REMEDIAL LAW Provisional Remedies and Special Civil Actions Dean Jess Zachael B. Espejo, LL.M. RULE 66 QUO WARRANTO Part 1 Section 1. Action by Government against individuals. — An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a)A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (0) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or (©) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (1a) DEFINITION A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office (TECSON versus COMMISSION ON ELECTIONS, G.R. No. 161434, March 3, 2004). Quo warranto literally means: "by what authority" (DEL MAR versus PHILIPPINE AMUSEMENT AND GAMING CORPORATION, G.R. No. 138298. November 29, 2000). Quo warranto is a demand made by the state upon some individual or corporation to show by what right they exercise some franchise or privilege appertaining to the state which, according to the Constitution and laws they cannot legally exercise by virtue of a grant and authority from the State (44 Am. Jur. 88-89). REGATCHO versus CLETO. G.R. No. L-61946, December 21, 1983 The writ of quo warranto is an ancient common-law prerogative writ and remedy. In its broadest sense it is a proceeding to determine the right to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well founded, or if he has forfeited his right to enjoy the privilege. It is a demand made through the State by some individual to show by what right an individual or corporation exercises a franchise or privilege belonging to the State which according to the laws of the land they cannot legally exercise except by virtue of a grant or authority from the State (74 C.J.S. 174). The application of the writ has been expanded to include an action by a person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another. The remedy of quo warranto has been extended to cover a voter's action contesting the election of any officer on the ground of ineligibility or disloyalty to the State and jurisdiction over such action is vested in the COMELEC XXX. Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 1 of 17CHARACTERISTICS 1. As the name suggests, quo warranto is a writ of inquiry (REPUBLIC OF THE PHILIPPINES versus SERENO, G.R. No. 237428, May 11, 2018). 2. It is a special civil action. Quo warranto proceedings are regarded as civil actions, and as such, the general rules of civil actions are readily applicable. As a special civil action, however, it is subject to special rules of procedure such as those on venue and periods for filing of pleadings, and certain principles of law are not applied in quo warranto proceedings, such as burden of proof and prescription, when the petition is filed by the Solicitor General. 3. Quo warranto proceedings are essentially judicial in character - it calls for the exercise of the Supreme Court's constitutional duty and power to decide cases and settle actual controversies (REPUBLIC OF THE PHILIPPINES versus SERENO, G.R. No. 237428, May 11, 2018). 4, A quo warranto action is a governmental function and not a proprietary funetion, and therefore the doctrine of laches does not apply (REPUBLIC OF THE PHILIPPINES. versus SERENO, G.R. No. 237428, May 11, 2018). 5. It is a prerogative writ. As such, it is an official order directing the behavior of another arm of government, such as an agency, official, or other court. It is an order or process, the issuance of which is discretionary with the court, as opposed to writs of right. (see DIVINAGRACIA versus CONSOLIDATED BROADCASTING SYSTEM, G.R. No. 162272, April 7, 2009). 6. It isa direct proceeding assailing the title to a public office (REPUBLIC OF THE PHILIPPINES versus SERENO, G.R. No. 237428, May 11, 2018), as opposed to a mere collateral one. 7. It is an extraordinary legal remedy whereby the State challenges a person or an entity to show by what authority he holds a public office or exercises a publie franchise (DEL MAR versus PHILIPPINE AMUSEMENT AND GAMING CORPORATION, G.R. No. 138298. November 29, 2000). 8. Quo warranto presupposes the exercise of original jurisdiction COJUANGCO versus SANDIGANBAYAN G.R. No. 120640 August 8, 1996 (Separate opinion of Justice Regalado) The writ of quo warranto is neither an ancillary writ nor a provisional remedy which can be issued by a court, having jurisdiction over a main case, in the exercise of its ancillary jurisdiction to resolve an incident in that case. The writ of quo warranto is an extraordinary and prerogative writ specifically sought as the principal relief in an action addressed against Provisional Remedies and Special Civil Actions (JZE) Rule 66~— Quo Warranto Part 1 - Page 2 of 17acts of authority unlawfully asserted, and necessarily requires the exercise of the original Jurisdiction of a court. Since the grant of the prerogative writ of quo warranto presupposes the exercise of original jurisdiction as a sine qua non, an original petition therefor cannot be considered as an ancillary remedy against "incidents arising from, incidental to, or related to, such cases." As definitively held in Garcia, et al. vs. De Jesus, et. al., unlike the ancillary writs issued as provisional remedies, the power to issue a writ of quo warranto, just like the other extraordinary writs under Rule 65 of the Rules of Court, is never derived by implication. Such power must be expressly conferred. FUNCTION OF A WRIT OF QUO WARRANTO ‘The function of quo warranto is two-fold. First, it determines title to the office on the basis of a public officer's qualifications. Second, it ousts the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the office. (see REPUBLIC OF THE PHILIPPINES versus SERENO, G.R. No. 