18 YACAP 310,889 1.95% 0
 19 FPJPM 300,923 1.89% 0
20 UNI-MAD 245,382 1.54% 0

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the
total number of votes cast for party-list candidates. The 17 qualified party-list candidates,
or the two-percenters, are the party-list candidates that are "entitled to one seat each," or
the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed
seats.

The second clause of Section 11(b) of R.A. No. 7941 provides that "those garnering more
than two percent (2%) of the votes shall be entitled to additional seats in proportion to
their total number of votes." This is where petitioners’ and intervenors’ problem with the
formula in Veterans lies. Veterans interprets the clause "in proportion to their total number
of votes" to be in proportion to the votes of the first party. This interpretation is
contrary to the express language of R.A. No. 7941.

We rule that, in computing the allocation of additional seats, the continued operation of
the two percent threshold for the distribution of the additional seats as found in the second
clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two
percent threshold makes it mathematically impossible to achieve the maximum number of
available party list seats when the number of available party list seats exceeds 50. The
continued operation of the two percent threshold in the distribution of the additional seats
frustrates the attainment of the permissive ceiling that 20% of the members of the House of
Representatives shall consist of party-list representatives.

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast
for the 100 participants in the party list elections. A party that has two percent of the votes
cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50
parties all get one million votes. Only 50 parties get a seat despite the availability of 55
seats. Because of the operation of the two percent threshold, this situation will repeat itself
even if we increase the available party-list seats to 60 seats and even if we increase the
votes cast to 100 million. Thus, even if the maximum number of parties get two percent of
the votes for every party, it is always impossible for the number of occupied party-list seats
to exceed 50 seats as long as the two percent threshold is present.

We therefore strike down the two percent threshold only in relation to the distribution of the
additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two
percent threshold presents an unwarranted obstacle to the full implementation of Section
5(2), Article VI of the Constitution and prevents the attainment of "the broadest possible
representation of party, sectoral or group interests in the House of Representatives."30

In determining the allocation of seats for party-list representatives under Section 11 of R.A.
No. 7941, the following procedure shall be observed:

1. The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.

2. The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one guaranteed seat
each.
 3. Those garnering sufficient number of votes, according to the ranking in paragraph
1, shall be entitled to additional seats in proportion to their total number of votes
until all the additional seats are allocated.

4. Each party, organization, or coalition shall be entitled to not more than three (3)
seats.

In computing the additional seats, the guaranteed seats shall no longer be included because
they have already been allocated, at one seat each, to every two-percenter. Thus, the
remaining available seats for allocation as "additional seats" are the maximum seats
reserved under the Party List System less the guaranteed seats. Fractional seats are
disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of
fractional seats.

In declaring the two percent threshold unconstitutional, we do not limit our allocation of
additional seats in Table 3 below to the two-percenters. The percentage of votes garnered
by each party-list candidate is arrived at by dividing the number of votes garnered by each
party by 15,950,900, the total number of votes cast for party-list candidates. There are two
steps in the second round of seat allocation. First, the percentage is multiplied by the
remaining available seats, 38, which is the difference between the 55 maximum seats
reserved under the Party-List System and the 17 guaranteed seats of the two-percenters.
The whole integer of the product of the percentage and of the remaining available seats
corresponds to a party’s share in the remaining available seats. Second, we assign one
party-list seat to each of the parties next in rank until all available seats are completely
distributed. We distributed all of the remaining 38 seats in the second round of seat
allocation. Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Votes
Garner
(B)
ed Additio
plus Applyi
over Guarant nal
(C), ng the
Votes Total eed Seat Seats
Ra in three
Party Garner Votes (First (Secon
nk whole seat
ed for Round) d
integ cap
Party (B) Round)
ers (E)
List, in (C)
(D)
%
(A)
1,169,2
1 BUHAY 7.33% 1 2.79 3 N.A.
34
BAYAN 979,03
2 6.14% 1 2.33 3 N.A.
MUNA 9
755,68
3 CIBAC 4.74% 1 1.80 2 N.A.
6
GABRIEL 621,17
4 3.89% 1 1.48 2 N.A.
A 1
 619,65
5 APEC 3.88% 1 1.48 2 N.A.
7
A 490,37
6 3.07% 1 1.17 2 N.A.
Teacher 9
AKBAYA 466,11
7 2.92% 1 1.11 2 N.A.
N 2
423,14
8 ALAGAD 2.65% 1 1.01 2 N.A.
9
COOP- 409,88
931 2.57% 1 1 2 N.A.
NATCCO 3
409,16
10 BUTIL 2.57% 1 1 2 N.A.
0
385,81
11 BATAS 2.42% 1 1 2 N.A.
0
374,28
12 ARC 2.35% 1 1 2 N.A.
8
ANAKPA 370,26
13 2.32% 1 1 2 N.A.
WIS 1
339,99
14 ABONO 2.13% 1 1 2 N.A.
0
338,18
15 AMIN 2.12% 1 1 2 N.A.
5
328,72
16 AGAP 2.06% 1 1 2 N.A.
4
AN 321,50
17 2.02% 1 1 2 N.A.
WARAY 3
310,88
18 YACAP 1.95% 0 1 1 N.A.
9
300,92
19 FPJPM 1.89% 0 1 1 N.A.
3
245,38
20 UNI-MAD 1.54% 0 1 1 N.A.
2
235,08
21 ABS 1.47% 0 1 1 N.A.
6
228,99
22 KAKUSA 1.44% 0 1 1 N.A.
9
KABATA 228,63
23 1.43% 0 1 1 N.A.
AN 7
218,81
24 ABA-AKO 1.37% 0 1 1 N.A.
8
 217,82
25 ALIF 1.37% 0 1 1 N.A.
2
SENIOR
213,05
26 CITIZEN 1.34% 0 1 1 N.A.
8
S
197,87
27 AT 1.24% 0 1 1 N.A.
2
196,26
28 VFP 1.23% 0 1 1 N.A.
6
188,52
29 ANAD 1.18% 0 1 1 N.A.
1
177,02
30 BANAT 1.11% 0 1 1 N.A.
8
ANG
170,53
31 KASANG 1.07% 0 1 1 N.A.
1
GA
169,80
32 BANTAY 1.06% 0 1 1 N.A.
1
ABAKAD 166,74
33 1.05% 0 1 1 N.A.
A 7
164,98
34 1-UTAK 1.03% 0 1 1 N.A.
0
162,64
35 TUCP 1.02% 0 1 1 N.A.
7
COCOFE 155,92
36 0.98% 0 1 1 N.A.
D 0
Tot
17 55
al

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-
list representatives from the 36 winning party-list organizations. All 55 available party-list
seats are filled. The additional seats allocated to the parties with sufficient number of votes
for one whole seat, in no case to exceed a total of three seats for each party, are shown in
column (D).

Participation of Major Political Parties in Party-List Elections

The Constitutional Commission adopted a multi-party system that allowed all political

parties to participate in the party-list elections. The deliberations of the Constitutional
Commission clearly bear this out, thus:

MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party
list system because we wanted to open up the political system to a pluralistic society
through a multiparty system. x x x We are for opening up the system, and we would
like very much for the sectors to be there. That is why one of the ways to do that
is to put a ceiling on the number of representatives from any single party that can
sit within the 50 allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political
parties. My question is this: Are we going to classify for example Christian Democrats and
Social Democrats as political parties? Can they run under the party list concept or must they
be under the district legislation side of it only?

MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner
mentioned can field candidates for the Senate as well as for the House of
Representatives. Likewise, they can also field sectoral candidates for the 20 percent
or 30 percent, whichever is adopted, of the seats that we are allocating under the
party list system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates and can
also participate in the party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will be
fielding only sectoral candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from
the different marginalized sectors that we shall designate in this Constitution.

MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he
represents the farmers, would he qualify?

MR. VILLACORTA. No, Senator Tañada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan
dela Cruz is a farmer. Who would pass on whether he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties,
particularly minority political parties, are not prohibited to participate in the party
list election if they can prove that they are also organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can participate
because it is precisely the contention of political parties that they represent the broad base
of citizens and that all sectors are represented in them. Would the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political
party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin
mismo ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang
"reserve." Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198
seats, reserved din ito sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to
Commissioner Villacorta and probably also to Commissioner Tadeo is that under this
system, would UNIDO be banned from running under the party list system?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that

condition alone, UNIDO may be allowed to register for the party list system.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

xxxx

MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and
mass organizations to seek common ground. For example, we have the PDP-Laban and the
UNIDO. I see no reason why they should not be able to make common goals with mass
organizations so that the very leadership of these parties can be transformed through the
participation of mass organizations. And if this is true of the administration parties, this will
be true of others like the Partido ng Bayan which is now being formed. There is no question
that they will be attractive to many mass organizations. In the opposition parties to which
we belong, there will be a stimulus for us to contact mass organizations so that with their
participation, the policies of such parties can be radically transformed because this
amendment will create conditions that will challenge both the mass organizations and the
political parties to come together. And the party list system is certainly available, although it
is open to all the parties. It is understood that the parties will enter in the roll of the
COMELEC the names of representatives of mass organizations affiliated with them. So that
we may, in time, develop this excellent system that they have in Europe where labor
organizations and cooperatives, for example, distribute themselves either in the Social
Democratic Party and the Christian Democratic Party in Germany, and their very presence
there has a transforming effect upon the philosophies and the leadership of those parties.

It is also a fact well known to all that in the United States, the AFL-CIO always vote with the
Democratic Party. But the businessmen, most of them, always vote with the Republican
Party, meaning that there is no reason at all why political parties and mass organizations
should not combine, reenforce, influence and interact with each other so that the very
objectives that we set in this Constitution for sectoral representation are achieved in a
wider, more lasting, and more institutionalized way. Therefore, I support this [Monsod-
Villacorta] amendment. It installs sectoral representation as a constitutional gift, but at the
same time, it challenges the sector to rise to the majesty of being elected representatives
later on through a party list system; and even beyond that, to become actual political
parties capable of contesting political power in the wider constitutional arena for major
political parties.

x x x 32 (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put forward by the Constitutional
Commission. Section 3 of R.A. No. 7941 reads:
Definition of Terms. (a) The party-list system is a mechanism of proportional representation
in the election of representatives to the House of Representatives from national, regional
and sectoral parties or organizations or coalitions thereof registered with the Commission on
Elections (COMELEC). Component parties or organizations of a coalition may participate
independently provided the coalition of which they form part does not participate in the
party-list system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to an organized group of citizens advocating an ideology or

platform, principles and policies for the general conduct of government and which, as
the most immediate means of securing their adoption, regularly nominates and
supports certain of its leaders and members as candidates for public office.

It is a national party when its constituency is spread over the geographical territory
of at least a majority of the regions. It is a regional party when its constituency is
spread over the geographical territory of at least a majority of the cities and
provinces comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the
special interests and concerns of their sector,

(e) A sectoral organization refers to a group of citizens or a coalition of groups of

citizens who share similar physical attributes or characteristics, employment,
interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral

parties or organizations for political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from
dominating the party-list elections.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the Constitution
clearly intended the major political parties to participate in party-list elections through their
sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22,
any permanent sectoral seats, and in the alternative the reservation of the party-list system
to the sectoral groups.33 In defining a "party" that participates in party-list elections as
either "a political party or a sectoral party," R.A. No. 7941 also clearly intended that major
political parties will participate in the party-list elections. Excluding the major political
parties in party-list elections is manifestly against the Constitution, the intent of the
Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political
engineering and judicially legislate the exclusion of major political parties from the party-list
elections in patent violation of the Constitution and the law.

Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state
that major political parties are allowed to establish, or form coalitions with, sectoral
organizations for electoral or political purposes. There should not be a problem if, for
example, the Liberal Party participates in the party-list election through the Kabataang
Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can
thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the
Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and
this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI)
can do the same for the urban poor.

The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:

Qualifications of Party-List Nominees. — No person shall be nominated as party-list

representative unless he is a natural born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1) year immediately preceding
the day of the elections, able to read and write, bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days preceding the day of
the election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more
than thirty (30) years of age on the day of the election. Any youth sectoral representative
who attains the age of thirty (30) during his term shall be allowed to continue until the
expiration of his term.

Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization’s
nominee "wallow in poverty, destitution and infirmity"34 as there is no financial status
required in the law. It is enough that the nominee of the sectoral
party/organization/coalition belongs to the marginalized and underrepresented
sectors,35 that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or
if the nominee represents the senior citizens, he or she must be a senior citizen.

Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20%
allocation of party-list representatives found in the Constitution. The Constitution, in
paragraph 1, Section 5 of Article VI, left the determination of the number of the members of
the House of Representatives to Congress: "The House of Representatives shall be
composed of not more than two hundred and fifty members, unless otherwise fixed by law,
x x x." The 20% allocation of party-list representatives is merely a ceiling; party-list
representatives cannot be more than 20% of the members of the House of Representatives.
However, we cannot allow the continued existence of a provision in the law which will
systematically prevent the constitutionally allocated 20% party-list representatives from
being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-
list organization may occupy, remains a valid statutory device that prevents any party from
dominating the party-list elections. Seats for party-list representatives shall thus be
allocated in accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing
major political parties from participating in the party-list elections, directly or indirectly.
Those who voted to continue disallowing major political parties from the party-list elections
joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate
party-list seats, the Court is unanimous in concurring with this ponencia.

WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the

COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9
July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the
distribution of additional party-list seats. The allocation of additional seats under the Party-
List System shall be in accordance with the procedure used in Table 3 of this Decision. Major
political parties are disallowed from participating in party-list elections. This Decision is
immediately executory. No pronouncement as to costs.

SO ORDERED.

Bayan vs. Comelec, G.R. No. 179295, April 21, 2009

Petitioner in G.R. No. 179271 — Barangay Association for National Advancement and
Transparency (BANAT) — in a petition for certiorari and mandamus,1 assails the
Resolution2 promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in
NBC No. 07-041 (PL). The COMELEC’s resolution in NBC No. 07-041 (PL) approved the
recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC)
Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the
COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution.

The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals
(ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines,
Inc. (Senior Citizens).

Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy for Teacher
Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A
Teacher) — in a petition for certiorari with mandamus and prohibition,3 assails NBC
Resolution No. 07-604 promulgated on 9 July 2007. NBC No. 07-60 made a partial
proclamation of parties, organizations and coalitions that obtained at least two percent of
the total votes cast under the Party-List System. The COMELEC announced that, upon
completion of the canvass of the party-list results, it would determine the total number of
seats of each winning party, organization, or coalition in accordance with Veterans
Federation Party v. COMELEC5 (Veterans).

Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom
Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295.

The Facts

The 14 May 2007 elections included the elections for the party-list representatives. The
COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.6

On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the
NBC. BANAT filed its petition because "[t]he Chairman and the Members of the [COMELEC]
have recently been quoted in the national papers that the [COMELEC] is duty bound to and
shall implement the Veterans ruling, that is, would apply the Panganiban formula in
allocating party-list seats."7 There were no intervenors in BANAT’s petition before the NBC.
BANAT filed a memorandum on 19 July 2007.
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60.
NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list
elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens’ Battle Against
Corruption (CIBAC), Gabriela’s Women Party (Gabriela), Association of Philippine Electric
Cooperatives (APEC), A Teacher, Akbayan! Citizen’s Action Party (AKBAYAN), Alagad, Luzon
Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis,
Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its
entirety below:

WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers,

thru its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open
and public proceedings, a total of fifteen million two hundred eighty three thousand
six hundred fifty-nine (15,283,659) votes under the Party-List System of
Representation, in connection with the National and Local Elections conducted last 14 May
2007;

WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of
Canvassers reveals that the projected/maximum total party-list votes cannot go any higher
than sixteen million seven hundred twenty three thousand one hundred twenty-
one (16,723,121) votes given the following statistical data:

Projected/Maximum Party-List Votes for May 2007 Elections

i. Total party-list votes already 15,283,659

canvassed/tabulated
ii. Total party-list votes remaining 1,337,032
uncanvassed/ untabulated (i.e.
canvass deferred)
iii. Maximum party-list votes (based on 102,430
100% outcome) from areas not yet
submitted for canvass (Bogo, Cebu;
Bais City; Pantar, Lanao del Norte;
and Pagalungan, Maguindanao)
Maximum Total Party-List Votes 16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part:

The parties, organizations, and coalitions receiving at least two percent (2%) of the total
votes cast for the party-list system shall be entitled to one seat each: provided, that those
garnering more than two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes: provided, finally, that each party, organization, or
coalition shall be entitled to not more than three (3) seats.

WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the
presumptive two percent (2%) threshold can be pegged at three hundred thirty four
thousand four hundred sixty-two (334,462) votes;

WHEREAS, the Supreme Court, in Citizen’s Battle Against Corruption (CIBAC) versus
COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC adopting a
formula for the additional seats of each party, organization or coalition receving more than
the required two percent (2%) votes, stating that the same shall be determined only after
all party-list ballots have been completely canvassed;

WHEREAS, the parties, organizations, and coalitions that have thus far garnered at
least three hundred thirty four thousand four hundred sixty-two (334,462) votes
are as follows:

RANK PARTY/ORGANIZATION/ VOTES

COALITION RECEIVED
1 BUHAY 1,163,218
2 BAYAN MUNA 972,730
3 CIBAC 760,260
4 GABRIELA 610,451
5 APEC 538,971
6 A TEACHER 476,036
7 AKBAYAN 470,872
8 ALAGAD 423,076
9 BUTIL 405,052
10 COOP-NATCO 390,029
11 BATAS 386,361
12 ANAK PAWIS 376,036
13 ARC 338,194
14 ABONO 337,046

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan

(BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF
REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the
Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No.
07-250, all the parties, organizations and coalitions included in the aforementioned list are
therefore entitled to at least one seat under the party-list system of representation in the
meantime.

NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus
Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other
election laws, the Commission on Elections, sitting en banc as the National Board of
Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set
forth below, the following parties, organizations and coalitions participating under the Party-
List System:

1 Buhay Hayaan Yumabong BUHAY

 2 Bayan Muna BAYAN MUNA
3 Citizens Battle Against CIBAC
Corruption
4 Gabriela Women’s Party GABRIELA
5 Association of Philippine APEC
Electric Cooperatives
6 Advocacy for Teacher A TEACHER
Empowerment Through Action,
Cooperation and Harmony
Towards Educational Reforms,
Inc.
7 Akbayan! Citizen’s Action Party AKBAYAN
8 Alagad ALAGAD
9 Luzon Farmers Party BUTIL
10 Cooperative-Natco Network COOP-NATCCO
Party
11 Anak Pawis ANAKPAWIS
12 Alliance of Rural Concerns ARC
13 Abono ABONO

This is without prejudice to the proclamation of other parties, organizations, or coalitions

which may later on be established to have obtained at least two percent (2%) of the total
actual votes cast under the Party-List System.

The total number of seats of each winning party, organization or coalition shall be
determined pursuant to Veterans Federation Party versus COMELEC formula upon
completion of the canvass of the party-list results.

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS)

is hereby deferred until final resolution of SPC No. 07-250, in order not to render the
proceedings therein moot and academic.

Finally, all proclamation of the nominees of concerned parties, organizations and coalitions
with pending disputes shall likewise be held in abeyance until final resolution of their
respective cases.

Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the
Speaker of the House of Representatives of the Philippines.

SO ORDERED.8 (Emphasis in the original)

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC
Resolution No. 07-72, which declared the additional seats allocated to the appropriate
parties. We quote from the COMELEC’s interpretation of the Veterans formula as found in
NBC Resolution No. 07-72:

WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National
Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and
coalitions based on the presumptive two percent (2%) threshold of 334,462 votes from the
projected maximum total number of party-list votes of 16,723,121, and were thus given
one (1) guaranteed party-list seat each;

WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National
Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007,
based on the votes actually canvassed, votes canvassed but not included in Report No. 29,
votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte,
is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified
parties, organizations and coalition[s] are as follows:

  Party-List Projected total number of votes

1 BUHAY 1,178,747
2 BAYAN MUNA 977,476
3 CIBAC 755,964
4 GABRIELA 621,718
5 APEC 622,489
6 A TEACHER 492,369
7 AKBAYAN 462,674
8 ALAGAD 423,190
9 BUTIL 409,298
10 COOP-NATCO 412,920
11 ANAKPAWIS 370,165
12 ARC 375,846
13 ABONO 340,151

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the

highest number of votes among the thirteen (13) qualified parties, organizations and
coalitions, making it the "first party" in accordance with Veterans Federation Party versus
COMELEC, reiterated in Citizen’s Battle Against Corruption (CIBAC) versus COMELEC;

WHEREAS, qualified parties, organizations and coalitions participating under the party-list
system of representation that have obtained one guaranteed (1) seat may be entitled to an
additional seat or seats based on the formula prescribed by the Supreme Court in Veterans;

WHEREAS, in determining the additional seats for the "first party", the correct formula as
expressed in Veterans, is:
 Number of votes of first party Proportion of votes of first
= party relative to total votes for
Total votes for party-list system party-list system

wherein the proportion of votes received by the first party (without rounding off) shall
entitle it to additional seats:

Proportion of votes received Additional seats

by the first party
Equal to or at least 6% Two (2) additional
seats
Equal to or greater than 4% but One (1) additional
less than 6% seat
Less than 4% No additional seat

WHEREAS, applying the above formula, Buhay obtained the following percentage:

1,178,747
= 0.07248 or 7.2%
16,261,369

which entitles it to two (2) additional seats.

WHEREAS, in determining the additional seats for the other qualified parties, organizations
and coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as
follows:

No. of votes of
concerned party No. of additional
Additional seats for
= x seats allocated
a concerned party
No. of votes of to first party
first party

WHEREAS, applying the above formula, the results are as follows:

Party List Percentage Additional Seat

BAYAN MUNA 1.65 1
CIBAC 1.28 1
GABRIELA 1.05 1
APEC 1.05 1
A TEACHER 0.83 0
AKBAYAN 0.78 0
 ALAGAD 0.71 0
BUTIL 0.69 0
COOP-NATCO 0.69 0
ANAKPAWIS 0.62 0
ARC 0.63 0
ABONO 0.57 0

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election
Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections
laws, the Commission on Elections en banc sitting as the National Board of Canvassers,
hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations
or coalitions as entitled to additional seats, to wit:

Party List Additional Seats

BUHAY 2
BAYAN MUNA 1
CIBAC 1
GABRIELA 1
APEC 1

This is without prejudice to the proclamation of other parties, organizations or coalitions

which may later on be established to have obtained at least two per cent (2%) of the total
votes cast under the party-list system to entitle them to one (1) guaranteed seat, or to the
appropriate percentage of votes to entitle them to one (1) additional seat.

Finally, all proclamation of the nominees of concerned parties, organizations and coalitions
with pending disputes shall likewise be held in abeyance until final resolution of their
respective cases.

Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a
copy hereof to the Speaker of the House of Representatives of the Philippines.

SO ORDERED.9

Acting on BANAT’s petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August
2007, which reads as follows:

This pertains to the Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution filed by the Barangay Association for National Advancement
and Transparency (BANAT).

Acting on the foregoing Petition of the Barangay Association for National Advancement and
Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of
Canvassers Legal Group submitted his comments/observations and recommendation
thereon [NBC 07-041 (PL)], which reads:

COMMENTS / OBSERVATIONS:

Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its
Petition to Proclaim the Full Number of Party-List Representatives Provided by the
Constitution prayed for the following reliefs, to wit:

1. That the full number -- twenty percent (20%) -- of Party-List representatives as

mandated by Section 5, Article VI of the Constitution shall be proclaimed.

2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes,

should be harmonized with Section 5, Article VI of the Constitution and with Section
12 of the same RA 7941 in that it should be applicable only to the first party-list
representative seats to be allotted on the basis of their initial/first ranking.

3. The 3-seat limit prescribed by RA 7941 shall be applied; and

4. Initially, all party-list groups shall be given the number of seats corresponding to
every 2% of the votes they received and the additional seats shall be allocated in
accordance with Section 12 of RA 7941, that is, in proportion to the percentage of
votes obtained by each party-list group in relation to the total nationwide votes cast
in the party-list election, after deducting the corresponding votes of those which
were allotted seats under the 2% threshold rule. In fine, the formula/procedure
prescribed in the "ALLOCATION OF PARTY-LIST SEATS, ANNEX "A" of COMELEC
RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of
determining how many seats shall be proclaimed, which party-list groups are entitled
to representative seats and how many of their nominees shall seat [sic].

5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No.

7941 and that the procedure in allocating seats for party-list representative
prescribed by Section 12 of RA 7941 shall be followed.

R E C O M M E N D A T I O N:

The petition of BANAT is now moot and academic.

The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re "In the
Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and
Coalitions Participating Under the Party-List System During the May 14, 2007 National and
Local Elections" resolved among others that the total number of seats of each winning
party, organization or coalition shall be determined pursuant to the Veterans Federation
Party versus COMELEC formula upon completion of the canvass of the party-list
results."1awphi1

WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it

hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig,
Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic.

Let the Supervisory Committee implement this resolution.

SO ORDERED.10

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution
No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to
reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-
60 because the Veterans formula is violative of the Constitution and of Republic Act No.
7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the
proceedings of the NBC.11

Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC
proclaimed three other party-list organizations as qualified parties entitled to one
guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines,
Inc. (AGAP),12 Anak Mindanao (AMIN),13 and An Waray.14 Per the certification15 by COMELEC,
the following party-list organizations have been proclaimed as of 19 May 2008:

Party-List No. of Seat(s)

1.1 Buhay 3
1.2 Bayan Muna 2
1.3 CIBAC 2
1.4 Gabriela 2
1.5 APEC 2
1.6 A Teacher 1
1.7 Akbayan 1
1.8 Alagad 1
1.9 Butil 1
1.1
Coop-Natco [sic] 1
0
1.1
Anak Pawis 1
1
1.1
ARC 1
2
1.1
Abono 1
3
1.1
AGAP 1
4
1.1
AMIN 1
5

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan

(BATAS), against which an Urgent Petition for Cancellation/Removal of Registration and
Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has
been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250.
Issues

BANAT brought the following issues before this Court:

1. Is the twenty percent allocation for party-list representatives provided in Section

5(2), Article VI of the Constitution mandatory or is it merely a ceiling?

2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold and "qualifier" votes prescribed by the same Section
11(b) of RA 7941 constitutional?

4. How shall the party-list representatives be allocated?16

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their
petition:

I. Respondent Commission on Elections, acting as National Board of Canvassers,

committed grave abuse of discretion amounting to lack or excess of jurisdiction when
it promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in the
allocation of seats to qualified party-list organizations as said rule:

A. Violates the constitutional principle of proportional representation.

B. Violates the provisions of RA 7941 particularly:

1. The 2-4-6 Formula used by the First Party Rule in allocating

additional seats for the "First Party" violates the principle of
proportional representation under RA 7941.