237428, May 11, 2018; TECSON versus COMMISSION ON ELECTIONS, G.R. No. 161434, March 3, 2004). Quo warranto tests the right to hold a public office, position or franchise, The remedy of quo warranto is intended to prevent a continuing exercise of an authority unlawfully asserted. ‘The essence of quo warranto is to protect the body politic from the usurpation of public office and to ensure that government authority is entrusted only to qualified individuals, CLASSIFICATIONS OF QUO WARRANTO PROCEEDINGS ‘There are two types of quo warranto proceedings that may be brought under Rule 66. First is mandatory quo warranto under Section 2 and it is so described because the petition must be commenced by Solicitor General or public prosecutor when directed by the President of the Philippines, or when upon complaint or when he has good reason to believe that the cases for quo warranto can be established by proof, Second is discretionary quo warranto under Section 3. It is termed discretionary as it is brought by the Solicitor General or a public prosecutor at the request and upon the relation of another person, provided there is prior leave of court. In such ease, the officer bringing the action may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought. JURISDICTION OVER QUO WARRANTO PETITIONS UNDER RULE 66 ‘There are several courts that concurrently share jurisdiction over petitions for quo warranto. Article VIII, Section 5 of the 1987 Constitution provides that the Supreme Court shall exercise original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. Section 9(1) of Batas Pambansa Blg. 129 (BP 129) also vests upon the Court of Appeals “original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not. in aid of its appellate jurisdiction.” Section 21(1) of BP 129 likewise provides that the Regional Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 3 of 17Trial Courts shall exercise original jurisdiction “()n the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions.” Section 4 of Presidential Decree No. 1606, as amended by Republic Act No. 8249, also provides that the Sandiganbayan “shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1,2,14 and 14-A, issued in 1986.” HIERARCHY OF COURTS DETERMINES PROPER FORUM REPUBLIC OF THE PHILIPPINES versus SERENO G.R. No. 237428, May 11, 2018 Section 5, Article VIII of the Constitution, in part, provides that the Supreme Court shall exercise original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. This Court, the Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue the extraordinary writs, including quo warranto, Relatedly, Section 7, Rule 66 of the Rules of Court provides that the venue of an action for quo warranto, when commenced by the Solicitor General, is either the Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme Court. While the hierarchy of courts serves as a general determinant of the appropriate forum for petitions for the extraordinary writs, a direct invocation of the Supreme Court's original jurisdiction to issue such writs is allowed when there are special and important reasons therefor, clearly and specifically set out in the petition. In the instant case, direct resort to the Court is justified considering that the action for quo warranto questions the qualification of no less than a Member of the Court. The issue of whether a person usurps, intrudes into, or unlawfully holds or exercises a public office is a matter of public concern over which the government takes special interest as it obviously cannot allow an intruder or impostor to occupy a public position. However, while Sereno allowed a direct invocation of the Supreme Court's original jurisdiction to issue extraordinary writs, including quo warranto, when there are special and important reasons, it must be pointed out that the Court en bane, in GIOS-SAMAR, INC., versus DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, G.R. No. 217158, March 12, 2019, seems to have already rejected this exception to the doctrine of hierarchy of courts. Thus, when a question before the Supreme Court in a quo warranto petition involves the determination of a factual issue that is indispensable to the resolution of the legal issue, the Court will refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the transcendental or paramount importance of the case. QUO WARRANTO PETITIONS Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 4 of 17UNDER THE OMNIBUS ELECTION CODE Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code of the Philippines, likewise allows the filing of a petition for quo warranto as a remedy. It provides: Section 253. Petition for quo warranto.- Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election. Any voter contesting the election of any municipal or barangay officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the regional trial court or metropolitan or municipal trial court, respectively, within ten days after the proclamation of the results of the election. JURISDICTION OVER QUO WARRANTO PETITIONS UNDER THE ELECTION CODE A sworn petition for quo warranto may be filed by any voter who has ground to contest the election of any regional, provincial, or city officer. It is the Commission on Elections (COMELEC) that has jurisdiction to entertain the petition. In addition, a sworn petition for quo warranto may be filed by any voter who has ground to contest the election of any municipal or barangay officer. As provided by law, the Regional Trial Court has jurisdiction over petitions naming a municipal officer as respondent. Conversely, where the contest involves a barangay officer, it is the Metropolitan/Municipal Trial Court that has jurisdiction. Any petition filed under Section 253 of the Omnibus Election Code must be based on the ground of either ineligibility or disloyalty to the Republic of the Philippines. The petition must be filed within ten days after the proclamation of the results of the election. DISTINCTIONS BETWEEN RULE 66 QUO WARRANTO AND QUO WARRANTO UNDER THE ELECTION CODE Cine LONI Sn On) As to subject of the ‘The subject of the petition | The subject of the petition is petition an appointive office. an elective office. ‘As to the issue involved | The issue is to be ‘The issue is whether the determined is the legality of | respondent is eligible to the appointment. assume the office to which he was elected. Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 5 of 17‘As to the grounds for | In general, the ground relied | The grounds relied upon are filing upon is lack of qualifications | ineligibility to the position or for appointment. disloyalty to the Republic. ‘As to where the petition | Petition is brought either to |The petition is brought in is instituted the Supreme Court, the the Comelee, the RTC, or the Court of Appeals or the MTC, as the case may be. Regional Trial Court. Tt must be filed within one _ | Tt must be filed within ten period for filing. (1) year from the time the _ | (10) days after the cause of ouster, or the right | proclamation of the results of of the petitioner to hold the | the election. office or position arose. However, if the petition is filed by the State at its own instance, through the Solicitor General, prescription shall not apply. ‘As to who is the proper | The petitioner is the person | ‘The petitioner may be any petitioner entitled to the office, if filed | voter even if he is not under Section 5, entitled to the office. ‘The court will oust the When the tribunal declares person illegally appointed _ | the candidate-elect as and will order that the ineligible, he will be person who was legally unseated but petitioner will appointed and entitled to _| not be declared the rightful the office be seated in the —_| occupant of the office because former's place. the law shall consider only the person who, having duly filed his certificate of candidacy, received a plurality of votes QUO WARRANTO PETITIONS AGAINST, OTHER ELECTED OFFICERS Quo warranto petitions may be filed to question the eligibility of officers not covered by Section 253 of the Omnibus Election Code. These officers are the President and Vice- President of the Philippines, Senators and Members of the House of Representatives. Section 4 of Article VII of the 1987 Constitution provides in part that “(t)he Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.” Rule 16 of AM. No. 10-4-29-SC, or the 2010 Rules of the Presidential Electoral ‘Tribunal, in fact provides that a “verified petition for quo warranto contesting the election of the President or Vice-President on the ground of ineligibility or disloyalty to the Republic of the Philippines may filed by any registered voter who has voted in the election concerned within ten days after the proclamation of the winner.” Provisional Remedies and Special Civil Actions (JZE) Rule 66~— Quo Warranto Part 1 - Page 6 of 17For members of Congress, Article VI, Section 17 of the 1987 Constitution provides that: Section 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the ‘Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Anent the Senate, the Supreme Court in DAVID versus SENATE ELECTORAL TRIBUNAL, G.R. No. 221538, September 20, 2016, had the occasion to state that through Article VI, Section 17, the Constitution segregates from all other judicial and quasi-judicial bodies (particularly, courts and the Commission on Elections) the power to rule on contests relating to the election, returns, and qualifications of members of the Senate. These powers are granted to a separate and distinct constitutional organ. There are two (2) aspects to the exclusivity of the Senate Electoral Tribunals power. The power to resolve such contests is exclusive to any other body. ‘The resolution of such contests is its only task; it performs no other function. It goes without saying that such contests include quo warranto. In fact, quo warranto is specifically provided for under Rule 18 of the 2013 Rules of the Senate Electoral Tribunal. In an action for quo warranto, the burden of proof necessarily falls on the party who brings the action and who alleges that the respondent is ineligible for the office involved in the controversy. In proceedings before quasi-judicial bodies such as the Senate Electoral ‘Tribunal, the requisite quantum of proof is substantial evidence. With respect to the House of Representatives, the Supreme Court, in REYES versus HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, G.R. No. 221103, October 16, 2018, upheld the jurisdiction of the House of Representatives Electoral Tribunal over its members as follows: Under the 2015 HRET Rules, the HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives. This is clear under the first paragraph of Rule 15. Rule 15. Jurisdiction. - The Tribunal is the sole judge of all contests relating to the election, returns, and qualifications of the Members of the House of Representatives. To be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) a valid proclamation; (2) a proper oath; and (3) assumption of office. HRET's jurisdiction is provided under Section 17, Article VI of the 1987 Constitution which states that "[tjhe Senate and the House of Representatives shall Provisional Remedies and Special Civil Actions (JZE) Rule 66~— Quo Warranto Part 1 - Page 7 of 