2. The use of two formulas in the allocation of additional seats, one for
the "First Party" and another for the qualifying parties, violates Section
11(b) of RA 7941.

3. The proportional relationships under the First Party Rule are

different from those required under RA 7941;

C. Violates the "Four Inviolable Parameters" of the Philippine party-list system

as provided for under the same case of Veterans Federation Party, et al. v.
COMELEC.

II. Presuming that the Commission on Elections did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction when it implemented the First-
Party Rule in the allocation of seats to qualified party-list organizations, the same
being merely in consonance with the ruling in Veterans Federations Party, et al. v.
COMELEC, the instant Petition is a justiciable case as the issues involved herein are
constitutional in nature, involving the correct interpretation and implementation of
RA 7941, and are of transcendental importance to our nation.17
 Considering the allegations in the petitions and the comments of the parties in these
cases, we defined the following issues in our advisory for the oral arguments set on
22 April 2008:

1. Is the twenty percent allocation for party-list representatives in Section

5(2), Article VI of the Constitution mandatory or merely a ceiling?

2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to

qualify for one seat constitutional?

4. How shall the party-list representative seats be allocated?

5. Does the Constitution prohibit the major political parties from participating
in the party-list elections? If not, can the major political parties be barred
from participating in the party-list elections?18

The Ruling of the Court

The petitions have partial merit. We maintain that a Philippine-style party-list election has at
least four inviolable parameters as clearly stated in Veterans. For easy reference, these are:

First, the twenty percent allocation — the combined number of all party-list

congressmen shall not exceed twenty percent of the total membership of the House
of Representatives, including those elected under the party list;

Second, the two percent threshold — only those parties garnering a minimum of two
percent of the total valid votes cast for the party-list system are "qualified" to have a
seat in the House of Representatives;

Third, the three-seat limit — each qualified party, regardless of the number of votes
it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying"
and two additional seats;

Fourth, proportional representation— the additional seats which a qualified party is

entitled to shall be computed "in proportion to their total number of votes."19

However, because the formula in Veterans has flaws in its mathematical interpretation of

the term "proportional representation," this Court is compelled to revisit the formula for the
allocation of additional seats to party-list organizations.

Number of Party-List Representatives:

The Formula Mandated by the Constitution

Section 5, Article VI of the Constitution provides:

Section 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan Manila
area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected through
a party-list system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party-list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be
provided by law, except the religious sector.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List Representatives. — The party-list representatives shall

constitute twenty per centum (20%) of the total number of the members of the House of
Representatives including those under the party-list.

xxx

Section 5(1), Article VI of the Constitution states that the "House of Representatives shall
be composed of not more than two hundred and fifty members, unless otherwise fixed by
law." The House of Representatives shall be composed of district representatives and party-
list representatives. The Constitution allows the legislature to modify the number of the
members of the House of Representatives.1avvphi1.zw+

Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list
representatives to the total number of representatives. We compute the number of seats
available to party-list representatives from the number of legislative districts. On this point,
we do not deviate from the first formula in Veterans, thus:

Number of seats
available to legislative districts Number of seats available to
x .20 = party-list representatives
.80

This formula allows for the corresponding increase in the number of seats available for
party-list representatives whenever a legislative district is created by law. Since the 14th
Congress of the Philippines has 220 district representatives, there are 55 seats available to
party-list representatives.

22
0
x .20 = 55
.80

After prescribing the ratio of the number of party-list representatives to the total number of
representatives, the Constitution left the manner of allocating the seats available to
party-list representatives to the wisdom of the legislature.
Allocation of Seats for Party-List Representatives:
The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap

All parties agree on the formula to determine the maximum number of seats reserved under
the Party-List System, as well as on the formula to determine the guaranteed seats to
party-list candidates garnering at least two-percent of the total party-list votes. However,
there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation
of "additional seats" under the Party-List System. Veterans produced the First Party
Rule,20 and Justice Vicente V. Mendoza’s dissent in Veterans presented Germany’s Niemeyer
formula21 as an alternative.

The Constitution left to Congress the determination of the manner of allocating the seats for
party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of
Section 11 and Section 12 of which provide:

Section 11. Number of Party-List Representatives. — x x x

In determining the allocation of seats for the second vote,22 the following procedure shall be
observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one seat
each: Provided, That those garnering more than two percent (2%) of the
votes shall be entitled to additional seats in proportion to their total number
of votes: Provided, finally, That each party, organization, or coalition shall be
entitled to not more than three (3) seats.

Section 12. Procedure in Allocating Seats for Party-List Representatives. — The COMELEC

shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis,
rank them according to the number of votes received and allocate party-list representatives
proportionately according to the percentage of votes obtained by each party, organization,
or coalition as against the total nationwide votes cast for the party-list system. (Emphasis
supplied)

In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate
party-list representative seats.

The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2%
requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as follows:

(a) The party-list representatives shall constitute twenty percent (20%) of the total
Members of the House of Representatives including those from the party-list groups
as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA
7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220
District Representatives in the 14th Congress, there shall be 55 Party-List
Representatives. All seats shall have to be proclaimed.
 (b) All party-list groups shall initially be allotted one (1) seat for every two per
centum (2%) of the total party-list votes they obtained; provided, that no party-list
groups shall have more than three (3) seats (Section 11, RA 7941).

(c) The remaining seats shall, after deducting the seats obtained by the party-list
groups under the immediately preceding paragraph and after deducting from their
total the votes corresponding to those seats, the remaining seats shall be allotted
proportionately to all the party-list groups which have not secured the maximum
three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA
7941.23

Forty-four (44) party-list seats will be awarded under BANAT’s first interpretation.

The second interpretation presented by BANAT assumes that the 2% vote requirement is
declared unconstitutional, and apportions the seats for party-list representatives by
following Section 12 of R.A. No. 7941. BANAT states that the COMELEC:

(a) shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis;

(b) rank them according to the number of votes received; and,

(c) allocate party-list representatives proportionately according to the percentage of

votes obtained by each party, organization or coalition as against the total
nationwide votes cast for the party-list system.24

BANAT used two formulas to obtain the same results: one is based on the proportional
percentage of the votes received by each party as against the total nationwide party-list
votes, and the other is "by making the votes of a party-list with a median percentage of
votes as the divisor in computing the allocation of seats."25 Thirty-four (34) party-list seats
will be awarded under BANAT’s second interpretation.

In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELEC’s
original 2-4-6 formula and the Veterans formula for systematically preventing all the party-
list seats from being filled up. They claim that both formulas do not factor in the total
number of seats alloted for the entire Party-List System. Bayan Muna, Abono, and A
Teacher reject the three-seat cap, but accept the 2% threshold. After determining the
qualified parties, a second percentage is generated by dividing the votes of a qualified party
by the total votes of all qualified parties only. The number of seats allocated to a qualified
party is computed by multiplying the total party-list seats available with the second
percentage. There will be a first round of seat allocation, limited to using the whole integers
as the equivalent of the number of seats allocated to the concerned party-list. After all the
qualified parties are given their seats, a second round of seat allocation is conducted. The
fractions, or remainders, from the whole integers are ranked from highest to lowest and the
remaining seats on the basis of this ranking are allocated until all the seats are filled up.26

We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives.

Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the
highest to the lowest based on the number of votes they garnered during the elections.
Table 1. Ranking of the participating parties from the highest to the lowest based on the
number of votes garnered during the elections.27

Votes Votes
Rank Party Rank Party
Garnered Garnered
1 BUHAY 1,169,234 48 KALAHI 88,868
2 BAYAN MUNA 979,039 49 APOI 79,386
3 CIBAC 755,686 50 BP 78,541
4 GABRIELA 621,171 51 AHONBAYAN 78,424
5 APEC 619,657 52 BIGKIS 77,327
6 A TEACHER 490,379 53 PMAP 75,200
7 AKBAYAN 466,112 54 AKAPIN 74,686
8 ALAGAD 423,149 55 PBA 71,544
9 COOP- 409,883 56 GRECON 62,220
NATCCO
10 BUTIL 409,160 57 BTM 60,993
11 BATAS 385,810 58 A SMILE 58,717
12 ARC 374,288 59 NELFFI 57,872
13 ANAKPAWIS 370,261 60 AKSA 57,012
14 ABONO 339,990 61 BAGO 55,846
15 AMIN 338,185 62 BANDILA 54,751
16 AGAP 328,724 63 AHON 54,522
17 AN WARAY 321,503 64 ASAHAN MO 51,722
18 YACAP 310,889 65 AGBIAG! 50,837
19 FPJPM 300,923 66 SPI 50,478
20 UNI-MAD 245,382 67 BAHANDI 46,612
21 ABS 235,086 68 ADD 45,624
22 KAKUSA 228,999 69 AMANG 43,062
23 KABATAAN 228,637 70 ABAY PARAK 42,282
24 ABA-AKO 218,818 71 BABAE KA 36,512
25 ALIF 217,822 72 SB 34,835
26 SENIOR 213,058 73 ASAP 34,098
CITIZENS
27 AT 197,872 74 PEP 33,938
28 VFP 196,266 75 ABA ILONGGO 33,903
 29 ANAD 188,521 76 VENDORS 33,691
30 BANAT 177,028 77 ADD-TRIBAL 32,896
31 ANG 170,531 78 ALMANA 32,255
KASANGGA
32 BANTAY 169,801 79 AANGAT KA 29,130
PILIPINO
33 ABAKADA 166,747 80 AAPS 26,271
34 1-UTAK 164,980 81 HAPI 25,781
35 TUCP 162,647 82 AAWAS 22,946
36 COCOFED 155,920 83 SM 20,744
37 AGHAM 146,032 84 AG 16,916
38 ANAK 141,817 85 AGING PINOY 16,729
39 ABANSE! 130,356 86 APO 16,421
PINAY
40 PM 119,054 87 BIYAYANG 16,241
BUKID
41 AVE 110,769 88 ATS 14,161
42 SUARA 110,732 89 UMDJ 9,445
43 ASSALAM 110,440 90 BUKLOD 8,915
FILIPINA
44 DIWA 107,021 91 LYPAD 8,471
45 ANC 99,636 92 AA-KASOSYO 8,406
46 SANLAKAS 97,375 93 KASAPI 6,221
47 ABC 90,058 TOTAL 15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that "parties, organizations, and
coalitions receiving at least two percent (2%) of the total votes cast for the party-list
system shall be entitled to one seat each." This clause guarantees a seat to the two-
percenters. In Table 2 below, we use the first 20 party-list candidates for illustration
purposes. The percentage of votes garnered by each party is arrived at by dividing the
number of votes garnered by each party by 15,950,900, the total number of votes cast for
all party-list candidates.

Table 2. The first 20 party-list candidates and their respective percentage of votes garnered
over the total votes for the party-list.28

Rank Party Votes Votes Guaranteed

Garnered Garnered over Seat
Total Votes for
Party-List, in
 %
1 BUHAY 1,169,234 7.33% 1
2 BAYAN MUNA 979,039 6.14% 1
3 CIBAC 755,686 4.74% 1
4 GABRIELA 621,171 3.89% 1
5 APEC 619,657 3.88% 1
6 A TEACHER 490,379 3.07% 1
7 AKBAYAN 466,112 2.92% 1
8 ALAGAD 423,149 2.65% 1
9 COOP-NATCCO 409,883 2.57% 1
10 BUTIL 409,160 2.57% 1
11 BATAS29 385,810 2.42% 1
12 ARC 374,288 2.35% 1
13 ANAKPAWIS 370,261 2.32% 1
14 ABONO 339,990 2.13% 1
15 AMIN 338,185 2.12% 1
16 AGAP 328,724 2.06% 1
17 AN WARAY 321,503 2.02% 1
  Total     17
18 YACAP 310,889 1.95% 0
19 FPJPM 300,923 1.89% 0
20 UNI-MAD 245,382 1.54% 0

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the
total number of votes cast for party-list candidates. The 17 qualified party-list candidates,
or the two-percenters, are the party-list candidates that are "entitled to one seat each," or
the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed
seats.

The second clause of Section 11(b) of R.A. No. 7941 provides that "those garnering more
than two percent (2%) of the votes shall be entitled to additional seats in proportion to
their total number of votes." This is where petitioners’ and intervenors’ problem with the
formula in Veterans lies. Veterans interprets the clause "in proportion to their total number
of votes" to be in proportion to the votes of the first party. This interpretation is
contrary to the express language of R.A. No. 7941.

We rule that, in computing the allocation of additional seats, the continued operation of
the two percent threshold for the distribution of the additional seats as found in the second
clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two
percent threshold makes it mathematically impossible to achieve the maximum number of
available party list seats when the number of available party list seats exceeds 50. The
continued operation of the two percent threshold in the distribution of the additional seats
frustrates the attainment of the permissive ceiling that 20% of the members of the House of
Representatives shall consist of party-list representatives.

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast
for the 100 participants in the party list elections. A party that has two percent of the votes
cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50
parties all get one million votes. Only 50 parties get a seat despite the availability of 55
seats. Because of the operation of the two percent threshold, this situation will repeat itself
even if we increase the available party-list seats to 60 seats and even if we increase the
votes cast to 100 million. Thus, even if the maximum number of parties get two percent of
the votes for every party, it is always impossible for the number of occupied party-list seats
to exceed 50 seats as long as the two percent threshold is present.

We therefore strike down the two percent threshold only in relation to the distribution of the
additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two
percent threshold presents an unwarranted obstacle to the full implementation of Section
5(2), Article VI of the Constitution and prevents the attainment of "the broadest possible
representation of party, sectoral or group interests in the House of Representatives."30

In determining the allocation of seats for party-list representatives under Section 11 of R.A.
No. 7941, the following procedure shall be observed:

1. The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.

2. The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one guaranteed seat
each.

3. Those garnering sufficient number of votes, according to the ranking in paragraph

1, shall be entitled to additional seats in proportion to their total number of votes
until all the additional seats are allocated.

4. Each party, organization, or coalition shall be entitled to not more than three (3)
seats.

In computing the additional seats, the guaranteed seats shall no longer be included because
they have already been allocated, at one seat each, to every two-percenter. Thus, the
remaining available seats for allocation as "additional seats" are the maximum seats
reserved under the Party List System less the guaranteed seats. Fractional seats are
disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of
fractional seats.

In declaring the two percent threshold unconstitutional, we do not limit our allocation of
additional seats in Table 3 below to the two-percenters. The percentage of votes garnered
by each party-list candidate is arrived at by dividing the number of votes garnered by each
party by 15,950,900, the total number of votes cast for party-list candidates. There are two
steps in the second round of seat allocation. First, the percentage is multiplied by the
remaining available seats, 38, which is the difference between the 55 maximum seats
reserved under the Party-List System and the 17 guaranteed seats of the two-percenters.
The whole integer of the product of the percentage and of the remaining available seats
corresponds to a party’s share in the remaining available seats. Second, we assign one
party-list seat to each of the parties next in rank until all available seats are completely
distributed. We distributed all of the remaining 38 seats in the second round of seat
allocation. Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Votes
Garner
(B)
ed Additio
plus Applyi
over Guarant nal
(C), ng the
Votes Total eed Seat Seats
Ra in three
Party Garner Votes (First (Secon
nk whole seat
ed for Round) d
integ cap
Party (B) Round)
ers (E)
List, in (C)
(D)
%
(A)
1,169,2
1 BUHAY 7.33% 1 2.79 3 N.A.
34
BAYAN 979,03
2 6.14% 1 2.33 3 N.A.
MUNA 9
755,68
3 CIBAC 4.74% 1 1.80 2 N.A.
6
GABRIEL 621,17
4 3.89% 1 1.48 2 N.A.
A 1
619,65
5 APEC 3.88% 1 1.48 2 N.A.
7
A 490,37
6 3.07% 1 1.17 2 N.A.
Teacher 9
AKBAYA 466,11
7 2.92% 1 1.11 2 N.A.
N 2
423,14
8 ALAGAD 2.65% 1 1.01 2 N.A.
9
COOP- 409,88
931 2.57% 1 1 2 N.A.
NATCCO 3
409,16
10 BUTIL 2.57% 1 1 2 N.A.
0
385,81
11 BATAS 2.42% 1 1 2 N.A.
0
 374,28
12 ARC 2.35% 1 1 2 N.A.
8
ANAKPA 370,26
13 2.32% 1 1 2 N.A.
WIS 1
339,99
14 ABONO 2.13% 1 1 2 N.A.
0
338,18
15 AMIN 2.12% 1 1 2 N.A.
5
328,72
16 AGAP 2.06% 1 1 2 N.A.
4
AN 321,50
17 2.02% 1 1 2 N.A.
WARAY 3
310,88
18 YACAP 1.95% 0 1 1 N.A.
9
300,92
19 FPJPM 1.89% 0 1 1 N.A.
3
245,38
20 UNI-MAD 1.54% 0 1 1 N.A.
2
235,08
21 ABS 1.47% 0 1 1 N.A.
6
228,99
22 KAKUSA 1.44% 0 1 1 N.A.
9
KABATA 228,63
23 1.43% 0 1 1 N.A.
AN 7
218,81
24 ABA-AKO 1.37% 0 1 1 N.A.
8
217,82
25 ALIF 1.37% 0 1 1 N.A.
2
SENIOR
213,05
26 CITIZEN 1.34% 0 1 1 N.A.
8
S
197,87
27 AT 1.24% 0 1 1 N.A.
2
196,26
28 VFP 1.23% 0 1 1 N.A.
6
188,52
29 ANAD 1.18% 0 1 1 N.A.
1
177,02
30 BANAT 1.11% 0 1 1 N.A.
8
31 ANG 170,53 1.07% 0 1 1 N.A.
 KASANG
1
GA
169,80
32 BANTAY 1.06% 0 1 1 N.A.
1
ABAKAD 166,74
33 1.05% 0 1 1 N.A.
A 7
164,98
34 1-UTAK 1.03% 0 1 1 N.A.
0
162,64
35 TUCP 1.02% 0 1 1 N.A.
7
COCOFE 155,92
36 0.98% 0 1 1 N.A.
D 0
Tot
17 55
al

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-
list representatives from the 36 winning party-list organizations. All 55 available party-list
seats are filled. The additional seats allocated to the parties with sufficient number of votes
for one whole seat, in no case to exceed a total of three seats for each party, are shown in
column (D).

Participation of Major Political Parties in Party-List Elections

The Constitutional Commission adopted a multi-party system that allowed all political

parties to participate in the party-list elections. The deliberations of the Constitutional
Commission clearly bear this out, thus:

MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party
list system because we wanted to open up the political system to a pluralistic society
through a multiparty system. x x x We are for opening up the system, and we would
like very much for the sectors to be there. That is why one of the ways to do that
is to put a ceiling on the number of representatives from any single party that can
sit within the 50 allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political
parties. My question is this: Are we going to classify for example Christian Democrats and
Social Democrats as political parties? Can they run under the party list concept or must they
be under the district legislation side of it only?

MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner
mentioned can field candidates for the Senate as well as for the House of
Representatives. Likewise, they can also field sectoral candidates for the 20 percent
or 30 percent, whichever is adopted, of the seats that we are allocating under the
party list system.
MR. MONSOD. In other words, the Christian Democrats can field district candidates and can
also participate in the party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will be
fielding only sectoral candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from
the different marginalized sectors that we shall designate in this Constitution.

MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he
represents the farmers, would he qualify?

MR. VILLACORTA. No, Senator Tañada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan
dela Cruz is a farmer. Who would pass on whether he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties,
particularly minority political parties, are not prohibited to participate in the party
list election if they can prove that they are also organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can participate
because it is precisely the contention of political parties that they represent the broad base
of citizens and that all sectors are represented in them. Would the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political
party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin
mismo ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang
"reserve." Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198
seats, reserved din ito sa political parties.

MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to
Commissioner Villacorta and probably also to Commissioner Tadeo is that under this
system, would UNIDO be banned from running under the party list system?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that

condition alone, UNIDO may be allowed to register for the party list system.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

xxxx

MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and
mass organizations to seek common ground. For example, we have the PDP-Laban and the
UNIDO. I see no reason why they should not be able to make common goals with mass
organizations so that the very leadership of these parties can be transformed through the
participation of mass organizations. And if this is true of the administration parties, this will
be true of others like the Partido ng Bayan which is now being formed. There is no question
that they will be attractive to many mass organizations. In the opposition parties to which
we belong, there will be a stimulus for us to contact mass organizations so that with their
participation, the policies of such parties can be radically transformed because this
amendment will create conditions that will challenge both the mass organizations and the
political parties to come together. And the party list system is certainly available, although it
is open to all the parties. It is understood that the parties will enter in the roll of the
COMELEC the names of representatives of mass organizations affiliated with them. So that
we may, in time, develop this excellent system that they have in Europe where labor
organizations and cooperatives, for example, distribute themselves either in the Social
Democratic Party and the Christian Democratic Party in Germany, and their very presence
there has a transforming effect upon the philosophies and the leadership of those parties.

It is also a fact well known to all that in the United States, the AFL-CIO always vote with the
Democratic Party. But the businessmen, most of them, always vote with the Republican
Party, meaning that there is no reason at all why political parties and mass organizations
should not combine, reenforce, influence and interact with each other so that the very
objectives that we set in this Constitution for sectoral representation are achieved in a
wider, more lasting, and more institutionalized way. Therefore, I support this [Monsod-
Villacorta] amendment. It installs sectoral representation as a constitutional gift, but at the
same time, it challenges the sector to rise to the majesty of being elected representatives
later on through a party list system; and even beyond that, to become actual political
parties capable of contesting political power in the wider constitutional arena for major
political parties.

x x x 32 (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put forward by the Constitutional
Commission. Section 3 of R.A. No. 7941 reads:

Definition of Terms. (a) The party-list system is a mechanism of proportional representation

in the election of representatives to the House of Representatives from national, regional
and sectoral parties or organizations or coalitions thereof registered with the Commission on
Elections (COMELEC). Component parties or organizations of a coalition may participate
independently provided the coalition of which they form part does not participate in the
party-list system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to an organized group of citizens advocating an ideology or

platform, principles and policies for the general conduct of government and which, as
the most immediate means of securing their adoption, regularly nominates and
supports certain of its leaders and members as candidates for public office.

It is a national party when its constituency is spread over the geographical territory
of at least a majority of the regions. It is a regional party when its constituency is
spread over the geographical territory of at least a majority of the cities and
provinces comprising the region.
 (d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the
special interests and concerns of their sector,

(e) A sectoral organization refers to a group of citizens or a coalition of groups of

citizens who share similar physical attributes or characteristics, employment,
interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral

parties or organizations for political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from
dominating the party-list elections.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the Constitution
clearly intended the major political parties to participate in party-list elections through their
sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22,
any permanent sectoral seats, and in the alternative the reservation of the party-list system
to the sectoral groups.33 In defining a "party" that participates in party-list elections as
either "a political party or a sectoral party," R.A. No. 7941 also clearly intended that major
political parties will participate in the party-list elections. Excluding the major political
parties in party-list elections is manifestly against the Constitution, the intent of the
Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political
engineering and judicially legislate the exclusion of major political parties from the party-list
elections in patent violation of the Constitution and the law.

Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state
that major political parties are allowed to establish, or form coalitions with, sectoral
organizations for electoral or political purposes. There should not be a problem if, for
example, the Liberal Party participates in the party-list election through the Kabataang
Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can
thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the
Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and
this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI)
can do the same for the urban poor.

The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:

Qualifications of Party-List Nominees. — No person shall be nominated as party-list

representative unless he is a natural born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1) year immediately preceding
the day of the elections, able to read and write, bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days preceding the day of
the election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more
than thirty (30) years of age on the day of the election. Any youth sectoral representative
who attains the age of thirty (30) during his term shall be allowed to continue until the
expiration of his term.
Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization’s
nominee "wallow in poverty, destitution and infirmity"34 as there is no financial status
required in the law. It is enough that the nominee of the sectoral
party/organization/coalition belongs to the marginalized and underrepresented
sectors,35 that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or
if the nominee represents the senior citizens, he or she must be a senior citizen.

Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20%
allocation of party-list representatives found in the Constitution. The Constitution, in
paragraph 1, Section 5 of Article VI, left the determination of the number of the members of
the House of Representatives to Congress: "The House of Representatives shall be
composed of not more than two hundred and fifty members, unless otherwise fixed by law,
x x x." The 20% allocation of party-list representatives is merely a ceiling; party-list
representatives cannot be more than 20% of the members of the House of Representatives.
However, we cannot allow the continued existence of a provision in the law which will
systematically prevent the constitutionally allocated 20% party-list representatives from
being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-
list organization may occupy, remains a valid statutory device that prevents any party from
dominating the party-list elections. Seats for party-list representatives shall thus be
allocated in accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing
major political parties from participating in the party-list elections, directly or indirectly.
Those who voted to continue disallowing major political parties from the party-list elections
joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate
party-list seats, the Court is unanimous in concurring with this ponencia.

WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the

COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9
July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the
distribution of additional party-list seats. The allocation of additional seats under the Party-
List System shall be in accordance with the procedure used in Table 3 of this Decision. Major
political parties are disallowed from participating in party-list elections. This Decision is
immediately executory. No pronouncement as to costs.

SO ORDERED.

Mariano v. Comelec, 242 SCRA 211

At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as
unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act
Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City
of Makati."1

G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by
petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie
Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba,
and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others
are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as
unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds:

1. Section 2 of R.A. No. 7854 did not properly identify the land area or
territorial jurisdiction of Makati by metes and bounds, with technical
descriptions, in violation of Section 10, Article X of the Constitution, in
relation to Sections 7 and 450 of the Local Government Code;

2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three

consecutive term" limit for local elective officials, in violation of Section 8,
Article X and Section 7, Article VI of the Constitution.

3. Section 52 of R.A. No. 7854 is unconstitutional for:

(a) it increased the legislative district of Makati only by special

law (the Charter in violation of the constitutional provision
requiring a general reapportionment law to be passed by
Congress within three (3) years following the return of every
census;

(b) the increase in legislative district was not expressed in the

title of the bill; and

(c) the addition of another legislative district in Makati is not in

accord with Section 5 (3), Article VI of the Constitution for as of
the latest survey (1990 census), the population of Makati
stands at only 450,000.

G.R. No. 118627 was filed by the petitioner John H. Osmeña as senator, taxpayer, and
concerned citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the
same grounds as aforestated.

We find no merit in the petitions.

Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of
Makati, thus:

Sec. 2. The City of Makati. — The Municipality of Makati shall be converted

into a highly urbanized city to be known as the City of Makati, hereinafter
referred to as the City, which shall comprise the present territory of the
Municipality of Makati in Metropolitan Manila Area over which it has
jurisdiction bounded on the northeast by Pasig River and beyond by the City
of Mandaluyong and the Municipality of Pasig; on the southeast by the
municipalities of Pateros and Taguig; on the southwest by the City of Pasay
and the Municipality of Taguig; and, on the northwest, by the City of Manila.