17each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members." Rule 18 of the 2015 HRET Rules allows the filing of a quo warranto petition and provides that: A verified petition for quo warranto on the ground of ineligibility may be filed by any registered voter of the congressional district concerned, or any registered voter in the case of party-list representatives, within fifteen (15) days from June 30 of the election year, if the winning candidate was proclaimed on or before said date. Hows er, if the winning candidate was proclaimed after June 30 of the election year, a verified petition for quo warranto shall be filed within fifteen (15) days from the date of proclamation. The party filing the petition shall be designated as the petitioner, while the adverse party shall be known as the respondent. QUO WARRANTO IS THE PROPER REMEDY TO REVOKE A FRANCHISE DIVINAGRACIA versus CONSOLIDATED BROADCASTING SYSTEM, INC. FACTS: G.R. No, 162272, April 7, 2009 Respondents Consolidated Broadcasting System, Ine. (CBS) and People’s Broadcasting Service, Inc. (PBS) are two of the three networks that comprise the well-known "Bombo Radyo Philippines.” Under both of their legislative franchises to construct, install, maintain and operate radio and television stations within the Philippines, there was a common provision on democratization of ownership that required them to make public offerings through the stock exchanges of at least thirty percent (30%) of their respective common stocks within a period of three (3) years from the date of effectivity of their franchises. Following the enactment of the franchise laws, the National Telecommunications Commission (NTC) issued four (4) Provisional Authorities to PBS and six (6) Provisional Authorities to CBS, allowing them to install, operate and maintain various AM and FM broadcast stations in various locations throughout the nation. Divinagracia filed two complaints with the N'TG, respectively against PBS and CBS. He alleged that he was "the actual and beneficial owner of Twelve percent (12%) of the shares of stock" of PBS and CBS separately, and that despite the provisions on democratization of ownership, both entities had failed to make an offering of their common stocks. Thus, Divinagracia argued in his complaints that the failure on the part of PBS and CBS "to comply with the mandate of their legislative franchise is a misuse of the franchise conferred upon it by law and it continues to exercise its franchise in contravention of the law to the detriment of the general public and of complainant who are unable to enjoy the benefits being offered by a publicly listed company." He thus prayed for the cancellation of all the Provisional Authorities or certificates of public convenience (CPCs) of PBS and CBS on account of the alleged violation of the conditions set therein, as well as in their legislative franchises, Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 8 of 17ISSUE: RULING: Divinagracia posits that the NTC has the power to cancel Provisional Authorities and CPCs, or in effect, the power to cancel the licenses that allow broadcast stations to operate. Does the National Telecommunications Commission (NTC) have jurisdiction over complaints seeking the cancellation of CPCs and other licenses it had issued to the holders of duly-issued legislative franchises on the ground that the franchisees had violated the terms of their franchises? NO. In analyzing the compelling government interest that may justify the investiture of authority on the NTC advocated by petitioner, we cannot ignore the interest of the State as expressed in the respective legislative franchises. XXX Since legislative franchises are extended through statutes, they should receive recognition as the ultimate expression of State policy. What the legislative franchises of respondents express is that the Congress, after due debate and deliberation, declares it as State policy that respondents should have the right to operate broadcast stations. The President of the Philippines, by affixing his signature to the law, concurs in such State policy. Allowing the NTC to countermand State policy by revoking respondent's vested legal right to operate broadcast stations unduly gives to a mere administrative agency veto power over the implementation of the law and the enforcement of especially vested legal rights. That concern would not arise if Congress had similarly empowered the NTC with the power to revoke a franchisee’s right to operate broadcast stations. But as earlier stated, there is no such expression in the law, and by presuming such right the Court will be acting contrary to the stated State interest as expressed in respondents’ legislative franchises. XXX With the legislated state policy strongly favoring the unimpeded operation of the franchisee’s stations, it becomes even more difficult to discern what compelling State interest may be fulfilled in ceding to the NTC the general power to cancel the franchisee's CPC's or licenses absent explicit statutory authorization. This absence of a compelling state interest strongly disfavors petitioner's cause. Now, we shall tackle jointly whether a law or policy allowing the NTC to cancel CPCs or licenses is to be narrowly tailored to achieve that requisite compelling State goal or interest, and whether such a law or policy is the least restrictive means for achieving that interest. We addressed earlier the difficulty of envisioning the compelling State interest in granting the NTC such authority. But let us assume for argument's sake, that relieving the injury complained off by petitioner — the failure of private respondents to open up ownership through the initial public offering mandated by law - is a compelling enough State interest to allow the NTC to extend consequences by canceling the licenses or CPCs of the erring franchisee. Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 9 of 17There is in fact a more appropriate, more narrowly-tailored and least restrictive remedy that is afforded by the law. Such remedy is that adverted to by the NTC and the Court of Appeals ~ the resort to quo warranto proceedings under Rule 6 of the Rules of Court. XXX The special civil action of quo warranto is a prerogative writ by which the Government can call upon any person to show by what warrant he holds a public office or exercises a public franchise. It is settled that "{tJhe determination of the right to the exercise of a franchise, or whether the right to enjoy such privilege has been forfeited by non-user, is more properly the subject of the prerogative writ of quo warranto, the right to assert which, as a rule, belongs to the State ‘upon complaint or otherwise,’ the reason being that the abuse of a franchise is a public wrong and not a private injury.” A forfeiture of a franchise will have to be declared in a direct proceeding for the purpose brought by the State because a franchise is granted by law and its unlawful exercise is primarily a concern of Government. Quo warranto is specifically available as a remedy if it is thought that a government corporation has offended against its corporate charter or misused its franchise. XXX Petitioners argue that since their prayer involves the cancellation of the provisional authority and CPCs, and not the legislative franchise, then quo warranto fails as a remedy. The argument is artificial. The authority of the franchisee to engage in broadcast operations is derived in the legislative mandate. To cancel the provisional authority or the CPC is, in effect, to cancel the franchise or otherwise prevent its exercise. By law, the NTC is incapacitated to frustrate such mandate by unduly withholding or canceling the provisional authority or the CPC for reasons other than the orderly administration of the frequencies in the radio spectrum. What should occur instead is the converse. If the courts conclude that private respondents have violated the terms of their franchise and thus issue the writs of quo warranto against them, then the NTC is obliged to cancel any existing licenses and CPCs since these permits draw strength from the possession of a valid franchise. If the point has not already been made clear, then licenses issued by the NTC such as CPCs and provisional authorities are junior to the legislative franchise enacted by Congress. The licensing authority of the NTC is not on equal footing with the franchising authority of the State through Congress. The issuance of licenses by the NTC implements the legislative franchises established by Congress, in the same manner that the executive branch implements the laws of Congress rather than creates its own laws. And similar to the inability of the executive branch to prevent the implementation of laws by Congress, the NTC cannot, without clear and proper delegation by Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 10 of 17Congress, prevent the exercise of a legislative franchise by withholding or canceling the licenses of the franchisee. And the role of the courts, through quo warranto proceedings, neatly complements the traditional separation of powers that come to bear in our analysis. The courts are entrusted with the adjudication of the legal status of persons, the final arbiter of their rights and obligations under law. The question of whether a franchisee is in breach of the franchise specially enacted for it by Congress is one inherently suited to a court of law, and not for an administrative agency, much less one to which no such function has been delegated by Congress. In the same way that availability of judicial review over laws does not preclude Congress from undertaking its own remedial measures by appropriately amending laws, the viability of quo warranto in the instant cases does not preclude Congress from enforcing its own prerogative by abrogating the legislative franchises of respondents should it be distressed enough by the franchisees’ violation of the franchises extended to them. Evidently, the suggested theory of petitioner to address his plaints simply overpowers the delicate balance of separation of powers, and unduly grants superlative prerogatives to the NTC to frustrate the exercise of the constitutional freedom speech, expression, and of the press. A more narrowly-tailored relief that is responsive to the cause of petitioner not only exists, but is in fact tailor- fitted to the constitutional framework of our government and the adjudication of legal and constitutional rights. Given the current status of the law, there is utterly no reason for this Court to subscribe to the theory that the NTC has the presumed authority to cancel licenses and CPCs issued to due holders of legislative franchise to engage in broadcast operations. QUO WARRANTO AGAINST CORPORATIONS Quo_warranto proceedings against corporations are instituted to demand the forfeiture of their franchise or charter (DEL MAR versus PHILIPPINE AMUSEMENT AND GAMING CORPORATION, G.R. No. 138298, November 29, 2000). Under Section 1(¢) of Rule 66, a quo warranto proceeding may be brought against an association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. Based on the language of this rule, it would appear that the petition may be brought against a de facto corporation and not a de jure