The foregoing provision shall be without prejudice to the resolution by the

appropriate agency or forum of existing boundary disputes or cases involving
 questions of territorial jurisdiction between the City of Makati and the
adjoining local government units. (Emphasis supplied)

In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the
Local Government Code which require that the area of a local government unit should be
made by metes and bounds with technical descriptions.2

The importance of drawing with precise strokes the territorial boundaries of a local unit of
government cannot be overemphasized. The boundaries must be clear for they define the
limits of the territorial jurisdiction of a local government unit. It can legitimately exercise
powers of government only within the limits, its acts are ultra vires. Needless to state, any
uncertainty in the boundaries of local government units will sow costly conflicts in the
exercise of governmental powers which ultimately will prejudice the people's welfare. This is
the evil sought to avoided by the Local Government Code in requiring that the land area of a
local government unit must be spelled out in metes and bounds, with technical descriptions.

Given the facts of the cases at bench, we cannot perceive how this evil can be brought
about by the description made in section 2 of R.A. No. 7854, Petitioners have not
demonstrated that the delineation of the land area of the proposed City of Makati will cause
confusion as to its boundaries. We note that said delineation did not change even by an inch
the land area previously covered by Makati as a municipality. Section 2 did not add,
subtract, divide, or multiply the established land area of Makati. In language that cannot be
any clearer, section 2 stated that, the city's land area "shall comprise the present territory
of the municipality."

The deliberations of Congress will reveal that there is a legitimate reason why the land area
of the proposed City of Makati was not defined by metes and bounds, with technical
descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute
between the municipalities of Makati and Taguig over Fort Bonifacio was under court
litigation. Out of a becoming sense of respect to co-equal department of government,
legislators felt that the dispute should be left to the courts to decide. They did not want to
foreclose the dispute by making a legislative finding of fact which could decide the issue.
This would have ensued if they defined the land area of the proposed city by its exact metes
and bounds, with technical descriptions.3 We take judicial notice of the fact that Congress
has also refrained from using the metes and bounds description of land areas of other local
government units with unsettled boundary disputes.4

We hold that the existence of a boundary dispute does not per se present an

insurmountable difficulty which will prevent Congress from defining with reasonable
certitude the territorial jurisdiction of a local government unit. In the cases at bench,
Congress maintained the existing boundaries of the proposed City of Makati but as an act of
fairness, made them subject to the ultimate resolution by the courts. Considering these
peculiar circumstances, we are not prepared to hold that section 2 of R.A. No. 7854 is
unconstitutional. We sustain the submission of the Solicitor General in this regard, viz.:

Going now to Sections 7 and 450 of the Local Government Code, it is beyond
cavil that the requirement stated therein, viz.: "the territorial jurisdiction of
newly created or converted cities should be described by meted and bounds,
with technical descriptions" — was made in order to provide a means by
which the area of said cities may be reasonably ascertained. In other words,
the requirement on metes and bounds was meant merely as tool in the
establishment of local government units. It is not an end in itself. Ergo, so
 long as the territorial jurisdiction of a city may be reasonably
ascertained, i.e., by referring to common boundaries with neighboring
municipalities, as in this case, then, it may be concluded that the legislative
intent behind the law has been sufficiently served.

Certainly, Congress did not intends that laws creating new cities must contain
therein detailed technical descriptions similar to those appearing in Torrens
titles, as petitioners seem to imply. To require such description in the law as a
condition sine qua non for its validity would be to defeat the very purpose
which the Local Government Code to seeks to serve. The manifest intent of
the Code is to empower local government units and to give them their rightful
due. It seeks to make local governments more responsive to the needs of
their constituents while at the same time serving as a vital cog in national
development. To invalidate R.A. No. 7854 on the mere ground that no
cadastral type of description was used in the law would serve the letter but
defeat the spirit of the Code. It then becomes a case of the master serving
the slave, instead of the other way around. This could not be the intendment
of the law.

Too well settled is the rule that laws must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute. Courts
will not follow the letter of the statute when to do so would depart from the
true intent of the legislature or would otherwise yield conclusions inconsistent
with the general purpose of the act. (Torres v. Limjap, 56 Phil., 141; Tañada
v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is
an active instrument of government, which, for purposes of interpretation,
means that laws have ends to achieve, and statutes should be so construed
as not to defeat but to carry out such ends and purposes (Bocolbo v.
Estanislao, 72 SCRA 520). The same rule must indubitably apply to the case
at bar.

II

Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A.
No. 7854. Section 51 states:

Sec. 51. Officials of the City of Makati. — The represent elective officials of

the Municipality of Makati shall continue as the officials of the City of Makati
and shall exercise their powers and functions until such time that a new
election is held and the duly elected officials shall have already qualified and
assume their offices: Provided, The new city will acquire a new corporate
existence. The appointive officials and employees of the City shall likewise
continues exercising their functions and duties and they shall be automatically
absorbed by the city government of the City of Makati.

They contend that this section collides with section 8, Article X and section 7, Article VI of
the Constitution which provide:

Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official
shall serve for more than three consecutive terms. Voluntary renunciation of
 the office for any length of time shall not be considered as an interruption in
the continuity of his service for the full term for which he was elected.

xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for a

term of three years which shall begin, unless otherwise provided by law, at
noon on the thirtieth day of June next following their election.

No Member of the House of Representatives shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.

Petitioners stress that under these provisions, elective local officials, including Members of
the House of Representative, have a term of three (3) years and are prohibited from serving
for more than three (3) consecutive terms. They argue that by providing that the new city
shall acquire a new corporate existence, section 51 of R.A. No. 7854 restarts the term of the
present municipal elective officials of Makati and disregards the terms previously served by
them. In particular, petitioners point that section 51 favors the incumbent Makati Mayor,
respondent Jejomar Binay, who has already served for two (2) consecutive terms. They
further argue that should Mayor Binay decide to run and eventually win as city mayor in the
coming elections, he can still run for the same position in 1998 and seek another three-year
consecutive term since his previous three-year consecutive term as municipal mayor would
not be counted. Thus, petitioners conclude that said section 51 has been conveniently
crafted to suit the political ambitions of respondent Mayor Binay.

We cannot entertain this challenge to the constitutionality of section 51. The requirements
before a litigant can challenge the constitutionality of a law are well delineated. They are: 1)
there must be an actual case or controversy; (2) the question of constitutionality must be
raised by the proper party; (3) the constitutional question must be raised at the earliest
possible opportunity; and (4) the decision on the constitutional question must be necessary
to the determination of the case itself.5

Petitioners have far from complied with these requirements. The petition is premised on the
occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming
mayoralty elections; that he would be re-elected in said elections; and that he would seek
re-election for the same position in the 1998 elections. Considering that these contingencies
may or may not happen, petitioners merely pose a hypothetical issue which has yet to ripen
to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano)
are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic
issue in a petition for declaratory relief over which this Court has no jurisdiction.

III

Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52,
Article X of R.A. No. 7854. Section 52 of the Charter provides:

Sec. 52. Legislative Districts. — Upon its conversion into a highly-urbanized

city, Makati shall thereafter have at least two (2) legislative districts that shall
initially correspond to the two (2) existing districts created under Section 3(a)
 of Republic Act. No. 7166 as implemented by the Commission on Elections to
commence at the next national elections to be held after the effectivity of this
Act. Henceforth, barangays Magallanes, Dasmariñas and Forbes shall be with
the first district, in lieu of Barangay Guadalupe-Viejo which shall form part of
the second district. (emphasis supplied)

They contend. that the addition of another legislative district in Makati is unconstitutional
for: (1) reapportionment6 cannot made by a special law, (2) the addition of a legislative
district is not expressed in the title of the bill7 and (3) Makati's population, as per the 1990
census, stands at only four hundred fifty thousand (450,000).

These issues have been laid to rest in the recent case of Tobias v. Abalos.8 In said case, we
ruled that reapportionment of legislative districts may be made through a special law, such
as in the charter of a new city. The Constitution9 clearly provides that Congress shall be
composed of not more than two hundred fifty (250) members, unless otherwise fixed by
law. As thus worded, the Constitution did not preclude Congress from increasing its
membership by passing a law, other than a general reapportionment of the law. This is its
exactly what was done by Congress in enacting R.A. No. 7854 and providing for an increase
in Makati's legislative district. Moreover, to hold that reapportionment can only be made
through a general apportionment law, with a review of all the legislative districts allotted to
each local government unit nationwide, would create an inequitable situation where a new
city or province created by Congress will be denied legislative representation for an
indeterminate period of time. 10 The intolerable situations will deprive the people of a new
city or province a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of
subtraction. It is indivisible. It must be forever whole or it is not sovereignty.

Petitioners cannot insist that the addition of another legislative district in Makati is not in
accord with section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty thousand
(450,000). 13 Said section provides, inter alia, that a city with a population of at least two
hundred fifty thousand (250,000) shall have at least one representative. Even granting that
the population of Makati as of the 1990 census stood at four hundred fifty thousand
(450,000), its legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the
Ordinance appended to the Constitution provides that a city whose population has increased
to more than two hundred fifty thousand (250,000) shall be entitled to at least one
congressional representative. 14

Finally, we do not find merit in petitioners' contention that the creation of an additional
legislative district in Makati should have been expressly stated in the title of the bill. In the
same case of Tobias v. Abalos, op cit., we reiterated the policy of the Court favoring a
liberal construction of the "one title-one subject" rule so as not to impede legislation. To be
sure, with Constitution does not command that the title of a law should exactly mirror, fully
index, or completely catalogue all its details. Hence, we ruled that "it should be sufficient
compliance if the title expresses the general subject and all the provisions are germane to
such general subject."

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

SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.

Separate Opinions

DAVIDE, JR., J., concurring:

I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add
a few observations.

I.

Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or
barangay may be created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government code and subject
to the approval by a majority of the votes cast in a plebiscite in the political units directly
affected." These criteria are now set forth in Section 7 of the Local Government Code of
1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government
unit to be created or converted should be properly identified by metes and bounds with
technical descriptions.

The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly
Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of
the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes and bounds as a condition sine qua
non for the creation of a local government unit or its conversion from one level to another.
The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of
fact, the section starts with the clause "as a general rule." The petitioners' reliance on
Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a
municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city.
It pertinently reads as follows:

Sec. 450. Requisite for creation. — (a) A municipality or a cluster of

barangays may be converted into a component city if it has an average
annual income, as certified by the Department of Finance, of at least Twenty
million pesos (P20,000,000.00) for the last two (2) consecutive years based
on 1991 constant prices, and if it has either of the following requisites:

xxx xxx xxx

(b) The territorial jurisdiction of a newly created city shall be properly

identified by metes and bounds. . . .
The constitution classifies cities as either highly urbanized or component. Section 12 of
Article X thereof provides:

Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The voters of
component cities within a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote for elective provincial
officials.

And Section 451 of R.A. No. 7160 provides:

Sec. 451. Cities Classified. — A city may either be component or highly

urbanized: Provided, however, That the criteria established in this Code shall
not affect the classification and corporate status of existing cities.

Independent component cities are those component cities whose charters

prohibit their voters from voting for provincial elective officials. Independent
component cities shall be independent of the province.

II.

Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise
fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause
contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said
Section which reads in full as follows:

Within three years following the return of every census, the Congress shall
make a reapportionment of legislative districts based on the standards
provided in this section.

In short, the clause refers to a general reapportionment law.

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:

Sec. 1. For purposes of the election of Members of the House of

Representatives of the First Congress of the Philippines under the Constitution
proposed by the 1986 Constitutional Commission and subsequent elections,
and until otherwise provided by law, the Members thereof shall be elected
from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila Area as follows:

METROPOLITAN MANILA AREA

xxx xxx xxx

MAKATI one (1)

xxx xxx xxx

 Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member
or such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
created, or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission
on Elections but such adjustment shall not be made within one hundred and
twenty days before the election. (Emphases supplied)

Separate Opinions

DAVIDE, JR., J., concurring:

I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add
a few observations.

I.

Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or
barangay may be created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government code and subject
to the approval by a majority of the votes cast in a plebiscite in the political units directly
affected." These criteria are now set forth in Section 7 of the Local Government Code of
1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local government
unit to be created or converted should be properly identified by metes and bounds with
technical descriptions.

The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly
Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of
the city by metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The
Constitution does not provide for a description by metes and bounds as a condition sine qua
non for the creation of a local government unit or its conversion from one level to another.
The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of
fact, the section starts with the clause "as a general rule." The petitioners' reliance on
Section 450 of R.A. No. 7160 is unavailing Said section only applies to the conversion of a
municipality or a cluster of barangays into a COMPONENT CITY, not a highly urbanized city.
It pertinently reads as follows:

Sec. 450. Requisite for creation. — (a) A municipality or a cluster of

barangays may be converted into a component city if it has an average
annual income, as certified by the Department of Finance, of at least Twenty
million pesos (P20,000,000.00) for the last two (2) consecutive years based
on 1991 constant prices, and if it has either of the following requisites:
 xxx xxx xxx

(b) The territorial jurisdiction of a newly created city shall be properly

identified by metes and bounds. . . .

The constitution classifies cities as either highly urbanized or component. Section 12 of

Article X thereof provides:

Sec. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The voters of
component cities within a province, whose charters contain no such
prohibition, shall not be deprived of their right to vote for elective provincial
officials.

And Section 451 of R.A. No. 7160 provides:

Sec. 451. Cities Classified. — A city may either be component or highly

urbanized: Provided, however, That the criteria established in this Code shall
not affect the classification and corporate status of existing cities.

Independent component cities are those component cities whose charters

prohibit their voters from voting for provincial elective officials. Independent
component cities shall be independent of the province.

II.

Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justified by the clause unless otherwise
fixed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause
contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the said
Section which reads in full as follows:

Within three years following the return of every census, the Congress shall
make a reapportionment of legislative districts based on the standards
provided in this section.

In short, the clause refers to a general reapportionment law.

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:

Sec. 1. For purposes of the election of Members of the House of

Representatives of the First Congress of the Philippines under the Constitution
proposed by the 1986 Constitutional Commission and subsequent elections,
and until otherwise provided by law, the Members thereof shall be elected
from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila Area as follows:

METROPOLITAN MANILA AREA

 xxx xxx xxx

MAKATI one (1)

xxx xxx xxx

Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member
or such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
created, or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission
on Elections but such adjustment shall not be made within one hundred and
twenty days before the election. (Emphases supplied)

Footnotes

1 R.A. No. 7854 is a consolidation of House Bill No. 12240 sponsored by

Congressman Joker Arroyo and Senate Bill No. 1244 sponsored by Senator
Vicente Sotto III.

2 Sec. 7. Creation and Conversion. — As a general rule, the creation of a local

government unit or its conversion from one level to another level shall be
based on verifiable indicators of viability and projected capacity to provide
services, to wit:

xxx xxx xxx

(c) Land Area. — It must be contiguous, unless it comprises two (2) or more
islands or is separated by a local government unit independent of the others;
properly identified by metes and bounds with technical descriptions and
sufficient to provide for such basic services and facilities to meet the
requirements of its populace.

Compliance with the foregoing indicators shall be attested to by the

Department of Finance the National Statistics Office (NSO), and the Lands
Management Bureau (LMB) of the Department of Environment and Natural
Resources (DENR).

xxx xxx xxx

Sec. 450. Requisites for Creation. — . . .

(b) The territorial jurisdiction of a newly-created city shall be properly

identified by metes and bounds. . . .

3 August 18, 1994, Senate Deliberations on H.B. No. 12240, pp. 23-28.
4 Ibid, citing as example the City of Mandaluyong.

5 Dumlao v. COMELEC, 95 SCRA 392 (19180); Cruz, Constitutional Law, 1991

ed., p. 24.

6 Section 5(4), Article VI of the Constitution provides:

(4) Within three years following the return of every census, the Congress
shall make a reapportionment of legislative districts based on the standards
provided in this section.

7 Section 26(1), Article VI of the Constitution provides:

Sec. 26 (1) Every bill passed by the Congress shall, embrace only one subject
which shall be expressed in the title thereof.

8 G.R. No. 114783, December 8, 1994.

9 Section 5(1), Article VI.

10 In this connection, we take judicial notice of the fact that since 1986 up to
this time, Congress has yet to pass a general reapportionment law.

11 Section 1, Article II provides that "the Philippines is a democratic and

republican state. Sovereignty resides in the people and all government
authority from them."

12 Sec. 5. . . .

(3) Each legislative district shall comprise, as far as practicable, contiguous,

compact, and adjacent territory. Each city with a population of at least two
hundred fifty thousand, or each province, shall have at least one
representative.

xxx xxx xxx

13 As per the certificate issued by Administration Tomas Africa of the National

Census and Statistics Office, the population of Makati as of 1994 stood at
508,174; August 4, 1994, Senate Deliberations on House Bill No. 12240
(converting Makati into a highly urbanized city), p. 15.

14 Sec. 3 provides: "Any province that may hereafter be created, or any city
whose population may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election to at least one
Member or such number of Members as it may be entitled to on the basis of
the number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission
 on Elections but such adjustment shall not be made within one hundred, and
twenty days before the election."

Montejo v. Comelec, GR 118702, Mar. 19, 1995

More than political fortunes are at stake in the case at bench. Petitioner Cirilo Roy G.
Montejo, representing the First District of Leyte, pleads for the annulment of section 1 of
Resolution No. 2736 of the COMELEC, redistricting certain municipalities in Leyte, on the
ground that it violates the principle of equality of representation. To remedy the alleged
inequity, petitioner seeks to transfer the municipality of Tolosa from his district to the
Second District of the province. Intervenor Sergio A.F. Apostol, representing the Second
District, vigorously opposed the inclusion of Tolosa in his district. We gave due course to the
petition considering that, at bottom, it involves the validity of the unprecedented exercise
by the COMELEC of the legislative power of redistricting and reapportionment.

The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5)
legislative districts.1

The first district2 covers Tacloban City and the municipalities of Alangalang, Babatngon,
Palo, San Miguel, Sta. Fe, Tanauan and Tolosa.

The second district3 is composed of the municipalities of Barugo, Barauen, Capoocan,

Carigara, Dagami, Dulag, Jaro, Julita, La Pat, Mayorga, MacArthur, Pastrana, Tabontabon,
and Tunga.

The third district4 is composed of the municipalities of Almeria, Biliran, Cabucgayan,

Caibiran, Calubian, Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and
Villaba.

The fourth district5 is composed of Ormoc City and the municipalities of Albuera, Isabel,
Kananga, Matagob, Merida, and Palompon.

The fifth district6 is composed of the municipalities of Abuyog, Bate, Baybay, Hilongos,
Hindang, Inopacan, Javier, Mahaplag, and Matalom.

Biliran, located in the third district of Leyte , was made its sub-province by virtue of
Republic Act No. 2141 Section 1 of the law spelled out enacted on April 8, 1959.7

Section 1 of the law spelled out the municipalities comprising the sub-province, viz.:
"Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all the
territories comprised therein."

On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462,
the sub-province of Biliran became a regular province. It provides:

Existing sub-provinces are hereby converted into regular

provinces upon approval by a majority of the votes cast in a
plebiscite to be held in the sub-provinces and the original
provinces directly affected. The plebiscite shall be conducted by
the COMELEC simultaneously with the national elections
following the effectivity of this code. The new legislative
 districts created as a result of such conversion shall continue to
be represented in Congress by the duly-elected representatives
of the original districts out of which said new provinces or
districts were created until their own representatives shall have
been elected in the next regular congressional elections and
qualified.

The conversion of Biliran into a regular province was approved by a majority of the votes
cast in a plebiscite held on May 11, 1992. As a consequence of the conversion, eight (8)
municipalities of the Third District composed the new province of Biliran, i.e., Almeria,
Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi, and Naval. A further consequence
was to reduce the Third District to five (5) municipalities with a total population of 145,067
as per the 1990 census.

To remedy the resulting inequality in the distribution of inhabitants, voters and

municipalities in the province of Leyte, respondent COMELEC held consultation meetings
with the incumbent representatives of the province and other interested parties. On
December 29, 1994, it promulgated Resolution No. 2736 where, among others, it
transferred the municipality of Capoocan of the Second District and the municipality of
Palompon of the Fourth District to the Third District of Leyte. The composition of the First
District which includes the municipality of Tolosa and the composition of the Fifth District
were not disturbed. After the movement of municipalities, the composition of the five (5)
legislative districts appeared as follows:

First District: Population Registered

Voters
(1990) (1994)

1. Tacloban City, 137,190 81,679

2. Alangalang, 33,375 20,543
3. Babatngon, 17,795 9,929
4. Palo, 38,100 20,816
5. San Miguel, 13,438 8,167
6. Sta. Fe, 12,119 7,497
7. Tanauan and, 38,033 22,357
8. Tolosa; 13,299 7,700
———— ————
TOTAL 303,349 178,688

Second District: Population Registered

Voters
(1990) (1994)

1. Barugo, 23,817 13,237

2. Barauen, 46,029 23,307
3. Carigara 38,863 22,036
4. Dagami, 25,606 16,519
5. Dulag, 33,020 19,375
6. Jaro, 31,727 17,139
7. Julita, 9,944 6,196
8. La Paz, 14,311 9,003
9. Mayorga, 10,530 5,868
 10. Mac Arthur, 13,159 8,628
11. Pastrana, 12,565 7,348
12. Tabontabon, and 7,183 4,419
13. Tunga; 5,413 3,387
———— ————
TOTAL 272,167 156,462

Third District: Population Registered

Voters
(1990) (1994)

1. Calubian, 25,968 16,649

2. Leyte, 32,575 16,415
3. San Isidro, 24,442 14,916
4. Tabango, 29,743 15,48
5. Villaba, 32,339 21,227
6. Capoocan, and 23,687 13,595
7. Palompon; 45,745 27,474
———— ————
TOTAL 214,499 125,763

Fourth District: Population Registered

Voters
(1990) (1994)

1. Ormoc City, 129,456 75,140

2. Albuera, 32,395 17,493
3. Isabel, 33,389 21,889
4. Kananga, 36,288 19,873
5. Matagob, 15,474 9,407
6. Merida, and 22,345 12,474
———— ————
TOTAL 269,347 155,995

Fifth District: Population Registered

Voters
(1990) (1994)

1. Abuyog, 47,265 28,682

2. Bato, 28,197 116,13
3. Baybay, 82,281 47,923
4. Hilongos, 48,617 26,871
5. Hindang, 16,272 9,659
6. Inopacan, 16,894 10,401
7. Javier, 18,658 11,713
8. Mahaplag, and 22,673 13,616
9. Matalom 28,291 16,247
———— ————
TOTAL 309,148 181,242

Petitioner Montejo filed a motion for reconsideration calling the attention of respondent
COMELEC, among others, to the inequitable distribution of inhabitants and voters between
the First and Second Districts. He alleged that the First District has 178,688 registered
voters while the Second District has 156,462 registered voters or a difference of 22,226
registered voters. To diminish the difference, he proposed that the municipality
of Tolosa with 7,7000 registered voters be transferred from the First to the Second District.
The motion was opposed by intervenor, Sergio A.F. Apostol. Respondent Commission denied
the motion ruling that: (1) its adjustment of municipalities involved the least disruption of
the territorial composition of each district; and (2) said adjustment complied with the
constitutional requirement that each legislative district shall comprise, as far as practicable,
contiguous, compact and adjacent territory.

In this petition, petitioner insists that Section I of Resolution No. 2736 violates the principle
of equality of representation ordained in the Constitution. Citing Wesberry v. Sanders,8 he
argues that respondent COMELEC violated "the constitutional precept that as much as
practicable one man's vote in a congressional election is to be worth as much as another's."
The Solicitor General, in his Comment, concurred with the views of the petitioner. The
intervenor, however, opposed the petition on two (2) grounds: (1) COMELEC has no
jurisdiction to promulgate Resolution No. 2736; and (2) assuming it has jurisdiction, said
Resolution is in accord with the Constitution. Respondent COMELEC filed its own Comment
alleging that it acted within the parameters of the Constitution.

We find section 1 of Resolution No. 2736 void.

While the petition at bench presents a significant issue, our first inquiry will relate to the
constitutional power of the respondent COMELEC9 to transfer municipalities from one
legislative district to another legislative district in the province of Leyte. The basic powers of
respondent COMELEC, as enforcer and administrator of our election laws, are spelled out in
black and white in section 2(c), Article IX of the Constitution. Rightly, respondent COMELEC
does not invoke this provision but relies on the Ordinance appended to the 1987
Constitution as the source of its power of redistricting which is traditionally regarded as part
of the power to make laws. The Ordinance is entitled "Apportioning the Seats of the House
of Representatives of the Congress of the Philippines to the Different Legislative Districts in
Provinces and Cities and the Metropolitan Manila Area." Its substantive sections state:

Sec. 1. For purposes of the election of Members of the House of

Representatives of the First Congress of the Philippines under the Constitution
proposed by the 1986 Constitutional Commission and subsequent elections,
and until otherwise provided by law, the Members thereof shall be elected
from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila Area as follows:

xxx xxx xxx

Sec. 2. The Commission on Elections is hereby empowered to make minor

adjustments of the reapportionment herein made.

Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand
shall be entitled in the immediately following election to at least one Member
or such number of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in
paragraph (3), Section 5 of Article VI of the Constitution. The number of
Members apportioned to the province out of which such new province was
 created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission
on Elections but such adjustment shall not be made within one hundred and
twenty days before the election. (Emphasis supplied)

The Ordinance was made necessary because Proclamation No. 3 10 of President Corazon C.
Aquino, ordaining the Provisional Constitution of the Republic of the Philippines, abolished
the Batasang Pambansa. 11 She then exercised legislative powers under the Provisional
Constitution.12

The Ordinance was the principal handiwork of then Commissioner Hilario G. Davide,
Jr., 13 now a distinguished member of this Court. The records reveal that the Constitutional
Commission had to resolve several prejudicial issues before authorizing the first
congressional elections under the 1987 Constitution. Among the vital issues were: whether
the members of the House of Representatives would be elected by district or by
province; who shall undertake the apportionment of the legislative districts; and, how the
apportionment should be made.14 Commissioner Davide, Jr. offered three (3) options for the
Commission to consider: (1) allow President Aquino to do the apportionment by law; (2)
empower the COMELEC to make the apportionment; or (3) let the Commission exercise the
power by way of an Ordinance appended to the Constitution. 15 The different dimensions of
the options were discussed by Commissioners Davide, Felicitas S. Aquino and Blas F. Ople.
We quote the debates in extenso, viz.:16

xxx xxx xxx

MR. PADILLA. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Padilla is recognized.