corporation, A de jure corporation, or a corporation “as a matter of law,” is one that has completely fulfilled the statutory formalities imposed by law in order to be granted corporate existence. A de facto corporation, or a corporation “in fact” only but not in law, is one which satisfies the following requirements: (a) the existence of a valid law under which it may be incorporated; (b) an attempt in good faith to incorporate; and (c) assumption of corporate powers (SEVENTH DAY ADVENTIST CONFERENCE CHURCH OF SOUTHERN PHILIPPINES, INC., versus NORTHEASTERN MINDANAO MISSION OF SEVENTH DAY ADVENTIST, INC., G.R. No. 150416, July 21, 2006) Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 11 of 17Jurisprudence is settled that "(t)he filing of articles of incorporation and the issuance of the certificate of incorporation are essential for the existence of a de facto corporation.” In. fine, it is the act of registration with SEC through the issuance of a certifieate of incorporation that marks the beginning of an entity's corporate existence (THE MISSIONARY SISTERS OF OUR LADY OF FATIMA versus ALZONA, G.R. No. 224307, August 6, 2018). Generally, an inquiry into the legal existence of a corporation is reserved to the State in a proceeding for quo warranto or other direct proceeding and not by collateral attack. The rule disallowing collateral attacks applies only where the corporation is at least ade facto one. For where it is neither a corporation de jure nor de facto, but a nullity, the rule is that its existence may be, questioned collaterally or directly in any action or proceeding by anyone whose rights or interests are affected thereby. ‘Thus, Section 19 of Republic Act No. 11232, or the Revised Corporation Code of the Philippines, provides: SEC. 19. De facto Corporations. - The due incorporation of any corporation claiming in good faith to be a corporation under this Code, and its right to exercise corporate powers, shall not be inquired into collaterally in any private suit to which such corporation may be a party. Such inquiry may be made by the Solicitor General in a quo warranto proceeding. It is worthy of note that under the 1964 Rules of Court, Rule 66 allowed the filing of petitions for quo warranto against a person who usurps, intrudes into, or unlawfully holds or exercises “an office in a corporation created by authority of law.” Of course, Section 1(a) of Rule 66 of the present Rules no longer contains the immediately quoted phrase. The history, significance and effect of this deletion was thoroughly discussed by the Supreme Court in the case of: CALLEJA versus PANDAY G.R. No. 168696, February 28, 2006 Itshould be noted that allegations in a complaint for quo warranto that certain persons usurped the offices, powers and functions of duly elected members of the board, trustees and/or officers make out a case for an intra-corporate controversy. Prior to the enactment of R.A. No. 8799, the Court, adopting Justice Jose Y. Feria’s view, declared in Unilongo v. Court of Appeals that Section 1, Rule 66 of the 1997 Rules of Civil Procedure is "limited to actions of quo warranto against persons who usurp a public office, position or franchise; public officers who forfeit their office; and associations which act as corporations without being legally incorporated,” while "fajetions of quo warranto against corporations, or against persons who usurp an office in a corporation, fall under the jurisdiction of the Securities and Exchange Commission and are governed by its rules. (P.D. No. 902-A as amended)." However, R.A. No. 8799 was passed and Section 5.2 thereof provides as follows: 5.2. The Commission's jurisdiction over all cases enumerated under Section 5 of Presidential Decree No. 902-A is hereby transferred to the Courts of general Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 12 of 17jurisdiction or the appropriate Regional Trial Court: Provided, That the Supreme Court in the exercise of its authority may designate the Regional Trial Court branches that shall exercise jurisdiction over these cases. Xxx Therefore, actions of quo warranto against persons who usurp an office in a corporation, which were formerly cognizable by the Securities and Exchange Commission under PD 902-A, have been transferred to the courts of general jurisdiction. But, this does not change the fact that Rule 66 of the 1997 Rules of Civil Procedure does not apply to quo warranto cases against persons who usurp an office in a private corporation. XXX As explained in the Unilongo case, Section 1(a) of Rule 66 of the present Rules no longer contains the phrase "or an office in a corporation created by authority of law" which was found in the old Rules. Clearly, the present Rule 66 only applies to actions of quo warranto against persons who usurp a public office, position or franchise; public officers who forfeit their office; and associations which act as corporations without being legally incorporated despite the passage of R.A. No. 8799. It is, therefore, The Interim Rules of Procedure Governing Intra- Corporate Controversies Under R.A. No. 8799 XXX which applies to the petition for quo warranto filed by respondents before the trial court since what is being questioned is the authority of herein petitioners to assume the office and act as the board of directors and officers of St. John Hospital, Incorporated. DISTINCTIONS BETWEEN QUO WARRANTO AND MANDAMUS ‘There are commonalities between quo warranto and mandamus. Both are extraordinary and prerogative writs. In addition, a petition for mandamus may be filed in a situation where a tribunal, entity or person unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled. Quo warranto also involves questions regarding entitlement to office. With these commonalities, there is therefore a point in distinguishing one writ from the other. Thus: As to purpose It is remedy designed to try | It does not lie to try disputed the right or title to the titles but only to enforce office, if the right to the legal duties. office itself is disputed. As to the proper Petition for quo warranto is | Petition for mandamus is respondent directed against the person | against a person who who actually holds the said | unlawfully excludes another office (Burguete v. Mayor, _| from the use and enjoyment G.R. No. L-6538, May 10, _| of a right or office to which 1954) but who usurps, such other is entitled. intrudes into, or unlawfully holds or exercises it. ‘As to when filed Petition must be commenced | The petition shall be filed not within one (1) year after the | later than sixty (60) days cause of such ouster, or the | from notice of the judgment, right of the petitioner to order or resolution. In case a Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 13 of 17hold such office or position, ] motion for reconsideration or arose. new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion. As to applicability of | This remedy applies where _ | This remedy applies only the remedy petitioner's right is still where petitioner's right is doubtful and therefore founded clearly in law. needful of evidence to establish it clear) ‘As to who commences | It must be commenced, in _| Tt may be commenced by any the action certain cases, by the person Solicitor General or public prosecutor, or any person claiming to be entitled to a | public office. ‘As to what right is Tt asserts a public or Te asserts a private right or asserted government right and is interest, as a general rule, brought in the name of the _| and is brought in the name of Republic of the Philippines _| private person. or of a private person, by way of exception. LOTA versus COURT OF APPEALS G.R. No, L-14803, June 30, 1961 While quo warranto and mandamus are often concurrent remedies, however, there exists a clear distinction between the two. The authorities are agreed that quo warranto is the remedy to try the right to an office or franchise and to oust the holder from its enjoyment, while mandamus only lies to enforce clear legal duties, not to try disputed titles; that where there is usurpation or intrusion into an office, quo warranto is the proper remedy, and that where the respondent, without claiming any right to an office, excludes the petitioner therefrom, the remedy is mandamus, not quo warranto. BAR QUESTION 2001 Petitioner Fabian was appointed Election Registrar of the Municipality of Sevilla supposedly to replace the respondent Election Registrar Pablo who was transferred to another municipality without his consent and who refused to accept his aforesaid transfer, much less to vacate his position in Bogo town as election registrar, as in fact he continued to occupy his aforesaid position and exercise his functions thereto. Petitioner Fabian then filed a petition for mandamus against Pablo but the trial court dismissed Fabian’s petition contending that quo warranto is the proper remedy. Is the court correet in its ruling? Why? SUGGESTED ANSWER: Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 14 of 17Yes, the court is correct in its ruling. Mandamus will not lie. This remedy applies only where petitioner's right is founded clearly in law, not when it is doubtful. Pablo was transferred without his consent which is tantamount to removal without cause, contrary to the fundamental guarantee on non-removal except for cause. Considering that Pedro continued to occupy the disputed position and exercise his functions therein, the proper remedy is quo warranto, not mandamus. QUO WARRANTO, NOT CERTIORARI OR PROHIBITION, AS PROPER REMEDY FACTS: TOPACIO versus ASSOCIATE JUSTICE ONG G.R. No. 179895, December 18, 2008 Petitioner Topacio via petition for certiorari and prohibition seeks to prevent. Justice Gregory Ong from further exercising the powers, duties and responsibilities of a Sandiganbayan Associate Justice on the ground that he is not a natural-born Filipino citizen. In Kilosbayan Foundation v. Ermita, the Supreme Court enjoined Ong "from accepting an appointment to the position of Associate Justice of the Supreme Court or assuming the position and discharging the functions of that office, until he shall have successfully completed all necessary steps to show that he is a natural-born Filipino citizen and correct the records of his birth and citizenship." On July 9, 2007, Ong immediately filed with the Regional Trial Court (RTC) a Petition for the “amendment/correction/supplementation or annotation of an entry in his Certificate of Birth” in accordance with the Supreme Court's ruling in Ermita. Meanwhile, petitioner, by verified Letter-Request/Complaint, on September 5, 2007, implored respondent Office of the Solicitor General (OSG) to initiate post- haste a quo warranto proceeding against Ong in the latter's capacity as an incumbent Associate Justice of the Sandiganbayan. Invoking paragraph 1, Section 7, Article VIII of the Constitution in conjunction with the Court’s Decision in Kilosbayan Foundation v. Ermita, petitioner points out that natural-born citizenship is also a qualification for appointment as member of the Sandiganbayan and that Ong has failed to meet the citizenship requirement from the time of his appointment as such in October 1998, ‘The OSG, by letter of September 25, 2007, informed petitioner that it "cannot favorably