MR. PADILLA. I think I have filed a very simple motion by way of amendment
by substitution and this was, I believe, a prior or a proposed amendment.
Also, the chairman of the Committee on the Legislative said that he was
proposing a vote first by the Chamber on the concept of whether the election
is by province and cities on the one hand, or by legislative districts on the
other. So I propose this simple formulation which reads: "FOR THE FIRST
ELECTION UNDER THIS CONSTITUTION THE LEGISLATIVE DISTRICTS SHALL
BE APPORTIONED BY THE COMMISSION ON ELECTIONS." I hope the
chairman will accept the proposed amendment.

SUSPENSION OF SESSION

MR. DAVIDE. The effect is, more or less, the same insofar as the
apportionment is concerned, but the Bernas-Sarmiento et al. proposal would
also provide for a mandate for the apportionment later, meaning after the
first election, which will in effect embody what the Commission had approved,
reading as follows: "Within three years following the return of every census,
the Congress shall make a reapportionment of legislative districts based on
the standards provided in this section."

So, Mr. Presiding Officer, may I request for a suspension of the session, so
that all the proponents can work together.
THE PRESIDING OFFICER (Mr. Jamir). The session is suspended.

It was 3:33 p.m.

RESUMPTION OF SESSION

At 3:40 p.m., the session was resumed.

THE PRESIDING OFFICER (Mr. Jamir). The session is resumed.

Commissioner Davide is recognized.

MR. DAVIDE. Mr. Presiding Officer, as a compromise, I wonder if the

Commission will allow this. We will just delete the proposed subparagraph (4)
and all the capitalized words in paragraph (5). So that in paragraph (5), what
would be left would only be the following: "Within three years following the
return of every census, the Congress shall make a reapportionment of
legislative districts based on the standards provided in this section."

But we shall have an ordinance appended to the new Constitution indicating

specifically the following: "FOR PURPOSES OF THE ELECTION OF MEMBERS
OF THE HOUSE OF REPRESENTATIVES IN THE FIRST CONGRESSIONAL
ELECTION IMMEDIATELY FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION PROPOSED BY THE 1986 CONSTITUTIONAL COMMISSION
AND SUBSEQUENT ELECTIONS AND UNTIL OTHERWISE PROVIDED BY LAW,
THE MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL BE ELECTED
FROM LEGISLATIVE DISTRICTS APPORTIONED AMONG THE PROVINCES,
CITIES AND THE METROPOLITAN MANILA AREA AS FOLLOWS."

And what will follow will be the allocation of seats to Metropolitan Manila Area,
to the provinces and to the cities, without indicating the municipalities
comprising each of the districts. Then, under Section 2, we will mandate the
COMELEC to make the actual apportionment on the basis of the number of
seats provided for and allocated to each province by us.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.

MS. AQUINO. I have to object to the provision which will give mandate to
COMELEC to do the redistricting. Redistricting is vitally linked to the baneful
practices of cutting up areas or spheres of influence; in other words,
gerrymandering. This Commission, being a nonpartisan, a nonpolitical
deliberative body, is in the best possible situation under the circumstances to
undertake that responsibility. We are not wanting in expertise and in time
because in the first place, the Committee on the Legislative has prepared the
report on the basis of the recommendation of the COMELEC.

MR. OPLE. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Ople is recognized.

MR. OPLE. I would like to support the position taken by Commissioner Aquino
in this respect. We know that the reapportionment of provinces and cities for
the purpose of redistricting is generally inherent in the constituent power or in
the legislative power. And I would feel very uncertain about delegating this to
a quasi-judicial body even if it is one of the constitutional offices created
under this Constitution. We have the assurance of Commissioner Davide, as
chairman of the Committee on the Legislative, that even given the very short
time remaining in the life of this Commission, there is no reason why we
cannot complete the work of reapportionment on the basis of the COMELEC
plan which the committee has already thoroughly studied and which remains
available to the Constitutional Commission.

So, I support the position taken by Commissioner Aquino, Mr. Presiding

Officer. I think, it is the safest, the most reasonable, and the most workable
approach that is available to this Commission.

THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Davide say:

MR. DAVIDE. The issue now is whether this body will make the apportionment
itself or whether we will leave it to the COMELEC. So, there arises, therefore,
a prejudicial question for the body to decide. I would propose that the
Commission should now decide what body should make the apportionment.
Should it be the Commission or should it be the COMELEC? And the
Committee on the Legislative will act accordingly on the basis of the decision.

MR. BENGZON. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Bengzon is recognized.

MR. BENGZON. Apropos of that, I would like to inform the body that I believe
the Committee on the Legislative has precisely worked on this matter and
they are ready with a list of apportionment. They have, in fact, apportioned
the whole country into various districts based on the recommendation of the
COMELEC. So they are ready with the list and if this body would wish to
apportion the whole country by district itself, then I believe we have the time
to do it because the Committee on the Legislative is ready with that particular
report which need only to be appended to the Constitution. So if this body is
ready to accept the work of the Committee on the Legislative we would have
no problem. I just would like to give that information so that the people here
would be guided accordingly when they vote.

MR. RODRIGO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir) Commissioner Rodrigo is recognized.

MR. RODRIGO. I just would like to ask Commissioner Davide some questions.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide may yield if he

so desires.

MR. DAVIDE. Gladly.

MR. RODRIGO. Will this apportionment which we are considering apply only to
the first election after the enactment of the Constitution?

MR. DAVIDE. On the basis of the Padilla proposal, it will be for the first
election; on the basis of the Sarmiento proposal, it will only apply to the first
election.

MR. RODRIGO. And after that, Congress will have the power to reapportion.

MR. DAVIDE. Yes.

MR. RODRIGO. So, if we attach this to the Constitution — the

reapportionment based on the COMELEC study and between the approval of
the Constitution and the first election — the COMELEC no longer has the
power to change that even a bit.

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Jamir) Commissioner Regalado is recognized.

MR. REGALADO. May I address a clarificatory question to Commissioner

Davide?

THE PRESIDING OFFICER (Mr. Jamir). Gentleman will please proceed.

MR. REGALADO. On the basis of the Commissioner's proposed apportionment

and considering the fact that there will be a corresponding reduction to 183
seats, would there be instances representation of under non-representation?

MR. DAVIDE. None at all, Mr. Presiding Officer. I can assure the Commission
that there will be no case of inequitable distribution. It will come out to be
one for every 350 to 400,000 inhabitants.

MR. REGALADO. And that would be within the standard that we refer.

MR. DAVIDE. Yes, Mr. Presiding Officer.

MR. REGALADO. Thank you.

MR. RAMA. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). The Floor Leader is recognized.

MR. RAMA. The parliamentary situation is that there was a motion by

Commissioner Sarmiento to mandate COMELEC to do the redistricting. This
was also almost the same motion by Commissioner Padilla and I think we
have had some kind of meeting of minds. On the other hand, there seems to
be a prejudicial question, an amendment to the amendment as suggested by
Commissioner Aquino, that instead of the COMELEC, it should be this
Commission that shall make the redistricting. So may I ask Commissioner
Aquino, if she insists on that idea, to please formulate it into a motion so we
can vote on that first as an amendment to the amendment.

THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized.

MS . AQUINO. The motion is for this Commission to undertake the

apportionment of the legislative districts instead of the proposal that
COMELEC be given the mandate to undertake the responsibility.

xxx xxx xxx

MR. SARMIENTO. May I be clarified, Mr. Presiding Officer. Is it the motion or

the proposed amendment?

THE PRESIDING OFFICER (Mr. Jamir). The proposed amendment.

MR. SARMIENTO. May we move for the approval of this proposed amendment
which we substitute for paragraphs 4 and 5.

MR. DAVIDE. May I request that it should be treated merely as a motion to be

followed by a deletion of paragraph 4 because that should not really appear
as a paragraph in Section 5; otherwise, it will appear very ugly in the
Constitution where we mandate a Commission that will become functus
officio to have the authority. As a matter of fact, we cannot exercise that
authority until after the ratification of the new Constitution.

THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Sarmiento

say?

MR. SARMIENTO. It is accepted, Mr. Presiding Officer. So, may I move for the
approval of this proposed amendment.

MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.

MS. AQUINO. Would that require a two-thirds vote or a simple plurality to

adopt that motion?

THE PRESIDING OFFICER (Mr. Jamir). That will require a two-thirds vote.

MS. AQUINO. Thank you. Mr. Presiding Officer.

MR. SARMIENTO. May I restate the motion, Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir) The Gentleman may proceed.

MR. SARMIENTO. May I move that this Commission do the reapportionment

legislative districts.
 MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). What is the pleasure of Commissioner

Aquino?

MS. AQUINO. May I be clarified again on the motion. Is Commissioner

Sarmiento, therefore, adopting my motion? Would it not be right for him to
move that the COMELEC be mandated?

MR. SARMIENTO. No, we accepted the amendment. It is already the

Commission that will be mandated.

MS. AQUINO. So, the Gentlemen has accepted the amendment the
amendment.

Thank you.

MR. SARMIENTO. I am voting that this Commission do the reapportionment.

VOTING

THE PRESIDING OFFICER (Mr. Jamir). Let us proceed to vote.

As many as are in favor, please raise their hand. (Several Members raised
their hand.)

As many as are against, please raise their hand. (No Member raised his
hand.)

The results show 30 votes in favor and none against; the motion is approved.

Clearly then, the Constitutional Commission denied to the COMELEC the major power of

legislative apportionment as it itself exercised the power. Section 2 of the Ordinance only
empowered the COMELEC "to make minor adjustments of the reapportionment herein
made." The meaning of the phrase "minor adjustments was again clarified in the
debates 17 of the Commission, viz.:

xxx xxx xxx

MR. GUINGONA. This is just clarificatory, Mr. Presiding Officer. In Section 2,

the Commission on Elections is empowered to make minor adjustments on
the apportionment made here.

MR. DAVIDE. Yes, Mr. Presiding Officer.

MR. GUINGONA. We have not set any time limit for this.

MR. DAVIDE. We should not set a time limit unless during the period of
amendments a proposal is made. The authority conferred would be on minor
corrections or amendments, meaning to say, for instance, that we may have
 forgotten an intervening municipality in the enumeration, which ought to be
included in one district. That we shall consider a minor amendment.

MR. GUINGONA. Thank you.

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Romulo). Commissioner de Castro is

recognized.

MR. DE CASTRO. Thank you.

I was about to ask the committee the meaning of minor adjustment. Can it be

possible that one municipality in a district be transferred to another district
and call it a minor adjustment?

MR. DAVIDE. That cannot be done, Mr. Presiding Officer. Minor, meaning, that

there should be no change in the allocations per district. However, it may
happen that we have forgotten a municipality in between which is still in the
territory of one assigned district, or there may be an error in the correct
name of a particular municipality because of changes made by the interim
Batasang Pambansa and the Regular Batasang Pambansa. There were many
batas pambansa enacted by both the interim and the Regular Batasang
Pambansa changing the names of municipalities.

MR. DE CASTRO. So, the minor adjustment may be made only if one of the
municipalities is not mentioned in the ordinance appended to, and it will be up
for the COMELEC now to adjust or to put such municipality to a certain
district.

MR. DAVIDE. Yes, Mr. Presiding Officer. For instance, we may not have the
data regarding a division of a municipality by the interim Batasang Pambansa
or the Regular Batasang Pambansa into two municipalities, meaning, a
mother municipality and the new municipality, but still actually these are
within the geographical district area.

MR. DE CASTRO. So the minor adjustment which the COMELEC cannot do is

that, if, for example, my municipality is in the First District of Laguna, they
cannot put that in any other district.

MR. DAVIDE. That is not even a minor correction. It is a substantive one.

MR. DE CASTRO. Thank you.

Consistent with the limits of its power to make minor adjustments, Section 3 of the
Ordinance did not also give the respondent COMELEC any authority to
transfer municipalities from one legislative district to another district. The power granted by
Section 3 to the respondent COMELEC is to adjust the number of members (not
municipalities) "apportioned to the province out of which such new province was created. . .
."
Prescinding from these premises, we hold that respondent COMELEC committed grave
abuse of discretion amounting to lack of jurisdiction when it promulgated section 1 of its
Resolution No. 2736 transferring the municipality of Capoocan of the Second District and
the municipality of Palompon of the Fourth District to the Third District of Leyte.

It may well be that the conversion of Biliran from a sub-province to a regular province
brought about an imbalance in the distribution of voters and inhabitants in the five (5)
legislative districts of the province of Leyte. This imbalance, depending on its degree, could
devalue a citizen's vote in violation of the equal protection clause of the Constitution. Be
that as it may, it is not proper at this time for petitioner to raise this issue using the case at
bench as his legal vehicle. The issue involves a problem of reapportionment of legislative
districts and petitioner's remedy lies with Congress. Section 5(4), Article VI of the
Constitution categorically gives Congress the power to reapportion, thus: "Within three (3)
years following the return of every census, the Congress shall make a reapportionment of
legislative districts based on the standards provided in this section." In Macias
v. COMELEC, 18 we ruled that the validity of a legislative apportionment is a justiciable
question. But while this Court can strike down an unconstitutional reapportionment, it
cannot itself make the reapportionment as petitioner would want us to do by directing
respondent COMELEC to transfer the municipality of Tolosa from the First District to the
Second District of the province of Leyte.

IN VIEW WHEREOF, section 1 of Resolution No. 2736 insofar as it transferred the

municipality of Capoocan of the Second District and the municipality of Palompon of the
Fourth District to the Third District of the province of Leyte, is annulled and set aside. We
also deny the Petition praying for the transfer of the municipality of Tolosa from the First
District to the Second District of the province of Leyte. No costs.

SO ORDERED.

Bengson v. HRET, G.R. No. 142840, May 7, 2001

The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the
constitutional requirement that "no person shall be a Member of the House of
Representative unless he is a natural-born citizen."1

Respondent Cruz was a natural-born citizen of the Philippines. He was born in San
Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then
applicable was the 1935 Constitution.2

On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps
and without the consent of the Republic of the Philippines, took an oath of allegiance to the
United States. As a Consequence, he lost his Filipino citizenship for under Commonwealth
Act No. 63, section 1(4), a Filipino citizen may lose his citizenship by, among other,
"rendering service to or accepting commission in the armed forces of a foreign country."
Said provision of law reads:

SECTION 1. How citizenship may be lost. – A Filipino citizen may lose his citizenship
in any of the following ways and/or events:
 xxx

(4) By rendering services to, or accepting commission in, the armed of a foreign
country: Provided, That the rendering of service to, or the acceptance of such
commission in, the armed forces of a foreign country, and the taking of an oath of
allegiance incident thereto, with the consent of the Republic of the Philippines, shall
not divest a Filipino of his Philippine citizenship if either of the following
circumstances is present:

(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance
with said foreign country; or

(b) The said foreign country maintains armed forces on Philippine territory with the
consent of the Republic of the Philippines: Provided, That the Filipino citizen
concerned, at the time of rendering said service, or acceptance of said commission,
and taking the oath of allegiance incident thereto, states that he does so only in
connection with his service to said foreign country; And provided, finally, That any
Filipino citizen who is rendering service to, or is commissioned in, the armed forces
of a foreign country under any of the circumstances mentioned in paragraph (a) or
(b), shall not be Republic of the Philippines during the period of his service to, or
commission in, the armed forces of said country. Upon his discharge from the service
of the said foreign country, he shall be automatically entitled to the full enjoyment of
his civil and politically entitled to the full enjoyment of his civil political rights as a
Filipino citizen x x x.

Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his
naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S.
Marine Corps.

On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through
repatriation under Republic Act No. 2630.3 He ran for and was elected as the Representative
of the Second District of Pangasinan in the May 11, 1998 elections. He won by a convincing
margin of 26,671 votes over petitioner Antonio Bengson III, who was then running for
reelection.1âwphi1.nêt

Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House

of Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not
qualified to become a member of the House of Representatives since he is not a natural-
born citizen as required under Article VI, section 6 of the Constitution.4

On March 2, 2000, the HRET rendered its decision5 dismissing the petition for quo
warranto and declaring Cruz the duly elected Representative of the Second District of
Pangasinan in the May 1998 elections. The HRET likewise denied petitioner's motion for
reconsideration of the decision in its resolution dated April 27, 2000.6

Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the
following grounds:

1. The HRET committed serious errors and grave abuse of discretion, amounting to
excess of jurisdiction, when it ruled that private respondent is a natural-born citizen
 of the Philippines despite the fact that he had ceased being such in view of the loss
and renunciation of such citizenship on his part.

2. The HRET committed serious errors and grave abuse of discretion, amounting to
excess of jurisdiction, when it considered private respondent as a citizen of the
Philippines despite the fact he did not validly acquire his Philippine citizenship.

3. Assuming that private respondent's acquisition of Philippine citizenship was

invalid, the HRET committed serious errors and grave abuse of discretion, amounting
to excess of jurisdiction, when it dismissed the petition despite the fact that such
reacquisition could not legally and constitutionally restore his natural-born status.7

The issue now before us is whether respondent Cruz, a natural-born Filipino who became an
American citizen, can still be considered a natural-born Filipino upon his reacquisition of
Philippine citizenship.

Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino
since he lost h is Philippine citizenship when he swore allegiance to the United States in
1995, and had to reacquire the same by repatriation. He insists that Article citizens are
those who are from birth with out having to perform any act to acquire or perfect such
citizenship.

Respondent on the other hand contends that he reacquired his status as natural-born citizen
when he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the
innate, inherent and inborn characteristic of being a natural-born citizen.

The petition is without merit.

The 1987 Constitution enumerates who are Filipino citizens as follow:

(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;

(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973 of Filipino mother, who elect Philippine
citizenship upon reaching the age of majority, and

(4) Those who are naturalized in accordance with law.8

There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These
ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born
citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a
particular country, is a natural-born citizen thereof.9

As defined in the same Constitution, natural-born citizens "are those citizens of the
Philippines from birth without having to perform any act to acquire or perfect his Philippine
citezenship."10

On the other hand, naturalized citizens are those who have become Filipino citizens through
naturalization, generally under Commonwealth Act No. 473, otherwise known as the
Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927),
and by Republic Act No. 530.11 To be naturalized, an applicant has to prove that he
possesses all the qualifications12 and none of the disqualification13 provided by law to
become a Filipino citizen. The decision granting Philippine citizenship becomes executory
only after two (2) years from its promulgation when the court is satisfied that during the
intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself
to a lawful calling or profession; (3) has not been convicted of any offense or violation of
Government promulgated rules; or (4) committed any act prejudicial to the interest of the
nation or contrary to any Government announced policies.14

Filipino citizens who have lost their citizenship may however reacquire the same in the
manner provided by law. Commonwealth Act. No. (C.A. No. 63), enumerates the three
modes by which Philippine citizenship may be reacquired by a former citizen: (1) by
naturalization, (2) by repatriation, and (3) by direct act of Congress.15

Naturalization is mode for both acquisition and reacquisition of Philippine citizenship. As a

mode of initially acquiring Philippine citizenship, naturalization is governed by
Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode for
reacquiring Philippine citizenship is governed by Commonwealth Act No. 63.16 Under this
law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess
certain qualifications17 and none of the disqualification mentioned in Section 4 of C.A. 473.18

Repatriation, on the other hand, may be had under various statutes by those who lost their
citizenship due to: (1) desertion of the armed forces;19 services in the armed forces of the
allied forces in World War II;20 (3) service in the Armed Forces of the United States at any
other time,21 (4) marriage of a Filipino woman to an alien;22 and (5) political economic
necessity.23

As distinguished from the lengthy process of naturalization, repatriation simply consists of

the taking of an oath of allegiance to the Republic of the Philippine and registering said oath
in the Local Civil Registry of the place where the person concerned resides or last resided.

In Angat v. Republic,24 we held:

xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the
person desiring to reacquire Philippine citizenship would not even be required to file
a petition in court, and all that he had to do was to take an oath of allegiance to the
Republic of the Philippines and to register that fact with the civil registry in the place
of his residence or where he had last resided in the Philippines. [Italics in the
original.25

Moreover, repatriation results in the recovery of the original nationality.26 This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a
naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen
before he lost his Philippine citizenship, he will be restored to his former status as a natural-
born Filipino.

In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the
Armed Forces of the United States. However, he subsequently reacquired Philippine
citizenship under R.A. No. 2630, which provides:
 Section 1. Any person who had lost his Philippine citizenship by rendering service to,
or accepting commission in, the Armed Forces of the United States, or after
separation from the Armed Forces of the United States, acquired United States
citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the
Republic of the Philippines and registering the same with Local Civil Registry in the
place where he resides or last resided in the Philippines. The said oath of allegiance
shall contain a renunciation of any other citizenship.

Having thus taken the required oath of allegiance to the Republic and having registered the
same in the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited
provision, respondent Cruz is deemed to have recovered his original status as a natural-
born citizen, a status which he acquired at birth as the son of a Filipino father.27 It bears
stressing that the act of repatriation allows him to recover, or return to, his original
status before he lost his Philippine citizenship.

Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had
to perform an act to regain his citizenship is untenable. As correctly explained by the HRET
in its decision, the term "natural-born citizen" was first defined in Article III, Section 4 of
the 1973 Constitution as follows:

Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth
without having to perform any act to acquire or perfect his Philippine citizenship.

Two requisites must concur for a person to be considered as such: (1) a person must be a
Filipino citizen birth and (2) he does not have to perform any act to obtain or perfect his
Philippine citizenship.

Under the 1973 Constitution definition, there were two categories of Filipino citizens which
were not considered natural-born: (1) those who were naturalized and (2) those born
before January 17, 1973,38 of Filipino mothers who, upon reaching the age of majority,
elected Philippine citizenship. Those "naturalized citizens" were not considered natural-born
obviously because they were not Filipino at birth and had to perform an act to acquire
Philippine citizenship. Those born of Filipino mothers before the effectively of the 1973
Constitution were likewise not considered natural-born because they also had to perform an
act to perfect their Philippines citizenship.

The present Constitution, however, now consider those born of Filipino mothers before the
effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the
majority age as natural-born. After defining who re natural-born citizens, Section 2 of
Article IV adds a sentence: "Those who elect Philippine citizenship in accordance with
paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only
naturalized Filipinos are considered not natural-born citizens. It is apparent from the
enumeration of who are citizens under the present Constitution that there are only two
classes of citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo
the process of naturalization to obtain Philippine citizenship, necessarily is natural-born
Filipino. Noteworthy is the absence in said enumeration of a separate category for persons
who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is
clear: as to such persons, they would either be natural-born or naturalized depending on
the reasons for the loss of their citizenship and the mode prescribed by the applicable law
for the reacquisition thereof. As respondent Cruz was not required by law to go through
naturalization proceeding in order to reacquire his citizenship, he is perforce a natural-born
Filipino. As such, he possessed all the necessary qualifications to be elected as member of
the House of Representatives.

A final point. The HRET has been empowered by the Constitution to be the "sole judge" of
all contests relating to the election, returns, and qualifications of the members of the
House.29 The Court's jurisdiction over the HRET is merely to check "whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of
the latter.30 In the absence thereof, there is no occasion for the Court to exercise its
corrective power and annul the decision of the HRET nor to substitute the Court's judgement
for that of the latter for the simple reason that it is not the office of a petition for certiorari
to inquire into the correctness of the assailed decision.31 There is no such showing of grave
abuse of discretion in this case.

WHEREFORE, the petition is hereby DISMISSED.

Jimenez v. Cabangbang, 17 SCRA 714

This is an ordinary civil action, originally instituted in the Court of First Instance of Rizal, for
the recovery, by plaintiffs Nicanor T. Jimenez, Carlos J. Albert and Jose L. Lukban, of
several sums of money, by way of damages for the publication of an allegedly libelous letter
of defendant Bartolome Cabangbang. Upon being summoned, the latter moved to dismiss
the complaint upon the ground that the letter in question is not libelous, and that, even if
were, said letter is a privileged communication. This motion having been granted by the
lower court, plaintiffs interposed the present appeal from the corresponding order of
dismissal.

The issues before us are: (1) whether the publication in question is a privileged
communication; and, if not, (2) whether it is libelous or not.

The first issue stems from the fact that, at the time of said publication, defendant was a
member of the House of Representatives and Chairman of its Committee on National
Defense, and that pursuant to the Constitution:

The Senators and Members of the House of Representatives shall in all cases except
treason, felony, and breach of the peace, be privileged from arrest during their
attendance at the sessions of the Congress, and in going to and returning from the
same; and for any speech or debate therein, they shall not be questioned in any
other place. (Article VI, Section 15.)

The determination of the first issue depends on whether or not the aforementioned
publication falls within the purview of the phrase "speech or debate therein" — that is to
say, in Congress — used in this provision.

Said expression refers to utterances made by Congressmen in the performance of their

official functions, such as speeches delivered, statements made, or votes cast in the halls of
Congress, while the same is in session, as well as bills introduced in Congress, whether the
same is in session or not, and other acts performed by Congressmen, either in Congress or
outside the premises housing its offices, in the official discharge of their duties as members
of Congress and of Congressional Committees duly authorized to perform its functions as
such, at the time of the performance of the acts in question.1

The publication involved in this case does not belong to this category. According to the
complaint herein, it was an open letter to the President of the Philippines, dated November
14, 1958, when Congress presumably was not in session, and defendant caused said letter
to be published in several newspapers of general circulation in the Philippines, on or about
said date. It is obvious that, in thus causing the communication to be so published, he was
not performing his official duty, either as a member of Congress or as officer or any
Committee thereof. Hence, contrary to the finding made by His Honor, the trial Judge, said
communication is not absolutely privileged.

Was it libelous, insofar as the plaintiffs herein are concerned? Addressed to the President,
the communication began with the following paragraph:

In the light of the recent developments which however unfortunate had nevertheless
involved the Armed Forces of the Philippines and the unfair attacks against the duly
elected members of Congress of engaging in intriguing and rumor-mongering, allow
me, Your Excellency, to address this open letter to focus public attention to certain
vital information which, under the present circumstances, I feel it my solemn duty to
our people to expose.1äwphï1.ñët

It has come to my attention that there have been allegedly three operational plans
under serious study by some ambitious AFP officers, with the aid of some civilian
political strategists.

Then, it describes the "allegedly three (3) operational plans" referred to in the second
paragraph. The first plan is said to be "an insidious plan or a massive political build-up" of
then Secretary of National Defense, Jesus Vargas, by propagandizing and glamorizing him in
such a way as to "be prepared to become a candidate for President in 1961". To this end,
the "planners" are said to "have adopted the sales-talk that Secretary Vargas is
'Communists' Public Enemy No. 1 in the Philippines." Moreover, the P4,000,000.00
"intelligence and psychological warfare funds" of the Department of National Defense, and
the "Peace and Amelioration Fund" — the letter says — are "available to adequately finance
a political campaign". It further adds:

It is reported that the "Planners" have under their control the following: (1) Col.
Nicanor Jimenez of NICA, (2) Lt. Col. Jose Lukban of NBI, (3) Capt. Carlos Albert
(PN) of G-2 AFP, (4) Col. Fidel Llamas of MIS (5) Lt. Col. Jose Regala of the
Psychological Warfare Office, DND, and (6) Major Jose Reyna of the Public
information Office, DND. To insure this control, the "Planners" purportedly sent Lt.
Col. Job Mayo, Chief of MIS to Europe to study and while Mayo was in Europe, he
was relieved by Col. Fidel Llamas. They also sent Lt. Col. Deogracias Caballero, Chief
of Psychological Warfare Office, DND, to USA to study and while Caballero was in
USA, he was relieved by Lt. Col. Jose Regala. The "Planners" wanted to relieve Lt.
Col. Ramon Galvezon, Chief of CIS (PC) but failed. Hence, Galvezon is considered a
missing link in the intelligence network. It is, of course, possible that the offices
mentioned above are unwitting tools of the plan of which they may have absolutely
no knowledge. (Emphasis ours.)
Among the means said to be used to carry out the plan the letter lists, under the heading
"other operational technique the following:

(a) Continuous speaking engagements all over the Philippines for Secretary Vargas
to talk on "Communism" and Apologetics on civilian supremacy over the military;

(b) Articles in magazines, news releases, and hundreds of letters — "typed in two (2)
typewriters only" — to Editors of magazines and newspapers, extolling Secretary
Vargas as the "hero of democracy in 1951, 1953, 1955 and 1957 elections";

(c) Radio announcements extolling Vargas and criticizing the administration;

(d) Virtual assumption by Vargas of the functions of the Chief of Staff and an
attempt to pack key positions in several branches of the Armed Forces with men
belonging to his clique;

(e) Insidious propaganda and rumors spread in such a way as to give the impression
that they reflect the feeling of the people or the opposition parties, to undermine the
administration.

Plan No. II is said to be a "coup d'etat", in connection with which the "planners" had gone
no further than the planning stage, although the plan "seems to be held in abeyance and
subject to future developments".

Plan No. III is characterized as a modification of Plan No. I, by trying to assuage the
President and the public with a loyalty parade, in connection with which Gen. Arellano
delivered a speech challenging the authority and integrity of Congress, in an effort to rally
the officers and men of the AFP behind him, and gain popular and civilian support.

The letter in question recommended.: (1) that Secretary Vargas be asked to resign; (2) that
the Armed Forces be divorced absolutely from politics; (3) that the Secretary of National
Defense be a civilian, not a professional military man; (4) that no Congressman be
appointed to said office; (5) that Gen. Arellano be asked to resign or retire; (6) that the
present chiefs of the various intelligence agencies in the Armed Forces including the chiefs
of the NICA, NBI, and other intelligence agencies mentioned elsewhere in the letter, be
reassigned, considering that "they were handpicked by Secretary Vargas and Gen.
Arellano", and that, "most probably, they belong to the Vargas-Arellano clique"; (7) that all
military personnel now serving civilian offices be returned to the AFP, except those holding
positions by provision of law; (8) that the Regular Division of the AFP stationed in Laur,
Nueva Ecija, be dispersed by batallion strength to the various stand-by or training divisions
throughout the country; and (9) that Vargas and Arellano should disqualify themselves from
holding or undertaking an investigation of the planned coup d'etat".

We are satisfied that the letter in question is not sufficient to support plaintiffs' action for
damages. Although the letter says that plaintiffs are under the control of the unnamed
persons therein alluded to as "planners", and that, having been handpicked by Secretary
Vargas and Gen. Arellano, plaintiffs "probably belong to the Vargas-Arellano clique", it
should be noted that defendant, likewise, added that "it is of course possible" that plaintiffs
"are unwitting tools of the plan of which they may have absolutely no knowledge". In other
words, the very document upon which plaintiffs' action is based explicitly indicates that they
might be absolutely unaware of the alleged operational plans, and that they may be merely
unwitting tools of the planners. We do not think that this statement is derogatory to the
plaintiffs, to the point of entitling them to recover damages, considering that they are
officers of our Armed Forces, that as such they are by law, under the control of the
Secretary of National Defense and the Chief of Staff, and that the letter in question seems
to suggest that the group therein described as "planners" include these two (2) high ranking
officers.

It is true that the complaint alleges that the open letter in question was written by the
defendant, knowing that it is false and with the intent to impeach plaintiffs' reputation, to
expose them to public hatred, contempt, dishonor and ridicule, and to alienate them from
their associates, but these allegations are mere conclusions which are inconsistent with the
contents of said letter and can not prevail over the same, it being the very basis of the
complaint. Then too, when plaintiffs allege in their complaint that said communication is
false, they could not have possibly meant that they were aware of the alleged plan to stage
a coup d'etat or that they were knowingly tools of the "planners". Again, the
aforementioned passage in the defendant's letter clearly implies that plaintiffs were not
among the "planners" of said coup d'etat, for, otherwise, they could not be "tools", much
less, unwittingly on their part, of said "planners".

Wherefore, the order appealed from is hereby affirmed. It is so ordered.

PP V. Jalosjos

This Court has declared that the state policy on the heinous offense of rape is clear and
unmistakable. Under certain circumstances, some of them present in this case, the offender
may be sentenced to a long period of confinement, or he may suffer death. The crime is an
assault on human dignity. No legal system worthy of the name can afford to ignore the
traumatic consequences for the unfortunate victim and grievous injury to the peace and
good order of the community.1

Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral
depravity, when committed against a minor.2

In view of the intrinsic nature of the crime of rape where only two persons are usually
involved, the testimony of the complainant is always scrutinized with extreme caution.3

In the present case, there are certain particulars which impelled the court to devote an even
more painstaking and meticulous examination of the facts on record and a similarly
conscientious evaluation of the arguments of the parties. The victim of rape in this case is a
minor below twelve (12) years of age. As narrated by her, the details of the rape are
mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own
guardian whom she treated as a foster father. Because the complainant was a willing victim,
the acts of rape were preceded by several acts of lasciviousness on distinctly separate
occasions. The accused is also a most unlikely rapist. He is a member of Congress. Inspite
of his having been charged and convicted by the trial court for statutory rape, his
constituents liked him so much that they knowingly re-elected him to his congressional
office, the duties of which he could not perform.
Statutory rape committed by a distinguished Congressman on an eleven (11) year old
commercial sex worker is bound to attract widespread media and public attention. In the
words of accused-appellant, "he has been demonized in the press most unfairly, his image
transmogrified into that of a dastardly, ogre, out to get his slimy hands on innocent and
naïve girls to satiate his lustful desires."4 This Court, therefore, punctiliously considered
accused-appellant’s claim that he suffered "invidiously discriminatory treatment." Regarding
the above allegation, the Court has ascertained that the extensive publicity generated by
the case did not result in a mistrial; the records show that the accused had ample and free
opportunity to adduce his defenses.

This is an appeal from the decision5 of the Regional Trial Court of Makati, Branch 62, in
Criminal Case Nos. 96-1985 and 96-1986, convicting accused-appellant Romeo Jalosjos of
two (2) counts of statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989,
96-1990, 96-1992, and 96-1993, for six (6) counts of acts of lasciviousness defined and
penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of
Republic Act No. 7610, also known as the Child Abuse Law.

There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996,
96-1997, and 96-1998, where the accused-appellant was acquitted of the charges of acts of
lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt.

On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve
(12) for acts of lasciviousness defined and penalized under Article 336 of the Revised Penal
Code, in relation to Section 5(b) of Republic Act No. 7610, were filed against accused-
appellant. The accusatory portion of said informations for the crime of statutory rape state:

In Criminal Case No. 96-1985:

The undersigned, upon prior sworn complaint by the offended party, eleven (11)
year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE
defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as
follows:

That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have carnal knowledge with (sic)
eleven year old minor Rosilyn Delantar against her will, with damage and prejudice.

CONTRARY TO LAW.6

In Criminal Case No. 96-1986:

The undersigned, upon prior sworn complaint by the offended party, eleven (11)
year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE
defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as
follows:

That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City,
and within the jurisdiction of this Honorable Court, the above-named accused,
did then and there willfully, unlawfully and feloniously have carnal knowledge
 with (sic) eleven year old minor Rosilyn Delantar against her will, with
damage and prejudice.

CONTRARY TO LAW.7

For acts of lasciviousness, the informations8 under which accused-appellant was convicted

were identical except for the different dates of commission on June 14, 1996; June 15,
1996; June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit:

The undersigned, upon prior sworn complaint by the offended party, eleven (11)-
year old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the crime of ACTS
OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act No. 7610,
otherwise known as the Special Protection of Children against Abuse, Exploitation
and Discrimination Act, committed as follows:

That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz
Towers, Makati City, Metro-Manila and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd design, did then and there
wilfully, unlawfully and feloniously kiss, caress and fondle said complainant's
face, lips, neck, breasts, whole body, and vagina, suck her nipples and insert
his finger and then his tongue into her vagina, place himself on top of her,
then insert his penis in between her thighs until ejaculation, and other similar
lascivious conduct against her will, to her damage and prejudice.

CONTRARY TO LAW.

In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that
on the different dates, the accused gave the complainant P10,000.00, P5,000.00 and
P5,000.00 respectively.

Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence,
the trial court entered a plea of not guilty for him. At the trial, the prosecution presented
eight (8) main witnesses and seven (7) rebuttal witnesses as well as documentary
evidences marked as Exhibits A to EEEE, inclusive of submarkings. The defense, on the
other hand presented twenty-six (26) witnesses. Its documentary evidence consists of
Exhibits 1 to 153, inclusive of submarkings. The records of the case are extremely
voluminous.

The People’s version of the facts, culled mainly from the testimony of the victim, are as
follows:

Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and
almond-shaped black eyes. She grew up in a two-storey apartment in Pasay City under the
care of Simplicio Delantar, whom she treated as her own father. Simplicio was a fifty-six
year old homosexual whose ostensible source of income was
selling longganiza and tocino and accepting boarders at his house. On the side, he was also
engaged in the skin trade as a pimp.

Rosilyn never got to see her mother, though she had known a younger brother, Shandro,
who was also under the care of Simplicio. At a very young age of 5, fair and smooth-
complexioned Rosilyn was exposed by Simplicio to his illicit activities. She and her brother
would tag along with Simplicio whenever he delivered prostitutes to his clients. When she
turned 9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as
Mr. Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors.

Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his
office located near Robinson’s Galleria. Rosilyn and Simplicio were brought there and
introduced by a talent manager by the name of Eduardo Suarez. Accused-appellant
promised to help Rosilyn become an actress. When he saw Rosilyn, accused-appellant asked
how old she was. Simplicio answered, "10. She is going to be 11 on May 11." Accused-
appellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing, so she sang
the song, "Tell Me You Love Me." Accused-appellant then asked if Rosilyn has nice legs and
then raised her skirt up to the mid-thighs. He asked if she was already menstruating, and
Simplicio said yes. Accused-appellant further inquired if Rosilyn already had breasts. When
nobody answered, accused-appellant cupped Rosilyn’s left breast. Thereafter, accused-
appellant assured them that he would help Rosilyn become an actress as he was one of the
producers of the TV programs, "Valiente" and "Eat Bulaga."

Simplicio and Suarez then discussed the execution of a contract for Rosilyn’s movie career.
Accused-appellant, on the other hand, said that he would adopt Rosilyn and that the latter
would have to live with him in his condominium at the Ritz Towers. Before Simplicio and
Rosilyn went home, accused-appellant gave Rosilyn P2,000.00.

The second time Rosilyn met accused-appellant was at his condominium unit, located at
Room 1702, Ritz Towers, Makati City. Accused-appellant and Simplicio discussed the
contract and his plan to finance Rosilyn’s studies. Accused-appellant gave Simplicio
P500.00, thereafter, Rosilyn, Shandro and Simplicio left.

The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss
her acting career. Accused-appellant referred the preparation of Rosilyn’s contract to his
lawyer, who was also present. After the meeting, Simplicio and Rosilyn left. As they were
walking towards the elevator, accused-appellant approached them and gave Rosilyn
P3,000.00.

On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-
appellant’s condominium unit at Ritz Towers. When accused-appellant came out of his
bedroom, Simplicio told Rosilyn to go inside the bedroom, while he and accused-appellant
stayed outside. After a while, accused-appellant entered the bedroom and found Rosilyn
watching television. He walked towards Rosilyn and kissed her on the lips, then left the
room again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-
appellant kissed her to which Simplicio replied, "Halik lang naman."

Rosilyn was left alone in the bedroom watching television. After some time, accused-
appellant came in and entered the bathroom. He came out clad in a long white T-shirt on
which was printed the word, "Dakak." In his hand was a plain white T-shirt. Accused-
appellant told Rosilyn that he wanted to change her clothes. Rosilyn protested and told
accused-appellant that she can do it herself, but accused-appellant answered, "Daddy mo
naman ako." Accused-appellant then took off Rosilyn’s blouse and skirt. When he was about
to take off her panties, Rosilyn said, "Huwag po." Again, accused-appellant told her, "After
all, I am your Daddy." Accused-appellant then removed her panties and dressed her with
the long white T-shirt.
The two of them watched television in bed. After sometime, accused-appellant turned off
the lamp and the television. He turned to Rosilyn and kissed her lips. He then raised her
shirt, touched her breasts and inserted his finger into her vagina. Rosilyn felt pain and cried
out, "Tama na po." Accused-appellant stopped. He continued to kiss her lips and fondle her
breasts. Later, accused-appellant told Rosilyn to sleep.

The following morning, Rosilyn was awakened by accused-appellant whom she found bent
over and kissing her. He told her to get up, took her hand and led her to the bathroom. He
removed Rosilyn’s shirt and gave her a bath. While accused-appellant rubbed soap all over
Rosilyn’s body, he caressed her breasts and inserted his finger into her vagina. After that,
he rinsed her body, dried her with a towel and applied lotion on her arms and legs. Then, he
dried her hair and told her to dress up. Rosilyn put on her clothes and went out of the
bathroom, while accused-appellant took a shower.

Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television.
When accused-appellant entered the room, he knelt in front of her, removed her panties
and placed her legs on his shoulders. Then, he placed his tongue on her vagina. Thereafter,
he gave Rosilyn P10,000.00 and told his housemaid to take her shopping at Shoemart.
When she returned to the Ritz Towers, Simplicio was waiting for her. The two of them went
home. Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded for him
not to bring her back to the Ritz Towers. Simplicio told her that everything was alright as
long as accused-appellant does not have sexual intercourse with her.

That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn
to the Ritz Towers. After Simplicio left, accused-appellant removed Rosilyn’s clothes and
dressed her with the same long T-shirt. They watched television for a while, then accused-
appellant sat beside Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her
shirt above her breasts, and inserted his finger into her vagina. Then, accused-appellant
removed his own clothes, placed his penis between Rosilyn’s thighs and made thrusting
motions until he ejaculated on her thighs. Thereafter, accused-appellant kissed her and told
her to sleep.

The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her.
Again, he rubbed soap all over her body, washed her hair, and thereafter rinsed her body
and dried her hair. While accused-appellant was bathing Rosilyn, he asked her to fondle his
penis while he caressed her breasts and inserted his finger into her vagina. After their
shower, accused-appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just
wait for Simplicio in the condominium unit. On their way home, Simplicio told Rosilyn that if
accused-appellant tries to insert his penis into her vagina, she should refuse.

At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They
found accused-appellant sitting on the bed in his bedroom. Simplicio told Rosilyn to
approach accused-appellant, then he left. Accused-appellant took off Rosilyn’s clothes and
dressed her with a long T-shirt on which was printed a picture of accused-appellant and a
woman, with the caption, "Cong. Jalosjos with his Toy." They watched television for a while,
then accused-appellant lay beside Rosilyn and kissed her on the lips. He raised her shirt and
parted her legs. He positioned himself between the spread legs of Rosilyn, took off his own
shirt, held his penis, and poked and pressed the same against Rosilyn’s vagina. This caused
Rosilyn pain inside her sex organ. Thereafter, accused-appellant fondled her breasts and
told her to sleep.
When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no
longer around but she found P5,000.00 on the table. Earlier that morning, she had felt
somebody touching her private parts but she was still too sleepy to find out who it was.
Rosilyn took a bath, then went off to school with Simplicio, who arrived to fetch her.

The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00
o’clock in the evening in his bedroom at the Ritz Towers. Accused-appellant stripped her
naked and again put on her the long shirt he wanted her to wear. After watching television
for a while, accused-appellant knelt beside Rosilyn, raised her shirt, caressed her breasts
and inserted his finger into her vagina. Then, he clipped his penis between Rosilyn’s thighs,
and made thrusting motions until he ejaculated. Thereafter, Rosilyn went to sleep.

The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing
her and fondling her sex organ. She, however, ignored him and went back to sleep. When
she woke up, she found the P5,000.00 which accused-appellant left and gave the same to
Simplicio Delantar, when the latter came to pick her up.

On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-
appellant took photographs of Rosilyn. He asked her to pose with her T-shirt pulled down
thereby exposing her breasts. He also took her photographs with her T-shirt rolled up to the
pelvis but without showing her pubis, and finally, while straddled on a chair facing the
backrest, showing her legs.

Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and
inserted his finger into her vagina. The following morning, she woke up and found the
P5,000.00 left by accused-appellant on the table. She recalled that earlier that morning, she
felt somebody caressing her breasts and sex organ.

On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had
to wait for accused-appellant, who arrived between 12:00 to 1:00 a.m. He again dressed
her with the long white shirt similar to what he was wearing. While sitting on the bed,
accused-appellant kissed her lips and inserted his tongue into her mouth. He then fondled
her breasts and inserted his finger into her vagina, causing her to cry in pain. Accused-
appellant stopped and told her to sleep.

The next morning, accused-appellant bathed her again. While he soaped her body, he
fondled her breasts and inserted his finger in her vagina. Rosilyn felt pain and shoved his
hand away. After bathing her, accused-appellant had breakfast. Before he left, he gave
Rosilyn P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and then they
left for school.

On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant
was waiting in his bedroom. He took off Rosilyn’s clothes, including her panties, and dressed
her with a long T-shirt similar to what he was wearing. After watching television, accused-
appellant kissed Rosilyn on the lips, inserted his tongue in her mouth and fondled her
breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and placed a pillow
under her back. He inserted his finger in her vagina and mounted himself between her legs
with his hands rested on her sides. After that, he lifted his shirt, then pointed and pressed
his penis against her vagina. Accused-appellant made thrusting motions, which caused
Rosilyn pain. Thereafter, accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but
she did not wake up. When she woke up later, she found P5,000.00 on the table, and she
gave this to Simplicio when he came to fetch her.

On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m.
Accused-appellant was about to leave, so he told them to come back later that evening. The
two did not return.

The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their
boarders. Yamie accompanied Rosilyn to the Pasay City Police, where she executed a sworn
statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the
Department of Social Welfare and Development (DSWD). The National Bureau of
Investigation (NBI) conducted an investigation, which eventually led to the filing of criminal
charges against accused-appellant.

On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame.
The examination yielded the following results:

EXTERNAL AND EXTRAGENITAL

Fairly developed, fairly nourished and coherent female subject. Breasts are conical
with pinkish brown areola and nipples from which no secretions could be pressed out.
Abdomen is flat and soft

GENITAL

There is moderate growth of pubic hair. Labia majora are full, convex and coaptated
with the pinkish brown labia minora presenting in between. On separating the same
disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock
position and deep healed laceration at 8 o'clock position. External vaginal orifice
offers moderate resistance to the introduction of the examining index finger and the
virgin sized vaginal speculum. Vaginal canal is narrow with prominent rugosities.
Cervix is firm and closed.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of application of any form of violence.9

During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it
was his brother, Dominador "Jun" Jalosjos, whom Rosilyn had met, once at accused-
appellant’s Dakak office and twice at the Ritz Towers. Accused-appellant insisted that he
was in the province on the dates Rosilyn claimed to have been sexually abused. He
attributed the filing of the charges against him to a small group of blackmailers who wanted
to extort money from him, and to his political opponents, particularly Ex-Congressman
Artemio Adaza, who are allegedly determined to destroy his political career and boost their
personal agenda.

More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine
Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He stayed in Dipolog until June 18,
1996. He submitted in evidence airline ticket no. 10792424,10 showing that he was on board
Flight PR 165; the said flight’s passenger’s manifest,11 where the name JALOSJOS/RM/MR
appears; and photographs showing accused-appellant’s constituents welcoming his arrival
and showing accused-appellant talking with former Mayor Hermanico Carreon and Fiscal
Empainado.

Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight
from Manila to Dipolog City. On the same flight, he met Armando Nocom of the Philippine
Daily Inquirer. Upon arrival and after talking to his representatives, he proceeded to his
residence known as "Barangay House" in Taguinon, Dapitan, near Dakak Beach resort, and
spent the night there.

On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed
in the house of Barangay Captain Mila Yap until 5:30 p.m. Then, together with some friends,
he visited the Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired
in the "Barangay House" in Taguilon.

On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with
his political leaders at the Blue Room of Dakak, which lasted till the afternoon. In the
evening, he went home and slept in the "Barangay House."

On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night
in the "Barangay House."

On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort.
The blessing ceremony was officiated by Assistant Parish Priest Adelmo Laput.

On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of
Dapitan City. After the mass, he visited the Jamboree site in Barangay Taguilon, Dapitan
City.

He further contended that after his arrival in Dipolog on June 28, 1996, there was never an
instance when he went to Manila until July 9, 1996, when he attended a conference called
by the President of the Philippines.

Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of
PAL from Manila to Dumaguete City. From there, he was flown by a private plane to
Dipolog, where he stayed until the President of the Philippines arrived.

To buttress the theory of the defense, Dominador "Jun" Jalosjos testified that he was the
one, and not accused-appellant, whom Rosilyn met on three occasions. These occurred once
during the first week of May 1996, at accused-appellant’s Dakak office where Rosilyn and
Simplicio Delantar were introduced to him by Eduardo Suarez, and twice at the Ritz Towers
when he interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the proposed
entry of Rosilyn into the show business.

Dominador’s admission of his meetings with Rosilyn on three instances were limited to
interviewing her and assessing her singing and modeling potentials. His testimony made no
mention of any sexual encounter with Rosilyn.

After trial, the court rendered the assailed decision, the dispositive portion of which reads:
 WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond
reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal
in the two (2) counts of statutory rape defined and penalized under Article 335 of the
Revised Penal Code. He is hereby declared CONVICTED in each of these cases.

2. Accordingly, he is sentenced to:

2a. suffer the penalty of reclusion perpetua in each of these cases.

2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as moral damages for each of the cases.

3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-
1993, the prosecution has proven beyond reasonable doubt the guilt of the accused,
ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of lasciviousness
defined under Article 336 of the Revised Penal Code and penalized under Section 5
(b) of R.A. 7610 otherwise known as the Child Abuse Law. He is hereby declared
CONVICTED in each of these cases;

4. Accordingly he is sentenced to:

4.a. suffer in each of the cases an indeterminate prison term of from eight (8)
years, eight (8) months and one (1) day of prision mayor in its medium
period, as maximum, to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal in its medium period, as maximum;

4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY

THOUSAND (P20,000.00) as moral damages for each of the cases;

5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-
1998, the prosecution has failed to prove beyond reasonable doubt the guilt of the
accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness.
Therefore, on the ground of reasonable doubt, the accused in these cases is hereby
ACQUITTED.

SO ORDERED.12

Hence, the instant appeal. Accused-appellant contends:

A.

THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED

ON TESTIMONY OF THE PRIVATE COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA
OF INCONSISTENCIES AND UNTRUTHS.

B.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE

CONFLICTING STATEMENTS GIVEN BY THE PRIVATE COMPLAINANT.
C.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE

COMPLAINANT’S FAILURE TO IDENTIFY THE ACCUSED-APPELLANT.

D.

THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS
A MINOR LESS THAN TWELVE YEARS OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY
TOOK PLACE.

E.

THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST
THE PRIVATE COMPLAINANT.13

In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with
utmost caution. The constitutional presumption of innocence requires no less than moral
certainty beyond any scintilla of doubt. This applies with more vigor in rape cases where the
evidence for the prosecution must stand or fall on its own merits and is not allowed to draw
strength from the weakness of the evidence of the defense. As an inevitable consequence, it
is the rape victim herself that is actually put on trial. The case at bar is no exception. Bent
on destroying the veracity of private complainant’s testimony, the errors assigned by
accused-appellant, particularly the first three, are focused on the issue of credibility.

Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994,
96-1995, 96-1996, 96-1997, and 96-1998, for acts of lasciviousness. According to him, the
fact that the trial court sustained his defense of alibi in the said cases only shows that
Rosilyn concocted her stories and the rest of her testimony ought not to be believed. Stated
differently, accused-appellant urges the application of the doctrine of "falsus in uno falsus in
omnibus" (false in part, false in everything).14

The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of
law and is in fact rarely applied in modern jurisprudence.15 Thus, in People v. Yanson-
Dumancas,16 citing People v. Li Bun Juan,17 this Court held that:

... In this connection it must be borne in mind that the principle falsus in uno
falsus in omnibus is not an absolute one, and that it is perfectly reasonable to believe
the testimony of a witness with respect to some facts and disbelieve it with respect
to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was
quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:

"18. Testimony may be partly credited and partly rejected. --- Trier of facts
are not bound to believe all that any witness has said; they may accept some
portions of his testimony and reject other portions, according to what seems
to them, upon other facts and circumstances to be the truth… Even when
witnesses are found to have deliberately falsified in some material particulars,
the jury are not required to reject the whole of their uncorroborated
testimony, but may credit such portions as they deem worthy of belief." (p.
945)18
Being in the best position to discriminate between the truth and the falsehood, the trial
court's assignment of values and weight on the testimony of Rosilyn should be given
credence. Significantly, it should be borne in mind that the issue at hand hinges on
credibility, the assessment of which, as oft-repeated, is best made by the trial court
because of its untrammeled opportunity to observe her demeanor on the witness stand.

On the demeanor and manner of testifying shown by the complainant, the trial court stated:

Guided by the foregoing principles, this court found no reason why it should not
believe Rosilyn when she claimed she was raped. Testimonies of rape victims
especially those who are young and immature deserve full credence (People v.
Liquiran, 228 SCRA 62 (1993) considering that "no woman would concoct a story of
defloration, allow an examination of her private parts and thereafter allow herself to
be perverted in a public trial if she was not motivated solely by the desire to have
the culprit apprehended and punished." (People v. Buyok, 235 SCRA 622 [1996]).

When asked to describe what had been done to her, Rosilyn was able to narrate
spontaneously in detail how she was sexually abused. Her testimony in this regard
was firm, candid, clear and straightforward, and it remained to be so even during the
intense and rigid cross-examination made by the defense counsel.19

Accused-appellant next argues that Rosilyn’s direct and redirect testimonies were rehearsed
and lacking in candidness. He points to the supposed hesitant and even idiotic answers of
Rosilyn on cross and re-cross examinations. He added that she was trained to give answers
such as, "Ano po?", "Parang po," "Medyo po," and "Sa tingin ko po."