act on [his] request for the filing of a quo warranto petition until the [RTC] case shall have been terminated with finality." Petitioner assails this position of the OSG as being tainted with grave abuse of discretion, aside from ‘Ong’s continuous discharge of judicial functions. In his petition for certiorari and prohibition, Topacio specifically prayed for the Supreme Court to issue the writs of certiorari and prohibition against Ong, ordering him to cease and desist from further exercising the powers, duties, and responsibilities of a Justice of the Sandiganbayan and issue the writs of Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 15 of 17ISSUE 1 RULING: ISSUE 2: RULING: certiorari and prohibition against Ong and declare that he was disqualified from being appointed to the post of Associate Justice of the Sandiganbayan. Whether or not the filing of the petition for certiorari and prohi proper. ition was NO. By petitioner's admission, what is at issue is Ong’s title to the office of Associate Justice of Sandiganbayan. He claims to have been constrained to file the present petition after the OSG refused to heed his request to institute a suit for quo warranto. XXX While denominated as a petition for certiorari and prohibition, the petition partakes of the nature of a quo warranto proceeding with respect to Ong, for it effectively seeks to declare null and void his appointment as an Associate Justice of the Sandiganbayan for being unconstitutional. While the petition professes to be one for certiorari and prohibition, petitioner even adverts to a "quo warranto” aspect of the petition. Being a collateral attack on a public officer's title, the present petition for certiorari and prohibition must be dismissed. The title to a public office may not be contested except directly, by quo warranto proceedings; and it cannot be assailed collaterally, even through mandamus or a motion to annul or set aside order. In Nacionalista Party v. De Vera, the Court ruled that prohibition does not lie to inquire into the validity of the appointment of a public officer. xxx [T)he writ of prohibition, even when directed against persons acting as judges or other judicial officers, cannot be treated as a substitute for quo warranto or be rightfully called upon to perform any of the functions of the writ. If there is a court, judge or officer de facto, the title to the office and the right to act cannot be questioned by prohibition. If an intruder takes possession of a judicial office, the person dispossessed cannot obtain relief through a writ of prohibition commanding the alleged intruder to cease from performing judicial acts, since in its very nature prohibition is an improper remedy by which to determine the title to an office. Whether or not petition for certiorari and prohibition will prosper if the Supreme Court treats it as one for quo warranto. NO. Even if the Court treats the case as one for quo warranto, the petition is, just the same, dismissible. A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested public office and to oust the holder from its enjoyment. It is brought against the person who is alleged to have usurped, intruded into, or unlawfully held or exercised the public office, and may be commenced by the Solicitor General or a public prosecutor, as the case may be, or by any person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another. Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 16 of 17Nothing is more settled than the principle, which goes back to the 1905 case of Acosta v. Flor, reiterated in the recent 2008 case of Feliciano v. Villasin, that for a quo warranto petition to be successful, the private person suing must show a clear right to the contested office. In fact, not even a mere preferential right to be appointed thereto can lend a modicum of legal ground to proceed with the action. In the present case, petitioner presented no sufficient proof of a clear and indubitable franchise to the office of an Associate Justice of the Sandiganbayan. He in fact concedes that he was never entitled to assume the office of an Associate Justice of the Sandiganbayan. DISTINCTIONS BETWEEN QUO WARRANTO AND PROHIBITION ‘As to what usurpation | Quo warranto addresses Prohibition addresses is addressed usurpation of a public office, | usurpation of jurisdiction. position or franchise, ‘As to who asserts that | In effect, it is the State that | It is the petitioner, a private there is usurpation asserts that there is party, who asserts that there usurpation. is usurpation As to need to allege Tt does not require an It requires that there must jurisdictional defects _ | allegation of jurisdictional _ | be lack or excess of errors but instead requires | jurisdiction, or grave abuse of that there is an unlawful act | discretion amounting to lack | that affects an office. or excess of jurisdiction. ‘As to who commences | It must. be commenced, in __| It is commenced by any party the action certain cases, by the affected by such usurpation Solicitor General or public _| of jurisdiction. prosecutor, or any person claiming to be entitled to a public office. ‘As to period within Petition must be commenced | The petition shall be filed not which to file action within one (1) year after the | later than sixty (60) days cause of such ouster, or the | from notice of the judgment, right of the petitioner to order or resolution. In case a hold such office or position, | motion for reconsideration or arose. new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion, Provisional Remedies and Special Civil Actions (JZE) Rule 66— Quo Warranto Part 1 - Page 17 of 17