Accused-appellant’s arguments are far from persuasive. A reading of the pertinent transcript
of stenographic notes reveals that Rosilyn was in fact firm and consistent on the fact of rape
and lascivious conduct committed on her by accused-appellant. She answered in clear,
simple and natural words customary of children of her age. The above phrases quoted by
accused-appellant as uttered by Rosilyn are, as correctly pointed out by the Solicitor
General, typical answers of child witnesses like her.

At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand,
may have given some ambiguous answers, they refer merely to minor and peripheral details
which do not in any way detract from her firm and straightforward declaration that she had
been molested and subjected to lascivious conduct by accused-appellant. Moreover, it
should be borne in mind that even the most candid witness oftentimes makes mistakes and
confused statements. At times, far from eroding the effectiveness of the evidence, such
lapses could, indeed, constitute signs of veracity.20

Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in
the five (5) sworn statements executed by Rosilyn as well as in the interviews and case
study conducted by the representatives of the DSWD. In particular, accused-appellant
points to the following documents:

(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros
A. Carrasco of the Pasay City Police;

(2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI
Agents Cynthia L. Mariano and Supervising NBI Agent Arlis E. Vela;
 (3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996;

(4) DSWD Final Case Study Report dated January 10, 1997.

It must be stressed that "rape" is a technical term, the precise and accurate definition of
which could not have been understood by Rosilyn. Indeed, without the assistance of a
lawyer, who could explain to her the intricacies of rape, she expectedly could not distinguish
in her affidavits and consequently disclose with proficient exactitude the act or acts of
accused-appellant that under the contemplation of law constitute the crime of rape. This is
especially true in the present case where there was no exhaustive and clear-cut evidence of
full and complete penetration of the victim’s vagina. It may well be that Rosilyn thought, as
any layman would probably do, that there must be the fullest penetration of the victim’s
vagina to qualify a sexual act to rape.

In People v. Campuhan,21 we ruled that rape is consummated "by the slightest penetration
of the female organ, i.e., touching of either labia of the pudendum by the penis." There
need not be full and complete penetration of the victim’s vagina for rape to be
consummated. There being no showing that the foregoing technicalities of rape was fully
explained to Rosilyn on all those occasions that she was interviewed by the police, the NBI
agents and DSWD social workers, she could not therefore be expected to intelligibly declare
that accused-appellant’s act of pressing his sex organ against her labia without full entry of
the vaginal canal amounted to rape.

In the decision of the trial court, the testimony on one of the rapes is cited plus the court’s
mention of the jurisprudence on this issue, to wit:

Q:       You said that when Congressman Jalosjos inserted his finger into your vagina,
your back was rested on a pillow and your legs were spread wide apart, what else
did he do?

A:       He lifted his shirt, and held his penis; and again "idinikit-dikit niya ang ari
niya sa ari ko." (Italics supplied)

Q:       And, after doing that: "Idinikit-dikit niya yong ari niya sa ari ko"; what else
did he do?

A:       After that, "Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa
ari ko." (underscoring supplied)

(pp. 23, 25 to 30, TSN, 16 April 1997)

It is well-entrenched in this jurisdiction that rape can be committed even without full
penetration of the male organ into the vagina of the woman. It is enough that there
be proof of the entrance of the male organ within the labia of the pudendum of the
female organ. (People vs. Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA
535; People vs. Bacani, 181 SCRA 393). "Penetration of the penis by entry into the
lips of the female organ suffices to warrant a conviction." (People vs. Galimba, G.R.
No. 111563-64, February 20, 1996 citing People vs. Abonada, 169 SCRA 530).
Hence, with the testimony of Rosilyn that the accused pressed against ("idiniin") and
pointed to ("itinutok") Rosilyn’s vagina his sexual organ on two (2) occasions, two
(2) acts of rape were consummated.22
Moreover, it must be borne in mind that Rosilyn’s purpose in executing the affidavits on
August 22 and 26, 1996 before the Pasay City Police was to charge Simplicio Delantar, not
accused-appellant. As aptly pointed out by the trial court, it is preposterous to expect
Rosilyn to make an exhaustive narration of the sexual abuse of accused-appellant when he
was not the object of the said complaint.

Additionally, Rosilyn’s statements, given to the NBI on September 11 and 19, 1996,
concerned mainly the identification of pictures. There was thus no occasion for her to
narrate the details of her sexual encounter with accused-appellant.

As to the interviews and studies conducted by the DSWD, suffice it to state that said
meetings with Rosilyn were specially focused on the emotional and psychological
repercussions of the sexual abuse on Rosilyn, and had nothing to do with the legal actions
being prepared as a consequence thereof. Thus, the documents pertaining to said interviews
and studies cannot be relied upon to reveal every minute aspect of the sexual molestations
complained of.

At any rate, the inconsistencies between the affidavits and Rosilyn’s testimony, if at all they
existed, cannot diminish the probative value of Rosilyn’s declarations on the witness stand.
The consistent ruling of this Court is that, if there is an inconsistency between the affidavit
of a witness and her testimonies given in open court, the latter commands greater weight
than the former.23

In the third assigned error, accused-appellant attempts to impress upon this Court that
Rosilyn gave the name Congressman Romeo Jalosjos as her abuser only because that was
the name given to her by the person to whom she was introduced. That same name,
accused-appellant claims, was merely picked up by Rosilyn from the name plate, plaque,
and memo pad she saw on accused-appellant’s office desk. Accused-appellant presented his
brother, Dominador "Jun" Jalosjos, in an attempt to cast doubt on his culpability. It was
Dominador "Jun" Jalosjos who allegedly met and interviewed Rosilyn at the Dakak office. In
advancement of this theory, accused-appellant cites the fact that out of a total of 16
pictures presented to Rosilyn for identification, she picked up only 4, which depict
Dominador "Jun" Jalosjos. In the same vein, accused-appellant claims that the resulting
cartographic sketch from the facial characteristics given by Rosilyn to the cartographer,
resembles the facial appearance of Dominador "Jun" Jalosjos. Accused-appellant also points
out that Rosilyn failed to give his correct age or state that he has a mole on his lower right
jaw.

Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively
and unhesitatingly identified accused-appellant at the courtroom. Such identification during
the trial cannot be diminished by the fact that in her sworn statement, Rosilyn referred to
accused-appellant as her abuser based on the name she heard from the person to whom
she was introduced and on the name she saw and read in accused-appellant’s office. Verily,
a person’s identity does not depend solely on his name, but also on his physical features.
Thus, a victim of a crime can still identify the culprit even without knowing his name.
Similarly, the Court, in People v. Vasquez,24 ruled that:

It matters little that the eyewitness initially recognized accused-appellant only by

face… [the witness] … acted like any ordinary person in making inquiries to find out
the name that matched [appellant’s] face. Significantly, in open court, he
unequivocally identified accused-appellant as their assailant.
Even in the case of People v. Timon,25 relied upon by accused-appellant to discredit his
identification, this Court said that even assuming that the out-of-court identification of
accused-appellant was defective, their subsequent identification in court cured any flaw that
may have initially attended it.

In light of the foregoing, Rosilyn’s failure to identify accused-appellant out of the 16 pictures
shown to her does not foreclose the credibility of her unqualified identification of accused-
appellant in open court. The same holds true with the subject cartographic sketch which,
incidentally, resembles accused-appellant. As noted by the trial court, accused-appellant
and his brother Dominador Jalosjos have a striking similarity in facial features. Naturally, if
the sketch looks like Dominador, it logically follows that the same drawing would definitely
look like accused-appellant.

Likewise, Rosilyn’s failure to correctly approximate the age of accused-appellant and to

state that he has a mole on the lower right jaw, cannot affect the veracity of accused-
appellant’s identification. At a young age, Rosilyn cannot be expected to give the accurate
age of a 56 year-old person. As to accused-appellant’s mole, the Solicitor General is correct
in contending that said mole is not so distinctive as to capture Rosilyn’s attention and
memory. When she was asked to give additional information about accused-appellant,
Rosilyn described him as having a "prominent belly." This, to our mind, is indeed a more
distinguishing feature that would naturally catch the attention of an eleven year-old child
like Rosilyn.

In his fifth assigned error, accused-appellant insists that the words "idinikit," "itinutok," and
"idiniin-diin," which Rosilyn used to describe what accused-appellant did to her vagina with
his genitals, do not constitute consummated rape. In addition, the defense argued that
Rosilyn did not actually see accused-appellant’s penis in the supposed sexual contact. In
fact, they stressed that Rosilyn declared that accused-appellant’s semen spilled in her thighs
and not in her sex organ.

Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that,

assuming that his penis touched or brushed Rosilyn’s external genitals, the same is not
enough to establish the crime of rape.

True, in People v. Campuhan,26 we explained that the phrase, "the mere touching of the
external genitalia by the penis capable of consummating the sexual act is sufficient to
constitute carnal knowledge," means that the act of touching should be understood here as
inherently part of the entry of the penis into the labia of the female organ and not mere
touching alone of the mons pubis or the pudendum. We further elucidated that:

The pudendum or vulva is the collective term for the female genital organs that are
visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen,
the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that
becomes hairy after puberty, and is instantly visible within the surface. The next
layer is the labia majora or the outer lips of the female organ composed of the outer
convex surface and the inner surface. The skin of the outer convex surface is
covered with hair follicles and is pigmented, while the inner surface is a thin skin
which does not have any hairs but has many sebaceous glands. Directly beneath the
labia majora is the labia minora. Jurisprudence dictates that the labia majora must
be entered for rape to be consummated, and not merely for the penis to stroke the
surface of the female organ. Thus, a grazing of the surface of the female organ or
touching the mons pubis of the pudendum is not sufficient to constitute
 consummated rape. Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of
lasciviousness.27

In the present case, there is sufficient proof to establish that the acts of accused-appellant
went beyond "strafing of the citadel of passion" or "shelling of the castle of orgasmic
potency," as depicted in the Campuhan case, and progressed into "bombardment of the
drawbridge [which] is invasion enough,"28 there being, in a manner of speaking, a conquest
of the fortress of ignition. When the accused-appellant brutely mounted between Rosilyn’s
wide-spread legs, unfetteredly touching, poking and pressing his penis against her vagina,
which in her position would then be naturally wide open and ready for copulation, it would
require no fertile imagination to belie the hypocrisy claimed by accused-appellant that his
penis or that of someone who looked like him, would under the circumstances merely touch
or brush the external genital of Rosilyn. The inevitable contact between accused-appellant’s
penis, and at the very least, the labia of the pudendum of Rosilyn, was confirmed when she
felt pain inside her vagina when the "idiniin" part of accused appellant’s sex ritual was
performed.

The incident on June 18, 1996 was described by Rosilyn as follows:

PROS. ZUNO:

Q.       And, after kissing your lips; after kissing you in your lips, what else did he
do?

A.       After that, he was lifting my shirt.

Q.       Now, while he was lifting your shirt, what was your position; will you tell the
court?

A.       I was lying, sir.

Q.       Lying on what?

A.       On the bed, sir.

Q.       And, after lifting your shirt, what else did he do?

A.       He spread my legs sir.

Q.       And, after spreading your legs apart; what did he do?

A.       After that, he lifted his shirt and held his penis.

Q.       And while he was holding his penis; what did he do?

A.       He pressed it in my vagina.

ATTY. FERNANDEZ:
 May we request that the vernacular be used?

A.       Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.

PROS. ZUNO:

May I respectfully move that the word: "idinikit-dikit niya ang ari niya sa ari ko," be
incorporated?

Q.       And while he was doing that; according to you, "idinikit-dikit niya ang ari niya
sa ari mo;" what did you feel?

A.       I was afraid and then, I cried.

Q.       Will you tell the Court why you felt afraid and why you cried?

A.       Because I was afraid he might insert his penis into my vagina.

Q.       And, for how long did Congressman Jalosjos perform that act, which
according to you, "idinikit-dikit niya yong ari niya sa ari ko?"

COURT:

Place the Tagalog words, into the records.

A.       Sandali lang po yon.

Q.       What part of your vagina, or "ari" was being touched by the ari or penis?

x x x           x x x           x x x

Q.       You said that you felt… I withdraw that question. How did you know that
Congressman Jalosjos was doing, "idinikit-dikit niya yung ari niya sa ari ko?"

A.       Because I could feel it, sir.

Q.       Now, you said you could feel it. What part of the vagina… in what part of your
vagina was Congressman Jalosjos, according to you, "idinikit-dikit niya yong ari niya
sa ari mo?"

A.       In front of my vagina, sir.

Q.       In front of your vagina? O.K.; will you tell the Court the position? Will you
describe the position of Congressman Jalosjos when he was doing that. "Idinikit-dikit
niya sa ari ko?"

A.       Ide-demonstrate ko po ba?

FISCAL ZUNO:
Q.       Can you demonstrate?

x x x           x x x           x x x

A.       He was holding me like this with his one hand; and was holding his penis
while his other hand, or his free hand was on the bed.

x x x           x x x           x x x

PROS. ZUNO:

Now, according to you, you don’t know how to say it; or what was done to
you. Now, will you tell the Court how can you describe what was done to you?

A.       After he "dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito."

Q.       O.K. you said "itinutok niya ito;" what else did he do?

PROS. ZUNO:

She is now trying to describe.

COURT:

Translate.

A.       He seems to be "parang idinidiin po niya."

Q.       Now, what did you feel, when according to you; as I would quote: "parang
idinidiin niya?"

A.       Masakit po.

Q.       And, just to make it clear in Tagalog: Ano itong idinidiin niya?

COURT:

Q.       Sabi mo itinutok. Nakita mo bang itinutok?

A.       I saw him na nakaganuon po sa ano niya.

PROS. ZUNO:

Q.       O.K., clarify. You said "nakaganuon siya" what do you mean by "nakaganuon
siya?"

A.       He was holding his penis, and then, that was the one which he itinutok sa ari
ko.
PROS. ZUNO:

Q.       And, when you said "idinidiin po niya;" to which you are referring? What is
this "idinidiin niya?"

A.       Idinidiin niya ang ari niya sa ari ko.

Q.       And what did you feel when you said: he was "idinidiin niya ang ari niya sa ari
ko?"

A.       Masakit po.

COURT:

The answer is "masakit po."

Proceed.

PROS. ZUNO:

Q.       Where did you feel the pain?

A.       Inside my ari po. (Sa loob po ng ari ko.)

x x x           x x x           x x x

PROS. ZUNO:

Q.       And then, after that, what else did he do

A.       After that, he touched my breast, sir.

Q.       And, after touching your breast, what did he do?

A.       And after that I felt that he was (witness demonstrating to the court, with her
index finger, rubbing against her open left palm)

Q.       And after doing that, what else did he do?

A.       After that, he instructed me to go to sleep.

x x x           x x x           x x x

A.       I put down my clothes and then, I cried myself to sleep, sir.

Q.       Why did you cry? Will you tell the court, why did you cried after putting down
your clothes?

A.       Because I felt pity for myself. (Naaawa po ako sa sarili ko.)

 x x x           x x x           x x x.

(Emphasis supplied.)29

Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the
sketchy visualization of the naïve and uninitiated to conclude that there was indeed penile
invasion by accused-appellant of Rosilyn’s labia. On that occasion, accused-appellant was
similarly ensconced between the parted legs of Rosilyn, except that, this time, Rosilyn was
conveniently rested on, and elevated with a pillow on her back while accused-appellant was
touching, poking and pressing his penis against her vagina. Topped with the thrusting
motions employed by accused-appellant, the resulting pain felt by Rosilyn in her sex organ
was no doubt a consequence of consummated rape.

The pertinent portions of Rosilyn’s account of the July 20, 1996 incident is as follows:

PROS. ZUNO:

x x x           x x x           x x x

Q.       The moment when Cong. Jalosjos inserted his finger into your vagina, what
was your position?

INTERPRETER:

The witness is asking he (sic) she has to demonstrate?

FISCAL ZUNO:

Q.       Ipaliwanag mo lang?

A.       My back was rested on a pillow and my legs were spread apart.

Q.       You said that when Congressman Jalosjos inserted his finger into your vagina,
your back was rested on a pillow and your legs were spread wide apart, what else
did he do?

A.       He lifted his shirt, and held his penis; and again "idinikit-dikit niya ang ari niya
sa ari ko."

Q.       And what did you feel when he was doing that which according to you and I
would quote in Tagalog: "idinikit-dikit niya yong ari niya sa ari ko?"

A.       I was afraid sir.

Q.       And, after doing that: "idinikit-dikit niya yong ari niya sa ari ko," what else did
he do?

A.       After that, "itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari
ko."
 Q.       You said: "Congressman Jalosjos itinutok niya yong ari niya sa ari
ko; at idiniin-diin niya yong ari niya sa ari ko;" Now, while he was doing that act,
what was the position of Congressman Jalosjos?

A.       His two (2) hands were on my side and since my legs were spread apart; he
was in-between them, and doing an upward and downward movement.

(Witness demonstrated a pushing, or pumping movement)

Q.       For how long did Congressman Jalosjos perform that act, pushing or pumping
movement while his penis, or "ang ari niya ay nakatutok at idinidiin-diin yong ari
niya sa ari mo?"

A.       I don’t know.

Q.       And what did you feel when Congressman Jalosjos was making that
movement, pushing, or pumping?

A.       I felt pain and then I cried.

Q.       Where did you feel the pain?

A.       Inside my vagina, sir.

x x x           x x x           x x x.30

The child’s narration of the rape sequence is revealing. The act of "idinikit-dikit niya" was
followed by "itinutok niya xxx at idiniin-diin niya." The "idiniin-diin niya" was succeeded by
"Masakit po." Pain inside her "ari" is indicative of consummated penetration.

The environmental circumstances displayed by the graphic narration of what took place at
the appellant’s room from June 14 to June 16 and June 21 to June 22, 1996 are consistent
with the complainant’s testimony which shows that rape was legally consummated.

In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs
close together --- which, although futile, somehow made it inconvenient, if not difficult, for
the accused-appellant to attempt penetration. On the other hand, the ease with which
accused-appellant herein perpetrated the sexual abuse, not to mention the absence of time
constraint, totally distinguishes the instant case from Campuhan. Here, the victim was
passive and even submissive to the lecherous acts of accused-appellant. Thus, even
assuming that his penis then was flaccid, his act of holding, guiding and assisting his penis
with his one hand, while touching, poking and pressing the same against Rosilyn's vagina,
would surely result in even the slightest contact between the labia of the pudendum and
accused-appellant's sex organ.

Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the
alleged sexual assault at bar, the defense argued that it is highly improbable and contrary
to human experience that accused-appellant exercised a Spartan-like discipline and
restrained himself from fully consummating the sexual act when there was in fact no reason
for him not to do so. In the same light, the defense likewise branded as unnatural the
testimony of Rosilyn that accused-appellant contented himself with rubbing his penis clipped
between her thighs until he reached orgasm and desisted from fully penetrating her, when
Rosilyn was then entirely at his disposal.

The defense seems to forget that there is no standard form of behavior when it comes to
gratifying one’s basic sexual instinct. The human sexual perversity is far too intricate for the
defense to prescribe certain forms of conduct. Even the word "perverse" is not entirely
precise, as what may be perverse to one may not be to another. Using a child of tender
years who could even pass as one’s granddaughter, to unleash what others would call
downright bestial lust, may be utterly nauseating and repulsive to some, but may peculiarly
be a festive celebration of salacious fantasies to others. For all we know, accused-appellant
may have found a distinct and complete sexual gratification in such kind of libidinous stunts
and maneuvers.

Nevertheless, accused-appellant may not have fully and for a longer period penetrated
Rosilyn for fear of perpetrating his name through a child from the womb of a minor; or
because of his previous agreement with his "suking bugaw," Simplicio Delantar, that there
would be no penetration, otherwise the latter would demand a higher price. This may be the
reason why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is bad if
accused-appellant inserts his penis into her sex organ, while at the same time ordering her
to call him if accused-appellant would penetrate her. Such instance of penile invasion would
prompt Simplicio to demand a higher price, which is, after all, as the Solicitor General calls
it, the peculiarity of prostitution.

The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on
her thighs and not in her vagina, only proves that there was no rape. It should be noted
that this portion of Rosilyn’s testimony refers to the June 15 and 21, 1996 charges of acts of
lasciviousness, and not the rape charges. In any event, granting that it occurred during the
twin instances of rape on June 18 and July 20, 1996, the ejaculation on the victim’s thighs
would not preclude the fact of rape.

There is no truth to the contention of the defense that Rosilyn did not see the penis of
accused-appellant. As can be gleaned from the above-quoted portions of the transcripts,
Rosilyn unequivocally testified that accused-appellant held his penis then poked her vagina
with it. And even if she did not actually see accused-appellant’s penis go inside her, surely
she could have felt whether it was his penis or just his finger.

We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at
the time the rape complained of occurred. To bolster the declaration of Rosilyn that she was
then eleven years old, the prosecution presented the following documents:

(1) Rosilyn’s birth certificate showing her birthday as May 11, 1985;31

(2) Rosilyn’s baptismal certificate showing her birthday as May 11, 1985;32

(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11,
1985 to Librada Telen as the mother;33

(4) Marked pages of the Cord Dressing Room Book;34

(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and
her parents’ (Librada Telen and Simplicio Delantar) patient file number (39-10-71);35
 (6) Record of admission showing her parents’ patient number (39-10-71) and
confinement at the Jose Fabella Memorial Hospital from May 5-14, 1985.36

It is settled that in cases of statutory rape, the age of the victim may be proved by the
presentation of her birth certificate. In the case at bar, accused-appellant contends that the
birth certificate of Rosilyn should not have been considered by the trial court because said
birth certificate has already been ordered cancelled and expunged from the records by the
Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 97-81893, dated April
11, 1997.37 However, it appears that the said decision has been annulled and set aside by
the Court of Appeals on June 10, 1999, in CA-G.R. SP No. 45289. The decision of the Court
of Appeals was appealed to this Court by petition for review, docketed as G.R. No. 140305.
Pending the final outcome of that case, the decision of the Court of Appeals is presumed
valid and can be invoked as prima facie basis for holding that Rosilyn was indeed eleven
years old at the time she was abused by accused-appellant.

However, even assuming the absence of a valid birth certificate, there is sufficient and
ample proof of the complainant’s age in the records.

Rosilyn’s Baptismal Certificate can likewise serve as proof of her age. In People v.
Liban,38 we ruled that the birth certificate, or in lieu thereof, any other documentary
evidence that can help establish the age of the victim, such as the baptismal certificate,
school records, and documents of similar nature, can be presented.

And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn
are inadmissible to prove her age, the Master List of Live Births and the Cord Dressing Book
of Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to
prove that her date of birth was May 11, 1985. These documents are considered entries in
official records, admissible as prima facie evidence of their contents and corroborative of
Rosilyn’s testimony as to her age.

Thus, Rule 130, Section 44, of the Rules of Court states:

Entries in official records. --- Entries in official records made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of a
duty especially enjoined by law, are prima facie evidence of the facts therein stated.

In Africa v. Caltex, et al., (Phil), Inc., et al.,39 the Court laid down the requisites for the
application of the foregoing rule, thus:

(a) That the entry was made by a public officer, or by another person specially
enjoined by law to do so;

(b) That it was made by the public officer in the performance of his duties or by such
other person in the performance of a duty specially enjoined by law; and

(c) That the public office or the other person had sufficient knowledge of the facts by
him stated, which must have been acquired by him personally or through official
information.

In order for a book to classify as an official register and admissible in evidence, it is not
necessary that it be required by an express statute to be kept, nor that the nature of the
office should render the book indispensable; it is sufficient that it be directed by the proper
authority to be kept. Thus, official registers, though not required by law, kept as convenient
and appropriate modes of discharging official duties, are admissible.40

Entries in public or official books or records may be proved by the production of the books
or records themselves or by a copy certified by the legal keeper thereof.41 It is not
necessary to show that the person making the entry is unavailable by reason of death,
absence, etc., in order that the entry may be admissible in evidence, for his being excused
from appearing in court in order that public business be not deranged, is one of the reasons
for this exception to the hearsay rule.42

Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,43 mandates
hospitals to report and register with the local civil registrar the fact of birth, among others,
of babies born under their care. Said Decree imposes a penalty of a fine of not less that
P500.00 nor more than P1,000.00 or imprisonment of not less than three (3) months nor
more than six (6) months, or both, in the discretion of the court, in case of failure to make
the necessary report to the local civil registrar.

Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section
44, of the Rules of Court, it is clear that the Cord Dressing Room Book where the fact of
birth, name of the mother and other related entries are initially recorded, as well as the
Master List of Live Births of the hospital, are considered entries in official record, being
indispensable to and appropriate modes of recording the births of children preparatory to
registration of said entries with the local civil registrar, in compliance with a duty specifically
mandated by law.

It matters not that the person presented to testify on these hospital records was not the
person who actually made those entries way back in 1985, but Amelita Avenante, the
records custodian of the hospital in 1995. To reiterate, these records may be proved by the
presentation of the record itself or by a certified copy or the legal keeper thereof. Proof of
the unavailability of the person who made those entries is not a requisite for their
admissibility. What is important is that the entries testified to by Avenante were gathered
from the records of the hospital which were accomplished in compliance with a duty
specifically mandated by law.

Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital
are admissible as evidence of the facts stated therein.

The preparation of these hospital documents preceded that of the birth and baptismal
certificates of Rosilyn. They establish independent and material facts prepared by unbiased
and disinterested persons under environmental circumstances apart from those that may
have attended the preparation of the birth and baptismal certificates. Hence, these hospital
records, to reiterate, are sufficient to support the testimony of Rosilyn as to her age.

Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of
Rosilyn are false and that he merely made them up, particularly her date of birth, was
correctly disregarded by the trial court. It should be noted that the criminal charges for child
abuse filed by Rosilyn against him was the direct cause of his incarceration. This raises a
possibility that Simplicio falsely testified in the present case, to get even with Rosilyn.

Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito
Intruzo because the defense failed to prove that they were knowledgeable as to the
circumstances of Rosilyn’s birth. Their testimonies consist mainly of observations tending to
show that Rosilyn’s appearance belie her claim that she was born on May 11, 1985.

In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July
2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997,
respectively), the trial court acquitted accused-appellant on the ground of reasonable doubt
as the defense was able to prove that accused-appellant was not in Manila but either in
Dipolog or Dapitan City at the time the lascivious acts were supposedly committed. The
evidence of the defense established that accused-appellant flew to Dipolog on June 28,
1996, and stayed there until July 9, 1996.

In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness
allegedly committed both in the early mornings of June 19 and July 21, 1996, Rosilyn
merely testified that she felt somebody touching her private part but failed to identify the
person who was performing those lecherous acts as she was too sleepy to wake up. Hence,
accused-appellant was likewise acquitted in these cases on the ground of reasonable doubt.

With respect, however, to the acts of lasciviousness committed in the morning of June 15
and 22, 1996, and in the evening of June 14, 15, 18, and 21, 1996, as well as the rape
perpetrated on June 18, 1996 and July 20, 1996, accused-appellant failed to account for his
whereabouts. A careful review of the pertinent transcript of stenographic notes reveals that
accused-appellant did not give any testimony as to where he was at the time these crimes
were committed. Clearly, therefore, the trial court correctly disregarded his unsubstantiated
defense of denial, which cannot prevail over his positive identification by Rosilyn as the
culprit.

As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996,
accused-appellant claimed that it was impossible for him to have committed the same
because he flew to Dipolog on that day. The records disclose, however, that accused-
appellant’s flight was at 9:40 a.m. The possibility, therefore, of accused-appellant’s having
performed the lascivious acts on the victim before he went off to the airport is not at all
precluded. For his failure to prove the physical impossibility of his presence at the Ritz
Towers in the morning of June 16, 1996, when the sexual abuse of Rosilyn was committed,
his defense of alibi must fail.

Article III, Section 5 of Republic Act No. 7610, states:

Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who
for money or profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are
deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be

imposed upon the following:

x x x           x x x           x x x

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse; Provided, That when the
victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the
 Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided,
That the penalty for lascivious conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period; x x x . (Emphasis supplied.)

In People v. Optana,44 the Court, citing the case of People v. Larin,45 explained the elements
of the offense of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected other
sexual abuse.

3. The child, whether male or female, is below 18 years of age.

A child is deemed exploited in prostitution or subjected to other sexual abuse, when

the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or
any other consideration; or (b) under the coercion or influence of any adult,
syndicate or group. Under RA 7610, children are "persons below eighteen years of
age or those unable to fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination because of their age or mental
disability or condition."

"Lascivious conduct" is defined under Article XIII, Section 32 of the Implementing Rules and
Regulation of R.A. 7610, as follows:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or opposite sex, with
an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire
of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic
area of a person.

In the case at bar, accused-appellant’s acts of kissing Rosilyn on the lips, fondling her
breast, inserting his finger into her vagina and placing his penis between her thighs, all
constitute lascivious conduct intended to arouse or gratify his sexual desire. Hence, the trial
court correctly convicted accused-appellant of violation of Section 5 (b) of R.A. 7610, or the
Child Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992,
and 96-1993, charging him with the above-described lascivious acts.

The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the
victim is below 12 years of age, is reclusion temporal in its medium period.

The records show that on at least nine (9) separate occasions, the accused-appellant
inserted his finger into the complainant’s vagina. These insertions took place in 1996. A
year later, Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not
apply to this case but it indicates state policy on rape. The Revised Penal Code is now
amended to read as follows:

Article 266-A. Rape; When and How Committed. – Rape is committed –

 1. By a man who have carnal knowledge of a woman under any of the following
circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present.

2. By any person who, under any of the circumstances mentioned in paragraph 1

hereof, shall commit an act of sexual assault by inserting his penis into another
person’s mouth or anal orifice or any instrument or object, into the genital or anal
orifice of another person. (Emphasis supplied.)

Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now
classifies the crime as an offense against persons. Any public prosecutor, not necessarily the
victim or her parents, can prosecute the case.

The penalties for the crime of rape in the light of various circumstances, which are now set
forth and contained in Article 266-B of the Revised Penal Code, have also been increased.

Considering that there are neither mitigating nor aggravating circumstance, the trial court
correctly imposed on accused-appellant the maximum penalty of fifteen (15) years, six (6)
months and twenty (20) days of reclusion temporal, which is within the medium period
of reclusion temporal medium, pursuant to our ruling in Dulla v. Court of
Appeals.46 Notwithstanding that R.A. 7610 is a special law, accused-appellant may enjoy a
minimum term of the indeterminate sentence to be taken within the range of the penalty
next lower to that prescribed by the Code.47 However, the trial court erroneously fixed the
minimum term of the indeterminate sentence at eight (8) years, eight (8) months and one
(1) day of prision mayor in its medium period. In the aforesaid case of Dulla,48 we held that
the penalty next lower in degree to reclusion temporal medium is reclusion temporal
minimum, the range of which is from twelve (12) years and one (1) day to fourteen (14)
years and eight (8) months. Hence, for violation of Article III, Section 5 (b) of R.A. 7610,
accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1)
day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty
(20) days of reclusion temporal as maximum.

At the time of commission of the crimes complained of herein in 1996, statutory rape was
penalized under Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal
Code, to wit:

When and how rape is committed. --- Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

 3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. xxx.

In statutory rape, mere sexual congress with a woman below twelve years of age
consummates the crime of statutory rape regardless of her consent to the act or lack of it.
The law presumes that a woman of tender age does not possess discernment and is
incapable of giving intelligent consent to the sexual act. Thus, it was held that carnal
knowledge of a child below twelve years old even if she is engaged in prostitution is still
considered statutory rape. The application of force and intimidation or the deprivation of
reason of the victim becomes irrelevant. The absence of struggle or outcry of the victim or
even her passive submission to the sexual act will not mitigate nor absolve the accused
from liability.49

In the case at bar, the prosecution established beyond reasonable doubt that accused-
appellant had carnal knowledge of Rosilyn. Moreover, the prosecution successfully proved
that Rosilyn was only eleven years of age at the time she was sexually abused. As such, the
absence of proof of any struggle, or for that matter of consent or passive submission to the
sexual advances of accused-appellant, was of no moment. The fact that accused-appellant
had sexual congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory
rape, and sentenced to suffer the penalty of reclusion perpetua.

As to accused-appellant's civil liability, the amount of moral damages awarded by the trial
court for each count of acts of lasciviousness under Section 5 (b) of R.A. 7610 should be
increased from P20,000.00 to P50,000.00.50 On the other hand, the award of the amount of
P50,000.00 as moral damages for each count of statutory rape was correct.

In People v. Lor,51 citing the cases of People v. Victor,52 and People v. Gementiza,53 we held

that the indemnity authorized by our criminal law as civil indemnity ex delicto for the
offended party, in the amount authorized by the prevailing judicial policy and aside from
other proven actual damages, is itself equivalent to actual or compensatory damages in civil
law. Said civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and
should not be denominated as moral damages which are based on different jural
foundations and assessed by the court in the exercise of sound judicial discretion.54 Hence,
accused-appellant should be ordered to pay the offended party another P50,000.00 as civil
indemnity for each count of rape and acts of lasciviousness.

WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case
Nos. 96-1985 and 96-1986 finding accused-appellant Romeo Jalosjos guilty beyond
reasonable doubt of two counts of statutory rape, and sentencing him to suffer the penalty
of reclusion perpetua for each count, is AFFIRMED. Likewise, the appealed Decision of the
Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 96-
1989, 96-1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond reasonable
doubt of acts of lasciviousness in six counts, is AFFIRMED with MODIFICATIONS. As
modified, accused-appellant is sentenced to suffer, for each count of acts of lasciviousness,
the indeterminate penalty of twelve years (12) and one (1) day of reclusion temporal, as
minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion
temporal as maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn
Delantar, the additional amount of P50,000.00 as civil indemnity for each count of statutory
rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts
of lasciviousness is increased to P50,000.00.
SO ORDERED

Santigo vs. Guingona, 298 SCRA 756

G.R. No. 134577 November 18, 1998

SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO S. TATAD, petitioners,

vs.
SEN. TEOFISTO T. GUINGONA, JR. and SEN. MARCELO B. FERNAN, respondents.

PANGANIBAN, J.:

The principle of separation of powers ordains that each of the three great branches of
government has exclusive cognizance of and is supreme in matters falling within its own
constitutionally allocated sphere. Constitutional respect and a becoming regard for she
sovereign acts, of a coequal branch prevents this Court from prying into the internal
workings of the Senate. Where no provision of the Constitution or the laws or even the
Rules of the Senate is clearly shown to have been violated, disregarded or overlooked,
grave abuse of discretion cannot be imputed to Senate officials for acts done within their
competence and authority. This Court will be neither a tyrant nor a wimp; rather, it will
remain steadfast and judicious in upholding the rule and majesty of the law.

The Case

On July 31, 1998, Senators Miriam Defensor Santiago and Francisco S. Tatad instituted an
original petition for quo warranto under Rule 66, Section 5, Rules of Court, seeking the
ouster of Senator Teofisto T. Guingona, Jr. as minority leader of the Senate and the
declaration of Senator Tatad as the rightful minority leader.

On August 4, 1998, the Court, upon receipt of the Petition, required the respondents and
the solicitor general "to file COMMENT thereon within a non-extendible period of fifteen (15)
days from notice." On August 25, 1998, both respondents and the solicitor general
submitted their respective Comments. In compliance with a Resolution of the Court dated
September 1, 1998, petitioners filed their Consolidated Reply on September 23, 1998.
Noting said pleading, this Court gave due course to the petition and deemed the controversy
submitted for decision, without need of memoranda, on September 29, 1998.

In the regular course, the regional trial courts and this Court have concurrent
jurisdiction1 to hear and decide petitions for quo warranto (as well as certiorari,
prohibition and mandamus), and a basic deference to the hierarchy of courts
impels a filing of such petitions in the lower tribunals. 2 However, for special and
important reasons or for exceptional and compelling circumstances, as in the
present case, this Court has allowed exceptions to this doctrine. 3 In fact, original
petitions for certiorari, prohibition, mandamus and quo warranto assailing acts of
legislative officers like the Senate President 4 and the Speaker of the House 5 have
been recognized as exceptions to this rule.
 The Facts

The Senate of the Philippines, with Sen. John Henry R. Osmeña as presiding
officer, convened on July 27, 1998 for the first regular session of the eleventh
Congress. At the time, in terms of party affiliation, the composition of the Senate
was as follows: 6

10 members — Laban ng Masang Pilipino (LAMP)

7 members — Lakas-National Union of Christian Democrats-United

Muslim Democrats of the Philippines (Lakas-NUCD-

UMDP)

1 member — Liberal Party (LP)

1 member — Aksyon Demokrasya

1 member — People's Reform Party (PRP)

1 member — Gabay Bayan

2 members — Independent

——

23 — total number of senators 7 (The last six members are all

classified by petitioners as "independent".)

On the agenda for the day was the election of officers. Nominated by Sen. Blas F.
Ople to the position of Senate President was Sen. Marcelo B. Fernan. Sen.
Francisco S. Tatad was also nominated to the same position by Sen. Miriam
Defenser Santiago. By a vote of 20 to 2, 8 Senator Fernan was declared the duly
elected President of the Senate.

The following were likewise elected: Senator Ople as president pro tempore, and
Sen. Franklin M. Drilon as majority leader.

Senator Tatad thereafter manifested that, with the agreement of Senator

Santiago, allegedly the only other member of the minority, he was assuming the
position of minority leader. He explained that those who had voted for Senator
Fernan comprised the "majority," while only those who had voted for him, the
losing nominee, belonged to the "minority."

During the discussion on who should constitute the Senate "minority," Sen. Juan
M. Flavier manifested that the senators belonging to the Lakas-NUCD-UMDP Party
— numbering seven (7) and, thus, also a minority — had chosen Senator Guingona
as the minority leader. No consensus on the matter was arrived at. The following
session day, the debate on the question continued, with Senators Santiago and
Tatad delivering privilege speeches. On the third session day, the Senate met in
caucus, but still failed to resolve the issue.

On July 30, 1998, the majority leader informed the body chat he was in receipt of
a letter signed by the seven Lakas-NUCD-UMDP senators,9 stating that they had
elected Senator Guingona as the minority leader. By virtue thereof, the Senate
President formally recognized Senator Guingona as the minority leader of the
Senate.

The following day, Senators Santiago and Tatad filed before this Court the subject
petition for quo warranto, alleging in the main that Senator Guingona had been
usurping, unlawfully holding and exercising the position of Senate minority leader,
a position that, according to them, rightfully belonged to Senator Tatad.

Issues

From the parties' pleadings, the Court formulated the following issues for
resolution:

1. Does the Court have jurisdiction over the petition?

2. Was there an actual violation of the Constitution?

3. Was Respondent Guingona usurping, unlawfully holding and

exercising the position of Senate minority leader?

4. Did Respondent Fernan act with grave abuse of discretion in

recognizing Respondent Guingona as the minority leader?

The Court's Ruling

After a close perusal of the pleadings 10 and a careful deliberation on the

arguments, pro and con, the Court finds that no constitutional or legal infirmity or
grave abuse of discretion attended the recognition of and the assumption into
office by Respondent Guingona as the Senate minority leader.

First Issue:

The Court's Jurisdiction

Petitioners principally invoke Avelino v. Cuenco 11 in arguing that this Court has

jurisdiction to settle the issue of who is the lawful Senate minority leader. They
submit that the definitions of "majority" and "minority" involve an interpretation
of the Constitution, specifically Section 16 (1), Article VI thereof, stating that
"[t]he Senate shall elect its President and the House of Representatives its
Speaker, by a majority vote of all its respective Members."

Respondents and the solicitor general, in their separate Comments, contend in

common that the issue of who is the lawful Senate minority leader is an internal
matter pertaining exclusively to the domain of the legislature, over which the
Court cannot exercise jurisdiction without transgressing the principle of
separation of powers. Allegedly, no constitutional issue is involved, as the
fundamental law does not provide for the office of a minority leader in the Senate.
The legislature alone has the full discretion to provide for such office and, in that
event, to determine the procedure of selecting its occupant.

Respondents also maintain that Avelino cannot apply, because there exists no

question involving an interpretation or application of the Constitution, the laws or
even the Rules of the Senate; neither are there "peculiar circumstances" impelling
the Court to assume jurisdiction over the petition. The solicitor general adds that
there is not even any legislative practice to support the petitioners' theory that a
senator who votes for the winning Senate President is precluded from becoming
the minority leader.

To resolve the issue of jurisdiction, this Court carefully reviewed and deliberated
on the various important cases involving this very important and basic question,
which it has ruled upon in the past.

The early case Avelino v. Cuenco cautiously tackled the scope of the Court's power
of judicial review; that is, questions involving an interpretation or application of a
provision of the Constitution or the law, including the rules of either house of
Congress. Within this scope falls the jurisdiction of the Court over questions on the
validity of legislative or executive acts that are political in nature, whenever the
tribunal "finds constitutionally imposed limits on powers or functions conferred
upon political bodies." 12

In the aforementioned case, the Court initially declined to resolve the question of
who was the rightful Senate President, since it was deemed a political controversy
falling exclusively within the domain of the Senate. Upon a motion for
reconsideration, however, the Court ultimately assumed jurisdiction (1) "in the
light of subsequent events which justify its intervention;" and (2) because the
resolution of the issue hinged on the interpretation of the constitutional provision
on the presence of a quorum to hold a session 13 and therein elect a Senate
President.

Justice Feria elucidated in his Concurring Opinion: "[I] concur with the majority
that this Court has jurisdiction over cases like the present . . . so as to establish in
this country the judicial supremacy, with the Supreme Court as the final arbiter, to
see that no one branch or agency of the government transcends the Constitution,
not only in justiceable but political questions as well." 14

Justice Perfecto, also concurring, said in part:

Indeed there is no denying that the situation, as obtaining in the

upper chamber of Congress, is highly explosive. It had echoed in the
House of Representatives. It has already involved the President of the
Philippines. The situation has created a veritable national crisis, and
it is apparent that solution cannot be expected from any quarter other
than this Supreme Court, upon which the hopes of the people for an
effective settlement are pinned. 15

. . . This case raises vital constitutional questions which no one can

settle or decide if this Court should refuse to decide them. 16
 . . . The constitutional question of quorum should not be left
unanswered. 17

In Tañada v. Cueno, 18 this Court endeavored to define political question. And we

said that "it refers to 'those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch
of the government.' It is concerned with issues dependent upon the wisdom, not
[the] legality, of a particular measure." 19

The Court ruled that the validity of the selection of members of the Senate
Electoral Tribunal by the senators was not a political question. The choice of these
members did not depend on the Senate's "full discretionary authority," but was
subject to mandatory constitutional limitations. 20 Thus, the Court held that not
only was it clearly within its jurisdiction to pass upon the validity of the selection
proceedings, but it was also its duty to consider and determine the issue.

In another landmark case, Lansang v. Garcia, 21 Chief Justice Roberto Concepcion

wrote that the Court "had authority to and should inquire into the existence of the
factual bases required by the Constitution for the suspension of the privilege of
the writ [of habeas corpus]." This ruling was made in spite of the previous
pronouncements in Barcelon v. Baker 22 and Montenegro v. Castañeda 23 that "the
authority to decide whether the exigency has arisen requiring suspension (of the
privilege . . .) belongs to the President and his 'decision is final and conclusive'
upon the courts and upon all other persons." But the Chief Justice cautioned: "the
function of the Court is merely to check — not to supplant — the Executive, or to
ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom
of his act."

The eminent Chief Justice aptly explained later in Javellana v. Executive

Secretary: 24

The reason why the issue under consideration and other issues of
similar character are justiciable, not political, is plain and simple. One
of the principal bases of the non-justiciability of so-called political
questions is the principle of separation of powers — characteristic of
the presidential system of government — the functions of which are
classified or divided, by reason of their nature, into three (3)
categories, namely, 1) those involving the making of laws, which are
allocated to the legislative department; 2) those concerning mainly
with the enforcement of such laws and of judicial decisions applying
and/or interpreting the same, which belong to the executive
department; and 3) those dealing with the settlement of disputes,
controversies or conflicts involving rights, duties or prerogatives that
are legally demandable and enforceable, which are apportioned to
courts of justice. Within its own sphere — but only within such sphere
— each department is supreme and independent of the others, and
each is devoid of authority not only to encroach upon the powers or
field of action assigned to any of the other departments, but also to
inquire into or pass upon the advisability or wisdom of the acts
performed, measures taken or decisions made by the other
 departments — provided that such acts, measures or decisions
are within the area allocated thereto by the Constitution.

Accordingly, when the grant of power is qualified, conditional or

subject to limitations, the issue of whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected is justiciable or non-political, the crux of the problem being
one of legality or validity of the contested act, not its wisdom.
Otherwise, said qualifications, conditions or limitations — particularly
those prescribed by the Constitution — would be set at naught. What
is more, the judicial inquiry into such issue and the settlement
thereof are the main functions of the courts of justice under the
presidential form of government adopted in our 1935 Constitution,
and the system of checks and balances, one of its basic predicates. As
a consequence, we have neither the authority nor the discretion to
decline passing upon said issue, but are under the ineluctable
obligation — made particularly more exacting and peremptory by our
oath, as members of the highest Court of the land, to support and
defend the Constitution — to settle it. This explains why, in Miller v.
Johnson [92 Ky. 589, 18 SW 522, 523], it was held that courts have a
"duty, rather than a power," to determine whether another branch of
the government has "kept within constitutional limits."

Unlike our previous constitutions, the 1987 Constitution is explicit in defining the
scope of judicial power. The present Constitution now fortifies the authority of the
courts to determine in an appropriate action the validity of the acts of the political
departments. It speaks of judicial prerogative in terms of duty, viz.:

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. 25

This express definition has resulted in clearer and more resolute pronouncements
of the Court. Daza v. Singson, 26 Coseteng v. Mitra, Jr. 27 and Guingona Jr. v.
Gonzales 28 similarly resolved issues assailing the acts of the leaders of both
houses of Congress in apportioning among political parties the seats to which each
chamber was entitled in the Commission on Appointments. The Court held that the
issue was justiciable, "even if the question were political in nature," since it
involved "the legality, not the wisdom, of the manner of filling the Commission on
Appointments as prescribed by [Section 18, Article VI of] the Constitution."

The same question of jurisdiction was raised in Tañada v. Angara, 29 wherein the

petitioners sought to nullify the Senate's concurrence in the ratification of the
World Trade Organization (WTO) Agreement. The Court ruled: "Where an action of
the legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute." The Court en banc unanimously stressed that in taking jurisdiction over
petitions questioning, an act of the political departments of government, it will not
review the wisdom, merits or propriety of such action, and will strike it down only
on either of two grounds: (1) unconstitutionality or illegality and (2) grave abuse
of discretion.

Earlier in Co v. Electoral Tribunal of the House of Representatives 30 (HRET), the

Court refused to reverse a decision of the HRET, in the absence of a showing that
said tribunal had committed grave abuse of discretion amounting to lack of
jurisdiction. The Court ruled that full authority had been conferred upon the
electoral tribunals of the House of Representatives and of the Senate as sole
judges of all contests relating to the election, the returns, and the qualifications of
their respective members. Such jurisdiction is original and exclusive. 31 The Court
may inquire into a decision or resolution of said tribunals only if such "decision or
resolution was rendered without or in excess of jurisdiction, or with grave abuse
of discretion" 32

Recently, the Court, in Arroyo v. De Venecia, 33 was asked to reexamine the

enrolled bill doctrine and to look beyond the certification of the Speaker of the
House of Representatives that the bill, which was later enacted as Republic Act
8240, was properly approved by the legislative body. Petitioners claimed that
certain procedural rules of the House had been breached in the passage of the bill.
They averred further that a violation of the constitutionally mandated House rules
was a violation of the Constitution itself.

The Court, however, dismissed the petition, because the matter complained of
concerned the internal procedures of the House, with which the Court had no
concern. It enucleated: 34

It would-be an unwarranted invasion of the prerogative of a coequal

department for this Court either to set aside a legislative action as
void because the Court thinks the House has disregarded its own
rules of procedure, or to allow those defeated in the political arena to
seek a rematch in the judicial forum when petitioners can find their
remedy in that department itself. The Court has not been invested
with a roving commission to inquire into complaints, real or imagined,
of legislative skullduggery. It would be acting in excess of its power
and would itself be guilty of grave abuse of discretion were it to do
so. . . . In the absence of anything to the contrary, the Court must
assume that Congress or any House thereof acted in the good faith
belief that its conduct was permitted by its rules, and deference
rather than disrespect is due the judgment of that body.

In the instant controversy, the petitioners — one of whom is Senator Santiago, a

well-known constitutionalist — try to hew closely to these jurisprudential
parameters. They claim that Section 16 (1), Article VI of the constitution, has not
been observed in the selection of the Senate minority leader. They also invoke the
Court's "expanded" judicial power "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction" on the part
of respondents.

Dissenting in part, Mr. Justice Vicente V. Mendoza submits that the Court has no
jurisdiction over the petition. Well-settled is the doctrine, however, that
jurisdiction over the subject matter of a case is determined by the allegations of
the complaint or petition, regardless of whether the plaintiff or petitioner is
entitled to the relief asserted. 35 In light of the aforesaid allegations of petitioners,
it is clear that this Court has jurisdiction over the petition. It is well within the
power and jurisdiction of the Court to inquire whether indeed the Senate or its
officials committed a violation of the Constitution or gravely abused their
discretion in the exercise of their functions and prerogatives.

Second Issue:

Violation of the Constitution

Having assumed jurisdiction over the petition, we now go to the next crucial
question: In recognizing Respondent Guingona as the Senate minority leader, did
the Senate or its officials, particularly Senate President Fernan, violate the
Constitution or the laws?

Petitioners answer the above question in the affirmative. They contend that the
constitutional provision requiring the election of the Senate President "by majority
vote of all members" carries with it a judicial duty to determine the concepts of
"majority" and "minority," as well as who may elect a minority leader. They argue
that "majority" in the aforequoted constitutional provision refers to that group of
senators who (1) voted for the winning Senate President and (2) accepted
committee chairmanships. Accordingly, those who voted for the losing nominee
and accepted no such chairmanships comprise the minority, to whom the right to
determine the minority leader belongs. As a result, petitioners assert, Respondent
Guingona cannot be the legitimate minority leader, since he voted for Respondent
Fernan as Senate President. Furthermore, the members of the Lakas-NUCD-UMDP
cannot choose the minority leader, because they did not belong to the minority,
having voted for Fernan and accepted committee chairmanships.

We believe, however, that the interpretation proposed by petitioners finds no clear

support from the Constitution, the laws, the Rules of the Senate or even from
practices of the Upper House.

The term "majority" has been judicially defined a number of times. When referring
to a certain number out of a total or aggregate, it simply "means the number
greater than half or more than half of any total."36 The plain and unambiguous
words of the subject constitutional clause simply mean that the Senate President
must obtain the votes of more than one half of all the senators. Not by any
construal does it thereby delineate who comprise the "majority," much less the
"minority," in the said body. And there is no showing that the framers of our
Constitution had in mind other than the usual meanings of these terms.

In effect, while the Constitution mandates that the President of the Senate must
be elected by a number constituting more than one half of all the members
thereof, it does not provide that the members who will not vote for him shall ipso
facto constitute the "minority," who could thereby elect the minority leader.
Verily, no law or regulation states that the defeated candidate shall automatically
become the minority leader.

The Comment 37 of Respondent Guingona furnishes some relevant precedents,

which were not contested in petitioners' Reply. During the eighth Congress, which
was the first to convene after the ratification of the 1987 Constitution, the
nomination of Sen. Jovito R Salonga as Senate President was seconded by a
member of the minority, then Sen. Joseph E. Estrada. 38 During the ninth regular
session, when Sen. Edgardo J. Angara assumed the Senate presidency in 1993, a
consensus was reached to assign committee chairmanships to all senators,
including those belonging to the minority. 39 This practice continued during the
tenth Congress, where even the minority leader was allowed to chair a
committee. 40 History would also show that the "majority" in either house of
Congress has referred to the political party to which the most number of
lawmakers belonged, while the "minority" normally referred to a party with a
lesser number of members.

Let us go back to the definitions of the terms "majority" and "minority." Majority
may also refer to "the group, party, or faction with the larger number of
votes," 41 not necessarily more than one half. This is sometimes referred to as
plurality. In contrast, minority is "a group, party, or faction with a smaller number
of votes or adherents than the majority." 42 Between two unequal parts or
numbers comprising a whole or totality, the greater number would obviously be
the majority while the lesser would be the minority. But where there are more
than two unequal groupings, it is not as easy to say which is the minority entitled
to select the leader representing all the minorities. In a government with a multi-
party system such as in the Philippines (as pointed out by petitioners themselves),
there could be several minority parties, one of which has to be indentified by the
Comelec as the "dominant minority party" for purposes of the general elections. In
the prevailing composition of the present Senate, members either belong to
different political parties or are independent. No constitutional or statutory
provision prescribe which of the many minority groups or the independents or a
combination thereof has the right to select the minority leader.

While the Constitution is explicit on the manner of electing a Senate President and
a House Speaker, it is, however, dead silent on the manner of selecting the other
officers in both chambers of Congress. All that the Charter says is that "[e]ach
House shall choose such other officers as it may deem necessary." 43 To our mind,
the method of choosing who will be such other officers is merely a derivative of
the exercise of the prerogative conferred by the aforequoted constitutional
provision. Therefore, such method must be prescribed by the Senate itself, not by
this Court.

In this regard, the Constitution vests in each house of Congress the power "to
determine the rules of its proceedings." 44 Pursuant thereto, the Senate formulated
and adopted a set of rules to govern its internal affairs. 45 Pertinent to the instant
case are Rules I and II thereof, which provide:

Rule I

ELECTIVE OFFICERS

Sec 1. The Senate shall elect, in the manner hereinafter provided, a

President, a President Pro Tempore, a Secretary, and a Sergeant-at-
Arms.

These officers shall take their oath of office before entering into the
discharge of their duties.
 Rule II

ELECTION OF OFFICER

Sec. 2. The officers of the Senate shall be elected by the majority vote
of all its Members. Should there be more than one candidate for the
same office, a nominal vote shall be taken; otherwise, the elections
shall be by viva voce or by resolution.

Notably, the Rules of the Senate do not provide for the positions of majority and
minority leaders. Neither is there an open clause providing specifically for such
offices and prescribing the manner of creating them or of choosing the holders
thereof, At any rate, such offices, by tradition and long practice, are actually
extant. But, in the absence of constitutional or statutory guidelines or specific
rules, this Court is devoid of any basis upon which to determine the legality of the
acts of the Senate relative thereto. On grounds of respect for the basic concept of
separation of powers, courts may not intervene in the internal affairs of the
legislature; it is not within the province of courts to direct Congress how to do its
work. 46 Paraphrasing the words of Justice Florentino P. Feliciano, this Court is of
the opinion that where no specific, operable norms and standards are shown to
exist, then the legislature must be given a real and effective opportunity to
fashion and promulgate as well as to implement them, before the courts may
intervene. 47

Needless to state, legislative rules, unlike statutory laws, do not have the imprints
of permanence and obligatoriness during their effectivity. In fact, they "are
subject to revocation, modification or waiver at the pleasure of the body adopting
them." 48 Being merely matters of procedure, their observance are of no concern to
the courts, for said rules may be waived or disregarded by the legislative
body 49 at will, upon the concurrence of a majority.

In view of the foregoing, Congress verily has the power and prerogative to provide
for such officers as it may deem. And it is certainly within its own jurisdiction and
discretion to prescribe the parameters for the exercise of this prerogative. This
Court has no authority to interfere and unilaterally intrude into that exclusive
realm, without running afoul of constitutional principles that it is bound to protect
and uphold — the very duty that justifies the Court's being. Constitutional respect
and a becoming regard for the sovereign acts of a coequal branch prevents this
Court from prying into the internal workings of the Senate. To repeat, this Court
will be neither a tyrant nor a wimp; rather, it will remain steadfast and judicious in
upholding the rule and majesty of the law.

To accede, then, to the interpretation of petitioners would practically amount to

judicial legislation, a clear breach of the constitutional doctrine of separation of
powers. If for this argument alone, the petition would easily fail.

While no provision of the Constitution or the laws or the rules and even the
practice of the Senate was violated, and while the judiciary is without power to
decide matters over which full discretionary authority has been lodged in the
legislative department, this Court may still inquire whether an act of Congress or
its officials has been made with grave abuse of discretion. 50 This is the plain
implication of Section 1, Article VIII of the Constitution, which expressly confers
upon the judiciary the power and the duty not only "to settle actual controversies
involving rights which are legally demandable and enforceable," but likewise "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."

Explaining the above-quoted clause, former Chief Justice Concepcion, who was a
member of the 1986 Constitutional Commission, said in part: 51

. . . 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[, the] power to determine whether a
given law is valid or not is vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the

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

This is the background of paragraph 2 of Section 1, which means that

the courts cannot hereafter evade the duty to settle matters of this
nature, by claiming that such matters constitute a political question.

With this paradigm, we now examine the two other issues challenging the actions,
first, of Respondent Guingona and, second, of Respondent Fernan.

Third Issue:

Usurpation of Office

Usurpation generally refers to unauthorized arbitrary assumption and exercise of

power 52 by one without color of title or who is not entitled by law thereto. 53 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. 54 The action
may be brought by the solicitor general or a public prosecutor 55 or any person
claiming to be entitled to the public office or position usurped or unlawfully held
or exercised by another. 56 The action shall be brought against the person who
allegedly usurped, intruded into or is unlawfully holding of exercising such
office. 57

In order for a quo warranto proceeding to be successful, the person suing must

show that he or she has a clear right to the contested office or to use or exercise
the functions of the office allegedly usurped or unlawfully held by the
respondent. 58 In this case, petitioners present no sufficient proof of a clear and
indubitable franchise to the office of the Senate minority leader.
As discussed earlier, the specific norms or standards that may be used in
determining who may lawfully occupy the disputed position has not been laid
down by the Constitution, the statutes, or the Senate itself in which the power has
been vested. Absent any clear-cut guideline, in no way can it be said that illegality
or irregularity tainted Respondent Guingona's assumption and exercise of the
powers of the office of Senate minority leader. Furthermore, no grave abuse of
discretion has been shown to characterize any of his specific acts as minority
leader.

Fourth Issue:

Fernan's Recognition of Guingona

The all-embracing and plenary power and duty of the Court "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" is
restricted only by the definition and confines of the term "grave abuse of
discretion."

By grave abuse of discretion is meant such capricious or whimsical

exercise of judgment as is equivalent to lack of jurisdiction. The
abuse of discretion must be patent and gross as to amount to an
evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law as where the
power is exercised in an arbitrary and despotic manner by reason of
passion and hostility. 59

By the above standard, we hold that Respondent Fernan did not gravely abuse his
discretion as Senate President in recognizing Respondent Guingona as the
minority leader. Let us recall that the latter belongs to one of the minority parties
in the Senate, the Lakas-NUCD-UMDP. By unanimous resolution of the members of
this party that he be the minority leader, he was recognized as such by the Senate
President. Such formal recognition by Respondent Fernan came only after at least
two Senate sessions and a caucus, wherein both sides were liberally allowed to
articulate their standpoints.

Under these circumstances, we believe that the Senate President cannot be

accused of "capricious or whimsical exercise of judgment" or of "an arbitrary and
despotic manner by reason of passion or hostility." Where no provision of the
Constitution, the laws or even the rules of the Senate has been clearly shown to
have been violated, disregarded or overlooked, grave abuse of discretion cannot
be imputed to Senate officials for acts done within their competence and
authority.

WHEREFORE, for the above reasons, the petition is hereby DISMISSED.

SO ORDERED.

People V. Jalosjos
The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now
confined at the national penitentiary while his conviction for statutory rape on two counts
and acts of lasciviousness on six counts1 is pending appeal. The accused-appellant filed this
motion asking that he be allowed to fully discharge the duties of a Congressman, including
attendance at legislative sessions and committee meetings despite his having been
convicted in the first instance of a non-bailable offense.

The issue raised is one of the first impression.

Does membership in Congress exempt an accused from statutes and rules which apply to
validly incarcerated persons in general? In answering the query, we are called upon to
balance relevant and conflicting factors in the judicial interpretation of legislative privilege in
the context of penal law.

The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House

of Representatives" was filed on the grounds that —

1. Accused-appellant's reelection being an expression of popular will cannot be

rendered inutile by any ruling, giving priority to any right or interest — not even the
police power of the State.

2. To deprive the electorate of their elected representative amounts to taxation

without representation.

3. To bar accused-appellant from performing his duties amounts to his

suspension/removal and mocks the renewed mandates entrusted to him by the
people.

4. The electorate of the First District of Zamboanga del Norte wants their voice to be
heard.

5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of

the U.S. Congress.

6. The House treats accused-appellant as a bona fide member thereof and urges a

co-equal branch of government to respect its mandate.

7. The concept of temporary detention does not necessarily curtail the duty of
accused-appellant to discharge his mandate.

8. Accused-appellant has always complied with the conditions/restrictions when

allowed to leave jail.

The primary argument of the movant is the "mandate of sovereign will." He states that the
sovereign electorate of the First District of Zamboanga del Norte chose him as their
representative in Congress. Having been re-elected by his constituents, he has the duty to
perform the functions of a Congressman. He calls this a covenant with his constituents
made possible by the intervention of the State. He adds that it cannot be defeated by
insuperable procedural restraints arising from pending criminal cases.
True, election is the expression of the sovereign power of the people. In the exercise of
suffrage, a free people expects to achieve the continuity of government and the
perpetuation of its benefits. However, inspite of its importance, the privileges and rights
arising from having been elected may be enlarged or restricted by law. Our first task is to
ascertain the applicable law.

We start with the incontestable proposition that all top officials of Government-executive,
legislative, and judicial are subject to the majesty of law. There is an unfortunate
misimpression in the public mind that election or appointment to high government office, by
itself, frees the official from the common restraints of general law. Privilege has to be
granted by law, not inferred from the duties of a position. In fact, the higher the rank, the
greater is the requirement of obedience rather than exemption.

The immunity from arrest or detention of Senators and members of the House of
Representatives, the latter customarily addressed as Congressmen, arises from a provision
of the Constitution. The history of the provision shows that privilege has always been
granted in a restrictive sense. The provision granting an exemption as a special privilege
cannot be extended beyond the ordinary meaning of its terms. It may not be extended by
intendment, implication or equitable considerations.

The 1935 Constitution provided in its Article VI on the Legislative Department.

Sec 15. The Senators and Members of the House of Representatives shall in all cases
except treason, felony, and breach of the peace be privileged from arrest during
their attendance at the sessions of Congress, and in going to and returning from the
same, . . .

Because of the broad coverage of felony and breach of the peace, the exemption applied
only to civil arrests. A congressman like the accused-appellant, convicted under Title Eleven
of the Revised Penal Code could not claim parliamentary immunity from arrest. He was
subject to the same general laws governing all persons still to be tried or whose convictions
were pending appeal.

The 1973 Constitution broadened the privilege of immunity as follows:

Art. VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses
punishable by not more than six years imprisonment, be privileged from arrest
during his attendance at its sessions and in going to and returning from the same.

For offenses punishable by more than six years imprisonment, there was no immunity from
arrest. The restrictive interpretation of immunity and intent to confine it within carefully
defined parameters is illustrated by the concluding portion of the provision, to wit:

. . . but the Batasang Pambansa shall surrender the member involved the custody of
the law within twenty four hours after its adjournment for a recess or for its next
session, otherwise such privilege shall cease upon its failure to do so.

The present Constitution adheres to the same restrictive rule minus the obligation of
Congress to surrender the subject Congressman to the custody of the law. The requirement
that he should be attending sessions or committee meetings has also been removed. For
relatively minor offenses, it is enough that Congress is in session.
The accused-appellant argues that a member of Congress' function to attend sessions is
underscored by Section 16 (2), Article VI of the Constitution which states that —

(2) A majority of each House shall constitute a quorum to do business, but a smaller
number may adjourn from day to day and may compel the attendance of absent
Members in such manner, and under such penalties, as such House may provide.

However, the accused-appellant has not given any reason why he should be exempted from
the operation of Section 11, Article VI of the Constitution. The members of Congress cannot
compel absent members to attend sessions if the reason for the absence is a legitimate one.
The confinement of a Congressman charged with a crime punishable by imprisonment of
more than six months is not merely authorized by law, it has constitutional foundations.

Accused-appellant's reliance on the ruling in Aguinaldo v. Santos2, which states, inter alia,

that —

The Court should never remove a public officer for acts done prior to his present
term of office. To do otherwise would be to deprive the people of their right to elect
their officers. When a people have elected a man to office, it must be assumed that
they did this with the knowledge of his life and character, and that they disregarded
or forgave his fault or misconduct, if he had been guilty of any. It is not for the
Court, by reason of such fault or misconduct, to practically overrule the will of the
people.

will not extricate him from his predicament. It can be readily seen in the above-quoted
ruling that the Aguinaldo case involves the administrative removal of a public officer for acts
done prior to his present term of office. It does not apply to imprisonment arising from the
enforcement of criminal law. Moreover, in the same way that preventive suspension is not
removal, confinement pending appeal is not removal. He remains a congressman unless
expelled by Congress or, otherwise, disqualified.

One rationale behind confinement, whether pending appeal or after final conviction, is public
self-defense. Society must protect itself. It also serves as an example and warning to
others.

A person charged with crime is taken into custody for purposes of the administration of
justice. As stated in United States v. Gustilo,3 it is the injury to the public which State action
in criminal law seeks to redress. It is not the injury to the complainant. After conviction in
the Regional Trial Court, the accused may be denied bail and thus subjected to incarceration
if there is risk of his absconding.4

The accused-appellant states that the plea of the electorate which voted him into office
cannot be supplanted by unfounded fears that he might escape eventual punishment if
permitted to perform congressional duties outside his regular place of confinement.

It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and
evaded capture despite a call from his colleagues in the House of Representatives for him to
attend the sessions and to surrender voluntarily to the authorities. Ironically, it is now the
same body whose call he initially spurned which accused-appellant is invoking to justify his
present motion. This can not be countenanced because, to reiterate, aside from its being
contrary to well-defined Constitutional restrains, it would be a mockery of the aims of the
State's penal system.

Accused-appellant argues that on several occasions the Regional Trial Court of Makati
granted several motions to temporarily leave his cell at the Makati City Jail, for official or
medical reasons, to wit:

a) to attend hearings of the House Committee on Ethics held at the Batasan

Complex, Quezon City, on the issue of whether to expel/suspend him from the House
of Representatives;

b) to undergo dental examination and treatment at the clinic of his dentist in Makati
City;

c) to undergo a thorough medical check-up at the Makati Medical Center, Makati

City;

d) to register as a voter at his hometown in Dapitan City. In this case, accused-

appellant commuted by chartered plane and private vehicle.

He also calls attention to various instances, after his transfer at the New Bilibid Prison in
Muntinlupa City, when he was likewise allowed/permitted to leave the prison premises, to
wit.

a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1)

establishing a mahogany seedling bank and 2) planting mahogany trees, at the NBP
reservation. For this purpose, he was assigned one guard and allowed to use his own
vehicle and driver in going to and from the project area and his place of
confinement.

b) to continue with his dental treatment at the clinic of his dentist in Makati City.

c) to be confined at the Makati Medical Center in Makati City for his heart condition.

There is no showing that the above privileges are peculiar to him or to a member of
Congress. Emergency or compelling temporary leaves from imprisonment are allowed to all
prisoners, at the discretion of the authorities or upon court orders.

What the accused-appellant seeks is not of an emergency nature. Allowing accused-

appellant to attend congressional sessions and committee meeting for five (5) days or more
in a week will virtually make him free man with all the privilege appurtenant to his position.
Such an aberrant situation not only elevates accused-appellant's status to that of a special
class, it also would be a mockery of the purposes of the correction system. Of particular
relevance in this regard are the following observations of the Court in Martinez v. Morfe:5

The above conclusion reached by this Court is bolstered and fortified by policy
considerations. There is, to be sure, a full recognition of the necessity to have
members of Congress, and likewise delegates to the Constitutional Convention,
entitled to the utmost freedom to enable them to discharge their vital
responsibilities, bowing to no other force except the dictates of their conscience of
their conscience. Necessarily the utmost latitude in free speech should be accorded
 them. When it comes to freedom from arrest, however, it would amount to the
creation of a privileged class, without justification in reason, if notwithstanding their
liability for a criminal offense, they would be considered immune during their
attendance in Congress and in going to and returning from the same. There is likely
to be no dissent from the proposition that a legislator or a delegate can perform his
functions efficiently and well, without the need for any transgression of the criminal
law. Should such an unfortunate event come to pass, he is to be treated like any
other citizen considering that there is a strong public interest in seeing to it that
crime should not go unpunished. To the fear that may be expressed that the
prosecuting arm of the government might unjustly go after legislators belonging to
the minority, it suffices to answer that precisely all the safeguards thrown around an
accused by the Constitution, solicitous of the rights of an individual, would constitute
an obstacle to such an attempt at abuse of power. The presumption of course is that
the judiciary would remain independent. It is trite to say that in each and every
manifestation of judicial endeavor, such a virtue is of the essence.

The accused-appellant avers that his constituents in the First District of Zamboanga del
Norte want their voices to be heard and that since he is treated as bona fide member of the
House of Representatives, the latter urges a co-equal branch of government to respect his
mandate. He also claims that the concept of temporary detention does not necessarily
curtail his duty to discharge his mandate and that he has always complied with the
conditions/restrictions when he is allowed to leave jail.

We remain unpersuaded.1âwphi1.nêt

No less than accused-appellant himself admits that like any other member of the House of
Representatives "[h]e is provided with a congressional office situated at Room N-214, North
Wing Building, House of Representatives Complex, Batasan Hills, Quezon City, manned by a
full complement of staff paid for by Congress. Through [an] inter-department coordination,
he is also provided with an office at the Administration Building, New Bilibid Prison,
Muntinlupa City, where he attends to his constituents." Accused-appellant further admits
that while under detention, he has filed several bills and resolutions. It also appears that he
has been receiving his salaries and other monetary benefits. Succinctly stated, accused-
appellant has been discharging his mandate as a member of the House of Representative
consistent with the restraints upon one who is presently under detention. Being a detainee,
accused-appellant should not even have been allowed by the prison authorities at the
National Penitentiary to perform these acts.

When the voters of his district elected the accused-appellant to Congress, they did so with
full awareness of the limitations on his freedom of action. They did so with the knowledge
that he could achieve only such legislative results which he could accomplish within the
confines of prison. To give a more drastic illustration, if voters elect a person with full
knowledge that he suffering from a terminal illness, they do so knowing that at any time, he
may no longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of constitutional equal
protection.

The Constitution guarantees: ". . . nor shall any person be denied the equal protection of
laws."6 This simply means that all persons similarly situated shall be treated alike both in
rights enjoyed and responsibilities imposed.7 The organs of government may not show any
undue favoritism or hostility to any person. Neither partiality not prejudice shall be
displayed.

Does being an elective official result in a substantial distinction that allows different
treatment? Is being a Congressman a substantial differentiation which removes the
accused-appellant as a prisoner from the same class as all persons validly confined under
law?

The performance of legitimate and even essential duties by public officers has never been
an excuse to free a person validly in prison. The duties imposed by the "mandate of the
people" are multifarious. The accused-appellant asserts that the duty to legislative ranks
highest in the hierarchy of government. The accused-appellant is only one of 250 members
of the House of Representatives, not to mention the 24 members of the Senate, charged
with the duties of legislation. Congress continues to function well in the physical absence of
one or a few of its members. Depending on the exigency of Government that has to be
addressed, the President or the Supreme Court can also be deemed the highest for that
particular duty. The importance of a function depends on the need to its exercise. The duty
of a mother to nurse her infant is most compelling under the law of nature. A doctor with
unique skills has the duty to save the lives of those with a particular affliction. An elective
governor has to serve provincial constituents. A police officer must maintain peace and
order. Never has the call of a particular duty lifted a prisoner into a different classification
from those others who are validly restrained by law.

A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious

discriminations are made in favor of or against groups or types of individuals.8

The Court cannot validate badges of inequality. The necessities imposed by public welfare
may justify exercise of government authority to regulate even if thereby certain groups may
plausibly assert that their interests are disregarded.9

We, therefore, find that election to the position of Congressman is not a reasonable
classification in criminal law enforcement. The functions and duties of the office are not
substantial distinctions which lift him from the class of prisoners interrupted in their freedom
and restricted in liberty of movement. Lawful arrest and confinement are germane to the
purposes of the law and apply to all those belonging to the same class.10

Imprisonment is the restraint of a man's personal liberty; coercion exercised upon a person
to prevent the free exercise of his power of
locomotion.11

More explicitly, "imprisonment" in its general sense, is the restraint of one's liberty. As a
punishment, it is restraint by judgment of a court or lawful tribunal, and is personal to the
accused.12 The term refers to the restraint on the personal liberty of another; any
prevention of his movements from place to place, or of his free action according to his own
pleasure and will.13 Imprisonment is the detention of another against his will depriving him
of his power of locomotion14 and it "[is] something more than mere loss of freedom. It
includes the notion of restraint within limits defined by wall or any exterior barrier."15

It can be seen from the foregoing that incarceration, by its nature, changes an individual's
status in society.16 Prison officials have the difficult and often thankless job of preserving the
security in a potentially explosive setting, as well as of attempting to provide rehabilitation
that prepares inmates for re-entry into the social mainstream. Necessarily, both these
demands require the curtailment and elimination of certain rights.17

Premises considered, we are constrained to rule against the accused-appellant's claim that
re-election to public office gives priority to any other right or interest, including the police
power of the State.

WHEREFORE, the instant motion is hereby DENIED.

SO ORDERED.

Kapunan, Panganiban, Quisumbing, Purisima, Pardo Buena and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., and also in separate opinion of Justice Reyes.
Bellosillo, J., I concur in the main and separate opinion.
Melo, J., I join the majority as well as the separate opinion.
Puno, J., I concur with the main and separate opinion.
Vitug, J., I concur in both the ponencia and the separate opinion.
Mendoza, J., I concur in this as well as in the separate opinion of Justice Gonzaga-Reyes.
Gonzaga-Reyes, J., See separate concurring opinion.

Separate Opinions

GONZAGA-REYES, J., concurring opinion;

For resolution in this case is a motion filed by accused-appellant Romeo G. Jalosjos, who
has been convicted by the trial court of two counts of statutory rape and six counts of acts
of lasciviousness, which judgment is currently pending appeal before this Court. As a
member of the House of Representatives, accused-appellant claims that his constituents are
deprived of representation by reason of his incarceration pending appeal of the judgment of
conviction and that he should therefore be allowed to discharge his legislative functions,
including attendance of legislative sessions and committee meetings.

I concur in the ponencia of my colleague Madame Justice Consuelo Ynares-Santiago in

holding that accused-appellant's motion is bereft of any legal merit.

The Bill of Rights provides —

All persons, except those charged with offenses punishable by reclusion perpetua

when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail
shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.1 (emphasis supplied)

This constitutional provision denying the right to bail for offenses punishable by reclusion
perpetua when the evidence of guilt is strong is reiterated in Rule 114 of the Rules of
Criminal Procedure, viz —
 Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life
imprisonment, not bailable. — No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment, when evidence of
guilt is strong, shall be admitted to bail regardless of the stage of the criminal
prosecution.

The trial court found accused-appellant guilty of the crime of statutory rape, which is
punishable by reclusion perpetua. In People v. Divina2 we held that the trial court's
judgment of conviction imports that the evidence of guilt of the crime charged is strong.
Unquestionably, the continued incarceration of accused-appellant is a valid and
constitutionally mandated curtailment of his rights to provisional liberty pending appeal of
his conviction.

Neither may the constitutional provision granting immunity from arrest to legislators provide
legal justification for accused-appellant's motion. The Constitution states that —

A Senator of Member of the House of Representatives shall, in all offenses

punishable by not more than six years imprisonment, be privileged from arrest while
the Congress is in session. No Member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in any committee thereof.3

I agree with the ponencia that to allow accused-appellant to attend legislative sessions

would constitute an unjustified broadening of the privilege from the arrest bestowed by the
Constitution upon members of Congress. Neither the legislative history of this provision nor
the general principles of official immunity support an expanded interpretation of such
privilege.

Unlike the present Constitution, the 1935 Constitution4 limited the privilege from arrests to
"all cases except treason, felony, and breach of the peace." This provision was taken from
the Philippine Autonomy Act of 1916, which was in turn based upon the American
Constitution. In accordance with American precedents, the word "treason, felony and breach
of the peace" have been construed to include all indictable offenses.5 Thus, under the 1935
Constitution the freedom from arrest only encompassed civil arrest.

Under the 19736 and the 1987 Constitution, the privilege was broadened to include arrests
for crimes punishable by imprisonment of six years or less. Despite the expansion of the
privilege, the rationale for granting members of Congress immunity from arrest remained
the same — to ensure that they are not prevented from performing their legislative
duties.7 In fact, the 1986 Constitutional Commission rejected the proposal of one of its
members to expand the scope of the parliamentary immunity to include searches because,
unlike arrest, it was not demonstrated that the conduct of searches would prevent members
of Congress from discharging their legislative functions.8

It is a well-established principle that official immunity is a necessary adjunct to the vigorous

and effective performance of official functions. Members of Congress in particular, who are
called upon to exercise their discretion and judgment in enacting laws responsive to the
needs of the people, would certainly be impeded in the exercise of their legislative functions
if every dissatisfied person could compel them to vindicate the wisdom of their enactments
in an action for damages or question their official acts before the courts.9

It was never the intention of the framers of the 1973 and 1987 Constitutions to shield a
member of Congress from the consequences of his wrongdoing. Thus, despite the widening
of its scope to include criminal offenses, the privilege from arrest is still circumscribed by
the nature or the gravity of the offenses of which the accused is charged. Hence, the
commission of serious crimes, i.e., crimes punishable by afflictive penalties or with capital
punishment, does not fall within the scope of the constitutional privilege. A member of
Congress could only invoke the immunity from arrest for relatively minor offenses,
punishable at most by correctional penalties. As enunciated in Martinez v. Morfe,10 "when it
comes to freedom from arrest, it would amount to the creation of a privileged class, without
justification in reason, if notwithstanding their liability for a criminal offense, they would be
considered immune during their attendance in Congress and in going to and returning from
the same"

The accused-appellant, having been convicted of statutory rape which is punishable

by reclusion perpetua, an afflictive penalty, is obviously not entitled to the privilege of
parliamentary immunity and, proceeding from the above stated rationale for legislative
immunity, a liberal construction of the constitutional privilege is not in order.

It should also be mentioned that, under the factual circumstances of this case, the
applicability of this privilege from arrest to accused-appellant is already moot and academic.
The constitutional provision contemplates that stage of the criminal process at which
personal jurisdiction is sought to be acquired over the accused by means of his arrest.
Accused-appellant is no longer at the point of merely being arrested. As a matter of fact, he
has already been arrested, tried and convicted by the trial court.

Accused-appellant's contention that his re-election constitutes a renewal of his mandate and
that such an expression of the popular will should not be rendered inutile by even the police
power of the State is hollow. In Aguinaldo v. Comelec,11 Aguinaldo v. Santos12 and
in Salalima v. Guingona13 we laid down the doctrine that a public official cannot be removed
for administrative misconduct committed during a prior term, since his re-election to office
operates as a condonation of the officer's previous misconduct to the extent of cutting off
the right to remove therefor. This doctrine of forgiveness or condonation cannot apply to
criminal acts which the re-elected official may have committed during his previous
term.14 The administrative liability of a public officer is separate and distinct from his penal
liability.1âwphi1.nêt

Penal laws are obligatory upon all who live or sojourn in Philippine territory. Since the
Constitution itself provides for the immunities from the general application of our criminal
laws which a Senator or Member of the House of Representatives may enjoy, it follows that
any expansion of such immunities must similarly be based upon an express constitutional
grant.

I vote to deny the motion.